Judgment :- 1. The plaintiff is the appellant. The suit is for declaration of title and for recovery of possession of properties with mesne profits. Plaint schedule properties belonged to one Rudran Narayanan Elayad of Messery Illom. Defendants 1 to 18 are members of that Illom. There was a partition in the Illom on 25th Makaram 1103 by which Narayanan Elayad got tot the plaint schedule properties. He married plaintiff's mother, Kavukutty Kunjamma, on 18th Kumbhom 1101. Plaintiff is the only issue from that marriage. Kavukutty Kunjamma was a Nair lady. She died while the plaintiff was a minor. Narayanan Elayad died intestate on 23rd Karkadagom 1119. According to the plaintiff the plaint schedule properties devolved on her as the sole heir of Narayanan Elayad. Defendants 1, 8,12,15 and 17 are said to have taken possession of plaint schedule items 4 to 6. Items 1 to 3 are in the possession of defendants 19 and 20 as mortgagees of Narayana Elayad. Plaintiff sued for recovery of possession of the properties with mesne profits, past and future. Defendants 21 and 22 were subsequently impleaded in the suit. 2. Defendants 15, 21 and 22 contested the suit. The 15th defendant contended that Narayanan Elayad had not married plaintiff's mother, that plaintiff is not the daughter of Narayanan Elayad, and that she is not entitled to any right in his properties. It was also contended that Narayanan Elayad had married one Naniamma Kavamma of Vadakkae Kaivilakkil on 20th Mithunam 1090 and that the 21st defendant is his daughter by that marriage. It was further contended that in any case the daughters of Narayanan Elayad are entitled only to one-half of his properties. The 21st defendant contended that Narayanan Elayad had married her mother, Naniamma Kavamma, that she is the daughter of Narayanan Elayad, that he has not married the plaintiff's mother, and that she (21st defendant) alone is entitled to the properties of Narayanan Elayad. The 22nd defendant contended that the plaintiff was entitled only to one-half right in the properties of Narayanan Elayad, that the other half devolved on the first defendant, that one-half of the right of the first defendant was sold in court auction in O.S. No. 99 of 1111 of the Parur Munsiff's Court and purchased by him and that the plaintiff was not entitled to recover possession of that one-half right. 3. 3. The two main questions that arose for decision in the case were: (1) whether the plaintiff is the daughter of Narayanan Elayad or whether the 21st defendant is his daughter; and (2) What right the plaintiff is entitled to in the properties left by Narayanan Elayad. The court below found that the plaintiff's mother, Kavukutty Kunjamma, was married according to law by Narayanan Elayad on 18th Kumbham 1101 and that plaintiff was born of that marriage. It was also found that the 21st defendant's mother, Naniamma Kavamma, was not married by Narayanan Elayad. On the second point the court below held that the plaintiff is entitled only to one-half right in the properties left by Narayanan Elayad and not to the whole of the properties as claimed by her. It was accordingly declared that the plaintiff was entitled to one-half share in the plaint schedule properties and she was allowed to recover possession of one-half of items 4 to 6 with mesne profits past and future. 4. In this appeal by the plaintiff the respondents do not impeach the finding of the court below that the plaintiff is the daughter of Narayanan Elayad and that the 21st defendant is not his daughter. The ground taken in the appeal is that the plaintiff is entitled to the whole of the plaint schedule properties and not only to one-half share as held by the court below. The only question to be decided in the appeal is whether the plaintiff is entitled to the whole of the plaint schedule properties or only to one-half share in them. 5. It is conceded by both sides that the deceased Narayanan Elayad belonged to a Malayala Brahmin Illom governed by the Travancore Malayala Brahmin Act, Act III of 1106. Succession to the separate or self-acquired properties of a Malayala Brahmin male who has married a Nair female is governed by the provisions of the Travancore Nair Act, Act II of 1100, and the Travancore Malayala Brahmin Act, Act III of 1106. Succession to the separate or self-acquired properties of a Malayala Brahmin male who has married a Nair female is governed by the provisions of the Travancore Nair Act, Act II of 1100, and the Travancore Malayala Brahmin Act, Act III of 1106. S.21(1) of the Nair Act provides: "On the death of a non-Nair male marrying a Nair female after the commencement of this Regulation and leaving him surviving by such marriage a widow or children or the lineal descendants of the deceased children or all they shall, if the deceased has also left heirs according to the law by which he is governed, he entitled, after deducting the reasonable expenses of his funeral, to one-half of the self-acquired and separate property left undisposed of by him at his death, and in the absence of heirs according to the law by which he is governed, such widow or children or the lineal descendants of the deceased children or all shall be entitled to the whole of such property". S.15 of the Travancore Malayala Brahmin Act provides: "On the death of a Malayala Brahmin male leaving him surviving caste widows and sons and daughters by caste wives they shall, subject to the provisions of S. 21 of the Nair Regulation II of 1100, take the whole of the self-acquired and separate properties left undisposed of by him at his death in equal shares. Provided that if a son or daughter shall have predeceased the intestate the lineal descendants of such son or daughter shall take the share which such son or daughter would have taken had he or she survived the intestate". S.16 provides: "On the death of a Malayala Brahmin male leaving him surviving none of the heirs mentioned in the preceding section the self-acquired and separate properties left undisposed of by him at his death shall, subject to the provisions of S. 21 of the Nair Regulation II of 1100, devolve on the members of his illom". 