1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8534 OF 2010 Tanubai w/o. Vaijnathrao Bhosale, Died through L.R. Kushawarta w/o. Balasaheb Bhosale, Age 42 yrs., Occu. House hole & Agri. R/o. Wadgaon (Sukare), Tq. & Dist. Parbhani. ....Petitioner. Versus 1. Vaijnathrao s/o. Manikrao Bhosale, Died through his following L.R. (i.e. defendant No. 2 to 6) 2. Sundarrao s/o. Vaijanathrao Bhosale, Age 40 yrs., Occu. Agri., R/o. Gawali-Pimpri, Tq. Sonpeth, Dist. Parbhani. 3. Narayan s/o. Vaijanathrao Bhosale, Age 37 yrs., Occu. Agri., R/o. As above. 4. Rameshwar s/o. Vaijnathrao Bhosale, Age 32 yrs., Occu. Agri., R/o. As above. 5. Taramati w/o. Vaijnathrao Bhosale, Age 55 yrs., Occu. House Hole, R/o. As above. 6. Shakuntalabai w/o. Sundarrao Bhosale, Age 35 yrs., Occu. House Hole, R/o. As above. ....Respondents. 2 Mr. M.B. Bharaswadkar, Advocate for petitioner. Mr. V.M. Kagne h/f. Mr. K.S. Chavan, Advocate for respondents. CORAM : A.A.SAYED, J. DATED : 16th December, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent. 2. The controversy in this petition is regarding Court Fees payable by the petitioner Kushawartabai, who is impleaded in the suit as an heir of the original plaintiff Tanubai (since deceased). In the suit, an application being Exh. 150 came to be filed by the respondent Nos. 2 to 6, who are impleaded in the suit as heirs of the original defendant (since deceased), to direct the petitioner to pay the requisite Court Fees. 3. The suit was filed by the original plaintiff Tanubai, claiming to be the wife of the original defendant (since deceased) for maintenance and partition of the suit property. At the relevant time, the original plaintiff Tanubai was alive and since the dispute was stated to be a marital dispute, the plaintiff was exempted from paying Court Fees as per the Government Notifications dated 1st October 1994 and 2nd March 2000. As indicated above, during the pendency of the suit, the original defendant died and the respondent Nos. 2 to 6 were brought on record. Thereafter, the original plaintiff Tanubai died and the petitioner Kushawartabai, who is her daughter was brought on record on her 3 application and in whose favour the deceased Tanubai had bequeathed her properties. 4. In the application being Exh. 150, it was stated that after the death of Tabubai and impleadment of Kushawartabai (petitioner herein) to the plaint, the dispute between the parties had ceased to be a marital dispute and therefore, the petitioner Kushawartabai be directed to pay requisite Court Fees as the exemption under the Notification was no more available. It was also disputed that the original petitioner Tanubai was the wife of the deceased original defendant. 5. The application was contested by petitioner Kushawartabai by filing a reply. It was stated that Tanubai was the wife of the original defendant No. 1 as per the Hindu Law and she was also granted interim maintenance. It was stated that during the pendency of the dispute the original plaintiff Tanubai had executed a will in favour of the petitioner Kushawartabai and had bequeathed all her rights to Kushawartabai. It is stated that since the petitioner Kushawarthabai is an heir of deceased Tanubai/original plaintiff, she is prosecuting the case as a legal heir of the Tanubai and since the original dispute is a marital dispute, she is entitled to continue to claim the benefit of exemption as per the aforesaid Notifications. 6. The learned counsel for the petitioner has placed on record the 4 Notifications dated 1st October 1994 and 2nd March 2000. On perusal of the Notification dated 1.10.1994 it is seen that the Government of Maharashtra had announced a policy with a view to promote the welfare of the women and inter-alia provided exemption of Court Fees for women litigants in cases relating to maintenance property right, violence and divorce. Exercising the powers conferred by Section 46 of the Bombay Court Fees Act, 1959, the Government of Maharashtra thus remitted the fees payable by women litigants in respect of the proceedings filed by them as specified in First and Second Schedules to the said Act, filed in Civil, Family or Criminal Courts in respect of the cases relating to (a) maintenance, (b) property disputes, (c) violence and (d) divorce. 7. Thereafter, a Notification dated 2.3.2000 was published in Maharashtra Government Gazette on 24.3.2000, whereby the Notification dated 1.10.1994 was amended and an Explanation to the said Notification dated 1.10.1994 was added. The Notification 2.3.2000, reads as under :- "In exercise of powers conferred by section 46 of the Bombay Court Fees Act, 1959 (XXXVI of 1959), the Government of Maharashtra hereby amends the Government Notification, Revenue and Forest Department No. STP/1094/CR-859/M-1 dated 1st October 1994, as follows : - 5 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." On perusal of the aforesaid Notification of 2000, it reveals that only property disputes arising out of and concerning the matrimonial matters are to be given benefit of the Notification of 1994. 8. The learned counsel for the petitioner sought to argue that since the petitioner has only stepped into the shoes of the original plaintiff as a legal heir, the dispute between the parties would not cease to be a marital dispute, particularly when the petitioner was not pursuing the proceedings in her personal capacity, but in the capacity of the original deceased plaintiff, who was her mother. The learned counsel placed reliance upon the case of Ramila Rajnikant Kilachand Vs. Harsh Rajnikant Kilachand Ors., 2004 (6) Bom. C. R. 75 in support of his contentions. 9. The learned counsel for the respondents, on the other hand, supported the impugned order and submitted that on the death of the 6 original plaintiff, the dispute was no more a marital dispute and therefore, the petitioner was required to pay Court Fees. He further submitted that in any event the defendants have disputed that the plaintiff was wife of defendant No. 1. 10. Having heard the learned counsel for the parties, in my view, upon the death of the original plaintiff No. 1, the dispute has ceased to be a marital dispute and therefore, I am unable to accept the submission of the learned counsel for the petitioner that the petitioner has stepped into the shoes of the original plaintiff and it is not in her personal capacity that she is prosecuting the suit and that therefore, she is not liable to pay the Court Fees. The estate on which a claim is being laid by the petitioner is/was not that of her husband and therefore, I am unable to accept the submission of the learned counsel for the petitioner that the dispute would still fall under the expression "property disputes arising out of and concerning matrimonial matters" as stated in the Notification dated 2.3.2000. 11. Insofar as the decision quoted by the learned counsel for the petitioner in the case of Ramila Rajnikant Kilachand (supra) is concerned, the said decision infact supports the case of the respondents rather than that of the petitioner. 12. In the circumstances, the impugned order directing the petitioner 7 to pay the requisite Court Fee is, in my view, unexceptionable. The impugned order does not warrant any interference and is sustained. The petition fails and is dismissed. Rule is discharged with no order as to costs. [ A. A. SAYED, J. ] ssc/wp8534.10