JUDGMENT

Raza, J - This is the defendant's appeal from the decree of King, J., dated 4th January 1927. A short narrative, by way of a preface, of the stages through which this litigation has passed is necessary. The original plaintiff of the suit, which was instituted on 5th January 1926, was Bisheshwar Bakhsh Singh. There were several defendants, but now we are concerned with only one of them, namely, Lal Harihar Partab Bakhsh Singh. The Court of first instance decreed the suit in favour of the plaintiff on 4th January 1927, as already stated. Two appeals wero preferred from the decree of the learned trial Judge to the Chief Court of Oudh. Lal Harihar Pra-tab Bakhsh Singh's appeal was dismissed by the judgment and decree dated 15th December 1927. From this decree he took an appeal to His Majesty in Council. The appeal was heard and decided by their Lordships of the Judicial Committee on 8th March 1932, with the result that the decree of this Court dated 15th December 1927, was set aside and the case was remitted to this Court with directions to which we shall hereafter refer.

2. The original plaintiff, Raja Bisheshar Bakhsh Singh, has died and the names of his eldest son and successor, Raja Bajrang Bahadur Singh, and of the younger son, Dhuj Singh, have been substituted on the record of the appeal in place of their deceased father. The only comparing parties at the hearing of this appeal are Raja Bajrang Bahadhur and the defendant, Lal Harihar Partab Bakhsh Singh. In this judgment we will refer to them as the plaintiff and the defendant, respectively. The property in suit is the estate of Gangwal situate in the district of Bahraich in the province of Oudh. It comprises 60 villages stated in Sch. A, attached to the plaint. It is now conclusively estab-lished that the succession to this estate falls to be governed by the provisions of Section 22, Clause 10, Act 1 of 1869, as amended by the Local Act 3 of 1910. The plaintiff claims title to the estate under that clause. In order therefore to succeed the plaintiff has had to establish every element of his title as required by that clause. Those elements are summed up in the phrase "the nearest male agnate according to the rule of lineal primogeni-ture." Their Lordships of the Judicial Committee in their judgment of 8th March 1932, have finally determined that "the plaintiff must be held to have established that in blood relationship he is nearest male blood relation according to the rule of lineal primogeniture of Raja Suraj Prakash Singh, the last male owner of the taluka."

3. But this finding is not enough for the success of the plaintiff's claim. He has to establish further that he is also a male agnate." Their Lordships have held that

the meaning of 'male agnate' falls to be ascertained by the personal law of the individual to whom the succession is to be established.

4. In determining the meaning of the expression 'male agnate' according to the law of the Mitakshara their Lordships refer to and quote a passage from the judgment of Sir Robert Phillimore in Bhyah Ram Singh v. Bhyah Ugar Singh, (1869) 13 MIA 373 (PC) and then express their opinion as follows:

From this it is clear that, in order to qualify as a male agnate, or gotraja-sapinda of the pro-positus, the plaintiff must satisfy two conditions namely: (a) that he is of the same gotra, or, as it may be expressed, of a common patriarchal stock, and (b) that he is a sapinda of the deceased, that is, connected by blood through a common ancestor, the connexion being traced through males.

5. Finally their Lordships have decided that the plaintiff has satisfied one of the two requisite conditions, that is, he is the sapinda of the propositus but having regard to the challenge made by the defendant on the second condition he could not be given the benefit of the presumption that he was also a gotraja and as the issue on this challenge was not fairly and fully raised in the Courts in India the ease has been remitted to the Chi