Bombay High Court
Harsha Pradeep Patil vs Sayankabai Ragho Patil And Others on 13 October, 2016
Bench: T.V. Nalawade
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.271 of 2016
Harsha Pradeep Patil. .. Petitioner.
Versus
Sayankabai Ragho Patil & Others. .. Respondents.
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Shri. M.M. Bhokarikar, Advocate, for petitioner.
Shri. P.P. Dhorde & Smt. V.P. Dhorde, Advocates, for
respondent Nos.1 to 5.
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CORAM: T.V. NALAWADE, J.
DATE : 13 OCTOBER 2016
ORDER:
1) The petition is filed to challenge the order
made on Exhibit 43 from Regular Civil Suit No.181/2012
which is pending in the Court of the Civil Judge, Junior
Division, Jalgaon. The said suit is filed by the present
petitioner for relief of partition of joint Hindu family
property against brother-in-law and others. Husband of
the petitioner is dead and so she has claimed the share of
her husband from the joint Hindu family property. The
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application at Exhibit 43 was filed by the defendants for
rejection of plaint on the ground that present petitioner,
plaintiff has not paid requisite court fees on the claim.
The petitioner has not paid court fees as she is claiming
that she is exempted from the payment of Court fees in
view of the Government Notifications issued in this
regard. The trial Court has held that the subject matter of
the suit, the relief of partition, is not covered by the said
Government Notifications and so the application is
allowed and the petitioner is directed to pay court fees.
Both the sides are heard.
2) Both the sides placed reliance on some
reported cases in which there is interpretation of the two
notifications issued by the State Government. The
notifications are as under :-
"REVENUE AND FORESTS DEPARTMENT
Mantralaya, Bombay 400032, dated 1st October, 1994.
Bombay Court Fees Act, 1959.
No. STP. 1094/CR-859/M-1 - Whereas, the Government
of Maharashtra has recently announced a policy with a
view to promote the welfare of the women;
And whereas, the same welfare policy for women, inter
alia, provides for exemption of Court fees for women
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litigants in cases relating to maintenance, property
right, violence and divorce;
And whereas, section 46 of the Bombay Court Fees Act,
1959 (Bom. XXXVI of 1959), empowers the State
Government by notification in the Official Gazette to
reduce or to remit any of the fees mentioned in the
First and Second Schedules to that Act;
Now, therefore, in exercise of the powers conferred by
section 46 of the Bombay Court Fees Act, 1959 (Bom.
XXXVI of 1959), the Government of Maharashtra
hereby remits the fees payable by women litigants on
any the plaints, applications, petitions, Memorandum
of appeals or any other documents specified in the
First and Second Schedules to the said Act, to be filed
in any Civil, Family or Criminal Courts in respect of
cases relating to (a) maintenance, (b) property disputes
(c) violence and (d) divorce.
By order and in the name of the Governor of
Maharashtra.
HARSHAWARDHAN GAJBHIYE
Deputy Secretary to Government."
********
"REVENUE AND FORESTS DEPARTMENT
Mantralaya, Bombay 400032, dated 23rd March, 2000
Bombay Court Fees Act, 1959.
No. S. 30/2000/673/CR-199/M-1 - in exercise of the
powers conferred by section 46 of the Bombay Court
Fees Act, 1959 (Bom. XXXVI of 1959), the Government
of Maharashtra hereby amends the Government
Notification, Revenue and Forests Department No.
STP.1094/CR-859/M-1 dated the 1st October, 1994, as
follows:-
In the said Notification, the following Explanation
shall be added at the end, namely:-
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"Explanation - The expression "property disputes"
shall mean property disputes arising out of and
concerning matrimonial matters."
By order and in the name of the Governor of
Maharashtra.
P.G. CHHATRE
Deputy Secretary to Government."
3) In the case reported as AIR 2000 Bombay 474
(Mrs. Jyoti S Doshi v. M/s. Hindustan Hosiery Mills)
decided by the learned Single Judge of this Court on 2-5-
2000 both these notifications were considered. The said
case was for recovery of money given by the plaintiff,
woman to a company as loan and the benefit of the
notifications issued by the Government was claimed by
her. Learned Single Judge considered the following point:-
"Whether suits filed by women litigants as Directors of
company or as Partners of firm will be eligible to get
exemption of court fees in the pending matters due to
the Government Notifications ?"
