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Docid # IndLawLib/1186733
(2005) AIHC 749 : (2004) 4 ALLMR 106 : (2004) 6 BCR 75
BOMBAY HIGH COURT
SINGLE BENCH

RAMILA RAJNIKANT KILACHAND — Appellant

Vs.

HARSH RAJNIKANT KILACHAND. — Respondent

Counsel for Appearing Parties

Jyoti Doshi Vs. Hindustan Hosiery Mills., (1999) 3 Bom.C.R. 787, (1999) 2
Mh.L.J. 643
Usha Badri Poona Vs. Poonawala K. Kurian Babu., (2000) 3 Bom.C.R.
O.O.C.J. 813, (2000) 4 Mh.L.J. 228
Shri Bipin Dalpatbhai Shah Vs. Vasantbern Rasilal Zaveri, (2001) 4 All.M.R.
1, decided on 6th August, (2001)
Doypack Systems Put. Ltd. Vs. Union of India , AIR 1988 SC 782
State Wakf Board Vs. Abdul Azeez , AIR 1968 Madras 79, 81 paragraphs 8
and 10
Nitai Charan Bagchi Vs. Suresh Chandra Paul , (1962) 66 Cal. W.N. 767
Shyam Lal Vs. M. Shayamlal, AIR 1933 Allahabad 649 F.B

JUDGMENT
Dharmadhikari S.C., J.—This matter is placed before me as registry has raised
objection on 5th May, 2004 of Court fees. Office note is that Court fee is
required to be paid in view of para 9 of the plaint. However, office has also
noted the fact that plaintiff is seeking exemption from payment of Court fees
under the policy of Government of Maharashtra and has undertaken to pay the
maximum Court fees on the date of filling of the suit. In substance, plaintiff
seeks exemption in terms of notification of Government of Maharashtra dated
1st October, 1994 where under women litigants are exempted from paying
Court fees in certain disputes.
2. Being aggrieved by the office objection, plaintiff seeks directions from the
Court.
3. Ms. Sethna appearing for plaintiff invites my attention to Paras 1, 48, 61 and
69 of the plaint as also Prayer Clause (u) at page 76 and contends that suit seeks
partition of the properties. The suit is filed by plaintiff in her personal capacity.
In her individual capacity, she seeks relief of partition after declaring/
determining her share in the properties which are more particularly
mentioned in prayer (a) of the plaint. She submits that 1994 notification issued
by the State of Maharashtra should be construed liberally as it is issued for
benefit of women litigants. She submits that policy of the State of Maharashtra
as framed in 1994 being clear, benefits thereof should not be denied by a
technical view of the matter. She submits that plaintiff is on par with any
widow who is seeking a share in the deceased husband's HUF property. She
submits that object of the notification should not suffer. She submits that
considering the fact that even a prayer for maintenance is made, it is clear that
due to financial constraints, plaintiff is unable to pay the normal Court fee. She
submits that plaintiffs case is on par with the cases in which exemption has
been granted. She submits that for all these reasons, office objection be
dispensed with and the plaint should be numbered and registered in
accordance with rules, after extending benefit of the notification under section
46 of the Bombay Court Fees Act, 1959.
4. In support of her contention Ms. Sethna places strong reliance upon
decisions of this Court reported in (i) (Vidya Shivajirao Patil (Petition for
Letter of Administration))', 1999(3) Bom.C.R. 787: 1999(2) Mh.L.J. 643; (ii)
(Jyoti Doshi v. Hindustan Hosiery Mills), 2000(3) Bom.C.R. (O.O.C.J.)813:
2000(4) Mh.L.J. 228; (iii) (Usha Badri Poonawalla v. K. Kurian Babu), 2002(3)
Bom.C.R. 215 ; 2002(2) Mh.L.J. 951 and a judgment of another Single Judge
of this Court reported in (Shri Bipin Dalpatbhai Shah v. Vasantbern Rasilal
Zveri, 2001 (4) All.M.R. 1. In the submission of Ms. Sethna, the explanation
added to the notification dated 1st October, 1994 would not alter the position,
insofar as, plaintiff is concerned. She submits that an unreported decision of
this Court in (Writ Petition No. 1896 of 2000, dated 4th April 2001), would not
in any manner affect the law laid down in the earlier decisions referred to
above.
