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 23/03/2000, 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 23/03/2000 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 4/06/2007, to the judgment of the Privy Council in the case of D. R. Fraser & Co. Ltd v. The Minister of National Revenue AIR (36) 1949, 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 Page 1539 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 v. The Executive Engineer, MSEB 1999(2) Bom CR 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 v. Mrs. Vijaya Gurshaney and Anr. AIR 2003 SC 3669, which Deshmukh J. referred to in his judgment of 4/06/2007 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.
d) As rightly contended by the Learned Advocate General, Mr.Ravi Kadam, on behalf of the state, testamentary cases do not arise out o f 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 23/03/2000 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 1Section 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.
27. Hence, we answer that a woman litigant who files a Petition for grant of Probate of a Will is not exempted from payment of Court Fees, as per Government Notification dated 1st October,1994, duly amended by an explanatory Notification dated 23rd March,2000.
Bombay High Court
S. Radhakrishnan, J.
Page 1528
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), Page 1529 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 executors named therein.
b) The other two executors viz. Mr. Sanjay Natwarlal Mehta and Mr. Jaswantlal Chimanlal Shah, have separately renounced their rights to act as executors of the said Will.
c) Petitioner No. 1 who is the widow of the deceased, is the sole beneficiary under the Will and as such the entire estate of the deceased devolves on her.
d) As the sole beneficiary under the Will is a lady litigant, the Petitioners claim exemption from payment of the court fees vide the Government Notification dated 1/10/1994 issued by the Government of Maharashtra under Section 46 of the Bombay Court Fees Act, 1959, duly amended by an explanatory Notification issued by the Government on 23/03/2000.
6. Dr.Tulzapurkar, the learned Senior Counsel referred to the order dated 4th June,2007 of the learned Single Judge D.K.Deshmukh,J. in the above matter, raising the above question for being answered.
a) The Learned Single Judge perused through various judgments of this Court decided prior to the issuance of the explanatory Notification dated 23/03/2000 wherein the Learned Judges adjudicated upon the ambit of the Government Notification dated 1/10/1994 and the interpretation of the term 'property disputes' as arising therein.
Page 1530
For instance:
i) Smt. Deepa Shashikant Godambe v. State of Maharashtra and Ors. decided on 19/09/1995, wherein it was held that when a woman litigant files a suit for decree of specific performance of a contract, by virtue of the Notification dated 1/10/1994, she is exempted from payment of court fees.
ii) Sanjay Mahavir Prasad Jain v. Mrs. Vrishali w/o Sanjay Jain , decided on 19/03/1997, wherein it was held that a woman litigant who files a counter claim seeking damages for mental torture in a petition filed for restitution of conjugal rights, is also exempted from payment of court fees, by virtue of the aforementioned Notification.
iii) Pankuwarbai wd/o Dalpatrao Mutha and Ors. v. Ramesh Chandra s/o Dalpatrao decided on 27/08/1997, wherein the Learned Single Judge took the view that a woman litigant who files an application for grant of succession certificate, is remitted from payment of court fees, by virtue of the aforementioned Notification.
iv) Dr. (Mrs.) Gita Sanat Naik, decided in 26/06/1996 in testamentary petition No. 284 of 1996 wherein it was held by the Learned Single Judge that when a widow who is the sole executrix in the Will files a petition for probate of the Will left behind by her husband, she is exempted from payment of court fees, by virtue of the aforementioned Notification.
v) Parwatibai v. State of Maharashtra 1998(2) Bom. C.R.593, decided on 24/10/1997, wherein the Learned Single Judge was of the view that a woman litigant who filed a case for compensation in relation to Motor Accident is, by virtue of the aforementioned Notification, exempted from payment of court fees.
vi) Manjula Thakkar v. Shivshakti Enterprises , decide on 18/02/1998, wherein the Learned Single Judge took the view that a woman litigant who had filed a summary suit for money decree was also exempted from payment of court fees by virtue of the aforementioned Notification.
vii) Ashabai v. Ex. Engineer M.S.E.B. , decided on 29/07/1998, wherein the Learned Single Judge held that woman litigant who files a suit for compensation for the death of her husband due to an electric shock is liable to pay court fees and does not enjoy exemption form payment of court fees under the aforementioned Notification.
Page 1531
viii) Smt. Suhasini Revankar v. Bank of India Appeal No. 1234 of 1999 in Suit No. 193 of 1981, decided on 8/04/1999, wherein a Division Bench of this Hon'ble Court took the view that a woman litigant who files an appeal against a money decree passed against her, in her capacity as a Director of a Company, cannot avail of the exemption from payment of court fees under the aforementioned Notification.
7. Dr.Tulzapurkar, the learned Senior Counsel, thereafter referred to cases decided subsequent to the issuance of the explanatory Notification dated 23/03/2000 which qualified 'property disputes' as disputes arising out of and concerning matrimonial matters, the Learned Single judge referred to the judgments in the following cases:
i) Jyoti S. Doshi v. Hindustan Hosiery , in which it was held that matters which are filed in the Court before the 2nd Notification dated 23/03/2000 was issued, will be governed by the original Notification dated 1/10/1994 as it stood before the amendment of 23/03/2000.
ii) Freny H. Ponda v. The State of Maharashtra and Ors. wherein a Division Bench of this Hon'ble Court upheld the validity of the explanatory Notification dated 23/03/2000 and took the view that there was no justification to quash the this Notification in the absence of any breach of any statutory provision.
