1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1085 OF 2009 IN SUIT NO. 1512 OF 1997 Shamsunder Lachmandas Shidhwani .. Plaintiff Vs Jagdish Ghanshamdas Tulsiani & Ors .. Defendants Mr. K.A. Shroff i/b Mr. Tanvir Shaikh for the Plaintiff Mr. Jagdish G. Tulsiani – Defendant No. 1 present in person CORAM : DR. D.Y. CHANDRACHUD, J DATE : 20th APRIL, 2009. P.C.: 1. In the Notice of Motion, the relief that has been sought is to the effect that no court fees were payable in respect of the suit that was instituted by Smt. Pushpa G. Tulsiani, the original Plaintiff. From the record of the suit, it appears that on 29th January, 2009, Mr. Justice S.C. Dharmadhikari passed the following order: “The learned Advocate appearing for the Plaintiff states that in the light of the Division Bench decision of this Court Rma NMS108509200409.sxw 2 clarifying the position with regard to the exemption available to the woman litigant in payment of Court fees, the Plaintiff will take necessary steps and pay necessary deficit Court fees within a period of eight weeks from today. Needles to state that if there is a default in payment of this deficit / additional Court fees, the Office to take appropriate steps including placing the suit for dismissal.” The Notice of Motion seeks, in the alternate, a clarification of the order dated 29th January 2009. Ordinarily, the appropriate remedy would have been to direct that the suit be placed before the same learned Judge who passed the earlier order dated 29th January, 2009. The learned counsel for the Plaintiff has however, drawn the attention of the Court to the Roznama dated 30th March, 2009 by which the suit was directed to be removed from the board and not to be placed before the bench of which Mr. Justice S.C. Dharmadhikari is a member. Since the learned Judge has removed the suit from his board and has directed that it should not be placed before His Lordship, the hearing of the Notice of Motion is taken up before this Court in accordance with Rma NMS108509200409.sxw 3 the roster for work. 2. On the basis of the facts noted above, the suit was instituted by Smt. Pushpa G. Tulsiani. The Plaintiff sought a declaration that certain Agreements for Sale at Exhibits A and D3 were valid and subsisting and that the Plaintiff was the absolute owner of the premises, more particularly described therein. The Plaintiff also sought a declaration that the Agreement for Sale, Ex. C, is null and void and that the 1st Defendant has no right, title or interest in the suit premises. 3. In Para 14 of the plaint, the Plaintiff sought exemption from the payment of Court Fees under a notification dated 1st October 1994 issued by the State Government under Section 46 of the Bombay Court Fees Act, 1956. The suit was instituted on 28.04.1997. 4. By a Notification dated 01st October, 1994, the State Rma NMS108509200409.sxw 4 exempted women litigants from payment of Court fees in respect cases relating to a] maintenance, b] property disputes, c] violence and d] divorce. On 23.03.2000, the Notification was amended so as to provide an explanation clarifying that the expression “property dispute” shall mean a property dispute arising out of and concerning matrimonial matters. 5. The original Notification as well as the amended Notification came up for consideration before a learned Single Judge of this Court, Mr. Justice H.L. Gokhale (as the then was) in Jyoti S. Doshi Vs M/s. Hindustan Hosiery Mills 2000(4) Mh.L.J. The learned Judge inter alia held thus : “19(i) As far as the two issues which have been framed by me are concerned, my answer on 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. Rma NMS108509200409.sxw 5 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 partners of partnership firms will not make them eligible for exemption under the Notification. (vii) Needless to state that the matters filed on and after 23rd March, 2000 will be governed under the Notification of that date.” It may be noted that in Para 17 of the judgment, the learned Single Judge noted that the Advocate General who appeared for the State had been fair enough to accept that a period of nearly 5 years and 5 months had elapsed between the date of the first and the second Notification. In the meanwhile, a number of judgments had been delivered. The Advocate General stated Rma NMS108509200409.sxw 6 that his instructions were that even pending matters would be covered by the amended Notification. However, it was stated that the matter was left to the Court to pass appropriate orders governing the cases which had already been filed. The Advocate General had thus, upon instructions left to the Court to determine whether in respect of suits which were pending as on the date of the amended