Patkar, J.:— This was a suit brought by the plaintiff under section 36 of the watan act for a declaration that he is the heir to the patilki watan of Mul-Savalgi on the death of the last incumbent Sahebgouda in 1921.

2. One Shivgouda, the original owner of the watan, died leaving his son Sahebgouda. Sahebgouda died leaving seven sons, three by his first wife Tarava including Rayangouda, the father of the plaintiff, and four sons by his second wife Umava including Shivagouda in whose name the patilki watan was entered, and defendant 1 Basangouda. After the deasth of Shivgouda the watan was registered in the name of Sahebgouda who died in the year 1921.

3. The defendants contended that the plaintiff was not the heir and that his father Eayangouda was not the second son of Sahebgouda by seniority, that there was a partition in the year 1882 by which the sons of Tarava became separate, and the sons of Umava lived joint, and that on the death of Sahebgouda, defendant 1, who was the eldest member of the joint family consisting of the sons of Umava, was entitled to the patilki watan. The learned Subordinate Judge held that there was a partition in the year 1882, and the result of the partition was that all the seven sons of Sahebgouda became separate and according to the rule of lineal primogeniture the plaintiff who belonged to the next eldest branch of the family was entitled to succeed.

4. On appeal the learned District Judge held that though there was a partition in the year 1882 between the sons of Tarava and the sons of Umava, the sons of Umava continued joint, and that under the rule of primogeniture the succession to Sahebgouda was to be determined among the heirs of Sahebgouda in the branch of the family of the sons of Umava who remained joint, and held that defendant 1, the senior member of the joint family of the sons of Umava who became separate from the sons of Tarava was entitled to succeed.

5. The plaintiff has appealed and it is urged on his behalf, firstly, that under Section 36 of the Bombay Hereditary Offices Act, the succession is to be determined by the rule of lineal primogeniture irrespective of the personal law governing the parties, secondly, that the partition of 1882 was complete as regards persons and property, that all the seven sons of Sahebgouda became separate, and that the plaintiff belonging to the seniormost branch was entitled to be recognized as the registered owner under section 36 of the watan act. Lastly, it is urged that even assuming that the finding of the lower appellate Court that the sons of Tarava became separate in the year 1882 from the sons of Umava was correct, there was no renunoiation by the sons of Tarava in respect of the impartible property, the office of goudki in question.

6. Section 36 of the Bombay Hereditary Offices Act runs as follows:

“When any representative watandar dies ??? shall be the duty of the patel and village accountant to report the fact to the Collector; and the Collector shall, if satisfied of the truth of the report, and subject to the provisions of Section 2 of the Bombay Act 5 of 1886, register the name of the person appearing to be the nearest ??? of such ??? as representative ??? in place of the watandar so deceased.

Provided that

(1) in determining who is the nearest heir for the purposes of this section the rule of lineal primogeniture shall be presumed to prevail in the watan family.”

7. Proviso (3), S. 36 makes the decision of the Collector subject to and liable to be set aside by the decree of a civil Court.

8. It is clear on the rulings of this Court in Rahimkhan v. Dadamiya (1), Shankar Babaii v. Dattatraya Bhawaji (2) and Hanmant v. Secretary of State (3), and the specific words of Proviso (3), S. 36, that a suit is maintainable for the determination of the question as to who is the nearest heir of the deceased representative watandar.

9. It is common ground that in determining that question the rule of primogeniture shall be presumed to ??? in the watan family. It is contended or behalf of the appellant that the deter mination of the question depends ??? on the rule of lineal ??? irrespective of the personal law of the parties. S. 36 does not in specific term empower the Collector or the Court to determine the nearest heir simply be the rule of lineal primogeniture. The proviso says that in determining who is the nearest heir for the purpose of this section the rule of lineal primogeniture shall be presumed to ??? in the watan family. Reference to S. ??? of Act 5 of 1886 in S. 36, Watan ??? would necessitate the determination ??? the order of succession according to the personal law of the deceased ??? watandar, males being ??? to the females other than the widow mother and grandmother. If the widow mother and grandmother are eligible heirs under Section 36 of the Watan Act read with S. 2 of Act 5 of 1886, the argument on behalf of the appellant that the ??? are to be determined solely by the rule of lineal primogeniture cannot be accepted. It would therefore be clear that the Collector and the Court have first ??? determine the group of heirs who would succeed to the deceased representative watandar according to the personal law and then to decide who ??? the nearest heir in that group, and ??? determining that question the rule of primogeniture shall be presumed to prevail in the watan family.

10. There are no rules under the Act nor ??? there any decided cases as to how;he succession should be determined in such cases. Resort, therefore can be legitimately had to the rules of succession to impartible estate like the zamindari in which the rule of lineal primogeniture prevails. The rule of primogeniture may be desned as the succession of the eldest member of the eldest branch, and the question as regards the rules governing such succession has been ??? by Sarvadhikari in his Principles of Hindu law at pp. 757 to 764 and by Mayne in his Hindu law at pp. 791 to 798.