8. Referring to the explanatory Notification of 23/03/2000, the Learned Single Judge D.K.Deshmukh, J. held that:
a) The purpose of this 2nd Notification was to define the term 'property disputes'.
b) The Notifications issued by the government on 1/10/1994 and 23/03/2000 are instances of conditional legislation and not delegated legislation. This is because when an Act of Parliament gives power to the Executive to bring an act into force or to the Government to exempt person or property from operation of the enactment, the power conferred in such a situation on the Executive or the Government is an instance of conditional legislation.
c) In view of the above, it is pertinent to note the judgment of the Constitution Bench of the Supreme Court in the case of Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Sabha , wherein it was held that the power bestowed upon the Government under Section 36 of the Payment of Bonus Act, 1965, of exempting an establishment or a class of establishments from operation of the Act, amounts to conditional legislation and is not void.
d) The Learned Single Judge held that as the two Notifications are pieces of conditional legislation, the well settled principles of interpretation of statutes would apply to them.
Page 1532
e) The Learned Single Judge further held, that insofar as the principles governing the interpretation of a Notification granting exemption from payment of tax or fee is concerned, they have been laid down by the Supreme Court in its judgment in the case of Union of India and Ors. v. Wood Papers Ltd. and Anr. , wherein the Court observed that when the question is whether a subject falls in the notification or in the exemption clause, then it being the nature of exception, is to be construed strictly against the subject, but once the doubt about the applicability is lifted and the subject falls in the notification, then it calls for a wider and liberal construction.
f) In view of the aforementioned judgment, the Learned Single Judge, in the present case, held that when the question to be decided is whether a litigant falls in the category which is entitled to exemption, the Notification ought to be strictly construed since it is in the nature of an exception made to a general rule.
g) The Learned Single Judge concurred with the view expressed by the Supreme Court in the case of Commissioner of Income Tax, Gujarat v. Cellulose Products of India Ltd. , so far as the principle governing interpretation of fiscal statutes in concerned, and observed that a perusal of the definition of 'property disputes' as found in the 2nd Notification dated 23/03/2000 is so clear that it does not admit any doubt and therefore there is no question of placing any interpretation or construction on that provision.
9. The Learned Single Judge Deshmukh,J. further observed that:
a) While holding an enquiry to find out what kind of litigation filed by women litigants is exempted from payment of court fees, it is necessary to examine the situation existing at the time when the 2nd Notification dated 23/03/2000 was issued.
b) This Notification was issued as a result of various judgments of this Court wherein the term 'property disputes' was given a wide interpretation.
c) It is well established that the Notification dated 23/03/2000 is an amendment Notification. In view of this, it is imperative to note to the judgment of the Privy Council in the case of D. R. Fraser & Co. Ltd v. The Minister of National Revenue AIR (36) 1949, wherein the Privy Council observed that, 'When an amending act alters the language of the principal statute, the alteration must be taken to have been made deliberately'.
d) Therefore 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.
Page 1533
10. In the case of Bipin Dalpatbhai Shah v. Vasantben Rasilal Zaveri 2001(4) All MR 1, the Learned Single Judge referred to the liberal interpretations given to the Notification of 1/10/1994 by K.G. Shah J, Gokhale J. and Nijjar J. in matters decided prior to 23/03/2000 (ie. The date on which the 2nd Notification was issued) and held that in relation to a testamentary petition filed by a woman, she would be remitted from payment of court fees insofar as she is the beneficiary in the estate of the deceased.
11. It is vital to note that the learned Single Judge in the case of Bipin Dalpatbhai Shah v. Vasantben Rasilal Zaveri did not take into consideration the change that the Government wanted to bring about by issuing the 2nd Notification and that the decisions that were relied on in the judgment were ones rendered before the 2nd Notification was issued and as such should not have been relied upon after the 2nd Notification was issued.
12. In Ramila Rajnikant Kilachand v. Harsh R. Kilachand and Ors. 2004(6) Bom. C.R. 75, the Learned Single Judge held that;
i) The term 'matrimonial matters' as referred to in the Government Notification dated 23/03/2000, includes even such a dispute wherein the husband may not be a party.
ii) The terms 'arising out of' and 'concerning' matrimonial matters are used not with the intention to restrict but with that if giving a wider meaning to the same.
iii) If a woman files a suit for her share in the property of her deceased husband, she is entitled to claim compensation from payment of court fees as such a suit falls within the ambit of 'matrimonial matters'
13. The Learned Single Judge D.K.Deshmukh.J. in the present case, perused through the aforementioned judgment and held that:
i) In order for a dispute to be qualified as one 'arising out of or concerning matrimonial matters', the dispute must necessarily be between parties who are parties to the marriage.
ii) In the absence of the definition of 'matrimonial matters' in either the Notification or the Bombay Court Fees Act (1959), a useful reference may be made to the explanation of the same appearing in Sub-section 1 of Section 7 of the Family Courts Act, a perusal of which makes it clear that, all matters in relation to which the Family Court has jurisdiction, are matters arising out of disputes between the parties to the marriage.
