Writ Petition No. 7479 of 2011

13th September, 2012

Petitioner Counsel: Mr. A.S. Bajaj
Respondent Counsel: Mr. P.N. Kalani

JUDGMENT

JUDGMENT :- This writ petition challenges the order dated 16th July, 2011 passed by the learned Joint Civil Judge (Senior Division), Aurangabad on Exhibits - 36 and 37 filed in Special Civil Suit No.92 of 2008. The Respondent No.1 - Plaintiff filed this suit for partition of joint family property as well as for the accounts and partition of the partnership business, which was run by the members of the family as partners. Whatever is stated in the plaint should therefore, be accepted as truthful for the purposes of deciding as to the valuation of the suit for the purpose of Court-fees. The Respondent No.1 - Plaintiff admittedly mentioned that for the purpose of valuation of the suit, she would value the same at rupees 100 crores and according to her, her share in the suit property could be valued at rupees 16.67 crores. She, however, stated that she is not liable to pay the Court-fees on this amount because she is exempted from paying the same in view of the notification dated 1st October, 1994 issued by the State of Maharashtra under the provisions of Section 46 of the Court Fees Act.

2. The Petitioners - Defendants raised preliminary objection to the maintainability of this plea saying that this notification would not give exemption to the Respondent No.1 - Plaintiff from paying the Court-fees. He says that, if such Court-fees is not paid, the plaint deserves to be rejected.

3. The learned Judge on hearing both the sides, gave a finding that the Respondent No.1 - Plaintiff is entitled to exemption as per the notification.

4. There are two notifications issued by the Government of Maharashtra giving benefits to the women litigants. These notifications read 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 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 produce 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 of 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 the 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:- “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.”

5. We are more concerned with the second notification, which was issued for explaining the meaning of the earlier notification. The latest notification gives explanation to the expression "property dispute" which is mentioned in the earlier notification. As mentioned above, the explanation says that the property in dispute in reference to these notifications would mean "property dispute arising out of or concerning matrimonial matters". Various conflicting decisions of a number of the learned Single Judges of this Court were rendered interpreting the explanation vis-a-vis the term "property dispute" appearing in the notification. In view of this conflict, the Honourable Chief Justice of this Court referred the issue to a Full Bench of this Court. The issue that was referred to, reads as under:

"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. The Full Bench of this Court heard the case extensively and even sought help of the learned Advocate General of the State. The findings recorded by the Full Bench of this Court reads as under:

"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) The intention of the Government behind issuing the 2nd Notification 23rd March, 2000.

a) The Notification dated 23/3/2000, which qualified 'property disputes' as disputes arising out of and concerning matrimonial matters, was issued as a consequence of various judgments of this Court wherein the term 'property disputes' was given a wide interpretation.

b) The Notification dated 23/3/2000 is in the form of an amendment Notification. In view of this, it is pertinent to note the reference made by Deshmukh J., in his judgment of 4/6/2007, to the judgment of the Privy Council in the case of D.R. Fraser & Co. Ltd Vs. The Minister of National Revenue, A.I.R. 1949 P.C. 36, wherein the Privy Council has observed that, 'When an amending act alters the language of the principal statute, the alteration must be taken to have been made deliberately'.

c) The 2nd Notification was issued with the intention of changing the then existing situation and if despite the amendment the situation continues to be the same, the amendment would be an exercise in futility.

d) Hence the intention of the Government behind issuing the 2nd Notification is amply clear from plain simple interpretation of the words of the Notification themselves, that the term 'property disputes' would be restricted to only those concerning or arising out of matrimonial matters and would hence exclude petitions filed for probate of Wills.