4) The learned Single Judge held that both the
notifications of the years 1994 and 2000 were not for the
benefit of the women who had filed matters in the
capacity of Director or as a Partner. It was held that if the
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matter was filed in private capacity benefit was available.
It was further held that benefit can be given in the
pending matters to the women litigants who had filed
matters like probate petitions and succession certificate
applications. Subsequently, similar view was taken by the
other learned Single Judge of this Court in Writ Petition
No.6071 of 2006 decided at Principal Seat on 12-10-2007
(Manoramabai vs. Arun). The learned Single Judge in the
matter held that the plaintiff, woman who had filed the
suit for declaration of her title and injunction against her
son was entitled to get benefit of the notification. The
learned Single Judge referred the case of Smt. Ramila vs.
Mr. Harsha reported as 2004(5) Mh.L.J. 506. In that case
this Court, the learned Single Judge, had held that benefit
of the notifications is available in partition suits filed on
the basis of rights which had accrued due to law of
succession.
5) It appears that in view of the case decided in
the year 2000 by the learned Single Judge (cited supra)
and as there was difference of opinion of other learned
Single Judge the matter of application of the notifications
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to the probate proceeding was referred to larger Bench.
The Division Bench, as larger Bench, decided the point in
the case reported as 2008(3) AIR Bom R 820 (Re : Girish
Kanaiyalal Munshi). The Division Bench considered the
following point :-
"Whether a woman litigant who files a petition for
grant of Probate of a Will is exempted from payment of
Court Fees as per Government Notification dated 1st
October, 1994 duly amended by an explanatory
notification dated 23rd March 2000 ?"
6) In the aforesaid case, the Division Bench
considered almost all the cases decided by the learned
Single Judges of this Court in the past, including the
matters mentioned above and considered the view
expressed by the learned Single Judge of this Court who
had referred the matter to larger Bench. The Division
Bench accepted the views of the learned Single Judge who
had made request of reference and held that the petition
for probate of will is neither a petition in relation to any
property in dispute nor it arises out of or concerning a
matrimonial matter. When the larger Bench gave aforesaid
decision and held that benefit was not available, following
observations made at paragraph 26-D.
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"26. After hearing the learned Senior Counsel Dr.
Tulzapurkar and the learned Advocate General and
in light of the extensive arguments forwarded on
behalf of the petitioner and the State, the various
judgments of this Court regarding the exemption
from payment of Court fees by women litigants and
several other relevant judgments of this Court and
the Hon'ble Supreme Court, the following issues can
be clearly outlined.
A) ....
B) ....
C) ....
D)
Lastly, the words 'property dispute arising out
of or concerning matrimonial matters' should be
given their plain and simple meaning, that is, a
dispute arising between parties to a marriage,
(attention may be brought to the reference made by
Deshmukh J. to the Family Courts Act sub-section (1)
of Section 7, to elucidate the meaning of the term
'matrimonial matters') and should therefore exclude
testamentary petitions wherein not only is there an
absence of dispute, other than in cases when
somebody files a caveat, it is not a matter between
two parties to a marriage."
7) In the case reported as 2013(7) ALL MR 138
(Shrinivas vs. Savitribai) learned Single Judge used the
observations made by the Division Bench at paragraph 26-
D, quoted above, and held that woman litigant, who has
filed suit for partition against her in-laws after the death
of her husband, is not entitled to exemption of Court fees
under th aforesaid Government Notifications.
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8) This Court would like to use the observations
made by the Division Bench, quoted above, and also the
interpretation of the decision made by the learned Single
Judge in the case of Shrinivas (cited supra). This Court
holds that when suit is filed by woman litigant for relief of
partition against her in laws, she cannot get the benefit of
the aforesaid Government Notifications as the matter is
not between the woman litigant and her husband and such
matters are excluded due to explanation added to the
Notification in the year 2000. So, this Court holds that no
interference is warranted in the order made by the
learned Judge of the trial Court. In the result, the petition
stands dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
