Test. Petition No.440 of 1997

6th August, 2001

Petitioner Counsel: Shri. M.P.SHUKLA, Ms. DIPTI N. THAKKAR
Respondent Counsel: Ms. A. KALYANRAM

Cases Cited:
Jyoti S. Doshi Vs. Hindustan Hosiery Mills, 2000(4) ALL MR 389 [Para 3]
Pankuwarbai Mutha Vs. Rameshchandra Mutha, 1998(4) BCR 477 [Para 4]
Re : Vidya Shivajirao Patil, 1999(2) ALL MR 615=AIR 1999 Bom. 318 [Para 4]
Deepa Vs. State of Maharashtra, 1996(1) ALL MR 180=1996(1) Mh.L.J. 74 [Para 7]
Ashabai Vs. Ex. Engineer MSEB, 1999(1) ALL MR 442 [Para 7]
W. P. No. 1896 of 2000, 4/4/2001 [Para 8]

JUDGMENT

JUDGMENT :- This common Order will dispose of the Office objection raised in the above mentioned proceedings in respect of non-payment of court fee. All these proceedings are either for grant of letters of administration or succession certificate. In the two matters, the proceedings have already been disposed of but they have been placed before this court again in view of the fact that the petitioners therein seek to amend the original Schedule by adding certain more assets.

2. Normally under the Bombay Court Fees Act, in all these proceedings, court fee is required to be paid by the petitioner irrespective of the fact whether the petitioner is a male or a female. However, the Government of Maharashtra has framed "Policy for the Women" with a view to promote welfare of women and the said policy inter alia, provides for exemption of court fees for women litigants. Accordingly, the Government of Maharashtra in exercise of its powers under section 46 of the Bombay Court Fees Act,has declared remission of fees payable by women litigants on any of the plaints, applications, petitioners, memorandum of appeals or any other documents specified in the First and Second Schedule to the said Act, to be filed in any Civil family or Criminal Court in respect of the cases relating to (a) maintenance, (b) property dispute, (c) violence and (d) divorce. This notification was issued on 1st October, 1994.

3. After the issuance of this notification, there appears to have been a lot of controversy since different interpretations were made as to what was meant by "property disputes". Some of the subordinate Courts granted total exemption of the court fee to women litigants irrespective of the nature of the property dispute. Whereas some courts held that the term "property disputes" was not comprehensive so as to include any dispute filed by women litigants. This question also arose before this court in several proceedings. In Jyoti S. Doshi Vs. Hindustan Hosiery Mills. (2000 (4) ALL MR 389), Gokhale J. has referred to 10 such decisions given by this court in different proceedings. In the present cases, we are concerned only with the proceedings wherein objections are filed for obtaining probate or letters of administration or succession certificate. I shall therefore, refer to only those decisions which were given in Testamentary Petition. In Test. Petition No.284/1996 decided on 26th June. 1996 by K.G.Shah, J. (unreported), the petitioner widow had filed a petition for obtaining probate in respect of the Will of her deceased husband. She claimed benefit of the exemption of the notification dated 1st October, 1994 but the Office of the Prothonotary took the view that the said notification did not apply to her petition. The learned Judge, after hearing both the parties as well as the Government Pleader came to the conclusion that there was no indication anywhere in the notification showing that it was not intended to apply in relation to the applications or petitions for probate or letters of administration. He further held that there is no indication in the notification to show that it does not apply in relation to the application for succession certificate.

4. A similar question arose in Pankuwarbai Mutha vs. Rameshchandra Mutha (1998 (4) BCR 477), in which the petitioner had applied for issuance of a succession certificate and the trial court had taken a view that the phrase property disputes will cover only dispute pertaining to immovable property. Vagyani J., however, did not approve of such an interpretation which according to him was too narrow and too technical. He, therefore, entertained the Revision filed by the petitioner and exempted the petitioner from payment of court fees. In Re : Vidya Shivajirao Patil (AIR 1999 Bombay 318 : 1999(2) ALL MR 615), the grand mother of a male child, had sought letters of administration to the property, assets and credits of her daughter for the benefit of her grand son. She had sought exemption from payment of court fees. Gokhale J. held that this was a case wherein the grand father of the child was also available who could have filed the petition. Taking the view that the revenue should not suffer unnecessarily, Gokhale J. directed that the petitioner will have to pay the necessary court fees on the petition. There were two other petitions along with the same petition which were decided by Gokhale,J and therein the ladies were granted exemption from payment of court fees to the extent they were beneficiaries, whereas to the extent the beneficiaries were male members, they were required to pay the court fees to that extent.

