1. The decision of this application will also govern the decision of Civil Revision No. 113 of 1956. Both these applications are by the defendants.
2. Facts in brief are: Plaintiffs instituted this suit for partition of the suit property. Their case was that on the death of one Kesheo, certain property devolved on their father and the father of the defendants. The property was ancestral property in their hands. Thereafter they were in separate possession of some specific portion of that property without defining their shares and without effecting any actual division of their property according to their respective shares. After the death of their respective fathers, the plaintiffs and defendants are in possession of those items of the property. The property in possession of the plaintiffs is lesser in extent than their half share while that in possession of the defendants is more than due to their half share. The total property that had devolved on the plaintiffs' father and the defendants' father was 6897 sq. feet in area. The property in possession of the plaintiffs is 2408 sq. feet in area while that in possession of the defendants is 4489 sq. feet in area. Thus, according to the plaintiffs, the defendants are in possession of the property 2081 sq. feet in area in excess of their share. The plaintiffs are seeking1 partition of this 2081 sq. feet and also claim possession of equal portion of the ancestral land. For purposes of payment of Court-fees, they have valued only 2081 sq. feet of land and have paid Court-fees thereon. The defendants inter alia objected to the frame of the suit and also the valuation of the claim for payment of Court-fees. According to them, the plaintiffs' suit relates only to the equalisation of share in respect of 2081 sq. feet in area only. Such equalisation cannot be made without taking into account the value of the property in possession of each of the parties. The plaintiffs have not given the value of their share and have also not valued the share of the defendants. The value of the property which had devolved on the plaintiffs' father and the defendants' father was to the extent of Rs. 15,000 and on this basis the plaintiffs must value the suit and pay Court-fees. On proper valuation the trial Court will not have the jurisdiction to try the suit. The trial Court has negatived both these contentions and hence this revision.
3. In my view both these revisions will have to be allowed. It was not the plaintiffs' case that their father and the defendants' father had effected any absolute partition by metes and bounds of any portion of the property that devolved on them leaving the remaining property to be divided at a future date. Their separate possession of different items of property was only a convenient arrangement. In view of these admissions it is clear that the plaintiffs' father and the defendants' father and after their death the plaintiffs and the defendants continued to be joint owners of all the property that devolved on their respective fathers on the death of Kesheo. If the plaintiffs want to hold in severalty their share in the said ancestral property, they must seek partition by metes and bounds of the entire property that devolved on their father and the defendants' father. It is possible to argue that the second prayer covers this relief, but, in my opinion, the said prayer is not worded so clearly. The frame of the suit, therefore, is not proper. The learned Counsel for the plaintiffs urges that the plaintiffs may be given an opportunity to amend their plaint suitably. No objection was raised on behalf of the defendants to this. I, therefore, direct that the trial Court shall give an opportunity to the plaintiffs to amend their plaint in the light of the aforesaid remarks.
4. As regards the question of Court-fees, the suit was instituted on March 10, 1955. The provisions of the Court-fees Act, 1870, as amended by Madhya Pradesh Amending Act of 1953, will govern this case. The relevant provisions relating to partition are Section 7(vi-a) of the Court-fees Act, They read as follows:
7. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:... (vi-a) in suits for partition-
(a) according to one-half of the value of the plaintiff's share of the property; and
(b) according to the full value of such share if on the date of presenting the plaint the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner, and his claim to be a co-parcener or co-owner on such date is denied.
Explanation.-The value of the property for the purposes of this paragraph shall be the market value which, in the case of immovable property, shall be deemed to be the value as computed in accordance with paragraph (v):
It is urged on behalf of the defendants that Clause (b) will govern this case, and the plaintiffs must pay ad valorem Court-fees on the market value of the entire property. In my view, this contention has no force. The said clause will be attracted only when the plaintiff is out of possession of the property of which he claims to be a co-parcener or co-owner and his claim to be a co-parcener or co-owner was denied prior to the date of the institution of the suit. Admittedly in the instant case the plaintiffs are in possession of a part of the property of which they claim to be the co-parceners or co-owners. It cannot, therefore, be said that the plaintiffs are not at all in possession of the property of which they claim to be co-parceners. This clause, is, therefore, not attracted. The clause that governs this case is Clause (a). The plaintiffs are claiming or ought to claim separation of their half share in the property that had devolved on their father and the father of the defendants on the death of Kesheo. They are, therefore, liable to pay ad valorem Court-fees on one-half of the value of their half share in the entire ancestral property. Admittedly the plaintiffs have paid Court-fees only on one-half of the value of the land measuring 2081 sq. feet. They have not, therefore, paid proper Court-fees and have not properly valued their claim. The trial Court has relied on the decision of the Nagpur High Court reported in Santosh v. Rama ILR  Nag. 35. In my view, that decision has no application to facts of the present case. It relates to the construction and application of Section 7(iv)(b) of the Court-fees Act as it stood prior to the date of the amendment. Those provisions are now deleted by the amendment Article and, therefore, typical positions considered therein as falling under Section 7(iv)(b) are of no guidance. Under the new provision, no latitude is left to the plaintiffs to value their claim.
5. It is to be noted that though in particulars the plaintiffs have given the valuation of the property which was in possession of their father, they have not given the valuation of the property which was in possession of the defendants' father. As already stated, according to the defendants, the valuation of the entire property left behind by Kesheo amounted to Rs. 15,000. If that be so, the valuation of the plaintiffs' share would come to Rs. 7,500 and the trial Court will not be competent to try the suit. May be that the valuation given by the defendants is exaggerated, but there are no clear pleadings of the plaintiffs on this point. In my view, the plaintiffs should be given an opportunity to state the valuation of the property in the hands of the defendants or their father.
6. In the result both these applications are allowed and the orders sought to be revised are set aside. The case is sent back to the trial Court with a direction to decide these questions afresh in the light of the remarks made above after giving an opportunity to the parties to amend their pleadings and lead such evidence as they may desire. The costs of both these revisions shall abide the result.