5. On the other hand, Mr. Patel appearing for some of the defendants, invites
my attention to the explanation below the notification dated 1st October, 1994,
introduced with effect from 23rd March, 2000 and contends that the word used
therein is "means" and not "includes". He submits that when- ever such word is
used, the intention is to exhaust all categories and not give any extended or
wider meaning to the provisions. In any event, he submits that this is not a suit
for maintenance. He submits that the expression "property disputes" has been
defined in the explanation to mean property disputes arising out of and
concerning matrimonial matters. This being the position, it is clear that efforts
are being made to avoid payment of Court fees. He submits that the substance
of the matter will have to be considered. So considered, the claim is not an
individual claim. It is made on behalf of plaintiff and defendant Nos. 5 to 7. In
this view of matter, concession should not be granted. He further submits that
considering the nature of reliefs claimed, observations of Division Bench apply
with full force. He submits that no exemption can be granted in a partition
suit. Mr. Patel contends that although the expression "property disputes" used
in the notification and defined in the explanation could be construed with
reference to provisions of section 7 of Family Courts Act, yet a partition suit
will not fall within the said expression and, therefore, this is a fit case where
the office objection should be upheld.
6. In rejoinder Ms. Sethna admits that financial stringency is not pleaded in the
plaint. However, plaint should be read as a whole. She invites my attention to
pars 45 of the plaint. She contends that the case of plaintiff is that she has been
kept in dark about certain documents. She submits that status of plaintiff is
that of a wife/widow who claims a right in HUF property of her deceased
husband. This coupled with the prayer for maintenance brings the present
case within the expression "property dispute" and, therefore, exemption
should be granted.
7. For properly appreciating rival contentions it is necessary to refer to section
46 of Bombay Court Fees Act, 1959. The said section confers a power on the
State Government to reduce or remit fees. It is a discretionary power conferred
on the State Government, which has to be exercised in accordance with section
46 of the Bombay Court Fees Act, 1959. The Government of Maharashtra in
exercise of this power exempted women litigants from l st October, 1994 from
payment of Court fees on any plaint, application, petitions, memorandum of
appeal or any other documents specified in the first and second schedule of the
Act to be filed in any civil, family or criminal courts in cases relating to
maintenance, property dispute, violence and divorce. This notification with the
explanation is reproduced hereinbelow :
"Bombay Court Fees Act, 1959, 580 No. S.T.P. 1094/C.R.-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 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 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 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."
Explanation.-The expression "Property Disputes" shall mean property disputes
arising out of and concerning matrimonial matters."
8. It is not disputed before me that explanation has been added on 23rd March,
2000.
9. A bare perusal of the notification makes it abundantly clear that the
Government of Maharashtra remits fees payable by women litigants in
proceedings to be filed in any Civil, family or criminal courts relating to
maintenance, property disputes, violence and divorce. It is also not in dispute
that the controversy before me pertains to property disputes. The contention is
that this expression has been given restricted meaning inasmuch as the
Government does not intend to widen its ambit and scope. It intends to
exhaust the disputes pertaining to property and, therefore, in the explanation,
it is stated that the same must arise out of and concerning matrimonial
matters.
10. In the case of Shri Bipin Dalpatbhai Shah v. Vasantbern Rasilal Zaveri,
reported in 2001(4) All.M.R. 1, decided on 6th August, 2001, a learned Single
Judge P.A. Patil, J.) of this Court held that in testamentary petition filed by a
widow for succession certificate to claim certain amounts payable to legal
heirs of deceased husband, filed after 23rd March, 2000, petitioner widow can
claim exemption from payment of Court fees for herself, her minor daughter
in proportion of their share payable on death of the deceased. But insofar as
two sons are concerned, they will have to pay Court fees in their shares. After
referring to some of the decisions in the field, the learned Single Judge in paras
8 and 13 observed as under :
"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. and 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 atarranting some concession in property disputes relating to paternal
property. In view of the clarification (Exh. 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."
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 interpreted in a liberal manner
so as to extend the benefit to the women 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."
