Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.147 OF 2017
Smt. Arti wd/o. Deepak Kamlakar,
Aged about 46 years,
Occupation : Private,
Resident of C/o. Prabhat Plastics Industries,
A21, Rajasthani Udyog Nagpur,
G.T. Kamal Road, Near N.D.P.L. Office,
New Delhi110 033. : PETITIONER
... VERSUS ...
1. Shri Vijay s/o. Deorao Kamlakar,
Aged about 43 years,
Occupation : Business,
Resident of Plot No.27,
nd rd
Heera Apartment, 2 Floor, 3 lane,
Plot No.27,
nd rd
Heera Apartment, 2 Floor, 3 lane,
Behind Coffee House,
Gokulpeth, Nagpur440 010.
2. Shri Prabhakar s/o. Harishchandra Bagwe,
Partner, Messrs, Shrihari Construction,
Aged about major,
Occupation : Business,
Resident of 63, 'Audubar',
Gurudev Nagar,
Behind Janki High School, Nandanvan,
Nagpur440 009.
3. Shri Narendra s/o. Krishnaji Diwte,
Partner, Messrs, Shrihari Construction,
Aged about major,
Occupation : Business,
Resident of 63, 'Audubar',
Gurudev Nagar,
Behind Janki High School, Nandanvan,
Nagpur440 009.
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4. Shri Shailendra s/o. Deorao Kamlakar,
Aged about 61 years,
Occupation : Service,
Resident of Suyog Colony,
Aashirwad House, Vikas Nagpur,
Baitul460 001 (M.P.).
5. Shri Satish s/o. Deorao Kamlakar,
Aged about 57 years,
Occupation : Service,
Resident of Plot No.134, Ward No.3,
th
8 Mail, Davalmeti, Wadi, Nagpur23.
6. Ravindra s/o. Deorao Kamlakar,
Aged about 54 years,
Occupation : Service,
Resident of 12A, Shivdayal Annex,
Hindustan Colony, Amravati Road,
Nagpur440 010.
7. Siddhartha s/o. Deepak Kamlakar,
Aged about 26 years,
Occupation : Student.
7. Smt. Vimal wd/o. Deorao Kamlakar,
Aged about 79 years,
Occupation : Household,
C/o. Kelesh Kamalakar, Flat No.402,
Prestige Residency Deepak Nagar,
Near Fretub Colony, Nagpur 440 006.
Both Nos.7 and 8 Residents of
Plot No.27, Heera Apartment,
nd rd
2 Floor, 3 lane,
Plot No.27,
nd rd
Heera Apartment, 2 Floor, 3 lane,
Behind Coffee House,
Gokulpeth, Nagpur440 010. : RESPONDENTS
=================================
Smt. S.P. Deshpande, Advocate for the Petitioner.
Shri S.G. Shukla, Advocate for the Respondent Nos.2 and 3.
=================================
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CORAM : S.B. SHUKRE, J.
th
DATE : 28 JUNE, 2018.
ORAL JUDGMENT :
1. Heard.
2. Rule. Rule made returnable forthwith.
3. Heard finally by consent.
4. The petition has been filed to claim exemption from the
payment of Court fees by relying upon the relief given by the State of
Maharashtra in its notification, bearing No. STP 1094/CR859/M1,
st
dated 1 October, 1994. This notification prescribes that the
Government shall remit the fees payable by women litigants on any of
the motions such as plaint, application, petition, memorandum of appeal
and so on and such remission is also permissible on the documents
st nd
specified in I and II Schedule to the Bombay Court Fees Act, 1959,
which are to be filed in any Civil, Family or Criminal Courts in respect of
four categories of cases, namely, i) maintenance, ii) property disputes,
iii) violations & iv) divorce.
5. It seems that the Government gave a rethink to one particular
category of cases termed as “property disputes”. Although the reasons
for revisiting this expression have not been brought on record, the fact
remains that by a later notification bearing No.530/2000/673/CR
rd
199/M1, issued on 23 March, 2000, Government clarified the
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expression by laying down that by the expression “property disputes” it
shall mean the disputes arising out of and concerning matrimonial
matters. After this clarification, there was a spate of litigation raising
claims and counterclaims about what exactly is conveyed by this
clarification. The Division Bench of this Court in the case of Girish
Kanaiyalal Munshi (Deceased) , Petition (L) No. 118/2007 , reported in
2008 (4) ALL MR 306 bestowed its thoughtful consideration to these
claims and counterclaims and explained the meaning of the clarification
issued by the State of Maharashtra in the year 2000.