5. In Testamentary Petition No. 256 of 1998 and 576 of 1999 decided by Nijjar J. on 10th February 2000, the view taken was that to the extent the ladies are claiming a share in the property they will be exempt from the requirement of court fees, while at the same time the male litigants will be required to pay court fees.

6. In view of the controversy and different interpretation in respect of the term "property dispute", occurring in the notification dated 1st October, 1994, the Government of Maharashtra issued a explanatory Notification on 23rd March, 2000, wherein it was explained that "property disputes" shall mean property dispute arising out of and concerning matrimonial matters. In Jyoti S. Doshi (supra), Gokhale J. has considered the scope and applicability of both the notifications and held that as far as the applicability of the notification dated 1st October, 1994 is concerned, it will continue to apply to the suits which are already filed and which are pending in the court subject to the conditions that those suits which are filed by the women directors of companies or woman partners of partnership firms may be not entitled for any exemption under the notification. The learned Judge further held that the notification dated 23rd March, 2000 will not restraint and/or govern and/or control the exemption granted by the earlier notification of 1st October, 1994 with regard to the payment of court fees to women litigants provided those are suits filed by women litigants in their personal capacity. As regards the proceedings of probate, letters of administration and succession certificate Gokhale J. approved the view taken by K.G.Shah J. to add that the women beneficiaries will not be required to pay the court fees only to the extent they are getting benefit in the estate. Lastly Gokhale J. made it clear that matters filed on or after 23rd March, 2000 will be governed under the notification of that date.

7. I have heard the learned counsel of all the parties as well as Ms. A.Kalyanram, the learned AGP. I have also heard the respondent in person in chamber summons No. 241/2001. It may be noted that although in the First Notification dated 1st October, 1994, the Government did not clarify as to what property disputes were to be covered for exemption from court fees, it is clear from the submission made by the learned Advocate General, before Gokhale J. in Jyoti S. Doshi (supra) that the intention of the State was not to grant benefit to the property claims of all types. Para 17 of the said Judgment, shows that the learned Advocate General, however accepted the position that the clarificatory notification dated 23rd March, 2000 having been issued after a period of over 5 years and 5 months and agreed to leave the question to the court to pass appropriate orders governing the cases which had already come to be filed. In this connection it may be pointed out that even this court never held that the exemption granted under the First Notification dated 1st October, 1994, was applicable to all the property disputes filed by women litigants. This is clear from some of the decisions to which Gokhale J. has made reference in his judgment. In Deepa vs. State of Maharashtra (1996(1) MH.L.J. 74 : 1996(1) ALL MR 180), A.P.Shah J. had taken a different view. He held that in a suit for specific performance, the woman plaintiff was entitled to claim exemption of court fees. In Ashabai vs. Ex. Engineer, MSEB (1999(1) ALL MR 442), Palkar J., held that in a suit filed by a woman litigant claiming compensation for death of her husband due to electric shock, the woman was not eligible to claim exemption from court fees under the notification since the property dispute contemplated by the notification dated 1.10.1994 did not include tortuous liability. The decision was given on 29th July, 1998. In an unreported decision in Appeal (lodging) No. 1254/1999 in suit No. 198 of 1981 the lady appellant was one of the directors of the company and had sought exemption from payment of court fee on the basis of the notification dated 1st Oct. 1994. The division bench comprising of Y.K.Sabharwal, C.J. (as his Lordship then was) and Radhakrishnan J. held that the said notification had no applicability to the litigation of the present nature which had been filed by the Bank against the principal debtors and Directors. It was, therefore, held that the appellant was not entitled to the exemption of the court fees under the notification.

8. My attention is also drawn to a division bench decision in Writ Petition No. 1896 of 2000 which was decided on 4th April, 2001 by B.P.Singh, C.J. & Smt. Ranjana Desai. In that writ petition, the notification dated 1st October, 2000 was challenged. The division bench, however, repelled the challenge, observing that it is a matter of policy and it is for the Government to formulate the policy as it considers necessary and proper. The following observations made by the division bench are, however, relevant :-

" We find no justification to quash the impugned clarification, because the Government has clarified what, perhaps, was implicit and the intendment of Exhibit 'A'. Property disputes mentioned therein were intended to deal with property disputes arising out of, and concerning, matrimonial matters. Counsel for the Petitioner candidly stated that since that concession was misused, and summary suits were being filed in respect of properties not in any manner concerned with matrimonial disputes. The Government may have come out with the Clarification. He however, submitted that apart from property disputes arising out of, and concerning, matrimonial matters, the policy also aims at granting some concession in property disputes relating to paternal property. In view of the Clarification (Exhibit 'B'), a woman Litigant will not be entitled to the remission in the matter of payment of court fees in regard to property disputes of this nature.

