Wallace, J.

1. The question for decision in this case is whether the lover Court was correct in directing the plaintiff to pay additional Court-fee. The plaintiff is suing for partition, being an undivided member of a joint family, composed of the 1st defendant (his father) and defendants 2 and 3 (his brothers). The lower Court has held that as the plaintiff is, on his own case in the plaint "out of possession" the Court-fee has to be valued under the provisions of the Court Pees Act, Section 7, Clause 5. The plaintiff maintains that, as he is suing as an undivided member and therefore in joint possession of the joint family properties, the case comes under Section 7, Clause 4(b) and he is entitled to fix his own value, for the convenience of getting his undivided share separated. The defendants contend that Section 7, Clause 4(b) cannot apply to any case in which a coparcener is "out of possession," of the joint family property. At one stage of the argument, they went so far as to contend that unless the coparcener suing was in physical possession of some portion of the joint family property, he was out of possession of the whole joint family property. But such a propositio