ORDER Abhay M. Naik, J. 1. This writ petition under Article 227 of the Constitution of India has been preferred by the plaintiffs challenging thereby order dated 01.09.2009 (Annexure P-11) and order dated 13.10.2009 (Annexure P-12) passed by the court of II Additional Civil Judge, Class II, Gwalior in Civil Suit No. 98A/2009. 2. Facts giving rise to the writ petition are that the suit house situated in Jari Patka, Phalka Bazar, Lashkar, Gwalior was purchased by plaintiffs' father, namely Ramdayal during latter's lifetime through auction in Execution Case No. 104/69x74 Manorama and Ors. v. Nazar Mohd., from the court of III Civil Judge, Class II, Gwalior. Sale Certificate was issued in his favour on 17.08.1977 by the Executing Court. He submitted an application for obtaining possession before the Executing Court which was registered as MJC No. 83/2008, after transfer of the case to the Court of VIII Civil Judge, Class I Gwalior. Ramdayal died on 11.04.1994. Plaintiffs' mother Kamla Devi died on 28.05.1997. Ramdayal died intestate. According to plaintiffs/petitioners, Ramkishore prepared a forged Will in his favour, allegedly executed by Ramdayal on 12.02.1994. Defendant/respondent No. 1 after death of Ramkishore prepared a forged Will allegedly executed by Ramkishore on 21.01.1998. Ramkishore and thereafter defendant/ respondent No. 1 got their names substituted in place of Ramdayal on the basis of the aforesaid alleged forged and concocted Wills. Defendant/respondent No. 1 submitted an application for issuance of warrant of possession in his favour which was objected to by the plaintiffs on the ground that the alleged Wills in favour of Ramkishore and defendant/respondent No. 1 are forged and concocted one. 3. According to petitioners, they being legal heirs of Ramdayal are entitled to possession pursuant to the sale certificate issued in favour of Ramdayal. This was opposed by defendant/respondent No. 1. Ultimately, the Executing Court vide its order dated 05.08.2008 (Annexure P-5) directed the defendant/respondent No. 1 to submit an undertaking that in case of establishment of right of objectors (i.e. the plaintiffs/petitioners in the present case), he shall immediately handover possession of the suit house to the petitioners and in case of failure, he shall be liable to pay damages/compensation until restoration of possession. 4. Warrant of possession pursuant to Annexure P-5 was issued in favour of defendant/respondent No. 1, who, thus, obtained possession of the suit house in execution of warrant of possession. 4. Warrant of possession pursuant to Annexure P-5 was issued in favour of defendant/respondent No. 1, who, thus, obtained possession of the suit house in execution of warrant of possession. Thereafter, the plaintiffs/petitioners instituted a suit for declaration of title, perpetual injunction, restoration of possession and damages with allegations that the alleged Wills dated 12.02.1994 & 21.01.1998 are prepared fraudulently by forgery & concoction and they are ineffective. 5. Plaintiffs/petitioners valued the suit house for declaration at Rs. 6,100/- on the ground that it was purchased by Ramdayal for such consideration, and paid court-fees of Rs. 500/- for declaration. For the purpose of permanent injunction suit is valued at Rs. 200/- with court- fees of Rs. 80/-. 6. Defendant/respondent No. 1 submitted an application under Order 7 Rule 11 CPC stating therein that the suit has not been properly valued on the basis of market value. Similarly, proper court-fees has also not been paid. Accordingly, the suit may be dismissed. 7. Learned Trial Judge vide his order dated 01.09.2009 (Annexure P-11) observed that the suit is to be valued on the basis of market value prevailing at the time of institution of the suit. He further observed that ad valorem court-fees on such market value is payable. Accordingly, plaintiffs were directed to pay proper court- fees after making correct valuation of the suit property. 8. Pursuant to the aforesaid, plaintiffs submitted an application under Order 6 Rule 17 CPC. They sought leave to substitute Rs. 24,200/- in place of valuation of Rs. 6,300/- and to pay court-fees of Rs. 2,984/-. Learned Trial Judge dismissed the application vide order dated 13.10.2009 (Annexure P-12) on the ground that the amendment proposed by the plaintiffs is not based on the market value of the suit property. Aforesaid two orders (Annexure P-11 & P-12) are assailed in the present writ petition under Article 227 of the Constitution of India. 9. It is contended on behalf of the petitioners that the suit property, admittedly, belonged to Ramdayal. Plaintiffs/petitioners being sons and daughters of late Ramdayal, have become owners after the latter's death by virtue of natural succession. Suit property was purchased by Ramdayal in court auction and sale certificate was duly issued in his favour. 9. It is contended on behalf of the petitioners that the suit property, admittedly, belonged to Ramdayal. Plaintiffs/petitioners being sons and daughters of late Ramdayal, have become owners after the latter's death by virtue of natural succession. Suit property was purchased by Ramdayal in court auction and sale certificate was duly issued in his favour. Possession of the suit property was obtained by the defendant/respondent No. 1 through court process under an undertaking that on establishment of the right of plaintiffs/petitioners, possession of the suit property would be delivered to them immediately. Thus, the suit property is in custodia legis and declaration of right alone is sufficient. Prayer for possession in such a case is superfluous and plaintiffs are not required to pay ad valorem court-fee. 10. Shri B.D. Jain, learned Counsel for the respondent No. 1 though admitted that possession of the suit property was obtained by his client under a court order that, too, after submitting the undertaking that he would deliver possession of the suit property immediately forthwith on plaintiffs' establishing their right over it. However, he submitted that a prayer for possession has been made and the plaintiffs are bound to make valuation of the suit for the purpose of possession on the basis of market value of the suit property and to pay ad valorem court-fee thereon. 11. Considered the submissions and perused the record. 