1. Two questions arise in this second appeal, The first is whether Exs. 4 and 4(a) evidence a partition be tween Sivaramayya and Seshayya, one of his three sons, As to that we see no reason to dissent from the conclusion arrived at by both of the courts below that they do. The circumstances, it seems to us, indicate that it was the intention of both parties to enter into a complete separation of interest. The second question is whether, on the death of a father leaving self-acquired property, his undivided sons succeed to such property to the exclusion of a divided son. That question was answered in the affirmative in Nana Tawker v. Ramaehandra Tawker 2 Ind. Cas. 519 : 38 M. 377 : 5 M.L.T. 67. It has, however, been referred to a Bench for reconsideration on the grounds that some doubt has been thrown on the correctness of that decision in a later Madras case, and that it has been expressly dissented from by the Chief Court of Oudh, The later Madras case is Vairavan Chettiar v Srinivasachariar 62 Ind. Cas. 944 : A.I.R. 1921 Mad. 168 : 44 M. 499 : 40 M.L.J. 481 : 13 L.W. 475 : 29 M.L.T. 294 : (1921) M.W.N. 290. It dissents from Nana Tawker v. Ramaehandra Tawker 2 Ind. Cas. 519 : 38 M. 377 : 5 M.L.T. 67, on one point, no doubt, but it does not dissent from it on the material point as to the exclusion from inheritance to the father of divided by undivided sons. As Oldfield, J., observed, only the order of succession was then in dispute and not the nature of the succession. As to the order of succession, he thought--and the other two Judges did not dissent from him--that Nana Tawker v. Ramaehandra Tawkar 2 Ind. Cas. 519 : 38 M. 377 : 5 M.L.T. 67, was correctly decided, As to the nature of the succession, however, they thought that the earlier dee Lion was incorrect. To put it briefly, they were of opinion that the succession was not by survivorship, but by inheritance, Mr. Lakshmanna argues that logically this leads to the conclusion that, as partition does not put an end to the light of inheritance, the divided son must succeed to the father's self-acquired property equally with the undivided son. The answer to his argument is that the divided son has ceased to be a member of the coparcenary. This was pointed out by Mayne in his comments on a Bombay case, Fakirappav, Yellappa 22 B. 101, which is directly in point and against the appellants.
'A grandson' he observed, 'sued his grandfather and uncles for a partition. He obtained a decree as to all the joint property, but failed as to a part which was held to be the separate property of the grand-father. On the death of the grandfather he brought a fresh suit for a share of this, contending that by descent it had become joint property. This was perfectly true, but the answer to the plaintiff was that he was no longer a member of the co-parcenary. On the grand-father's death his interest in the joint property passed to the remaining co-parceners by survivorship. His own separate property passed to his united sons as heirs and in their hands became an addition to the joint property, in which the divided grandson had no interest.
2. In other words, the separate property becomes part of the joint property in the hands of the heirs and, as a divided member no longer belongs to the co-parcenary and has no interest in its property, he can take no share in it. So far, then, the cases are all against the appellants. Badri Nath v. Hardeo 123 Ind. Cas. 861 : : Ind. Rul. (1930) Oudh 205 : 7 O.W.N. 15 Luck. 649 is the only decision contra. It dissents from Fakirappa v. Yellappa 22 B. 101 and Nana Tawker v. Ramachandra Tawker 2 Ind. Cas. 519 : 38 M. 377 : 5 M.L.T. 67 and follows 49 Ind. Cas. 620 Kunwar Bahadur v. Madho Prasad 49 Ind. Cas. 620. It is impossible to understand how this last case can be treated as an authority on the question at issue. There was, no doubt, a dispute as to the right to succeed to a father's self-acquired property, but it was conceded that the sons, who were living apart from the father had not partitioned the joint property and severed themselves from him and the sons who continued to live with him. That being so, it is obvious that the family remained joint and that the question now at issue could not have arisen. All that the Judges then said was this:
if however we accept the finding of the Court below that the property was the self-acquired property of Asharfi, upon his death all his sons, including the defendants would be entitled and the mere fact that some of those sons continued to live in his house joint in food with him would not deprive the sons who were living away from him of their share in his estate.
3. In other words the mere fact of separate living did not operate as a division, and naturally the latter were equally entitled with the rest to succeed. It is a legitimate inference from the emphasis laid on the fact that there had been no partition, that, had there been a partition, the decision would have been in the opposite sense.
4. We find that Nana Tawker v. Ramachandra Tawker 2 Ind. Cas. 519 : 38 M. 377 : 5 M.L.T. 67 was rightly decided as regards the order--though not as to the nature--of succession in a case like this and dismiss the appeals with costs in Second Appeal No. 707 of the contesting respondent.