11. Mr. Patel, however, inviting my attention to pars 8 reproduced above,
contends that even the Single Judge was of the view that a petition filed
claiming succession certificate is not concerning a dispute relating to
matrimonial matters. Therefore, he submits that in the instant case, the
exemption will not be available to plaintiff for similar reasons.
12. Before going further, in my view, it is necessary to peruse the plaint. In the
plaint, plaintiff avers that she has instituted the suit in her capacity as widow
of late Shri Rajnikant Kilachand, member of Rajnikant Kilachand Family Group
which is a constituent of the Ambalal Kilachand Family Group and/or as an
executrix of the estate of the late Shri Rajnikant Kilachand. The plaint proceeds
to narrate that plaintiffs husband Rajnikant was grand son of one Kilachand
Devchand who had five sons through his second wife. The said Kilachand had
another son through his first wife. Plaintiffs deceased husband was one of the
two sons of late Ambalal Kilachand. It is not in dispute that Ambalal was the
son of late Kilachand Devchand. After setting out the family history this is
what is stated in pars 9 of the plaint.
"9. The plaintiff is seeking partition of in moveable properties described in the
Schedule annexed hereto and marked Exhibit A and the move ables described
in the Scheduled annexed hereto and marked Exhibit B, in respect of which the
plaintiff is a tenant in common/co-owner and a member of the Kilachand
Devchand Family along with defendant Nos. 1 to 57 as shown in the lineage
table, which is annexed hereto and marked Exh. C. The plaintiff is also seeking
partition of business interests in the Kilachand Complex (more particularly
described hereunder) in respect of which the plaintiff is a joint owner of
shares along with defendant Nos. 1 to 12 and 23 to 29 herein, which corporate
tree is detailed in Exh. D hereto. Furthermore, defendant Nos. 69, 75 to 77
being chartered accountants have had close dealings with the companies
belonging to the Kilachand Complex and their intricate roles involvements are
apparent from Exh. E hereto. Alternatively, the plaintiff in her capacity as
widow and heir of late Rajnikant, who in turn was a joint co- owner and/or as
a member of Ambalal and Rajnikant Group, which are co-owners of the
Kilachand Group, is seeking partition of business interests in the Kilachand
Complex against defendant Nos. 1 to 12 and 23 to 29 herein".
13. The plaint proceeds to set out Rajnikant's share in the properties. The
plaintiff has alleged that on the demise of her husband on 6th August, 1997 she
enjoyed her normal routine benefits and rights of being a member of
Kilachand family. However, her son Harsh Kilachand immediately cut off
facilities enjoyed by her in her capacity as wife of Rajnikant, who as Chairman
of Companies of Rajnikant Group enjoyed several benefits and facilities. She
has also contended that although under Rajnikant's will she and defendant No.
1 has been appointed as Executrix/Executor, in utter disregard and breach of
the terms thereof, defendant No. 1 has not parted with any information in
relation to the estate of Rajnikant. He has independently instituted proceedings
in this Court for grant of probate in respect of the last will and testament dated
27th March, 1997. The defendant No. 1 and 23 have illegally perpetuated
control over family companies to the exclusion of rightful members, such as
plaintiff and defendant No. 1 The plaintiff has alleged that by her letter dated
12th May, 2003 addressed to defendant Nos. 23, 33 and 50, she sought partition
of the moveable and immovable properties as well as inter alia of the
companies/partnerships and trusts. The response to this letter was in the
negative and, therefore, she has been forced to file the present suit. She
contends that prior to 2003, she approached senior members of the family to
ensure fair and equitable distribution but no solution was found. Therefore,
she had to institute the present suit. She contends that defendants are trying to
usurp share of plaintiff to her detriment. It is in these circumstances, the suit is
instituted with the following prayers :
(a) That a preliminary decree of partition be passed declaring/determining the
share of the plaintiff as may be determined by this Hon'ble Court in all the
properties movable, immovable, assets, effects, cash, businesses, listed and
mentioned in Exh. A, B, D, F and K together with separation of her share
therein and possession thereof;
(b) That a final decree of partition of all the properties, movable, immovable,
assets, effects, cash businesses, listed and mentioned in Exhibits A, B, D, F and
K together with such properties assets as form Kilachand family property,