14. With reference to a petition filed for probate of a Will, the Learned Single Judge D.K. Deshmukh,J. was of the view that:
a) Such a petition is never a petition in relation to any dispute concerning any property but is in relation to the validity or otherwise of a Will and can by no stretch of imagination be termed as a petition 'arising out of or concerning matrimonial matters'
b) A testator can name any person, who may or may not be his widow or his relative, as an executor of his Will and therefore merely because in a Will the widow has been named as the executor, would not entitle her to exemption from payment of court fees.
Page 1534
c) In a probate petition, a dispute will arise only if somebody files a caveat, however at the time when liability to pay court fees arises in a probate petition, nobody can say with any amount of certainty that a dispute will arise in that petition, and hence a petition filed by a woman for probate of a Will, will not enjoy exemption from payment of court fees.
d) Contrary to the argument advanced before this Court on behalf of the petitioners, that a petition for probate of a Will arises out of matrimony, such a petition filed under the Indian Succession Act actually arises out of death and not matrimony.
15. The Learned Single judge D.K.Deshmukh,J. disagreed with the view taken by the Learned Single Judge in the case of Dr. (Mrs.) Geeta S. Naik, dated 26/06/1996, wherein it was held that a woman litigant is exempted from payment of court fees for a petition filed to protect her property right. In view of the aforementioned decision, the Learned Single Judge D.K.Deshmukh,J. in the present case held that:
a) The Learned Single judge in the case of Dr. (Mrs.) Geeta S. Naik, made no attempt to examine the intention of the Government by reading into the operative part of the Notification and in the circumstances, when construing the words of the Notification on their plain simple meaning did not lead to an absurd or unreasonable interpretation, there existed no necessity to refer to the preamble of the said Notification.
b) Furthermore, the Learned Single Judge in the aforesaid case ought to have considered that it is a settled law that in a probate petition, right to property or title to any property is never decided by the testamentary Court. This view has also been upheld by the Supreme Court in the case if Ishwardeo Narain Sing v. Smt. Kamla Devi AIR 1954.
c) A perusal of another judgment of the Supreme Court in the case of Delhi Development Authority v. Mrs. Vijaya Gurshaney and Anr. wherein the Supreme Court 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, clearly elucidates the fact that in a probate petition, there can never be any dispute relating to property but only a question relating to the validity of the Will.
16. Lastly, after having perused through various previous judgments of this Court and the Hon'ble Supreme Court, various statutes, and having analyzed the intention of the Government behind issuing the Notifications dated 1/10/1994 and 23/03/2000, the Learned Single Judge D.K.Deshmukh,J. stated that as the question in relation to grant of exemption arises often before this Hon'ble Court and has often resulted in conflicting judgments, the matter ought to be placed before a lager bench of this Hon'ble Court so that a correct and authoritative view of the matter can be taken.
Page 1535
17. The Learned Senior Counsel for the Petitioners, Dr. Tulzapurkar, has submitted that the Petitioners are not liable to pay any court fees on the Petition in view of the Notification dated 1/10/1994 as amended by the Notification dated 23/03/2000, as the petition has been filed for probate of a Will dated 3/02/1999, wherein the deceased who died on 9/10/2006 bequeathed his entire estate to his wife, the 1st Petitioner and such a bequest is made because of the 'matrimonial relationship' between the testator and the legatee.
18. The Learned Counsel, Dr. Tulzapurkar has further submitted that:
a) The principles of interpretation of statutes require notifications to be construed textually and contextually, wherein to support his argument he cited the judgment in the case of Reserve Bank of India v. Peerless General Finance and Co. Ltd. AIR 1987 SC 1023 at para 33.
b) The Notification is a piece of beneficial delegated legislation, and is therefore required to be construed liberally as was done in the following cases:
i) Smt. Deepa Shashikant Godambe v. State of Maharashtra and Ors.
ii) Sanjay Mahavir Prasad Jain v. Mrs. Vrishali w/o Sanjay Jain
iii) Pankuwarbai wd/o Dalpatrao Mutha and Ors. v. Ramesh Chandra s/o Dalpatrao
iv) Parwatibai v. State of Maharashtra
v) Manjula Thakkar v. Shivshakti Enterprises ,
vi) Bipin Dalpatbhai Shah v. V. R. Zaveri (2001)4 ALL MR 1
19. Dr.Tulzapurkar, the learned Senior Counsel submitted that even if Notifications providing for exemption are to be construed strictly as observed by the Learned Referring Judge D.K.Deshmukh,J. in his judgment at paragraph 7 therein (Relying on Income tax Gujarat v. Cellulose Products of India ; Union of India v. Wood Papers Ltd. ; Petron Engineering v. Central Board of Direct Taxes ), the words 'property disputes' are required to be construed so as not to defeat the object of granting exemption and therefore ought to Page 1536 be interpreted to cover all cases where a woman litigant gets benefit in the estate of her husband.
20. He submitted that the term 'dispute' is to be interpreted as also to mean entitlement and the entitlement to property bequeathed is dependant on the woman legatee obtaining probate. Unless the Will is probated she cannot claim entitlement to the property. Therefore the word 'dispute' cannot be given a restrictive meaning so as to cover only a dispute between a woman litigant on one hand and another litigant on the other hand.