6. S.16 provides: "On the death of a Malayala Brahmin male leaving him surviving none of the heirs mentioned in the preceding section the self-acquired and separate properties left undisposed of by him at his death shall, subject to the provisions of S. 21 of the Nair Regulation II of 1100, devolve on the members of his illom". 6. It was argued for the appellant that since Narayanan Elayad became divided from defendants 1 to 17 in 1103 defendants 1 to 18 cannot be said to be members of his illom, that'illom' mentioned in S.16 of the Act refers only to undivided illom, that divided members of the illom do not come within the category of heirs mentioned in the section, and that it has to be held that Narayanan Elayad has not left any heirs according to the law by which he is governed. It was, therefore, contended that under the latter part of S.21(1) of the Nair Act the plaintiff as the daughter of the Nair wife of Narayanan Elayad is entitled to the whole of his properties. 7. The question depends on the interpretation of the expression "heirs according to the law by which he is governed" contained in S.21(1) of the Nair Act. According to the appellant the only heirs who can succeed to the self-acquired and separate properties of a Malayala Brahmin male who dies intestate are those mentioned in S.15 and 16 of Act III of 1106 and that in the absence of those heirs the Nair widow and the children by her will be entitled to the whole of the properties of the deceased as provided in S.21(1) of the Nair Act. The heirs mentioned in S.15 are the caste widows and their sons and daughters. Those mentioned in S.16 are the members of the illom of the deceased. According to the wording of that section the properties "shall, subject to the provisions of S. 21 of the Nair Regulation II of 1100, devolve on the members of his illom". Learned counsel for the appellant contended that the word 'illom' mentioned in the section has to be interpreted according to the definition give in S.II(2) of the Act. That section defines 'illom' as follows:- "Illom means and includes all the members of a Malayala Brahmin joint family with community of property". Learned counsel for the appellant contended that the word 'illom' mentioned in the section has to be interpreted according to the definition give in S.II(2) of the Act. That section defines 'illom' as follows:- "Illom means and includes all the members of a Malayala Brahmin joint family with community of property". On the basis of this definition it was contended that the'illom' mentioned in S.16 can include only members of an undivided family who have community of property and that it cannot include divided members of the family. In support of this contention reference was made to the decision of the erstwhile Travancore High Court in S.A. Nos. 345 and 291 of 1122 of that Court. It was observed thus in that case: "Illom as defined in the Act means and includes all the members of a Malayala Brahmin joint family with community of property. If there is no community of property amongst the members of the family there is no illom proper, and consequently no members of the illom. S.16 cannot therefore be applied to the members of a divided joint family which has ceased to be an illom as conceived in the Act. It would be a wrong construction of the section to say that the 'illom' is not the 'illom' defined by the Act but an illom which one existed and has been extinguished, but still may properly exist as a name to comprise the old members. The only members who could inherit under S.16 would be members of 'his illom', i.e., of the deceased". According to the learned Second Judge the expression 'members of his illom' used in S.16 of the Act includes divided members also. One of the reasons given by the leaned judge is that if the plaintiff's argument is accepted it will lead to absurd results, for example, if a Malayala Brahmin bachelor after becoming divided from his illom dies intestate his separate property would escheat to the State. This, according to the learned judge, could never be the intention of the Legislature. The learned judge has also referred to the proceedings of the Legislative Council, particularly to the speech of the member who introduced the bill, to show that'illom' mentioned in S.16 would include divided members also. 8. This, according to the learned judge, could never be the intention of the Legislature. The learned judge has also referred to the proceedings of the Legislative Council, particularly to the speech of the member who introduced the bill, to show that'illom' mentioned in S.16 would include divided members also. 8. So far as this appeal is concerned it is not necessary to decide the question whether the expression 'members of his