which is liable to be the subject-matter of the sought partition, pursuant to
disclosure in this suit as prayed hereinafter, be passed, and the plaintiffs share
as determined by this Hon'ble Court be separated, with possession to be
declared as her exclusive possession;
(c) That this Hon'ble Court order and declare the plaintiff to be entitled to the
free ad unhindered use and occupation of all offices or business premises
owned and/or controlled, directly and/or indirectly, by defendant Nos. 1 to 12
and 23 to 29 as also the business entities under their direct and/or indirect
control, viz., the offices or business premises of entities listed in Exh. F hereto,
including a definite share of independent user of 6, 624 sq.ft. area of joint user
of 19,872 sq.ft. in the demised commercial premises situate on the 4th , 5th and
6th floors of the East and West Wing of Oriental House, 7, Jamshedji Tata Road,
Churchgate, Mumbai 400 020 and/or such other area therein as may be found
by this Hon'ble Court to comprise the legitimate share of the plaintiff, together
with full right to use and occupy a defined share in the premises of all
Kilachand Group of Companies, and more particularly defendant Nos. 78 to
105 (excluding defendant Nos. 89 and 90) including their subsidiaries and/or
affiliaties and/or offshoots as the case may be, situate in Mumbai, Delhi,
Calcutta, Hyderabad, Calcutta, Chennai, Baroda as listed in Exhibit F hereto
and inclusive of all such locales as are the subject-matter of a disclosure in this
suit, without any interference from any of the defendants."
14. Vide prayer Clause (u), interim maintenance has been claimed. In para 69
of plaint, it is stated that for purpose of Court fees and jurisdiction, although
exact value of the property sought to be partitioned and/or share of plaintiff
therein is currently not easily ascertainable, plaintiffs share in the said
properties would be worth several crores. However, being a woman litigant,
plaintiff is entitled to seek the benefit of the aforementioed policy and has
undertaken that in the event she is held liable to pay Court fees, then she will
deposit the same as per the orders and directions of this Court.
15. The plaint averments are therefore clear. The Government of Maharashtra
has framed a policy for upliftment of women in general. It is on the basis that
development of women in India is rooted in the Constitution. It legitimises
positive discrimination in favour of women and children in the State. The goal
of Government is to ensure an improvement in the physical, mental, social and
emotional quality of life of women of the State. This goal will be attained
through ensuring equality for women in every sphere of life, but specially in
political, economical, social emotional and cultural areas. One of the issues on
which attention is focused is ensuring equality both in spirit and letter of the
law and improving economic status of women. The policy document has
several heads. One of which is women and law. It is in this regard that policy
envisages exemption of Court fees for women litigants. The intention is that
opportunity should be made available to women to redress their grievances
and have recourse to law on par with every other citizen. Legal systems and
laws have evolved over many years. For most women, however, an
opportunity to redress their grievances and recourse to law has remainded on
paper. As a part of review of all statutes, dealing with women's access to the
property both at the matrimonial and maternal home and ensure equality to
the economy and review the working and procedures of family Court that
exemption in Court fees has been provided.
16. In Jyoti Doslu Hindustal Hosiery Mills, reported in 2000(3) Bom.C.R.
813: 2000(4) Mh.L.J. 228 a learned Single Judge of this Court held that the
notification dated 23rd March, 2000 will not restrict and/or govern and/or
control exemption granted by the earlier notification dated 1st October, 1994.
The said notification provides for exemption of Court fees to women litigants
provided the suits instituted by them are in their personal capacity. It was held
that exemption will clearly be made available to all women litigants who have
filed suits in this Court in their personal capacity. The learned Single Judge
heard submissions on the scope and applicability of the exemption notification
dated 1st October, 1994 and whether notification dated 23rd March, 2000
adding the explanation restricts or controls the earlier notification. Some-what
identical submissions were made before the learned Judge and after referring
to the decisions rendered by this Court on the first notification, this is what is
observed by the learned Single Judge in paras 10 and 19.