21. The learned Senior Counsel submitted, that in the alternative the word 'dispute' will cover claim for probate since in the absence of probate the estate would devolve as on intestacy, in the event of which all the heirs of the deceased would be able to claim the estate as against the wife legatee. In that respect there is a dispute between the wife legatee and all the other heirs. In support of the this, it is imperative to examine the legal definition of the word 'dispute' as found in Blacks Law Dictionary, 8th ed wherein dispute is shown to mean ' A conflict or controversy especially one that has given rise to a particular law suit'.
22. The Learned Senior Counsel for the Petitioner has contended that an anomaly in interpreting the words 'property disputes' in a narrow manner, so as to exclude a widow who files a suit for probate of the Will of her deceased husband from the ambit of the Notification, is that, if a wife makes a claim to her husband's property on intestacy and files a suit for administration of the said property, she would be exempted from payment of court fees, however if the same wife is a legatee she would have to pay court fees while applying for probate. Therefore, Learned Counsel, Dr. Tulzapurkar stated that such an interpretation would clearly be discriminatory and would render the same to be violative of Article 14 of the Constitution of India.
23. The Learned Counsel has submitted that:
a) Even if the Notifications dated 1/10/1994 and 23/03/2000 are pieces of conditional legislation, they were made to grant relief to women litigants in cases involving inter alia property to which the woman makes a claim as a result of a matrimonial relationship. Therefore in addition to being instances of conditional legislation the Notifications are also instances of welfare legislation and as such should be construed liberally so as not to deprive a woman litigant from enjoying such property. In support of this liberal interpretation of welfare legislation, the Learned Counsel drew our attention to several judgments wherein the Court had interpreted the welfare legislations liberally viz.
i) Alembic Chemical Works Co. Ltd. v. The Workmen
ii) Collector of Central Excise and Ors v. Neoli Sugar Factory (1993) Supp. (3) SCC 69
Page 1537
iii) HMM Ltd v. Collector of Central Excise
iv) Collector of Central Excise v. Parle Exports (P) Ltd.
b) The Learned Senior Counsel has further submitted that the words 'concerning a matrimonial relationship' arising in the Notification, is to be construed as anything resulting from a matrimonial relationship, wherein he relied to 2 judgments where the word 'concerned' were interpreted liberally
i) R Dalmia v. Commissioner of Income Tax .
ii) Radha Krishan Bhatia v. The Union of India
24. In view of the arguments advanced and authorities cited, Dr.Tulzapurkar, Learned Senior Counsel for the Petitioners has submitted that, whenever a petition is filed by a wife legatee for probate of a Will or for letters of Administration with the Will annexed, she should be exempted from payment of court fees and hence in the present case, the Petitioners should be exempted from payment of the same.
25. As per our request, the learned Advocate General Mr.Ravi Kadam, very ably assisted the Court, with regard to interpretation of the aforesaid Government Notification as under:
a) It was as a result of various decisions of this Court wherein the term 'property disputes' was given a wide interpretation, that the Government issued the explanatory Notification dated 23/03/2000, as an amendment to the Notification dated 1/10/1994, to clarify that the words 'property disputes' would be restricted to those arising out of and concerning matrimonial matters.
b) Thus it is clear that the intention of the 2nd Notification was to change the then existing Notification, and if despite the amendment, the situation continues to remain the same, then the amendment would be an exercise in futility.
c) Therefore it is imperative that the Notification and in particular the words 'arising out of and concerning matrimonial matters' be construed literally in their clear and ordinary meaning so that the ambit of the words 'property disputes' is not interpreted in such a wide manner which would be contrary to the intention of the Government behind issuing the Notification.
d) In reference to the judgment of Dharmadhikari J. in the case of Ramila Rajnikant Kilachand v. Harsh R. Kilachand and Ors. (Supra), relied upon by the Petitioners, the Learned Advocate General stated that:
Page 1538
i) The words 'matrimonial matters' arising in the Government Notification of 23/03/2000, which connote only cases of disputes between the parties to a marriage, cannot be replaced by the wider term 'matrimonial relationship'.
ii) The Learned Single Judge erred in interpreting the law viz. the Notification, in a manner as it 'ought to be' and not what 'it is'
e) Lastly, petitions relating to testamentary matters arise not out of a matrimonial matter, but out of death.
f) In the circumstances petitions filed by a widow for probate of her deceased husband's Will, will fall outside the purview of the Notifications granting exemption from payment of court fees.
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 23/03/2000, 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 23/03/2000 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 4/06/2007, to the judgment of the Privy Council in the case of D. R. Fraser & Co. Ltd v. The Minister of National Revenue AIR (36) 1949, 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 Page 1539 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 v. The Executive Engineer, MSEB 1999(2) Bom CR 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 v. Mrs. Vijaya Gurshaney and Anr. AIR 2003 SC 3669, which Deshmukh J. referred to in his judgment of 4/06/2007 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.
d) As rightly contended by the Learned Advocate General, Mr.Ravi Kadam, on behalf of the state, testamentary cases do not arise out o f 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 23/03/2000 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 1Section 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.
27. Hence, we answer that a woman litigant who files a Petition for grant of Probate of a Will is not exempted from payment of Court Fees, as per Government Notification dated 1st October,1994, duly amended by an explanatory Notification dated 23rd March,2000.
