Smt. Madhuridevi D. Tiwari vs Smt. Saraswatibai Tiwari
2003 Latest Caselaw 757 Bom

ORDER

S.G. Mahajan, J.

1. Heard Shri A. D. Vyawahare, the learned counsel for the revision petitioner and Shri M. A. Rehman, the learned counsel for respondent.

2. The respondent brought the Regular Civil Suit, which was converted into Special Civil Suit No. 140 of 1999 and was allotted to the Court of IInd Joint Civil Judge, Senior Division, Nagpur, for declaration that the bequest in favour of the present revision petitioner by a Will dated 17-11-1964 allegedly executed by Babulal Tiwari, the deceased husband of respondent, is void or in the alternative, the bequest under the said Will creates a limited right over the said property and does not confer absolute ownership in favour of the present revision petitioner; for perpetual injunction restraining the present revision petitioner from creating any mortgage, lien or charge over the said property or selling or gifting the same to any person and further restraining her from claiming absolute ownership over the said property.

3. The revision petitioner challenged the valuation of the suit made by the respondent by filing an application under Section 9A Civil Procedure Code. A preliminary is sue was framed by the 9th Joint Civil Judge, Junior Division, Nagpur and the respondent was directed to make appropriate valuation. The respondent there upon enhanced the valuation making it to 10 lacs and amended the plaint accordingly. However, the respondent did not pay the Court fee on that valuation on the ground that she is a woman litigant and the matter relates to 'property dispute'.

4. The revision petitioner then filed an application under order 7 Rule 11 Civil Procedure Code with a request that the respondent may be ordered to pay the Court fee as per the correct valuation, though the revision petitioner did not request in this application to reject the plaint that request was implied.

5. The learned IInd Joint Civil Judge, Senior Division, Nagpur (whom the case was transferred after the valuation was enhanced) rejected the application of the present revision petitioner for the reason that the case of the present respondent was covered by the Notification of Government of Maharashtra wherein a woman litigant is exempted from payment of Court fee.

6. The learned counsel for revision petitioner canvassed that the case of the respondent is not covered by the notification of Government of Maharashtra dated 1-10-1994. He invited my attention to Clause 2 of the preamble of the notification which reads as below :

And whereas the said welfare policy for women inter alia, provides for exemption of Court fees for women litigants in cases relating to maintenance, property right, violence and divorce.

The learned counsel laid stress on the words 'property right' in the preamble and submitted that unless a woman litigant would be able to show that she has got a right in the property it cannot be said that her case is relating to a 'property dispute' termed in category (b) in the principal part of the notification on the basis of which the woman litigant can claim exemption from the payment of Court fee. The learned counsel canvassed that the woman litigant must show first that she has a right in the property and if she has no right in the property there can be no property dispute.

7. The suit was filed by the respondent in the year 1997. So the Notification of Government of Maharashtra dated 1-10-1994 would be applicable. The meaning of property dispute given in the explanation after the amendment of Notification which was effected on 23rd March 2000 would not be attracted. So the meaning of the property dispute which was earlier to that amendment will have to be taken into consideration.

8. The submission of the learned counsel for revision petitioner that the case of the respondent is not relating to the 'property dispute' within the meaning of that term in the Notification dated 1-10-1994, cannot be accepted. Obviously the respondent has prayed for the declaration that the Will executed in favour of the revision petitioner is void and the further declaration is sought in the alternative that the said Will creates a limited right over the said property and does not confer absolute ownership in favour of the present revision petitioner. Consequently the perpetual injunction is also sought. At this stage the merits of the case cannot be assessed and the woman litigant would not be required to show the merits of her right to claim. The plain meaning of the term 'property dispute' appearing in the principal part of the Notification has to be taken into account and the wording "property right" appearing in the preamble has to be construed to mean the right about which there is a dispute. On going through the plaint one would find definitely that the case of the present respondent is relating to property dispute.

9. The learned trial Judge therefore did not commit any error in rejecting the application of the present revision petitioner. There is no merit in the revision and the revision is thus dismissed.