10. From the above referred different judgements and orders passed by
various judges, what emerges is as follows :
(a) In a suit for specific performance, a learned Judge has taken a view that the
Court fees would not be payable if the suit is filed by a lady litigant. That
judgement has been rendered as back as on 19th September, 1995;
(b) In matters of probate petition and similar proceedings also, the lady
litigants have been exempted from the requirement of payment of Court fees
to the extent they are the beneficiaries in the property which has been the
view taken by me on 28th April, 1999 and the same approach has been
continued by another Judge (Nijjar, J).
(c) In matters of mental torture, a counter claim by a lady litigant has been
entertained without payment of Court fees by an order passed on 19th March,
1997.
(d) In a matter of motor accident claim, though invoking provisions of Rule
257(3) of the Maharashtra Motor Vehicles Rules, a learned Judge has taken a
view that property will include immovable as well as movable and exempted a
lady litigant from payment of Court fees by an order passed on 24th October,
1997;
(e) In a summary suit, a learned Judge has taken a view on 18th February, 1998
that Court fees would not be payable (though that was also on the footing of
the Assistant Government Pleader conceding to the position).
Thus we have judgments covering different facts of property disputes such as
suits for specific performance, summary suits, claims to the Motor Accident
Tribunal, claims seeking compensation for mental torture and probate petition
and application for succession certificate which have all held women litigants
to be exempt from Court fees. All these judgements and orders have been
given during this intervening period and have remained and are being
followed in different courts including this Court whenever such controversies
are coming be- fore the Court. There are two judgements taking a different
view. One given by the Appeal Court in a bank suit wherein a lady director
sought exemption from Court fees. In an appeal filed by her, the Division
Bench has taken the view that she would not be eligible to claim exemption
from payment of Court fees. And in a suit claiming compensation another
Judge has taken a view that property dispute does not include tortious
liability."
19. I have considered the submissions made by the Counsel for the women
litigants as well as the Counsel for the defendants as also by the Advocate
General.
(i) As far as the two issues which have been framed by me are concerned, my
answer of Issue No. 2 will be that the notification dated 23rd March, 2000 will
not restrict and/or govern and/or control the exemption granted by the earlier
notification of 1st October, 1994 with regard to payment of Court fees to
women litigants provided those are suits filed by women litigants in their
personal capacity. The suits filed by them as directors of companies or as
partners of firms will not make them eligible to get the exemption in the
pending matters.
(ii) As far as the applicability of the notification of 1st October, 1994 is
concerned, which is Issue No. 1, it will continue to apply to the suits which are
already filed and which are pending in this Court though subject to the above,
namely that those suits which are filed by women directors of companies or
women directors of companies or women partners of partnership firms will
not make them: eligible for exemption under the notification."
(iii) The answers to these two issues will grant exemption normally to all the
women litigants who have filed their suits in this Court in their personal
capacity and which are pending in objection before the Prothonotary and
Senior Master, subject to the exceptions stated above.
(iv) In those cases, where however, for reasons to be recorded, the
Prothonotary takes the view that the women litigants are required to pay the
Court fees, that would be subject to a revision as provided under section 5(2) of
the Bombay Court Fees Act, 1959.
(v) This will also not prevent the defendants from raising their objections
when the suits are lodged and numbered without payment of Court fees. They
will be entitled to raise their objections before the concerned Judge by filing
their written statements as and when the suit is taken up for hearing.
(vi) In matters of probate petition and succession certificate, my brother K.G.
Shah, J., in his earlier order has taken the view that the moment a lady litigant
files a proceeding, she will not be required to pay the Court fees. I have taken a
view after referring to the judgment of K.G. Shah, J., that the women
beneficiaries will not be required to pay the Court fees only to the extent they
are getting benefit in the estate. The same view is taken by Nijjar, J., in his
order of 10th February, 2000 but he has specifically differed with the view
taken by K.G. Shah, J. The office faces the problem and as far as pending
matters are concerned, a query was made to Nijjary, J., as to what approach of
the office should adopt. My brother Nijjar, J., kept the decision in abeyance
since the present controversy was pending in this Court. In view of what is
stated above, in my view, it would be appropriate that from the date of the
order passed by Nijjar, J., i.e. 10th February, 2000 effect be given to the view
that I have taken as well as the view taken by Nijjar, J. viz., that only to the
extent women are beneficiaries, Court fees will not be required.