A) The intention of the Government behind issuing the 2nd Notification 23rd March,2000.
a) The Notification dated 23/03/2000, 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 23/03/2000 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 4/06/2007, to the judgment of the Privy Council in the case of D. R. Fraser & Co. Ltd v. The Minister of National Revenue AIR (36) 1949, 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 Page 1539 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 v. The Executive Engineer, MSEB 1999(2) Bom CR 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 v. Mrs. Vijaya Gurshaney and Anr. AIR 2003 SC 3669, which Deshmukh J. referred to in his judgment of 4/06/2007 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.
d) As rightly contended by the Learned Advocate General, Mr.Ravi Kadam, on behalf of the state, testamentary cases do not arise out o f 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 23/03/2000 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 1Section 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.
27. Hence, we answer that a woman litigant who files a Petition for grant of Probate of a Will is not exempted from payment of Court Fees, as per Government Notification dated 1st October,1994, duly amended by an explanatory Notification dated 23rd March,2000.
Bombay High Court
Girish Kanaiyalal Munshi vs Sudha Girish Munshi And Kirtidev ... on 6 May, 2008
Equivalent citations: 2008 (110) Bom L R 1524
Bench: S Radhakrishnan, A V Mohta
JUDGMENTS. Radhakrishnan, J.
Page 1528
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), Page 1529 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 executors named therein.
b) The other two executors viz. Mr. Sanjay Natwarlal Mehta and Mr. Jaswantlal Chimanlal Shah, have separately renounced their rights to act as executors of the said Will.
c) Petitioner No. 1 who is the widow of the deceased, is the sole beneficiary under the Will and as such the entire estate of the deceased devolves on her.
d) As the sole beneficiary under the Will is a lady litigant, the Petitioners claim exemption from payment of the court fees vide the Government Notification dated 1/10/1994 issued by the Government of Maharashtra under Section 46 of the Bombay Court Fees Act, 1959, duly amended by an explanatory Notification issued by the Government on 23/03/2000.
6. Dr.Tulzapurkar, the learned Senior Counsel referred to the order dated 4th June,2007 of the learned Single Judge D.K.Deshmukh,J. in the above matter, raising the above question for being answered.
a) The Learned Single Judge perused through various judgments of this Court decided prior to the issuance of the explanatory Notification dated 23/03/2000 wherein the Learned Judges adjudicated upon the ambit of the Government Notification dated 1/10/1994 and the interpretation of the term 'property disputes' as arising therein.
Page 1530
For instance:
i) Smt. Deepa Shashikant Godambe v. State of Maharashtra and Ors. decided on 19/09/1995, wherein it was held that when a woman litigant files a suit for decree of specific performance of a contract, by virtue of the Notification dated 1/10/1994, she is exempted from payment of court fees.
ii) Sanjay Mahavir Prasad Jain v. Mrs. Vrishali w/o Sanjay Jain , decided on 19/03/1997, wherein it was held that a woman litigant who files a counter claim seeking damages for mental torture in a petition filed for restitution of conjugal rights, is also exempted from payment of court fees, by virtue of the aforementioned Notification.
iii) Pankuwarbai wd/o Dalpatrao Mutha and Ors. v. Ramesh Chandra s/o Dalpatrao decided on 27/08/1997, wherein the Learned Single Judge took the view that a woman litigant who files an application for grant of succession certificate, is remitted from payment of court fees, by virtue of the aforementioned Notification.
iv) Dr. (Mrs.) Gita Sanat Naik, decided in 26/06/1996 in testamentary petition No. 284 of 1996 wherein it was held by the Learned Single Judge that when a widow who is the sole executrix in the Will files a petition for probate of the Will left behind by her husband, she is exempted from payment of court fees, by virtue of the aforementioned Notification.
v) Parwatibai v. State of Maharashtra 1998(2) Bom. C.R.593, decided on 24/10/1997, wherein the Learned Single Judge was of the view that a woman litigant who filed a case for compensation in relation to Motor Accident is, by virtue of the aforementioned Notification, exempted from payment of court fees.
vi) Manjula Thakkar v. Shivshakti Enterprises , decide on 18/02/1998, wherein the Learned Single Judge took the view that a woman litigant who had filed a summary suit for money decree was also exempted from payment of court fees by virtue of the aforementioned Notification.
vii) Ashabai v. Ex. Engineer M.S.E.B. , decided on 29/07/1998, wherein the Learned Single Judge held that woman litigant who files a suit for compensation for the death of her husband due to an electric shock is liable to pay court fees and does not enjoy exemption form payment of court fees under the aforementioned Notification.
Page 1531
viii) Smt. Suhasini Revankar v. Bank of India Appeal No. 1234 of 1999 in Suit No. 193 of 1981, decided on 8/04/1999, wherein a Division Bench of this Hon'ble Court took the view that a woman litigant who files an appeal against a money decree passed against her, in her capacity as a Director of a Company, cannot avail of the exemption from payment of court fees under the aforementioned Notification.
7. Dr.Tulzapurkar, the learned Senior Counsel, thereafter referred to cases decided subsequent to the issuance of the explanatory Notification dated 23/03/2000 which qualified 'property disputes' as disputes arising out of and concerning matrimonial matters, the Learned Single judge referred to the judgments in the following cases:
i) Jyoti S. Doshi v. Hindustan Hosiery , in which it was held that matters which are filed in the Court before the 2nd Notification dated 23/03/2000 was issued, will be governed by the original Notification dated 1/10/1994 as it stood before the amendment of 23/03/2000.
ii) Freny H. Ponda v. The State of Maharashtra and Ors. wherein a Division Bench of this Hon'ble Court upheld the validity of the explanatory Notification dated 23/03/2000 and took the view that there was no justification to quash the this Notification in the absence of any breach of any statutory provision.
