1. This appeal arises out of a suit brought by the appellants Ratan Singh and his nephew Sheocharan Singh for partition of an estate comprising 14 villages known as Mahagaon zamindari in the Bhandara District. That suit was dismissed. The parties to the suit belong to two branches of a family which traces its decent from Gajasingh Thakur, the founder, as will be clear from the pedigree:

2. There is no dispute regarding the correctness of it except in regard to the order in which Benisingh stood among the brothers. The plaintiffs' case is that there was a theoretical partition some time before the proprietary settlement of 1865 whereby the estate was divided into four shares and allotted to the branches represented by the four sons of Sitaram and that the allotment of shares was recognized and confirmed at the settlement of 1865 followed by an award. The suit purports to be one for partition of the property by metes and bounds on the basis of the division of the estate into shares as recorded at the first settlement. The defendants resisted the suit on the plea that the estate was impartible and succession to it was governed by the rule of primogeniture in accordance with the