SATISH CHANDRA, J. :- A Division Bench has referred the Second Appeal to a Full Bench to resolve the conflict of opinion in Mahabir Singh v. Bhagwanti, 14 All LJ 278 : (AIR 1916 All 111) and Ram Singh v. Baldeo Prasad, 1932 All LJ 605 : (AIR 1932 All 643).

2. This is a defendant's appeal. It arises out of a suit for partition of a house and a tenancy holding. The plaintiff set up the following pedigree:-

Munni died on 17-11-1918, leaving a son Jhandey Lal, the plaintiff-respondent. Chhangey died on 10-4-1925. His widow, Smt. Kaushalya died in 1932. Chhiddu died during the pendency of the suit, leaving a widow, Smt. Rajo and two sons, who are defendants-appellants Nos.1, 2 and 3.

3. The plaintiff's case was that the house as well as the holding in dispute was acquired by Durga. On his death, these properties were inherited by his three sons in equal shares. The sons of Durgu constituted a Joint Hindu Family. The properties were coparcenary properties. On the death of Chhangey, his share went to the other members of the coparcenary by survivorship. Consequently, the plaintiff had a 1/2 share in the house as well as in the tenancy holding.

4. The defence was that the three sons of Durgu were separate. Chhangey's share was inherited by his widow, Smt. Kaushalya. On her death, Chhangey's share went to his brother Chhiddu as the nearest heir. The plaintiff, who was one degree removed, did not inherit Chhangey's 1/3rd share. Consequently, Chhiddu's share was 2/3, while the plaintiff was entitled only to 1/3rd share, in the properties. The trial Court held that the house as well as the tenancy holding was joint family property, succession to which was governed by the rule of survivorship. The plaintiff was entitled to a half share in both these properties. The suit was decreed for partition of a half share.

5. The defendants went up in appeal, which was dismissed. The defendants then came to this Court in Second Appeal. A learned Single Judge held that the case could not be satisfactorily decided without a clear finding whether the family was joint or separate, and as to when did the family disrupt. This Court remanded the case to the lower appellate Court for decision afresh. On remand, the learned Civil Judge held that the house as well as the disputed holding was acquired by Durgu. On his death, his three sons were members of a Joint Hindu Family. They inherited the house as well as the holding as members of the Joint Hindu Family. The house as well as the holding was ancestral in their hands and it continued to be so upto 15 or 16 years before the institution of the suit. At the time of the disruption of the family in or about 1940, the plaintiff and Chhiddu alone were alive. Hence, each had a half share in the properties. The learned Judge repelled the argument that succession to the tenancy holding would be governed by Sec.22 of the N.W.P. Tenancy Act, 1901, on the basis of a decision of this Court in 14 All LJ 278 : (AIR 1916 All 111), where it was held that in case a coparcenary body is the tenant, no individual member thereof can be said to have any interest in the holding which could be inherited in accordance with Section 22 of that Act. On the death of Chhangey, Smt. Kaushalya did not inherit his share; and hence, on her death, no interest in the holding passed to Chhiddu. On these findings the appeal was dismissed. Aggrieved, the defendants again came to this Court in Second Appeal. At the hearing, a learned Single Judge felt that there was a conflict of views between Mahabir Singh's case, 14 All LJ 278 : (AIR 1916 All 111), mentioned above and Ram Singh's case, 1932 All LJ 605 : (AIR 1932 All 643). He referred the appeal to a Division Bench. The Division Bench in its turn referred the matter to a Full Bench. That is how the appeal has been laid before this Bench.

6. Mr. S.N. Agarwal, learned counsel appearing for the appellants, did not dispute the finding that the holding as well as the house was ancestral, and const