Notification on 23rd March 2000, the exemption that was available in the earlier Notification would continue to govern. The judgment of the Court held that the Notification dated 23rd March 2000 will not control the exemption granted by the earlier Notification with regard to the payment of Court fees by women litigants provided those suits are filed by women litigants in their personal capacity. The Notification of 1st October, 1994 is to continue to apply to suits already filed and which were pending in this Court subject to the Caveat that the suits filed by the women litigants must be in their personal capacity and not as directors of companies or as a partner of a firm. Suits filed after Rma NMS108509200409.sxw 7 23rd March, 2000 would be governed in terms of the explanation to the new Notification. 6. In the present case, the suit was instituted in 1997, prior to the Notification of 23rd March 2000. The exemption from the payment of Court fees was claimed on that basis. The suit was filed by the original Plaintiff in her personal capacity and not either as a director of a company or as a partner of a firm. In these circumstances, under the judgment of this Court in Hindustan Hosiery Mills(Supra), the original Plaintiff was entitled to exemption from the payment of Court Fees. 7. It appears that the Plaintiff died on 03rd January, 2002 and it is alleged that she left behind a Will dated 15th February 1996. Upon the death of the original Plaintiff, her sole executor appointed therein was brought on record in pursuance of an order passed in Chamber Summons No. 603 of 2002 on 22nd Rma NMS108509200409.sxw 8 October, 2002. Now, when the executor of the Will was brought on record, in substance, he represents the interest and estate of the original Plaintiff. It appears, however, that an objection was taken by the 1st Defendant by his letter dt. 06th November,2008. Upon the objection, an order was passed by the Taxing Master without furnishing to the Plaintiff an opportunity of being heard. The order dated 10th December 2008, records that upon the death of the original Plaintiff Shri. Shamsunder was brought on record and that after the amendment of the plaint, since the executor is not a woman litigant, he is required to pay the court fee. This view is patently erroneous. The suit was filed by a woman litigant and upon her death, her executor represents her estate. The executor is required to prosecute the suit in the same interest as was claimed by the original Plaintiff. It must, however, be clarified that the suit which was instituted by the Plaintiff is not a suit in Testamentary Jurisdiction. In Girish Kanaiyalal Munshi's case (the Petition (Lodging) No. 118 of Rma NMS108509200409.sxw 9 2007), a Division Bench of this Court in a judgment delivered on 06th May 2008 held that a woman litigant who files a petition for grant of a probate of a Will is not exempted from the payment of Court Fees in accordance with the Notification dated 01st October 1994 as amended by the Notification dated 23rd March 2000. Such an eventuality does not apply in the facts of the present case. The court is informed that a separate petition has already been filed for grant of Probate. Nothing contained in this judgment shall affect the payment of Court Fees on the said Petition. As a matter of fact, the learned counsel for the Plaintiff has stated that Court fees have been paid on the Probate Petition. 8. A statement was made before the Court on 24th January, 2009 by the learned Advocate for the Plaintiff that in light of the Division Bench decision of this Court clarifying the position with regard to the exemption available to women litigants in payment Rma NMS108509200409.sxw 10 of Court fees, the Plaintiff would take necessary steps to pay deficit Court fees within eight weeks. It is common ground between the learned counsel for the Plaintiff and the 1st Defendant who appears in person that the reference to the judgment of the Division Bench in the order dated 24th January, 2009 is to the judgment Girish Kanaiyalal Mushi which was rendered on 06th May 2008. That judgment as already noted, relates to the demand of Court fees on a petition for the grant of Probate of a Will. That judgment would have no bearing on the payment of Court Fees in the present suit which is not in the Testamentary jurisdiction. Since the concession which was made by the learned Advocate was based on a misconception of the applicability of the judgment of the Division Bench, there is no reason as to why relief as sought in the Motion should not be granted. 9. The Notion of Motion, is accordingly made absolute in Rma NMS108509200409.sxw 11 terms of Prayer Clause (a). (DR. D.Y. CHANDRACHUD, J) Rma NMS108509200409.sxw