Tuesday, 19 February 2019

Whether in partition suit woman litigant is entitled to get exemption of court fees?

The Division Bench of this Court in the case of Girish Kanaiyalal Munshi (Deceased), Petition (L) No. 118/2007, reported in 2008 (4) ALL MR 306 bestowed its thoughtful consideration to these claims and counter-claims and explained the meaning of the clarification issued by the State of Maharashtra in the year 2000.
6. In the aforestated case, the application had been filed by the woman for issuance of Probate of the Will of her deceased husband. The Division Bench held that such an application would not be covered by 1994 notification as the clarification issued in the year 2000 made it clear that it is only those property disputes which arise out of and which concern matrimonial matters which enjoy such remission. In the opinion of the Division Bench, an application filed for issuance of Probate of deceased husband's Will is not a dispute concerning matrimonial matter. The observations of the Division Bench made in paragraph 26 are relevant and they are re-produced as under :-
"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 23/03/2000 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."
Bombay High Court
Smt. Arti Wd/O Deepak Kamlakar vs Shri Vijay S/O Deorao Kamlakar, ... on 28 June, 2018
Bench: S.B. Shukre
Citation: 2019(1) MHLJ 650       
1. Heard.
2. Rule. Rule made returnable forthwith.
3. Heard finally by consent.
4. The petition has been filed to claim exemption from the payment of Court fees by relying upon the relief given by the State of Maharashtra in its notification, bearing No. STP 1094/CR-859/M-1, dated 1st October, 1994. This notification prescribes that the Government shall remit the fees payable by women litigants on any of the motions such as plaint, application, petition, memorandum of appeal and so on and such remission is also permissible on the documents specified in Ist and IInd Schedule to the Bombay Court Fees Act, 1959, which are to be filed in any Civil, Family or Criminal Courts in respect of four categories of cases, namely, i) maintenance, ii) property disputes,
iii) violations & iv) divorce.
5. It seems that the Government gave a rethink to one particular category of cases termed as "property disputes". Although the reasons for re-visiting this expression have not been brought on record, the fact remains that by a later notification bearing No.530/2000/673/CR- 199/M-1, issued on 23rd March, 2000, Government clarified the expression by laying down that by the expression "property disputes" it shall mean the disputes arising out of and concerning matrimonial matters. After this clarification, there was a spate of litigation raising claims and counter-claims about what exactly is conveyed by this clarification. The Division Bench of this Court in the case of Girish Kanaiyalal Munshi (Deceased), Petition (L) No. 118/2007, reported in 2008 (4) ALL MR 306 bestowed its thoughtful consideration to these claims and counter-claims and explained the meaning of the clarification issued by the State of Maharashtra in the year 2000.
6. In the aforestated case, the application had been filed by the woman for issuance of Probate of the Will of her deceased husband. The Division Bench held that such an application would not be covered by 1994 notification as the clarification issued in the year 2000 made it clear that it is only those property disputes which arise out of and which concern matrimonial matters which enjoy such remission. In the opinion of the Division Bench, an application filed for issuance of Probate of deceased husband's Will is not a dispute concerning matrimonial matter. The observations of the Division Bench made in paragraph 26 are relevant and they are re-produced as under :-
"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 23/03/2000 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 the case of Harsha Pradeep Patil vs. Sayankabai Ragho Patil, reported in 2017(1) Bom. CR 86, learned Single Judge of this Court while deciding the similar issue held that a suit filed by the widow against her brother-in-law seeking partition of property in which her husband was a coparcener is not covered by 1994 Notification in view of the clarification later on given by the Government. Similar are the judgments rendered by several other Benches of this Court presided over by respective learned Single Judges.
8. However, there is one departure made by learned Single Judge of this Court in the case of Kiran Chunnilal Talreja and another vs. Ramchandra Devidas Talreja and another, reported in 2009 (Supp.) Bom. C.R. 567. This judgment has been heavily relied upon by the learned counsel for the petitioner. In this case it has been held that if the suit filed for partition by the woman is instituted in her personal capacity, the exemption granted under 1994 notification would be J-wp147.17.odt 6/7 available to such woman plaintiff. This judgment, however, does not consider the ratio of the case of Girish (supra) decided by the Division Bench of this Court. The law laid down by the Division Bench of this Court would be binding upon the Courts subordinate to it and also the Courts of equal strength subsequently having an occasion to deal with similar issue. This is the law of precedents now well settled and in my humble view, judgment of Hon'ble Apex Court in Sandeep Kumar Bafna vs. State of Maharashtra and another, reported in AIR 2014 SC 1745 should clear the doubt, if any, in this regard. There can be a situation where the subsequent bench of equal or coordinate strength differs with the view taken in the previous judgment of the bench of equal strength or the subsequent bench has reservations about the correctness of the proposition of law laid down in the previous case decided by a bench of co-ordinate strength. In such a case, it can refer the matter for resolution by a bench of larger strength. Therefore, the view taken in the said case of Kiran (supra) would have to be considered as per incuriam.
9. Learned counsel for the petitioner also relies upon the case of Manoramabai Keshav Joshi vs. Arun Keshav Joshi and another, reported in 2008(1) Mh.L.J. 905, in which, it has been held that the scheme of 1994 notification and 2000 clarification being beneficial for women, a liberal view while understanding the meaning of the term "property dispute" be taken and accordingly a dispute in respect of property, having its basis in the matrimonial relationship between the J-wp147.17.odt 7/7 woman and her husband, was seen in that case as a property dispute between the mother and the son. This judgment also does not take into account the law laid down by the Division Bench of this Court in the case of Girish (supra) and, therefore, has to be considered as a judgment rendered per incuriam.
10. In view of above, the impugned orders dated 14.3.2016 and 23.6.2016 passed by the Courts below taking a view that the present dispute between the parties, a dispute relating to partition, is not a property dispute within the meaning of 1994 notification cannot be held to be incorrect or illegal. There is no merit in this petition.
11. The Writ Petition stands dismissed.
12. Learned counsel for the petitioner, appointed through Legal Aid Scheme, shall be paid remuneration of Rs.7,000/-.
13. All other questions are kept open.

14. Rule is discharged. No costs.
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