The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.73 of 2017 Pradyumna Kumar Jena Laxmipriya Jena …. -versus- …. Appellant Repondent Advocates appeared in this case: For petitioner For Respondent
Legal Reasoning
: Mr. Bansidhar Baug, Advocate : Mr. Sameer Kumar Mishra, Sr. Advocate Laxmipriya Jena MATA No.79 of 2017 …. -versus- Appellant Pradyumna Kumar Jena …. Respondent Advocates appeared in this case: For petitioner For Respondent : Mr. Sameer Kumar Parida, Sr. Advocate : Mr. Bansidhar Baug, Advocate CORAM: THE HON’BLE MR. JUSTICE ARINDAM SINHA AND THE HON’BLE MR. JUSTICE M.S. SAHOO JUDGMENT ------------------------------------------------------------------------------------------- Dates of hearing : 4th November, 2024 and 26th November, 2024 Date of Judgment : 26th November, 2024 ------------------------------------------------------------------------------------------- Page 1 of 5 ARINDAM SINHA, J. 1. Mr. Baug, learned advocate appears on behalf of appellant in MATA no.73 of 2017, who is the elder son and aggrieved by judgment dated 9th May, 2017, by which the Family Court directed payment of maintenance to his mother. The other appeal (MATA no.79 of 2017) is by the mother, seeking enhancement. Mr. Baug submits, his father had worked as Professor in Utkal University. He retired with terminal benefits and ultimately died on 7th February, 2022. His mother is getting family pension. Younger brother of his client has taken away his mother from his client. In respect of property there has been suit filed, purportedly by his mother but actually at instance of the younger brother. He is a practicing advocate in Balasore Court. He is the one behind the litigation, claiming to be unemployed. 2. Mr. Baug draws attention to application filed by his client (I.A. no.13 of 2024), in which stands disclosed unregistered will dated 3rd August, 2015 made by appellant. By it she bequeathed immovable property to her grandson from her younger son. On query made Mr. Baug submits, acquisition of the property is shown, inter alia, by deeds dated 16th January, 1959 and 21st May, 1963. He submits further, sale deeds were executed by his mother in favour of himself and his brother. He reiterates, at instance of younger brother of his client, suit was filed for cancellation of the sale deeds and the will executed. MATA nos.73 and 79 of 2017 Page 2 of 5 3. He submits, now his client is retired. He has the time and wants to take care of his mother. There be direction for his mother to join him at his place to residence in Bhubaneswar. 4. Mr. Mishra, learned senior advocate appears on behalf of respondent (the mother). He submits, making of a Will does not attach the property to the testator. Proving genuineness of a Will and that the person had authority to direct disposal of the property bequeathed are two different things. The property was dealt with earlier by his client, in favour of her two sons. Appellant filed for partition. His client filed for cancellation of the sale deed. In the circumstances, she had impression she is owner of the property. Making of the Will does not render incorrect her statement in the petition filed before the Family Court that she does not have property. He submits further, it is the prerogative of the parent in need of maintenance, to claim from any one of her sons. 5. Two applications have been made, both by appellant and respondent, for adducing additional evidence in the appeal. Appellant wants to rely on Will executed by respondent and notarized on 3rd August, 2015. Making of the Will precedes date of impugned judgment. We have not had a contention of dispute raised against making of the Will, without going into the circumstances. Respondent wants to adduce as additional evidence, MATA nos.73 and 79 of 2017 Page 3 of 5 information regarding appellant earning, while he was in service. Now he is retired since October, 2019. 6. Reproduced below is paragraph-2 from our order dated 4th November, 2024. “2. On perusal of petition filed by respondent, it appears she had claimed maintenance only from appellant. She said that her younger son is unemployed and separated from her. Though her husband was alive at the time of filing the petition, he was undergoing treatment and therefore unable to maintain her. She made clear assertion that she had no immovable property standing in her name.” 7. It appears from the Will disclosed, respondent sought to deal with property, she said was hers. Thereby she bequeathed it to her grandson from her younger son. The bequeath was with a condition that her husband, during his lifetime, could reside in the pucca residence. She appointed her younger daughter-in-law as executor. It further appears, respondent who said in her petition for maintenance she did not have property, had bequeathed property said to be hers. This was not disclosed to the Family Court. We have also been told that respondent filed for cancellation of sale deed. If her statement in the petition that she did not have immovable property is found to be correct then her suit is likely to fail. On the other hand, if her statement on MATA nos.73 and 79 of 2017 Page 4 of 5 property is found to be incorrect, it will have a consequence regarding finding on maintenance. 8. On perusal of provisions in rules 27 to 29 under order 41, Code of Civil Procedure, 1908 and rule 23-A under said order, we think the controversy between the parties can be best adjudicated on remand. 9. Impugned judgment is set aside with direction for remand. The Family Court will allow parties to adduce further evidence and thereupon decide on the claim for maintenance. In exercise of our appellate power we direct appellant to deposit ₹2,00,000/- with Registrar, Civil Court, Balasore. The deposit is to be made by 16th December, 2024, failing which impugned judgment will be deemed to have been confirmed. In event, the deposit is made, the Registrar will invest it in a short-term interest bearing deposit account in any nationalized bank and keep it renewed to credit of the civil proceeding pending in the Family Court on restoration. The Family Court will make appropriate direction in respect of the deposit in expeditiously dealing with the civil proceeding on remand.
Decision
10. Both the appeals are disposed of. Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Reason: Authentication Location: ORISSA HIGH COURT Date: 26-Nov-2024 19:33:39 ( Arindam Sinha ) Judge ( M.S. Sahoo ) Judge Sks MATA nos.73 and 79 of 2017 Page 5 of 5