Any way it will be clear that the State of Maharashtra did not intend to extend the benefit of giving exemptions from court fee to the women litigant in all the property disputes. Otherwise there was no reason for the Government of Maharashtra to issue second notification dated 23rd March, 2000, though belatedly, to clarify that expression "property dispute", referred to in the first notification shall mean disputes arising out of and concerning matrimonial matters. Thus the effect of both the notifications is that a woman litigant is exempted from the payment of court fee in respect of cases relating to divorce, violence, maintenance and property disputes arising out of or concerning matrimonial matters.

9. In the cases on hand, the main question is as to what is the effect of the notification dated 23rd March, 2000 on the cases which are already filed and are pending. As held by Gokhale J. and in Jyoti Doshi (supra), the notification dated 23rd March 2000 does not have any retrospective application and that it applies only to those matters which are filed on or after 23rd March, 2000.

10. So far as the Test. Petition No. 440/1997, Test.Petition No. 583/1998 and Test. Petition No. 918/1998 are concerned, letters of administration have already been granted to the concerned petitioners. Both these petitions were filed after the issuance of the notification dated 1st October, 1994 and in both the petitions, the petitioners who are ladies were granted exemption from paying any court fees. These petitions are, however, now placed before me as the petitioners therein, seek to amend the Schedules of the assets of the deceased which they had earlier given. It was submitted on behalf of the concerned petitioners that previously certain properties had remained to be included in the Schedule through oversight or mistake. The office seems to have raised an objection to the effect that in view of the notification dated 23rd March, 2000, the petitioners in both the cases will be required to pay the court fees since the exemption granted under the previous notification i.e. notification dated 1st October, 1994 is no longer available. Ms. Kalyanram, the learned AGP submitted that since the petitioners are seeking to add some more properties to the Schedule of the assets of the deceased, they will have to pay court fees. It is, however, not possible to accept the submission of Ms. Kalyanram for two reasons. The first is that these are not the petitions filed after the issuance of the notification dated 23rd March, 2000. As pointed out above they were filed before the said notification and that in both the cases the court has already granted letters of administration in favour of the respective petitioners. What is sought to be done by the petitioners is only to amend the Schedules of assets of the deceased. The amendment will obviously relate back to the dates of the respective petition. Therefore, there is no question of applying the notification dated 23rd March, 2000 to both these petitions so far as the amendments of the Schedules are concerned. Shri. Jaishingani drew my attention to section 41 of the Bombay Court Fees Act, which states that where any such document is amended merely to correct a mistake or make it conform to the original intention of the parties, shall not be necessary to impose fresh stamp. In the instant two cases, the document sought to be amended are the schedules of assets which were parts of the original petitions for grant of letters of administration. Normally under section 36 of the Bombay Court Fees Act, suchan application is chargeable to court fees. However, at the time when the petition for grant of letters of administration came to be filed, no court fee was levied in view of the exemption contemplated by the notification dated 1st October, 1994. The mere fact that original petitions are now sought to be amended, after the issuance of the second notification dated 23rd March, 2000, it cannot be said that the original exemption available under the first notification ceases to apply. Therefore, I do not agree with Ms. Kalyanram and I hold that no additional court fee is required to be paid by the petitioner in Test. Petition Nos. 440/1997, 583/1998 and 918/1998.

11. It must however, be made clear that the amendment in the Schedule of assets, being for addition of more assets of substantial value, fresh citation notices to that extent will have to be issued. The concerned legal heirs or third parties might not have raised any objection for grant of Letters of Administration in favour of these petitioners with respect to the Schedules or assets as were then annexed to the petitions. But who knows that they might raise objection for making additions to those Schedules. Therefore, to avoid any prejudice been caused to anybody and in order to give one opportunity to the possible objectors, issuance of fresh citation notices indicating amendment in the Schedules annexed to the Letters of Administration would be necessary.