B) Interpreting it widely would go beyond the intent of the Government.

a) Notwithstanding the fact that the Notification exempting a certain class of women from payment of Court fees is a beneficial piece of legislation, an extended meaning to the words 'property disputes', would tantamount to indulging in exercise of legislation in the garb of interpretation. A similar view was taken by Palkar J., in his judgment in the case of Smt Ashabai w/o Shivaji Shiral and anr Vs. The Executive Engineer, MSEB, 1999(2) Bom.C.R. 194.

b) A petition for probate of a Will is neither a petition in relation to any 'property dispute' nor does it 'arise out of or concern a matrimonial matter.'

c) A petition for probate of a Will is never a petition in relation to any dispute concerning any property but is in relation to the validity or otherwise of a Will. The judgment of the Supreme Court in the case of Delhi Development Authority Vs. Mrs. Vijaya Gurshaney and anr, 2003 DGLS (soft) 465 : A.I.R. 2003 S.C. 3669, which Deshmukh J., referred to in his judgment of 4/6/2007 clearly brings to light the aforementioned view, wherein it was held that a testamentary Court is only concerned with finding out whether or not the testator executed the testamentary instrument of his free will and grant of a probate or Letters of Administration does not confer title to property. (Emphasis supplied)

d) As rightly contended by the learned Advocate General, Mr. Ravi Kadam, on behalf of the State, testamentary cases do not arise out of matrimonial matters but rather arise out of 'death'.

C) Furthermore it is pertinent to differentiate between matrimonial matters and matrimonial relationship as the two terms are not synonymous and hence the term 'matrimonial matters' arising in the Notification of 23/3/2000 cannot be replaced by 'matrimonial relationship' so as to bring a petition filed by a widow for probate of her deceased husband's Will, within the ambit of the Notification.

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) 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 a dispute, other than in cases when somebody files a caveat, it is not a matter between two parties to a marriage."

7. In view of the findings recorded by the Full Bench of this Court, the question as to whether a widow seeking share in her husband's joint family property is exempted from the Court-fees, is set at rest. The Full Bench of this Court very clearly mentioned that the term "matrimonial matter" appearing in notification of 2000 is not replaceable by the matrimonial relationship and so, what is held is that if a woman after her husband's death seeks any relief against her in-laws and if such relief is relating to her relationship with the deceased - husband, the exemption given by the notification will not be available to her.

8. The learned counsel appearing for Respondent No.1 tried to suggest that this judgment is not applicable to the facts of this case. He even suggested that it is restricted only to case of probate. I am afraid this submission is not only myopic, but is incorrect also. As mentioned above, the judgment of full bench covers all the disputes in the nature of probate. A probate is necessary because husband's will is in existence and unless it is probated it is not effective. The widow would be interested in getting her husband's will probated so as to get the property which is bequeathed to her and others. After the will is probated the the property is administered and its distribution amongst the legatees takes place. If the husband dies intestate, the widow would still be entitled to her husband's property as per the personal law of the parties. In case, the husband of a widow had share in undivided property with others, the widow would be entitled to get the property divided by metes and bounds. Such a dispute might arise because of matrimonial relationship, but by no stretch of imagination, it is a matrimonial matter. In my view, the matrimonial matter is a matter between two living spouses. Once a spouse dies, the matrimonial dispute also dies. But, as indicated above, there can be many disputes that would still remain unresolved after the death of one of the spouses. The present dispute between the parties is one of such dispute that after the death of Respondent No.1's husband, she gets a right to file a suit for partition of the joint family property in which her husband allegedly had a share. So, the suit filed by the Respondent No.1 is a property dispute, which is not exempted by the notification.

9. Unfortunately, neither the learned Judge of the trial Court nor the learned counsel for the Respondent No.1 interpreted the judgment of the Full Bench of this Court correctly. As said above, though this judgment is given in respect of the probate petition, it covers all the allied disputes arising after the death of a spouse.

10. The learned counsel for the Respondent No.1 tried to place reliance on some other judgments, which are admittedly given prior to the judgment of the Full Bench of this Court. He still asserted that those judgments are still binding and are not overruled expressly or impliedly by the Full Bench judgment. I am afraid this submission is devoid of merit. The Full Bench of this Court has covered all those judgments on the issue, which were given by the learned Single Judge of this Court prior to the Full Bench judgment.

11. The petition, therefore, succeeds. The impugned order is set aside. The Respondent No.1 - Plaintiff shall pay the Court-fees or face the consequences.

12. The prayer for stay of this order is rejected.

Petition allowed.