1. The 1st question to be decided is whether the plaintiff as the illegitimate son of his deceased father is entitled to share equally with his widow the 1st defendant or whether he is only entitled to half of her share i.e., to 1/3 rd of the properties. In a series of cases in Madras beginning with Banoji v. Kandoji I.L.R. (1880) M. p. 557, it has been held that an illegitimate son succeeding to his deceased father along with a widow, daughter or daughter's son is entitled to half of the properties and not merely to one-third Pravathi v. Tirumalai I.L.R. (1886) M. p. 334, Ghinnammal v. Varadarajulu I.L.R. (1892) M. 307, and Meenakshi v. Appakntti I.L.R. (1909) M. 226In Bahi v. Govindu I.L.R. (1875) B. 97, Chief Justice Westropp elaborately reviewed all the texts of Hindu law dealing with the rights of an illegitimate son and came to the conclusion (as we understand the judgment) that the illegitimate son was entitled to a half share of the properties and in Seshagiri v. Girewa I.L.R. (1889) B. 282, Sargent, C.J. who delivered the judgment of the Court, took the same view and understood the decision in Rahi v. Govindu I.L.R. (1875) B. 97, as laying down the same rule. The learned vakil for the respondent invited us to construe for ourselves the original text of Mitakshara which he says is clearly in his favour. He also cited the commentary of Apwarka on the text of Yagnavalkya and the commentary of Medafciiithi, the well-known commentator of Manu on the same text. He further contended that all the text book writers on Hindu lav who knew Sanskrit have construed the passage of the Mitakshara in the way he construes it. Much may no doubt be said in favour of this construction. But the decisions of this Court are not based merely on the interpretation of the text of the Mitakshar. In Banoji v. Kandoji I.L.R. (1880) M. p. 557, in which the position of an illegitimate son was fully considered, reliance was placed on a passage from the Dattaka Chandrik which states in clear terms that the illegitimate son shares equally with the widow, daughter and daughter's son. It was this very passage of the Dattaka Chandrika which was relied on as authority for not excluding the widow from the succession when there 'is an illegitimate son, whereas the Mitakshara omits the widow from the category of persons who are not excluded by the illegitimate son. The Dayabhaga which gives the illegitimate son an equal share with the daughter and daughter's son was also referred to.
2. In this state of things, we are not prepared to depart from the course of decisions in this Court which hold that the plaintiff is entitle to share equally with the widow.
3. The next question is whether the last Zemindar's stepbrother Vadamalai was disqualified by reason of insanity from sharing with his brother their father's separate property. Vadamalai, it should be mentioned, who was elder than the Zamindar but was the son of a junior wife, did not press his claim to succeed to the Zemindary in preference to his brother, nor did he after the brother's death claim the Zemindary against the widow. As regards the 1st point the respondents explain that according to the custom of Kumbala Zemindars the son by the senior wife succeeds to the Zemindary. As regards the separate property left by their father it is urged that there was no need for a partition as Vadamalai lived with' his brother the late Zemindar in the palace, and after his death, went on living with his widow, the 1st defendant, whose sister's daughter he had married. These facts, it is suggested explain his conduct in not having put forward a claim to the Zemindary after his brother's death and at the time of the compromise between the widow and the more distant (reversioners). The mere fact that Vadamalai did not press his claim to the Zemindary is not in our opinion, sufficient proof of insanity. On the other hand we have the fact that he gave evidence in Court in Original Suit No. 15 of 1891 and though subjected to a lengthy examination gave rational answers, and that he married and had issue. On the whole we think the evidence does not establish that Vadamalai was disqualified from inheriting. It follows, therefore, that the late Zemindar's share in his father's separate properties on his death passed by survivorship to Vadamalai and that the plaintiff has no claim to them. On this ground his claim to the properties mentioned in Ex. ZZZZZ also fails.