8. Referring to the explanatory Notification of 23/03/2000, the Learned Single Judge D.K.Deshmukh, J. held that:
a) The purpose of this 2nd Notification was to define the term 'property disputes'.
b) The Notifications issued by the government on 1/10/1994 and 23/03/2000 are instances of conditional legislation and not delegated legislation. This is because when an Act of Parliament gives power to the Executive to bring an act into force or to the Government to exempt person or property from operation of the enactment, the power conferred in such a situation on the Executive or the Government is an instance of conditional legislation.
c) In view of the above, it is pertinent to note the judgment of the Constitution Bench of the Supreme Court in the case of Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Sabha , wherein it was held that the power bestowed upon the Government under Section 36 of the Payment of Bonus Act, 1965, of exempting an establishment or a class of establishments from operation of the Act, amounts to conditional legislation and is not void.
d) The Learned Single Judge held that as the two Notifications are pieces of conditional legislation, the well settled principles of interpretation of statutes would apply to them.
Page 1532
e) The Learned Single Judge further held, that insofar as the principles governing the interpretation of a Notification granting exemption from payment of tax or fee is concerned, they have been laid down by the Supreme Court in its judgment in the case of Union of India and Ors. v. Wood Papers Ltd. and Anr. , wherein the Court observed that when the question is whether a subject falls in the notification or in the exemption clause, then it being the nature of exception, is to be construed strictly against the subject, but once the doubt about the applicability is lifted and the subject falls in the notification, then it calls for a wider and liberal construction.
f) In view of the aforementioned judgment, the Learned Single Judge, in the present case, held that when the question to be decided is whether a litigant falls in the category which is entitled to exemption, the Notification ought to be strictly construed since it is in the nature of an exception made to a general rule.
g) The Learned Single Judge concurred with the view expressed by the Supreme Court in the case of Commissioner of Income Tax, Gujarat v. Cellulose Products of India Ltd. , so far as the principle governing interpretation of fiscal statutes in concerned, and observed that a perusal of the definition of 'property disputes' as found in the 2nd Notification dated 23/03/2000 is so clear that it does not admit any doubt and therefore there is no question of placing any interpretation or construction on that provision.
9. The Learned Single Judge Deshmukh,J. further observed that:
a) While holding an enquiry to find out what kind of litigation filed by women litigants is exempted from payment of court fees, it is necessary to examine the situation existing at the time when the 2nd Notification dated 23/03/2000 was issued.
b) This Notification was issued as a result of various judgments of this Court wherein the term 'property disputes' was given a wide interpretation.
c) It is well established that the Notification dated 23/03/2000 is an amendment Notification. In view of this, it is imperative to note to the judgment of the Privy Council in the case of D. R. Fraser & Co. Ltd v. The Minister of National Revenue AIR (36) 1949, wherein the Privy Council observed that, 'When an amending act alters the language of the principal statute, the alteration must be taken to have been made deliberately'.
d) Therefore 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.
Page 1533
10. In the case of Bipin Dalpatbhai Shah v. Vasantben Rasilal Zaveri 2001(4) All MR 1, the Learned Single Judge referred to the liberal interpretations given to the Notification of 1/10/1994 by K.G. Shah J, Gokhale J. and Nijjar J. in matters decided prior to 23/03/2000 (ie. The date on which the 2nd Notification was issued) and held that in relation to a testamentary petition filed by a woman, she would be remitted from payment of court fees insofar as she is the beneficiary in the estate of the deceased.
11. It is vital to note that the learned Single Judge in the case of Bipin Dalpatbhai Shah v. Vasantben Rasilal Zaveri did not take into consideration the change that the Government wanted to bring about by issuing the 2nd Notification and that the decisions that were relied on in the judgment were ones rendered before the 2nd Notification was issued and as such should not have been relied upon after the 2nd Notification was issued.
12. In Ramila Rajnikant Kilachand v. Harsh R. Kilachand and Ors. 2004(6) Bom. C.R. 75, the Learned Single Judge held that;
i) The term 'matrimonial matters' as referred to in the Government Notification dated 23/03/2000, includes even such a dispute wherein the husband may not be a party.
ii) The terms 'arising out of' and 'concerning' matrimonial matters are used not with the intention to restrict but with that if giving a wider meaning to the same.
iii) If a woman files a suit for her share in the property of her deceased husband, she is entitled to claim compensation from payment of court fees as such a suit falls within the ambit of 'matrimonial matters'
13. The Learned Single Judge D.K.Deshmukh.J. in the present case, perused through the aforementioned judgment and held that:
i) In order for a dispute to be qualified as one 'arising out of or concerning matrimonial matters', the dispute must necessarily be between parties who are parties to the marriage.
ii) In the absence of the definition of 'matrimonial matters' in either the Notification or the Bombay Court Fees Act (1959), a useful reference may be made to the explanation of the same appearing in Sub-section 1 of Section 7 of the Family Courts Act, a perusal of which makes it clear that, all matters in relation to which the Family Court has jurisdiction, are matters arising out of disputes between the parties to the marriage.