6. In the aforestated case, the application had been filed by the
woman for issuance of Probate of the Will of her deceased husband. The
Division Bench held that such an application would not be covered by
1994 notification as the clarification issued in the year 2000 made it
clear that it is only those property disputes which arise out of and which
concern matrimonial matters which enjoy such remission. In the opinion
of the Division Bench, an application filed for issuance of Probate of
deceased husband's Will is not a dispute concerning matrimonial matter.
The observations of the Division Bench made in paragraph 26 are
relevant and they are reproduced as under :
“ C) Furthermore it is pertinent to
differentiate between matrimonial matters and
matrimonial relationship as the two terms are not
synonymous and hence the term 'matrimonial matters'
arising in the Notification of 23/03/2000 cannot be
replaced by 'matrimonial relationship' so as to bring a
petition filed by a widow for probate of her deceased
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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 Subsection 1
Section 7, to elucidate the meaning of the term
'matrimonial matters') and should therefore exclude
testamentary petitions wherein not only is there an
absence of a dispute, other than in cases when somebody
files a caveat, it is not a matter between two parties to a
marriage. ”
7. In the case of Harsha Pradeep Patil vs. Sayankabai Ragho
Patil , reported in 2017(1) Bom. CR 86 , learned Single Judge of this
Court while deciding the similar issue held that a suit filed by the widow
against her brotherinlaw seeking partition of property in which her
husband was a coparcener is not covered by 1994 Notification in view of
the clarification later on given by the Government. Similar are the
judgments rendered by several other Benches of this Court presided over
by respective learned Single Judges.
8. However, there is one departure made by learned Single
Judge of this Court in the case of Kiran Chunnilal Talreja and another
vs. Ramchandra Devidas Talreja and another , reported in 2009
(Supp.) Bom. C.R. 567 . This judgment has been heavily relied upon by
the learned counsel for the petitioner. In this case it has been held that if
the suit filed for partition by the woman is instituted in her personal
capacity, the exemption granted under 1994 notification would be
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available to such woman plaintiff. This judgment, however, does not
consider the ratio of the case of Girish (supra) decided by the Division
Bench of this Court. The law laid down by the Division Bench of this
Court would be binding upon the Courts subordinate to it and also the
Courts of equal strength subsequently having an occasion to deal with
similar issue. This is the law of precedents now well settled and in my
humble view, judgment of Hon'ble Apex Court in Sandeep Kumar Bafna
vs. State of Maharashtra and another , reported in AIR 2014 SC 1745
should clear the doubt, if any, in this regard. There can be a situation
where the subsequent bench of equal or coordinate strength differs with
the view taken in the previous judgment of the bench of equal strength or
the subsequent bench has reservations about the correctness of the
proposition of law laid down in the previous case decided by a bench of
coordinate strength. In such a case, it can refer the matter for resolution
by a bench of larger strength. Therefore, the view taken in the said case
of Kiran (supra) would have to be considered as per incuriam.
9. Learned counsel for the petitioner also relies upon the case of
Manoramabai Keshav Joshi vs. Arun Keshav Joshi and another ,
reported in 2008(1) Mh.L.J. 905, in which, it has been held that the
scheme of 1994 notification and 2000 clarification being beneficial for
women, a liberal view while understanding the meaning of the term
“property dispute” be taken and accordingly a dispute in respect of
property, having its basis in the matrimonial relationship between the
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woman and her husband, was seen in that case as a property dispute
between the mother and the son. This judgment also does not take into
account the law laid down by the Division Bench of this Court in the case
of Girish (supra) and, therefore, has to be considered as a judgment
rendered per incuriam.
10. In view of above, the impugned orders dated 14.3.2016 and
23.6.2016 passed by the Courts below taking a view that the present
dispute between the parties, a dispute relating to partition, is not a
property dispute within the meaning of 1994 notification cannot be held
to be incorrect or illegal. There is no merit in this petition.
11. The Writ Petition stands dismissed.
12. Learned counsel for the petitioner, appointed through Legal
Aid Scheme, shall be paid remuneration of Rs.7,000/.
13. All other questions are kept open.
14. Rule is discharged. No costs.
JUDGE
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