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3. The defendants contended that the plaintiff was not the heir and that his father Rayangouda 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 No. 1, who was the eldest member of the joint family consisting of the sons of Umava, was entitled to the patilki watan.

4. 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.

6. 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 recognised 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 renunciation by the sons of Tarava in respect of the impartible property, the office of Goudki in question.

10. It is common ground that in determining that question the rule of primogeniture shall be presumed to prevail in the watan family. It is contended on behalf of the appellant that the determination of the question depends solely on the rule of lineal primogeniture irrespective of the personal law of the parties. Section 36 does not in specific terms empower the Collector or the Court to determine the nearest heir simply by the rule of lineal primogeniture. The proviso says that 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. Reference to Section 2 of Act V of 1886 in Section S6 of the Watan Act would necessitate the determination of the order of succession according to the personal law of the deceased representative watandar, males being preferred 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 Section 2 of Act V of 1886, the argument on behalf of the appellant that the heirs 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 to determine the group of heirs who would succeed to the deceased representative watandar according to the personal law and then to decide who is the nearest heir in that group, and in determining that question the rule of primogeniture shall be presumed to prevail in the watan family.

12. In Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai (1894) I.L.R. 17 Mad. 316, 325 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 principle 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 co-parcenary 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 (1909) L.R. 36 I.A. 125, 136, s.c. 11 Bom. L.R. 830. 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 Prashad Singh v. Tej Bali Singh (1921) L.R. 48 I.A. 195, s.c. 28. Bom. L.R. 654, 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.