4. Item 55 of Schedule A the next item claimed by the plaintiff is a bungalow in Madura built by the Court of Wards during the minority of the late Zemindar at a cost of Rs, 60,000 on a site inherited by the Zemindar and his brother from their father. The 1st Respondent contends that either the bungalow became the joint property of the two brothers as the site was joint property, or that it was built as a town residence for the Zemindar and was intended to pass with the Zemindary, and that in either view the plaintiff's claim' must fail. We agree with this contention.
5. The 1st respondent objects to items 61,65 to 69, 73 to 76, 79 to 113, 116 to 118, 120 to 127,129 to 138, 149, 151 to 177, 185, 221, 248, 249, 254, 285, 308 to 318, 322 to 324, 330 to 345, 348 350 to 352, 354 to 357, 359 to 338, 375 to 379, 63, 64, 371, to 374, 380 to 410, 62, 70 to 72, 77, 78, 139, 140, 146, 323, 323, 328, 353, 367, 217, 218, 228, 231, 252, 259 and 264, in this Schedule A. which have been allowed to the plaintiff. They are lands within the ambit of the Zemindary and the Zemindar was entitled to the Melvaram therin. He purchased the kudivaram right in items 61 to 410 and succeeded to the kudivaram right in the remaining items on the death of his mother. All theso lands were cultivated as pannai along with the other pannai lands of the estate. They are clearly properties to be held with the Zemindary, in fact they are accretions to the Zemindar's interest in the Zemindary. Following the decisions of this Court in Lakshmipdthi v. Kandasami I.L.R. (1892) M. 54, Ramasami Kamaya Naik v. Sundaralingasami Kamaya Naik (1893) M.P. 422, and the Ramnad case 3 we disallow the plaintiffs claim to these items.
6. The plaintiff also claims items 57, 69, 135 and 136 of Schedule C. Item 57 is a jewel usually worn by women. The 1st defendant swears that the jewel was purchased for her. Considering that at 'that time the 1st defendant was the only lady in the Zemindar's family who could have worn such a jewel we are inclined to believe her evidence and disallow the plaintiff's claim to this item. The respondent admits that the plaintiff is entitled to item 69. Items 135 and 136 are loose pearls and rubies and the 1st defendant claims them as her stridhanam. She did not set up this claim in Ex. K and there is only her evidence in support of her claim. We are not prepared to act on it. We therefore allow the plaintiff's claim to these two items.
7. The 1st respondent claims the cattle used for cultivating the pannai lands i.e. items 173 to 203 of Schedule C. The appellant admits that if the pannai lands are held to be part of the Zemindary he would not be entitled to a share in them. As we hold that the pannai lands are appurtenant to the Zemindary we disallow the plaintiff's claim to these items. The plaintiff admits that the 1st defendant is solely entitled to item 231 of this Schedule. The pliintiff accepts the valuation given by the 1st respondent far item 229, viz., Rs. 1,300 and will be entitled to his share of this sum and not to Rs. 2,607 as claimed by him.
8. The 1st defendant argues that she ought not to have been made accountable for certain jewels said to have been given by her to her daughter and claims contribution from the partible properties for the expenses connected with her daughter's marriage. This claim was not made inthe Lower Court and we therefore disallow it.
9. The 1st defendant also contends that the Lower Court was wrong in making her liable for items 9, 11, 15 and 17 of Schedule D. Plaintiff's witness No. 48 who was the 1st defendant's manager for a considerable time says that these items were collected by the 1st defendant. She denies this but does not produce the bonds which should be in her posssssion. In these circumstances we agree with the Lower Court that she is liable to the plaintiff for his share of these items.
10. The finding of the Lower Court will be modified accordingly.
11. As the release Ex. II has been set aside, the plaintiff must deliver to the 1st defendant items Nos. 1 to 3 in Schedule 1 to that deed as they are pannai lands and are therefore impartible. In the 4th item and the movables in the same Schedule he is entitled do a half share and he must account to the 1st defendant for the other half.
12. Each party will pay and receive proportionate costs in the appeal.
13. The Memorandum of Objections is dismissed with costs.