11. In Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai (4) certain rules have been laid down as governing the succession by the rule of lineal primogeniture. The first of them is that a rule of decision in regard to succession to impartible property is to be found in the Mitakshara law applicable to partible property, subject to such modifications as naturally flow from the character of the property as an impartible estate. The second ??? is that the only modification which impartibility suggests in regard to the right of succession is the existence of a special rule for the selection of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu law. The third principle is that in the absence of a special custom, the rule of primogeniture furnishes a ground of preference. In determining who the single heir is, according to these principles, it is necessary to ascertain the class of persons who would be entitled to succeed to the property if it were partible, regard being had to its nature as coparcenary or separate property and then to select the single heir by applying the special rule indicated above. This decision has been approved by the Privy Council in Parbati Kunwar v. Chandarpal Kunwar (5). If the property is held by the last owner as the separate property or if the impartible estate has been acquired by the deceased incumbent, the rules governing succession as to separate property would apply. But if it is proved that the impartible estate was the family property and descended as such, the rule of survivorship would apply. If the property is joint family property the question as to who is the next heir according to the rule of lineal primogeniture has been determined by the decision of the Privy Council in Baijnath Prasad Singh v. Tej Bali Singh (6) where it was held that the successor to an ancestral impartible estate in a joint Hindu family governed by the Mitakshara is designated by survivorship, although he will hold the estate according to the custom of impartibility; consequently the eldest member of the senior branch succeeds in preference to the direct senior lineal descendant of the common ancestor if the latter is more removed in degree. The estate passes by survivorship from one line to another according to primogeniture, and devolves not on the member nearest in blood but on the eldest member of the senior branch.

12. In determining the question as to who is entitled to succeed to the property by the rule of lineal primogeniture, it is necessary to ascertain the facts in the present case. It is contended on behalf of the appellant that all the sons of Sahebgouda became separate in virtue of the partition in the year 1882, and it is urged, relying on the decision in the case of Jag Prasad v. Mt. Singari (7), that if the sons of Umava agreed to remain joint that agreement must be proved as a fact. In Jag Prasad's case , all the members of the joint family had become separate, but the contention on behalf of some of the parties was that there was a specific subsequent agreement to re-unite. It was therefore held by the Privy Council that it was necessary to prove the specific agreement to re-unite. But if some of the persons of a joint family separate, it does not necessarily follow that there is separation as amongst the members of the family who continue to be joint, and according to the decision of the Privy Council in Palani Ammal v. Muthuven-katacharla Moniagar (8), if some of the (members continue to be joint, that fact may be inferred from the conduct of the persons who continue to remain joint in the family and surrounding circumstances. When a member of a joint family separates, the remaining coparceners without any special agreement among themselves may continue to be coparceners, and enjoy as members of a joint family the property remaining after such partition of the family property. The question whether or not the remaining members of the family continued joint or separate is to be determined by evidence in the case: see Babanna v. Parava (9) and Bhimabai v. Gurunath-gouda (10). The lower appellate Court has found that the sons of Umava continued joint after the year 1882. We shall therefore in second appeal accept the finding of the lower appellate Court that in 1882 the sons of Tarava separated and that thereafter the sons of Umava continued to remain joint.

13. The next question arising for decision is, whether in virtue of the separation of the sons of Tarava the plaintiff and the plaintiff's father Bayangouda lost all interest in the impartible estate which was in the possession of Shiv-gouda and after his death in the possession of his son the deceased Sahebgouda. I As to what constitutes separation, it will be clear that where an impartible property has been acquired by the last holder or his branch as a self-acquisition, the other undivided members of his family take no interest in it and it descends as the separate property of the acquirer according to the decision in Katama Nachiar v. Baja of Shivagunga (11). Similarly, where an impartible estate has been considered as joint family property, a member of the joint family might become separate with regard to it so as to lose his right to succeed to it by survivorship, but it must be clear that he has renounced all his claims to the impartible estate according to the decision of the Privy Council in Peria-sami v. Periasami (12). Or an impartible property might by consent be settled on a particular branch of the family as their separate property according to the decision in Vadrevu Ban-ganayakamma v. Vadrevu Bulli Ramaiya (13). In the present case, the sons of Tarava, including the father of the plaintiff, effected a partition of their partible property in the year 1882. The question therefore is whether by reason of that partition they renounced all their interest in the impartible property, the goudki watan in question. The point is covered by the decision of the Privy Council in Konammal v. Annadana (14), where it was contended that the defendant's branch had been divided and therefore had lost their succession to the estate. At p. 128 (of 55 I.A) their Lordships of the Privy Council observe as follows:

“Now once it is established, as it must now be taken to be, that for the purposes of succession an impartible estate may be joint family property, it is difficult to see upon what principle the fact that the members of the joint family or of any branch of the family have exercised their right of partition over their partible property should be held to divest them of their interest in the impartible estate over which they have no right of partition. It certainly cannot be put upon the ground of surrender or renunciation for there is nothing in the fact of these partitions of their partible property to suggest any intention of renouncing their rights of succession to the impartible estate, nor do they receive any consideration for such renunciation …. Further, to lay down that members of a joint family could not partition their partible property without losing their rights of succession in the impartible estate would impose on these families a restriction on the free right to partition which has been so fully recognized by the decisions of this Bord in recent years.”

