Writ petition 6698/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 6698/2010 Shahajan Begum w/o Mohammad Ali, Age : 55 years, Occu. Agril., R/o Sillod, Tq. Sillod, through General Power of Attorney, Mohammad Ali s/o Mohammad Sharif, Age : 60 years, Occu. Agril., R/o Sillod, Dist. Aurangabad. .....Petitioner. Versus 1 Mohammad Shaukat Mohammad, Age : 57 years, Occu. Advocate & Agriculuture, R/o Sillod, Tq. Sillod, Dist. Aurangabad (Died his L.Rs.) Surayya Begum w/o Mohammad Shaukat, Age : 50 years, Occu. Household, R/o Sillod, Tq. Sillod, Dist. Aurangabad 2 Hon’ble Collector, Aurangabad. ...Respondents. Mr. V.D. Sonawane, Advocate for petitioner. Mr. S.S. Kazi, Advocate for respondent No1. Smt. S.D. Shelke, A.G.P. for respondent No.2. CORAM : A.V. NIRGUDE, J. DATED : 11th April, 2011. ORAL JUDGMENT: 1. This writ petition under Article 227 of the Constitution of India challenges the order dated 08/02/2010 passed by the Civil Judge Senior Division), Aurangabad in Special Civil Suit No. 242/2006 directing the petitioner / plaintiff to pay the Court fee for the suit. The cause of action for the suit in short can be stated as under. Writ petition 6698/2010 2 The petitioner Shahajan Begum had sister Noorjahan Begum. These two sisters inherited certain property from their father. These sisters married Mohammad Ali and Shaukat Ali who happened to be brothers interse. Noorjahan and her only daughter died in year 2001. Soon thereafter, Shaukat Ali married another woman one Surayya. Shahajan Begum the petitioner filed this Special Civil Suit for partition and separate possession of the property left behind by her sister Noorjahan against Shaukat Ali, her brother in law. During pendency of the suit, even Shaukat Ali died and now his wife Surayya is a party to the suit. The petitioner in her plaint contended that in view of the notification dated 01/10/1994, read with explanation dated 23/03/2000, issued by the State of Maharashtra under section 46 of Bombay Court Fees Act, 1959 which reduces Court fees payable by woman litigants on plaint etc., she is exempted from paying Court fee on the plaint which she has filed in this suit. The learned judge of the trial Court rejected this plea and directed the petitioner to pay Court fee. As against this order, present petition is filed. The question therefore is whether the petitioner is entitled to exemption of Court fee on the present suit. The notification apparently exempted women from paying Court fee on suits etc., which they filed as property dispute arising out of and concerning matrimonial matters. So, the question is whether the present dispute is a property dispute as explained in the Government notification referred to above. The notification dated 23/03/2000 defined the ‘property disputes’ as under. “Explanation – The expression ‘property disputes’ shall Writ petition 6698/2010 3 mean property disputes arising out of and concerning matrimonial matters”. By no stretch of imagination, this dispute has arisen out of and is concerning a matrimonial dispute. Admittedly Shaukat Ali was never married to the petitioner. Shaukat Ali was admittedly petitioner’s sister’s husband and so the dispute is not matrimonial dispute. The petitioner’s case is based on certain succession rules in Mohammedan law. It is the case of the petitioner that since the suit property was inherited by her sister from her father, she is entitled to certain share in it after her death. The other sharer admittedly was Noorjahan’s husband Shaukat Ali. When the petitioner demanded it, he denied her right and therefore, the cause of action arose. This has thus became a property dispute but clearly not a dispute arising from matrimonial matter. The learned singe judge of this Court in the case of Prabhakar Vs. Vijaya reported in 2007 (2) Mh.L.J. 175 clearly held that the dispute which does not relate to matrimonial case, is out side the purview of the notification exempting woman from paying court fee. Useful reference therefore, can be made to this judgment while deciding this case. The petition should therefore fail. ORDER The Petition stands dismissed. [A.V. NIRGUDE, J.] ts k/2011/April11/wp6698.10/ok