Skip to content


Basanta Misra and ors. Vs. Laxmi Alias Jagyasani Misrani - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 103 of 1969
Judge
Reported in37(1971)CLT195
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 25
AppellantBasanta Misra and ors.
RespondentLaxmi Alias Jagyasani Misrani
Appellant AdvocateR.K. Patra, Adv.
Respondent AdvocateS.C. Mohapatra and ;U.S. Misra, Advs.
Cases ReferredMahendra v. Sushila.
Excerpt:
.....and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - when the learned appellate judge took this aspect into consideration he found that further materials were necessary only to do proper justice to the case and effectively decide the litigation which was before him......court certainly was not warranted. these two issues should really have been framed and the learned trial judge should have been called upon to return findings on these issues. there was no justification to vacate the judgment of the trial court and remand the entire litigation for fresh determination.5. section 19(1) of the act is in the following terms:'a hindu wife whether married before or after the commencement of this act shall be entitled to be maintained after the death of her husband by her father-in-law; provided and to the extent that she is unable to maintain herself out of her own earnings or other property, or where she has no property of her own, is unable to obtain maintenance-- (a) from the estate of her husband or her father or mother, or(b) from her son or daughter, if.....
Judgment:
ORDER

R.N. Misra, J.

1. The plaintiff-opposite party is the widow of a predeceased son of the petitioners. She became a widow sometime in 1953, and being in difficulty for obtaining maintenance she filed a suit on 19th April 1965 for maintenance. The suit was dismissed on 29th April 1967. She appealed. The learned appellate Judge, by his order dated 9th March 1968, framed two issues and called upon, the trial court to return findings on such issues. The findings were returned on 13th August 1968. When the appeal was further heard, the learned appellate Judge raised two more issues which ran to the following effect:

'(1) Whether the plaintiff is entitled to any maintenance from the period of institution of the suit till 1-3-68 in view of the fact that she was getting monthly remuneration of Rs. 40/- as school mother:

(2) Whether the plaintiff is entitled to maintenance at the rate of Rs. 60/-per month from 1st March 1968 till her life-time in view of the changed circumstances and if not at what rate she is entitled to maintenance'.

After raising these two additional issues, the learned appellate Judge remitted the matter to the trial court calling upon him to decide these two issues only by giving opportunity to the parties to lead further evidence pertinent for a decision of these two issues.

2. It is against this direction for remand that the present revision has been filed.

3. Mr. Patra, learned counsel for the petitioners contends that the order of remand is absolutely unjustified and is indeed one without jurisdiction. He seeks to rely upon a decision of their Lordships of the Supreme Court reported in AIR 1965 SC 364. Mahendra v. Sushila.

4. In the facts of this case. I do not think the principles indicated by their Lordships in the aforesaid decision would really apply. Admittedly, this suit would be governed under the provisions of the Hindu Adoptions and Maintenance Act of 1956. In the plaint as originally filed, there was no indication that the plaintiff was in service as a school teacher and was deriving any income from such service. Subsequently, when the additional issues framed by the order dated 9-3-68 were being tried, that fact came to the notice of the Court. But the effect of that fact had not been indeed taken into account and the enquiry did not proceed as envisaged by the proviso to Section 19 of that Act. When the learned appellate Judge took this aspect into consideration he found that further materials were necessary only to do proper justice to the case and effectively decide the litigation which was before him. The remand of the entire litigation to the trial court certainly was not warranted. These two issues should really have been framed and the learned trial Judge should have been called upon to return findings on these issues. There was no justification to vacate the judgment of the trial court and remand the entire litigation for fresh determination.

5. Section 19(1) of the Act is in the following terms:

'A Hindu wife whether married before or after the commencement of this Act shall be entitled to be maintained after the death of her husband by her father-in-law; provided and to the extent that she is unable to maintain herself out of her own earnings or other property, or where she has no property of her own, is unable to obtain maintenance-- (a) from the estate of her husband or her father or mother, or

(b) from her son or daughter, if any or his or her estate'.

6. Admittedly, the estate of her husband is in the custody and possession of the defendants. Therefore, there is no enquiry necessary in terms of Clause (a) referred to above. It is also not the case of the parties that the plaintiff has a son or daughter and from his or her estate she earns maintenance. The scope of the enquiry therefore is as to whether during the period she was serving as a school mother, from her own earnings she was able to maintain herself and after she has lost her job, whether she has any other property of her own from out of which she is able to maintain herself, and in case she has none what should be the proper quantum of maintenance to be fixed which she should receive from the defendants during her lifetime.

7. The learned appellate Judge should have framed the issues in a different way than what he has done. I think in the interests of justice and for the effective adjudication of the real contest as required under the law, the two issues require some recasting. The issues should therefore be

(1) Whether during the period from the institution of the suit until 1-3-68 during which period the plaintiff was admittedly earning an income of Rs. 40/-per month as school mother--she was not in a position to completely maintain herself;

(2) What is the quantum of maintenance which the plaintiff should be entitled to from the defendants, and in case she has any property of her own what is the earning of hers from that property so that to that extent the maintenance to be determined may be reduced.

8. I would accordingly modify the direction of the appellate court, direct that the appeal be maintained in the file of the appellate court. The two issues now framed be answered by the trial court on giving reasonable opportunity to the parties to lead evidence for determination of these two issues. The finding of the trial court be returned with utmost expedition to the lower appellate court and the appeal be disposed of in accordance with law thereafter.

9. The impugned order of the appellate court is modified to the extent indicated above and the civil revision is disposed of in terms referred to above.

10. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //