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HIGH COURT OF BOMBAY
S. Radhakrishnan, Anoop V. Mohta, JJ
Sudha Girish Munshi – Appellant
Versus
State of Maharashtra – Respondent
PETITION (L) NO. 118 OF 2007
For the Appellants/Petitioners: V.V.Tulzapurkar, Shyam Mehta
For the Respondents: Ravi Kadam, Shekhar Ingawale
A woman litigant filing a petition for probate of a Will is not entitled to exemption from Court fees under the Maharashtra Government Notifications dated 1st October 1994 and 23rd March 2000, as probate proceedings do not constitute 'property disputes' arising out of or concerning matrimonial matters.
Headnote:(A) Bombay Court Fees Act, 1959 - Section 46 - Government Notifications dated 1st October 1994 and 23rd March 2000 - Exemption from Court Fees for women litigants - Term 'property disputes' defined as those arising out of and concerning matrimonial matters - Scope of exemption - Whether petition for probate of a Will by a widow falls within the ambit of 'matrimonial matters' and 'property disputes'.
Facts of the case:
A petition was filed for the grant of probate of a Will. The Petitioner, being the widow of the deceased and the sole beneficiary under the Will, sought exemption from payment of Court Fees relying on the Government Notification dated 1st October 1994. The matter was referred to a larger bench due to conflicting decisions regarding whether such a probate petition by a woman litigant qualifies for the exemption under the notification, particularly after the clarificatory amendment of 23rd March 2000.
Findings of Court:
The Court held that the intent behind the amendment notification was to restrict the scope of 'property disputes' to those strictly arising out of or concerning matrimonial matters. Probate proceedings arise out of the death of the testator and concern the validity of the Will, not a dispute between parties to a marriage.
Issues: Whether a woman filing a petition for probate is exempted from paying Court fees under the specified Government Notifications.
Ratio Decidendi: The amendment limiting 'property disputes' to matrimonial matters is a deliberate legislative act. A probate petition concerns the validity of a Will, not a matrimonial dispute, and therefore does not satisfy the requirements of the exemption notification.
Result: The exemption from Court fees is not applicable to a woman filing a probate petition.
| Table of Content |
|---|
| 1. context and notifications governing court fee exemptions for women. (Para 1 , 2 , 3 , 4) |
| 2. arguments and conflicting judicial history regarding the exemption. (Para 5 , 6 , 7) |
| 3. analysis of the single judge's reasoning and legislative intent. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 4. petitioner's arguments for liberal construction and constitutional equality. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 5. final court conclusion narrowing the scope of property disputes. (Para 25 , 26 , 27) |
JUDGMENT :(PER : DR.S.RADHAKRISHNAN,J.)
1. In view of various conflicting decisions of a number of Single Judges, the Hon'ble the Chief Justice has referred the following Question for being answered:-
“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?
2. The aforesaid 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 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.
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
3. By virtue of Section 46 of the Bombay Court Fees Act, 1959, the Government of Maharashtra issued a notification dated 1/10/1994, remitting the court fees payable by women litigants on any of the plaints, applications, petitions, memoranda 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 court in respect of cases relating to (a) maintenance (b) property disputes (c) violence (d) divorce.
4. By virtue of an amending notification dated 23/03/2000, the term ‘property disputes’ as envisaged under the previous notification dated 1/10/1994, was explained as property disputes arising out of and concerning matrimonial matters.
5. Dr.Tulzapurkar, the learned Senior Counsel for the Petitioners herein, submitted as under:-
a) The deceased, Girish Kanaiyalal Munshi, who expired on or about 9/10/2006, left behind his last Will, the Petitioners being two of the executo
