Kamleshsingh Harnamsingh Chowhan Vs. Kishorsingh Gangasingh Chowhan and anr. - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act.j.n. patel, j.1. heard learned counsel for the parties.2. this appeal is preferred by the original defendant in t. & i.j. petition no. 454 of 2004 being aggrieved by the order passed by the learned single judge in notice of motion taken out by the petitioner therein for dismissal of his caveat dated 2nd may 2005.3. by the impugned order dated 29th february 2008, the learned single judge of this court allowed the motion and made it absolute in terms of prayer clause (a), which reads as under:that this hon'ble court be pleased to dismissnd the caveat dated may 2005 filed by the defendant in t.&. i.j. petition no. 454 of 2004.the petitioner has sought a probate in respect of the will dated 7th march 1992 and the codicil dated 1st july 2003 executed by gangasingh who died on 4th july 2003 leaving behind his wife indumati and children.4. the petition for probate came to be filed in this court by kishoresingh gangasingh chowhan and padma singh. the appellant2nd defendant filed the caveat on may 2005, wherein he has opposed the grant of probate of the will dated 7th march 1992 and codicil dated 1st july 2003 mainly contending that there is a building namely lalsingh mansingh, lohar chawl, mumbai 400 002, in which under the family agreement dated 29th april 1970, the testator had two annas (2/16) share along with other coowners including the father of the appellant-caveator i.e. late shri harnamsingh who had according to the appellant the largest six annas share. it is specifically contended that one of the co-owner pushpendra singh kama filed the suit for partition in respect of properties including said lalsingh mansingh building in the court of additional district judge, mainpuri, uttar pradesh being original suit no. 68 of 1972 wherein the testator and the caveator were sued as defendants. under a final decree passed by the court on 23rd april 1982, the late father of the petitioner, harnamsingh got a particular share in respect of properties including the said lalsingh mansingh building which stood partitioned under the above decree. according to him, under the above decree, the share which came in favour of his late father consisted of 11 shops, 4 godowns, 31 rooms, 15 wcs, 10 bathrooms and 1 staircase in the said building and this is within the knowledge of the parties. first appeal no. 407 of 1982 is presently pending before the allahabad high court for final hearing, wherein certain interim orders have been passed. particular reference was made to interim order dated 23rd march 1983 which is in the nature of permitting the parties to manage the properties in dispute including lalsingh mansingh building situated at mumbai. it is the case of the appellants that under the said will, the testator has bequeathed rooms 1st 2nd described as and rooms facing seikh memon street on fourth floor i.e. room nos. b-58 and b-57, which are in use and occupation of the appellant, to original plaintiff no. 2 and wife of deceased respectively. so also the rooms described as 7th and 8th rooms in the said will facing kitchen garden lane on fourth floor are rooms nos. c-17 and c-18 which have been assigned for use and occupation of his family members as prayer room and kitchen and fridge room respectively by the testator under his will. room described as one room on third floor in the said will is room no. c-16 assigned for common use for himself and his family members by the deceased and all these above properties are the subject matter of the appeal pending in the allahabad high court, wherein the suit for partition under the family agreement is under challenge. therefore, it is the contention of the appellant that assuming the said will is probated by this court, the same will become authenticated even in respect of use and occupation of the said properties as directed by the deceased in his said will. in case the first appeal pending before the allahabad high court, too, confirms the decree of partition the appellant will become entitled to the five rooms described above which have been bequeathed under the will. he apprehends that the respondents as executors of the will, would resist the execution of the decree in respect of those five rooms on the strength of probate granted by this court. therefore, in order to avoid volatile consequences which could arise therefrom, the probate of the will sought for should not be granted. in addition to the will, the appellant-caveator has also challenged the codicil of the deceased.5. the learned single judge found that the caveator is not a beneficiary under the will and even taking into consideration whether the caveator could have a share, in the event the deceased testator has died intestate. the learned single judge found that caveator who has no chance of succession in the properties of the deceased, as he is the son of the brother of the deceased and cannot maintain a caveat. therefore, considering that the property admittedly is owned by several family members, the caveator also has an interest therein and which is subjudice. neither the will nor the probate thereof, if granted, will affect caveator's right either in the said partition suit or otherwise assuming that the caveator has an interest.6. the learned counsel for the appellant has placed reliance on the following three decisions in order to substantiate his contentions primarily to challenge the grant of probate on the ground that his interest in the property would stand compromised and therefore he has right to challenge grant of probate in favour of respondents-plaintiffs.1. jamni hanmantha rao v. aratala latchamma, reported in a.i.r. 1926 mad 1193;2. nabin chandra guha v. nibaran chandra biswas and ors. reported in : a.i.r. 1932 calcutta 734;3. mutukdhari singh v. smt. prem debi and ors. reported in : a.i.r. 1959 patna 570.the ratio in the aforesaid authorities do not assist the appellant caveator in establishing his locus standi in contesting the probate.7. on the other hand, the learned counsel appearing for the respondents placed reliance on the latest decision rendered by hon'ble supreme court in the case of krishna kumar birla v. rajendra singh lodha and ors. reported in : (2008) 4 supreme court cases 300, wherein the supreme court has defined as to what is 'caveatable interest'.8. in our opinion, the view taken by the learned single judge is a correct view in law. as the probate does not confer any title of the properties bequeathed in favour of the plaintiffs and even accepting that the will bequeathes certain properties to the plaintiff, out of the joint family properties being subject matter of the partition suit and appeal pending before the allahabad high court, which would ultimately determine the title and share in the property. probate court only decides the question of genuineness and validity of the will and does not enter into the question of title. the subject matter in respect of the title of the property is already subjudice before allahabad high court in the first appeal filed by the parties. therefore, we do not find any error or illegality committed by the learned single judge and dismiss the appeal.9. after we dismissed the appeal, the learned counsel appearing for the appellant submitted that the interim protection granted by the learned single judge on 4th september 2009 may be continued for a further period of six weeks, which is strongly opposed by the respondents. the request does not find favour with this court and therefore, the same is rejected.10. in view of disposal of the appeal, the notice of motion no. 3627 of 2008 does not survive and the same is disposed of accordingly.