1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. Writ Petition No.2721/2007 1] Smt. Meerabai wd/o Arjun Somkuwar, Aged about 58 years, Occupation household, r/o Plot No.1, Sharma Layout, Gopal Nagar, Nagpur. 2] Shri Narendra s/o Arjun Somkuwar, aged about 42 years, Occupation Service, r/o Plot No.1 Sharma Layout, Gopal Nagar, Nagpur. 3] Smt. Seema w/o Vinod Mate, aged about 35 years, Occupation household, r/o Plot No. 84, Kanfade Nagar, Near Pragati Hall, Ring Road, Nagpur -15. PETITIONERS VERSUS 1] Smt. Manjusha wd/o Surendra Somkuar, aged about 41 years, Occupation Service, 2. Chi. Jayesh s/o Surendra Somkuwar, Aged about 13 years, Occupation- Nil, Minor through his natural guardian mother/ Respodnent No.1. Both r/o Mohan Nagar, Near Hasan Garrage, Gaddigodam, Nagpur Both r/o Mohan Nagar, Near Hasan Garrage, Gaddigodam, Nagpur. RESPONDENTS .... 2 Mr. B.H. Sontakke, Advocate for the petitioners. Mr. A.J. Khan, Advocate for the respondents. ...... CORAM : A.P. LAVANDE, J. DATE D : 12/06/2008. ORAL JUDGMENT : 1] Heard Mr. Sontakke, learned counsel for the petitioners, Mr. Khan, learned counsel for the respondents and Mr. T.A. Mirza, learned A.G. P. 2] By this petition, the petitioners take exception to the order dated 7.3.2007 passed by 5th Joint Civil Judge, Sr. Dn., Nagpur in Special Civil Suit no. 829/2006 by which the trial Court has answered Issue no.3 in favour of the plaintiffs. 3] Respondent no.1 for herself and as guardian of respondent no.2 filed the above suit claiming declaration that they are legal heirs of late Surendra Somkuwar and claimed 1/4th share in the suit property described in the Schedule to the plaint and they also claimed possession of 1/4th share thereof. The petitioners filed writ statement and contested the claim of the plaintiffs. The trial Court framed several 3 issues. Issue no.3, which is relevant for the purpose of deciding the matter, which was disposed of as preliminary issue, reads as under:- “Is the suit properly valued?” 4] According to the petitioners-defendants, respondents were liable to pay Court fee since the suit was filed without paying any Court fee by placing reliance upon Notification dated 1st October, 1994, as amended by a Notification dated 23.3.2002. The trial Court, after hearing the parties, held that the case of the plaintiffs was covered by the said Notification and consequently answered Issue no.3 in favour of the plaintiffs. 5] I have heard Mr. Sontakke, learned counsel for the petitioners and Mr. Khan, learned counsel for the respondents. 6] Since the issue of Court fee is involved, notice was given to A. G. P. Shri T. A. Mirza and he was asked to assist the Court and accordingly, Mr. Mirza has also been heard. 7] Mr. Sontakke, learned counsel for the petitioners submitted that the claim of the plaintiffs was not covered by the said Notification dated 1.10.1994 and therefore, the 4 plaintiffs were bound to pay Court fee. He further submitted that plaintiff no.2 is not a woman and as such the plaintiffs were bound to pay Court fee. In support of his submissions, Mr. Sontakke placed reliance upon the judgments of this Court in Prabhakar Dayaram Narkhede Vs. Vijaya @ Shakuntala G. Chaudhari : (2007(2) Mh.L.J. 175 and Smt. Ramila Rajnikant Kilachand Vs. Mr. Harsh Rajnikant Kilachand & ors : 2004 (4) ALL MR 106. 8] Per contra, Mr. Khan, learned counsel for the respondents submitted that the case is squarely covered by the judgment of this Court in Ramila Kilachand's case (supra). He further submitted that the plaintiff-respondent no.2 who is original plaintiff no.2 although is not a female, it is the plaintiff no.1 who as his guardian has filed suit on his behalf and, therefore, question of payment of Court fee does not arise. 9] Mr. Mirza, learned A. G. P. submitted that the case is squarely covered by judgment in Ramila Kilachand's case (supra) and since plaintiff no.1 was claiming right in the property of her husband, the case was covered by the Notification dated 1.10.1994 and,therefore, question of 5 payment of Court fee did not arise as such. 10] Before appreciating the arguments advanced by learned counsel for the parties , it would be appropriate to quote Notification 1.10.1994 as amended on 23.3.2007. It reads thus:- “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 document's 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 dispute ( c ) violence and (d) divorce. Explanation :- The expression “property disputes” shall mean property disputes arising out of and concerning matrimonial matters.” 11] The facts in the present case and facts in Ramila's case are almost similar, except that in the present case besides respondent no.1, respondent no.2 who is her son is also 6 co-plaintiff. Although plaintiff no.2 is not a woman and as such is not covered by the above said Notification in strict sense, the fact remains that the claim in the suit has been made by plaintiff no.1 on her behalf and on behalf of plaintiff no.2 who is her minor son and, therefore, claim in the suit has to be taken as having been made by plaintiff no.1 only. Therefore, in my considered opinion, the present case is squarely covered by the judgment in Ramila Kilachand's case. Insofar as the judgment in Prabhakar Narkhede's case (supra) relied upon by the petitioners is concerned, the same does not advance the case of the petitioners. In the said case, suit was filed for declaration, partition and separate possession of the ancestral properties and obviously, the claim was not to the property of her husband, and therefore, the ratio laid down in the said judgment is not attracted in the present case. 12] For the reasons aforesaid, I find no merit in the present petition. Rule is discharged with costs of Rs. 1000/- (Rs. One thousand only) to the respondents. JUDGE