14. With reference to a petition filed for probate of a Will, the Learned Single Judge D.K. Deshmukh,J. was of the view that:
a) Such a petition is never a petition in relation to any dispute concerning any property but is in relation to the validity or otherwise of a Will and can by no stretch of imagination be termed as a petition 'arising out of or concerning matrimonial matters'
b) A testator can name any person, who may or may not be his widow or his relative, as an executor of his Will and therefore merely because in a Will the widow has been named as the executor, would not entitle her to exemption from payment of court fees.
Page 1534
c) In a probate petition, a dispute will arise only if somebody files a caveat, however at the time when liability to pay court fees arises in a probate petition, nobody can say with any amount of certainty that a dispute will arise in that petition, and hence a petition filed by a woman for probate of a Will, will not enjoy exemption from payment of court fees.
d) Contrary to the argument advanced before this Court on behalf of the petitioners, that a petition for probate of a Will arises out of matrimony, such a petition filed under the Indian Succession Act actually arises out of death and not matrimony.
15. The Learned Single judge D.K.Deshmukh,J. disagreed with the view taken by the Learned Single Judge in the case of Dr. (Mrs.) Geeta S. Naik, dated 26/06/1996, wherein it was held that a woman litigant is exempted from payment of court fees for a petition filed to protect her property right. In view of the aforementioned decision, the Learned Single Judge D.K.Deshmukh,J. in the present case held that:
a) The Learned Single judge in the case of Dr. (Mrs.) Geeta S. Naik, made no attempt to examine the intention of the Government by reading into the operative part of the Notification and in the circumstances, when construing the words of the Notification on their plain simple meaning did not lead to an absurd or unreasonable interpretation, there existed no necessity to refer to the preamble of the said Notification.
b) Furthermore, the Learned Single Judge in the aforesaid case ought to have considered that it is a settled law that in a probate petition, right to property or title to any property is never decided by the testamentary Court. This view has also been upheld by the Supreme Court in the case if Ishwardeo Narain Sing v. Smt. Kamla Devi AIR 1954.
c) A perusal of another judgment of the Supreme Court in the case of Delhi Development Authority v. Mrs. Vijaya Gurshaney and Anr. wherein the Supreme Court 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, clearly elucidates the fact that in a probate petition, there can never be any dispute relating to property but only a question relating to the validity of the Will.
16. Lastly, after having perused through various previous judgments of this Court and the Hon'ble Supreme Court, various statutes, and having analyzed the intention of the Government behind issuing the Notifications dated 1/10/1994 and 23/03/2000, the Learned Single Judge D.K.Deshmukh,J. stated that as the question in relation to grant of exemption arises often before this Hon'ble Court and has often resulted in conflicting judgments, the matter ought to be placed before a lager bench of this Hon'ble Court so that a correct and authoritative view of the matter can be taken.
Page 1535
17. The Learned Senior Counsel for the Petitioners, Dr. Tulzapurkar, has submitted that the Petitioners are not liable to pay any court fees on the Petition in view of the Notification dated 1/10/1994 as amended by the Notification dated 23/03/2000, as the petition has been filed for probate of a Will dated 3/02/1999, wherein the deceased who died on 9/10/2006 bequeathed his entire estate to his wife, the 1st Petitioner and such a bequest is made because of the 'matrimonial relationship' between the testator and the legatee.
18. The Learned Counsel, Dr. Tulzapurkar has further submitted that:
a) The principles of interpretation of statutes require notifications to be construed textually and contextually, wherein to support his argument he cited the judgment in the case of Reserve Bank of India v. Peerless General Finance and Co. Ltd. AIR 1987 SC 1023 at para 33.
b) The Notification is a piece of beneficial delegated legislation, and is therefore required to be construed liberally as was done in the following cases:
i) Smt. Deepa Shashikant Godambe v. State of Maharashtra and Ors.
ii) Sanjay Mahavir Prasad Jain v. Mrs. Vrishali w/o Sanjay Jain
iii) Pankuwarbai wd/o Dalpatrao Mutha and Ors. v. Ramesh Chandra s/o Dalpatrao
iv) Parwatibai v. State of Maharashtra
v) Manjula Thakkar v. Shivshakti Enterprises ,
vi) Bipin Dalpatbhai Shah v. V. R. Zaveri (2001)4 ALL MR 1
19. Dr.Tulzapurkar, the learned Senior Counsel submitted that even if Notifications providing for exemption are to be construed strictly as observed by the Learned Referring Judge D.K.Deshmukh,J. in his judgment at paragraph 7 therein (Relying on Income tax Gujarat v. Cellulose Products of India ; Union of India v. Wood Papers Ltd. ; Petron Engineering v. Central Board of Direct Taxes ), the words 'property disputes' are required to be construed so as not to defeat the object of granting exemption and therefore ought to Page 1536 be interpreted to cover all cases where a woman litigant gets benefit in the estate of her husband.
20. He submitted that the term 'dispute' is to be interpreted as also to mean entitlement and the entitlement to property bequeathed is dependant on the woman legatee obtaining probate. Unless the Will is probated she cannot claim entitlement to the property. Therefore the word 'dispute' cannot be given a restrictive meaning so as to cover only a dispute between a woman litigant on one hand and another litigant on the other hand.
