Cross appeals over a Family Court maintenance order: the son challenged the award; the mother sought enhancement. An unregistered will by the mother contradicting her no-property statement emerged. The High Court set aside the judgment and remanded for further evidence, with a conditional deposit by the appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No.73 of 2017
Pradyumna Kumar Jena …. Appellant
-versus-
Laxmipriya Jena
…. Repondent
Advocates appeared in this case:
For petitioner : Mr. Bansidhar Baug, Advocate For Respondent : Mr. Sameer Kumar Mishra, Sr. Advocate
MATA No.79 of 2017
Laxmipriya Jena
…. Appellant
-versus-
Pradyumna Kumar Jena
…. Respondent
Advocates appeared in this case:
For petitioner : Mr. Sameer Kumar Parida, Sr. Advocate For Respondent : 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.
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MATA nos.73 and 79 of 2017
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,
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MATA nos.73 and 79 of 2017
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
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MATA nos.73 and 79 of 2017
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.
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
Page 5 of 5
Sks
MATA nos.73 and 79 of 2017
2 issues framed by the court
Whether the respondent's undisclosed will bequeathing immovable property contradicts her Family Court claim of owning no property and affects her entitlement to maintenance.
Whether the maintenance dispute should be adjudicated on remand allowing additional evidence under Order 41 CPC.
2 provisions across 1 enactments
Pradyumna Kumar Jena
Laxmipriya Jena
Arindam Sinha
M.S. Sahoo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