12. It is an admitted position that Ramdayal, father of the plaintiff purchased the suit property in the court auction vide sale certificate dated 17.08.1977 issued by the Court of III Civil Judge, Class II Gwalior in Execution Case No. 104/69x74 Manorama and Ors. v. Nazar Mohd.. Ramdayal submitted an application for obtaining vacant possession of the suit property. His death occurred on 11.04.1994. His application was registered as MJC No. 83/2008. During pendency, one Ramkishore, after the death of Ramdayal, submitted Will dated 12.02.1994, alleged to have been executed by Ramdayal in his favour. He got his name substituted in place of Ramdayal in MJC No. 83/2008. After his death, defendant/respondent No. 1 submitted another Will dated 21.01.1998, alleged to have been executed by Ramkishore in his favour and got his name substituted in place of Ramkishore in MJC No. 83/2008. Plaintiffs/petitioners submitted objections to the said substitution and further prayed for their substitution in place of Ramdayal. After his death, defendant/respondent No. 1 submitted another Will dated 21.01.1998, alleged to have been executed by Ramkishore in his favour and got his name substituted in place of Ramkishore in MJC No. 83/2008. Plaintiffs/petitioners submitted objections to the said substitution and further prayed for their substitution in place of Ramdayal. Learned Executing Judge dismissed the objections of the plaintiffs/petitioners and directed for issuance of warrant of possession in favour of defendant/respondent No. 1 subject to the condition that he shall submit an undertaking that he will handover possession immediately forthwith on plaintiffs' establishing their right. In case of failure, possession warrant would be issued against him and until restoration he would be liable to pay damages/mense profits to the plaintiffs/petitioners on market rate. It is admitted on behalf of the defendant/respondent No. 1 that undertaking to the aforesaid effect has been submitted by him and possession was obtained through the Executing Court, obviously, subject to the said undertaking. 13. It is clear from the aforesaid that the respondent No. 1 is occupying the suit property subject to the aforesaid court order as revealed in Annexure P-5 and not independent of it. His possession is thus in the nature of custodia legis, because he has obtained it only after submitting the undertaking as required by the court. He has not forcibly dispossessed the plaintiffs nor is in occupation of the suit property independent of Annexure P-5. 14. Custodia legis is a Latin phrase which means "the custody of the law". This phrase is used in reference to the property taken into the court's custody during pendency of litigation over it. Since, the Executing Court, while directing delivery of possession to the respondent No. 1, clearly directed that on plaintiffs' establishing their right, the respondent No. 1 shall be liable to deliver possession immediately forthwith and in case of failure possession warrant would be issued against him. In this view of the matter, the suit property would be treated in custodia legis and ad valorem court-fees is not payable at all. This Court in the case of Balwant Singh and Anr. v. Nandlal and Ors. 1987 JLJ 560 has observed: In the instant case, property is in 'custodia legis' and the possession is held by the Court for the benefit of the party which is ultimately bound to be entitled to it. This Court in the case of Balwant Singh and Anr. v. Nandlal and Ors. 1987 JLJ 560 has observed: In the instant case, property is in 'custodia legis' and the possession is held by the Court for the benefit of the party which is ultimately bound to be entitled to it. It cannot, therefore, be held that the property is not in the possession of the petitioners and they are bound to claim the relief of possession as a consequential relief.... 15. Learned Trial Judge has directed the plaintiffs to value the suit on the basis of market value of the suit property without taking into consideration the aforesaid aspects of law, therefore, the impugned order Annexure P-11 is not sustainable. 16. It is further evident from Annexure P-6 that the defendant No. 1 on the strength of undertaking obtained possession of the suit property by execution of warrant of possession. However, in order to avoid any further enquiry about plaintiffs' title/rights, he made a prayer to close execution case in full satisfaction. Learned Executing Court vide its order dated 19.08.2009 (Annexure P-6) restrained respondent No. 1 from alienation/transfer of the suit property, until determination of the rights of the plaintiffs/petitioners. However, the execution case was dismissed in full satisfaction, which compelled the plaintiffs to institute the suit in question. 17. From the drift of events stated herein above, it is clear that the plaintiffs/petitioners are merely required to seek declaration about their rights and the relief for possession, in the facts and circumstances, is superfluous. Valuation on the basis of market value of the suit property as well as ad valorem court-fee thereon is not attracted in such a situation. Even declaration of the rights of plaintiffs/petitioners is sufficient. In such a suit, valuation of the right under litigation is to be made and not of the suit property. This being so, insistence of the trial court to make valuation on the basis of market value of the suit property is neither proper nor legal. It is a trite law that the question of court-fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits as observed by the Apex Court in the case of S. Rm. Ar. S. Sp. Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar AIR 1958 SC 245 . 18. In the case of declaration of rights, liberty is given to the plaintiff to value his claim for the purpose of court- fee. Suit property was purchased in an auction for a consideration of Rs. 6,100/-. Plaintiffs/petitioners pursuant to Annexure P-11 submitted an application for amendment making valuation thereby at Rs. 24,200/- in place of valuation of Rs. 6,300/- which cannot be termed as arbitrary in the facts and circumstances of the case. Learned Trial Judge has dismissed the application for amendment without examining the nature of the suit in the light of the pleadings contained therein vide Annexure P-12. This order is also not found sustainable in law and the same is hereby set-aside. Petitioners are permitted to value the suit at Rs. 24,200 with court-fee of Rs. 2,984/-. Application for amendment is allowed to this extent. Consequently, Annexure P-12 is also hereby set- aside. 19. Writ petition stands allowed in the aforesaid manner. Looking to the nature of the case, the trial court is hereby directed to decide the suit expeditiously preferably upto 30th June 2011. No order as to costs.