13. Coming to the fourth petition i.e. Test. Petition No. 278/2001, it is filed by the petitioner widow for succession certificate to claim certain amounts payable to the legal heirs of her deceased husband on account of his death. The petition is filed on 11th December, 2000 i.e. after the issuance of clarificatory notification dated 23rd March, 2000. Shri. Saxena, the learned Advocate for the petitioner initially tried to convince me that a claim for succession certificate is covered by "property disputes" within the meaning of both the notifications. However, it is not possible to hold that such a petition raises or concerns a dispute relating to the matrimonial matters. As pointed out by Ms. Kalyanram, the learned AGP it is the claim to the estate of the deceased. Shri. Saxena then submitted that such a petition would fall under the category of cases relating to the maintenance as contemplated by the notification dated 1st October, 1994. He pointed out that the deceased is survived by his widow (petitioner), two sons and a daughter and that the amounts which are payable on account of the death of the deceased are really required for the maintenance of the petitioner as well as three children. I have given an anxious consideration to the submission made by Shri. Saxena and I am of the opinion that the notification dated 1st October, 1994 needs to be interpretated in a liberal manner so as to extend the benefit to the woman litigants contemplated under the "Policy for Women". I have already referred to the decisions of K.G.Shah J. and Gokhale J. and Nijjar J. and I am inclined to follow the view that the women petitioner will not be required to pay the court fee only to the extent they get benefit in the estate. This being the position, the petitioner in the instant case can claim exemption from payment of court fees for herself and her minor daughter Jyoti in so far as their shares in the amount of Rs. 3,83,917/- payable on the death of the deceased is concerned. However, so far as her two sons namely Nitin and Nagesh are concerned, the court fee will have to be paid on their shares on the said amount.

14. Coming to Chamber Summons No. 241/2001 in Test.Suit No. 17/1996 in Test. Petition No. 132/96, it is taken out by the caveatrix / defendant for two prayers one of which is for a direction to the plaintiff petitioner to pay the requisite court fee payable on the value of the estate of the deceased in respect of which letters of administration is sought. It may be pointed out that the said petition was filed in 1996 and in view of the notification dated 1st of October, 1994 exemption was granted to the petitioner from paying court fee. The caveatrix / defendant has however, contended that no such exemption from payment of court fee can be claimed by the petitioner. It is pointed out that in the said petition, the petitioner has made extensive amendments so as to enhance the valuation of the original assets from Rs. 93,61,213.72/- to Rs.8,15,50,495.16/-. The caveatrix /defendant has also contended that the controversy between the two single judges i.e. K.G.Shah J. and Nijjar J. cannot be resolved by a third single Judge and the same should have been referred to a larger bench. Ms. Sethna, the learned counsel for the petitioner/ plaintiff on the other hand pointed out that the petition having been filed prior to 23rd March, 2000 there is no question of applying the clarificatory notification to it. She further submitted that the petitioner has been already granted exemption in view of the earlier notification dated 1st October, 1994 and that the benefit conferred upon the petitioner in view of the said notification cannot now be withdrawn. The submission of Ms. Sethna deserves to be accepted for the simple reason that the subsequent notification dated 23rd March, 2000 cannot and does not have any retrospective operation and that it applies only to those matters which are filed on or after the said date. In view of this position, I think that the prayer made by the caveatrix / defendant in her chambers summons No. 241/2000 i.e prayer (a) will have to be rejected.

15. In the result I pass the following order :

i) The office objections regarding non payment of court fee are waived in Testamentary Petition Nos. 440/1997, 583/1998 and 918/1998.

ii) The office is further directed to issue fresh citation notices in these proceedings on payment of requisite process fee by the concerned petitioners, if necessary, in respect of the amendments made in the Schedules by addition of more assets in each of these three petitions. Thereafter, the petitions will be proceeded further.

iii) In Test. Petition No. 278/2001, the office objection regarding non-payment of court fee, is partly waived in so far as the claims of petitioner and her minor daughter Jyoti are concerned. The petitioner shall however, be required to pay the requisite court fee on the shares of her two sons.

iv) Chamber Summons No.241/2001 in Test. Petition (Suit) No. 17/96 in Test. Petition No. 132/96 is dismissed in so far as it relates to prayer to. The said Chamber Summons will be heard in respect of prayer clause (b).

Copy of this order duly authenticated by the Associate is allowed.

Order accordingly.