(vii) Needless to state that the matters filed on and after 23rd March, 2000 will
be governed under the notification of that date."
17. As to whether this view holds the field after the observations of the
Division Bench dated 4th April, 2001 needs to be seen now. According to
Division Bench, the clarification /explanation is nothing but a clarification of
what was implicit in the main part. Property disputes mentioned in the earlier
part are property disputes arising out of and concerning matrimonial matters.
The Division Bench noted that suits were filed including summary suit and
concession was misused by raising claims in respect of properties not in any
manner concerned with matrimonial disputes. Therefore, the clarification
came vide the explanation. The Division Bench noted the submission that
concession in property disputes will not relate to paternal property and
women litigant will not be entitled to remission in respect of payment of Court
fees in regard to property disputes of this nature. The challenge to the
explanation was, therefore, rejected.
18. In my view, decisions of Single Judges to which a reference has been made
hereinabove, continue to hold the field. The observations of the Division Bench
while dealing with the challenge to the explanation, does not alter the legal
position. The expression property dispute is explained to mean disputes
arising out of and concerning matrimonial matters. It is pertinent to note that
expression matrimonial matters has not been defined. While, the main part of
notification refers to case relating to mainteriance; violence and divorce the
explanation only defines expression "property disputes". Even while defining
or explaining them the intent is not to restrict the disputes but clarify the
concept. Said concept is clarified. The expression has been defined keeping in
mind a relationship. Disputes arising out of and concerning matrimonial
matters have to be given the meaning which the legislature/ Government
intended to give. In other words, when- ever, terms such as "arising out of',
"concerning" are used, the idea is not to restrict the expression but to give a
wider meaning to the same. The expression property disputes is defined to
mean property disputes arising of and concerning matrimonial matters. The
terms "arising out of' and "concerning" are wide enough but they have to be
considered in the context of matrimonial matters. Although it is not necessary
to go in details but whenever such expressions are used, then how the same
have to be construed has been subject-matter of decision in number of
judgments rendered by the Supreme Court. In the case of (Doypack Systems
Pvt. Ltd. Union of India), reported in AIR 1988 Supreme Court 782, the
Supreme Court in paras 48 and 49 has held thus :
"48. The words "arising out of' have been used in the sense that it comprises
purchase of shares and lands from income arising out of the Kanpur
undertaking. We are of the opinion that the words "pertaining to" and "in
relation to" have the same wide meaning and have been used interchangeably
for among other reasons, which may include avoidance of repetition of the
same phrase in the same clause or sentence, a method followed in good
drafting. The word "pertain" is synonymous with the word "relate", see Corpus
Juris Secundum, Volume 17 page 693."
49. The expression "in relation to" (so also pertaining to") is a very broad
expression which presupposes another subject-matter. These are words of
comprehensiveness which might both have a direct significance as well as an
indirect significance depending on the context, see (State Wakf Board Abdul
Azeez)', AIR 1968 Madras 79, 81 paragraphs 8 and 10, following and
approving (Nitai Charan Bagchi Suresh Chandra Paul), 1962(66) Cal. W.N.
767, (Shyam Lal v. M. Shayamlal), AIR 1933 Allahabad 649(F.B.) and 76
Corpus juris Secundum 621. Assuming that the investments in shares and in
lands do not form part of the undertakings but are different subject-matters,
even then these would be brought within the purview of the vesting by reason
of the above expressions. In this connection reference may be made to 76
Corpus Juris Secundum at pages 620 and 621 where it is stated that the term
"relate" is also defined as meaning to bring into association or connection with.
It has been clearly mentioned that "relating to" has been held to be equivalent
to or synonymous with as to "concerning with" and "pertaining to". The
expression "pertaining to" is an expression of expansion and not of
contraction.
