SC: No abandonment of separate personal rights if family uses property

On 1st May 2019, The Hon’ble Supreme Court, in the matter of S. Subramanian v. S. Ramasamy Etc. Etc.pronounced that merely allowing other family members also to use the property or to utilise the income of a self-acquired property out of generosity to support the family members does not lead to an inference that the self-acquired property has been abandoned into joint family’s common stock.

The Hon’ble Supreme court observed that:

While deciding the second appeal under Section 100 of the CPC, the High Court is not required to re­appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. (Para 8.1)

The Second Appeal would be maintainable only on substantial question of law. (Para 8.2)

The Second Appeal does not lie on question of facts or of law. (Para 8.2)

The existence of ‘a substantial question of law’ is a sine qua non for the exercise of the jurisdiction under Section 100 of the CPC. (Para 8.2)

So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. (Para 8.5)

It is not permissible for the High Court to re­appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. (Para 8.5)

Property separate or self-­acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. Clear intention to abandon the separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilisation of income of the separate property out of generosity to support the family members. (Para 9.1)

In any case, when on appreciation of evidence on record including the documentary evidence which came to be re­ appreciated by the High Court, both the Courts below came to the conclusion that there was no blending of the suit properties into joint family properties, the High Court in exercise of its powers under Section 100 of the CPC, is not justified in reversing those findings which were on appreciation of evidence on record. (Para 9.1)

Copy of judgement: Judgement_01-May-2019

-Tushar Kaushik

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