14. It would therefore follow from the remarks of their Lordships of the Privy Council that in addition to the fact of partition, it must be established that there was an intention to renounce the rights of succession to the impartible estate. No doubt, the impartible estate which was the subject matter of the appeal to the Privy Council was a valuable estate whereas the impartible property involved in the present case is of comparatively small value, of the amount of Rs. 73 per year, but in our opinion the succession by lineal primogeniture to an impartible estate such as the one in the present case must be governed by the same rules. In Konammal's case , the act that their Lordships of the Privy Council accepted the finding of the High Court that there was no separation does not detract from the value of the renarks of their Lordships referred to ??? which are entitled to highest ??? and are apposite in the circumstances of the present case. In the ??? of the judgment their Lordships ??? to their previous decision in Chowdhry Chintamun Singh v. Mt. Vowlukho Konwari (15), where there had been to some extent a separation in the ???, but it was held that the material question was whether the plaintiff's ??? and his branch had waived the ??? of succession and had impressed upon the ??? the character of separate ???. Reference was also made to ??? v. Periasami , where a person conceiving that he was entitled ??? succeed to another zamindari renounced for himself and his offspring all ??? in the small zamindari which was in question, and therefore ??? his intention to separate himself ??? his descendants completely from he other zamindari; and their Lordhips expressed the view that in order ??? establish that an impartible estate lad ceased to be joint family property to was necessary to prove an intention ??? or implied on behalf of the ??? members of the family to give ??? chance of succession to the ??? estate.

15. If the impartible property, the goudki vatan in suit, became the separate property of the son or sons of Umava or if the sons of Tarava renounced their right to the chance of succession to the mpartible property in suit, defendant ??? the eldest member of the branch of the family of the sons of Umava would be entitled to succeed. Otherwise he plaintiff being the eldest son of the ??? branch would be the nearest ??? to the deceased representative ???. There is no doubt that in the present case this specific point was not raised by he parties. We have before us the finding of the lower Court that the sons of Umava remained joint and the sons of Tarava including the father of the present plaintiff separated in the year 1882, but that finding, in our opinion, is not sufficient to dispose of the case. It is necessary to ascertain whether there was any intention on the part of Rayan-gouda, the plaintiff's father, or the sons of Tarava to renounce their interest in the impartible office of the goudki in question. It is therefore essential for a just decision of the case, to send down an issue on the question as to whether at the partition of 1882 the goudki watan had become the separate property of the sons of Umava, or whether at the date of the partition of 1882 or at any subsequent period the sons of Tarava are proved to have renounced their right to the chance of succession to the goudki watan in question. Parties will be allowed to lead evidence on the point. The issue may be sent down by the lower appellate Court to the trial Judge and the lower appellate Court should forward the evidence and the finding of the Subordinate Judge together with its own finding on the issue to this Court within three months.

Broomfield, J.:— I agree and have very little to add. The trial Court in this case held that there was a complete partition among the sons of Sahebgouda I. The Court of first appeal accepted the defendants' contention that the sons of the two wives of Sahebgouda I separated from one another but that the sons of Sahebgouda's second wife Umava remained joint among themselves. On that view the District Judge held that the defendants, who are the full brothers of Shivgouda, the father of the last holder of the watan Sahebgouda II, are entitled to succeed to the latter by survivorship. This appears to involve a finding that the sons of Tarava went out of the watan family at the time of the partition in 1882 and renounced their right to this watan, and that the office and the fight to serve became from that time the separate property of the joint family consisting of Umava's sons. If that were so, no doubt, the plaintiff would have no claim. But the question is whether any such inference can be justified by the evidence in the case, and it has been practically admitted before us that there are no materials on the record by which the matter can be determined. The issues which have been raised do not touch the point and it does not appear to have been present to the minds either of the parties themselves or the lower Courts. As my learned brother has pointed out, the remarks of their Lordships of the Privy Council in Konammal v. Annadana show that in order to establish that an impartible estate has ceased to be joint family property for the purposes of succession, it is necessary to prove an intention expressed or implied on the part of the junior members of the family to give up their chance of succession to the impartible estate, and further that no such intention can be presumed from the mere fact that the members of the family had exercised their right of partition over their partible property.

16. Mr. Coyajee on behalf of the respondents has urged that it is too late for this question to be raised in second appeal. One answer to that contention is that if the matter is not to be enquired into now, it would seem to follow, in view of the remarks of the Privy Council as to the burden of proof, that the decision would have to go against Mr. Coyajee's clients. But it appears to be necessary for a just and reasonable decision of the case that the issue should be raised even at this late stage. It is a case such as is provided for by R. 25, O. 41. The lower Courts have omitted to frame an issue and to determine a question of fact which appear to us to be essential to the right decision of the suit upon the merits. I therefore agree that the issue proposed by my learned brother should be sent down.

V.B/R.K

17. Case remanded.