21. The learned Senior Counsel submitted, that in the alternative the word 'dispute' will cover claim for probate since in the absence of probate the estate would devolve as on intestacy, in the event of which all the heirs of the deceased would be able to claim the estate as against the wife legatee. In that respect there is a dispute between the wife legatee and all the other heirs. In support of the this, it is imperative to examine the legal definition of the word 'dispute' as found in Blacks Law Dictionary, 8th ed wherein dispute is shown to mean ' A conflict or controversy especially one that has given rise to a particular law suit'.
22. The Learned Senior Counsel for the Petitioner has contended that an anomaly in interpreting the words 'property disputes' in a narrow manner, so as to exclude a widow who files a suit for probate of the Will of her deceased husband from the ambit of the Notification, is that, if a wife makes a claim to her husband's property on intestacy and files a suit for administration of the said property, she would be exempted from payment of court fees, however if the same wife is a legatee she would have to pay court fees while applying for probate. Therefore, Learned Counsel, Dr. Tulzapurkar stated that such an interpretation would clearly be discriminatory and would render the same to be violative of Article 14 of the Constitution of India.
23. The Learned Counsel has submitted that:
a) Even if the Notifications dated 1/10/1994 and 23/03/2000 are pieces of conditional legislation, they were made to grant relief to women litigants in cases involving inter alia property to which the woman makes a claim as a result of a matrimonial relationship. Therefore in addition to being instances of conditional legislation the Notifications are also instances of welfare legislation and as such should be construed liberally so as not to deprive a woman litigant from enjoying such property. In support of this liberal interpretation of welfare legislation, the Learned Counsel drew our attention to several judgments wherein the Court had interpreted the welfare legislations liberally viz.
i) Alembic Chemical Works Co. Ltd. v. The Workmen
ii) Collector of Central Excise and Ors v. Neoli Sugar Factory (1993) Supp. (3) SCC 69
Page 1537
iii) HMM Ltd v. Collector of Central Excise
iv) Collector of Central Excise v. Parle Exports (P) Ltd.
b) The Learned Senior Counsel has further submitted that the words 'concerning a matrimonial relationship' arising in the Notification, is to be construed as anything resulting from a matrimonial relationship, wherein he relied to 2 judgments where the word 'concerned' were interpreted liberally
i) R Dalmia v. Commissioner of Income Tax .
ii) Radha Krishan Bhatia v. The Union of India
24. In view of the arguments advanced and authorities cited, Dr.Tulzapurkar, Learned Senior Counsel for the Petitioners has submitted that, whenever a petition is filed by a wife legatee for probate of a Will or for letters of Administration with the Will annexed, she should be exempted from payment of court fees and hence in the present case, the Petitioners should be exempted from payment of the same.
25. As per our request, the learned Advocate General Mr.Ravi Kadam, very ably assisted the Court, with regard to interpretation of the aforesaid Government Notification as under:
a) It was as a result of various decisions of this Court wherein the term 'property disputes' was given a wide interpretation, that the Government issued the explanatory Notification dated 23/03/2000, as an amendment to the Notification dated 1/10/1994, to clarify that the words 'property disputes' would be restricted to those arising out of and concerning matrimonial matters.
b) Thus it is clear that the intention of the 2nd Notification was to change the then existing Notification, and if despite the amendment, the situation continues to remain the same, then the amendment would be an exercise in futility.
c) Therefore it is imperative that the Notification and in particular the words 'arising out of and concerning matrimonial matters' be construed literally in their clear and ordinary meaning so that the ambit of the words 'property disputes' is not interpreted in such a wide manner which would be contrary to the intention of the Government behind issuing the Notification.
d) In reference to the judgment of Dharmadhikari J. in the case of Ramila Rajnikant Kilachand v. Harsh R. Kilachand and Ors. (Supra), relied upon by the Petitioners, the Learned Advocate General stated that:
Page 1538
i) The words 'matrimonial matters' arising in the Government Notification of 23/03/2000, which connote only cases of disputes between the parties to a marriage, cannot be replaced by the wider term 'matrimonial relationship'.
ii) The Learned Single Judge erred in interpreting the law viz. the Notification, in a manner as it 'ought to be' and not what 'it is'
e) Lastly, petitions relating to testamentary matters arise not out of a matrimonial matter, but out of death.
f) In the circumstances petitions filed by a widow for probate of her deceased husband's Will, will fall outside the purview of the Notifications granting exemption from payment of court fees.
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 23/03/2000, 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 23/03/2000 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 4/06/2007, to the judgment of the Privy Council in the case of D. R. Fraser & Co. Ltd v. The Minister of National Revenue AIR (36) 1949, 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 Page 1539 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 v. The Executive Engineer, MSEB 1999(2) Bom CR 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 v. Mrs. Vijaya Gurshaney and Anr. AIR 2003 SC 3669, which Deshmukh J. referred to in his judgment of 4/06/2007 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.
d) As rightly contended by the Learned Advocate General, Mr.Ravi Kadam, on behalf of the state, testamentary cases do not arise out o f 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 23/03/2000 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 1Section 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.
27. Hence, we answer that a woman litigant who files a Petition for grant of Probate of a Will is not exempted from payment of Court Fees, as per Government Notification dated 1st October,1994, duly amended by an explanatory Notification dated 23rd March,2000.
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