It is not necessary for me to decide in this case as to what would be covered by
the term "matrimonial matters." Mr. Patel has invited my attention to the
provisions of section 7 of Family Courts Act, 1984, the same reads thus :
"7. (1) Subject to the other provisions of this Act, a family Court shall,
(a) Have and exercise all the jurisdiction exercisable by any District Court or
any subordinate Civil Court under any law for the time being in force in
respect of suits and proceedings of the nature referred to in the explanation;
and
(b) Be deemed, for the purpose of exercising such jurisdiction under such law
to be a District Court, or as the case may be, such subordinate Civil Court for
the area to which the jurisdiction of the Family Court extends; Explanation The
suits and proceedings referred to in this sub-section are suits and proceedings
of the following nature, namely :
(a) A suit or proceeding between the parties to a marriage for a decree of
nullity of marriage (declaring the marriage to be null and void or as the case
may be, annulling the marriage) or restitution of conjugal rights or judicial
separation or dissolution of marriage;
(b) A suit or proceeding or a declaration as to the validity of a marriage or as to
the matrimonial status of any person;
(c) A suit or proceeding between the parties to a marriage with respect to the
property of the parties or-of either of them;
(d) A suit or proceeding for an order or injunction in circumstances arising out
of a marital relationship;
(e) A suit or proceeding for a declaration as to the legitimacy of any person;
(f) A suit or proceeding for maintenance;
(g) A suit or proceeding in relation to the guardianship of the person or the
custody of, or access to, any minor;
2. Subject to the other provisions of this Act, a Family Court shall also have and
exercise-
(a) The jurisdiction exercisable by a Magistrate of the First class under Chapter
IX (relating to order for maintenance of wife, children and parents) of the Code
of Criminal Procedure, 1973 (2 of 1974); and
(b) Such other jurisdiction as may be conferred on it by any other enactment;
19. In the context of section 7 of the Family Courts Act, it is possible to hold that
the term "matrimonial matters" would include within its import, cases not just
of divorce, judicial separation, annulment of marriage, interim maintenance,
alimony, custody of children, maintenance envisaged by marriage laws but
matters concerning property rights which arise out of matrimonial
relationship. The term has to be understood in the context of a relationship
after marriage and qua a family. Ultimately, all family matters were intended
to be adjudicated by a family Court. While interpreting a provision, which is
beneficial in nature law is intended to confer a right on a weaker section so as
to remove an obstacle and give opportunity to seek redress. If two
interpretations are reasonably possible, then one which will be in favour of
woman's right to seek remedy will have to be preferred; rather than denying
her an opportunity at the threshold. However, the wider question need not be
finally decided in this case.
20. Suffice for me to state that in the present case, the status of plaintiff is that
of a wife/widow. She is claiming a declaration of her share in the property of
her deceased husband on the basis that she has a right therein upon his
demise. She has averred that, that right is being denied to her not just by other
members of her deceased husband's family but even her own' son. She claims
her individual right in the properties and prays for ascertainment of the share
therein and upon such ascertainment to grant the same and for that purpose,
even, partition the assets and properties, by metes and bounds. It is, therefore,
a clear case where on account of matrimonial relationship, the plaintiff asserts
her right in the properties of her deceased husband which devolves either in
terms of intestate succession or by testamentary disposition being executrix
and beneficiary of the estate. This is a case of a woman beneficiary coming as a
litigant to the Court seeking her share in the estate of her deceased husband,
denied to her by the members of the husband's family. In my view, such matter
is covered by the explanation and could safely be termed as a property dispute
arising out of matrimonial relationship. To the extent of the plaintiffs share in
the property of her deceased husband she is, therefore, entitled to seek
exemption from payment of Court fees. It is clarified that after adjudication, if
ultimately, it is found that the plaintiff is not sole beneficiary but there are
others then to the extent of her sons share, plaintiff or the sons will have to pay
Court fee. Suit for partition is not a suit where parties are strictly adversaries.
It is a suit where all parties are plaintiffs and defendants. In such litigation it
will not be proper to hold that the woman litigant would be entitled for
exemption in payment of Court fees, not just qua her share as beneficiary but
even that of her sons. As held by this Court (Patil, J.), exemption will be
restricted to the plaintiff and her share in the estate of deceased.
21. Consequently, the office is in error in insisting on payment of Court fees by
the plaintiff women litigant. It is held that plaintiff is entitled to the benefit and
exemption under notification dated 1st October, 1994. She is, therefore,
exempted from payment of Court fees prescribed under Bombay Court Fees
Act, 1959. Office to proceed. All concerned to act on an authenticated copy of
this order.