illom' mentioned in S.16 would include divided members also. In our opinion, even if divided members of the illom do not come within the category of heirs mentioned in S.16 it cannot be said that they are not heirs of the deceased in the absence of undivided members. We are unable to accept the argument of learned counsel for the appellant that there are only two classes of heirs to a Malayala Brahmin male dying intestate so far as his self-acquired and separate properties are concerned, viz., caste widows and their children mentioned in S.15 and undivided members of the illom mentioned in S.16 (assuming that section refers only to undivided members), and that in the absence of these two classes of heirs the whole properties of the intestate would devolve on his Nair widow and children as provided in the latter part of S.21(1) of the Nair Act. S.15 and 16 of Act III of 1106 were apparently enacted for a particular purpose. S.15 confers a preferential right on the caste widows and children in relation to the other members of the illom. That right will, however, be subject to the provisions of S. 21 of the Nair Act which deals with the rights of the Nair widow and children. What S.16 provides is that in the absence of caste widow and children mentioned in S. 15, the property would, subject to the provisions of S. 21 of the Nair Act, devolve on the members of the illom. Assuming that the members of the illom mentioned in the section are only the undivided members there is nothing in the Act to show that in the absence of such undivided members the divided members of the illom will not inherit the property. This is clear from S. 23 of the Act. That section provides: "Nothing in this Regulation shall affect the existing rules of the law, custom or usage except to the extent hereinbefore expressly provided for". This is clear from S. 23 of the Act. That section provides: "Nothing in this Regulation shall affect the existing rules of the law, custom or usage except to the extent hereinbefore expressly provided for". It follows from this that the customary law governing Malayala Brahmins relating to inheritance and succession continues in force except to the extent expressly provided for in Act III of 1106. We do not think that Ss. 15 and 16 of the Act have the effect of declaring that only the persons mentioned in those sections can be regarded as the heirs of a Malayala Brahmin male as regards his self-acquired and separate properties and that if he has not left behind caste widow and children or Nair widow and children or undivided members of his illom the properties would escheat to the State and that divided members of the illom would not inherit them. That in the absence of undivided members of the illom divided members would be the heirs of a Malayala Brahmin male in respect of his self-acquired and separate properties under the customary law governing the community even though they do not come within the category of heirs mentioned in S.16 of the Act was the view taken in the case referred to by learned counsel for the appellant, viz., S.A. Nos. 345 and 291 of 1122 of the Travancore High Court. This is what the learned judges said in paragraph 9 of the judgment: "In examining the present case with the idea in mind, after excluding S. 16, what is glaring is that though the succession to Raman Namburi's separate property cannot be regulated by the Act the devolution has to be subject to the rules of law or custom or usage which otherwise obtain amongst the Malayala Brahmin. S. 23 of the Act has expressly accepted these rules to the extent not provided for in the Act". The learned judges further observed in paragraph 10: "When once the succession is divided into the male line, and the idea of preferential succession is conceded, it seems to us that there is no escape from the application of Hindu Law principles with regard to the rights of succession to divided members". The learned judges further observed in paragraph 10: "When once the succession is divided into the male line, and the idea of preferential succession is conceded, it seems to us that there is no escape from the application of Hindu Law principles with regard to the rights of succession to divided members". They then came to the following conclusion: "On a perusal of the authorities discussed in the above rulings we are of the opinion that in cases where the Malayala Brahmin Act is not helpful, and a question of succession to the separate or self-acquired properties of a divided Nambudiri has to be ascertained in a case where no joint family exists, the rule of Hindu Law has to be prima facie applied rather than the principles of the Marumakkathayam Law". This decision, therefore, supports the respondents' contention that in the absence of undivided members divided members are heirs of a Malayala Brahmin male in respect of his self-acquired and separate properties according to the law by which he is governed. It has to be noted that the words used in S.21(1) of the Nair Act are 'in the absence of heirs according to the law by which he is governed'. As stated already, so far as succession to self-acquired and separate property is concerned it is not only the provisions of Ss. 15 and 16 of the Act III of 1106 but also the rules of the Hindu Law that apply to a Malayala Brahmin. 9. It has also to be observed that there is nothing in Ss. 15 and 16 of the Act to show that the Legislature intended to enlarge in any manner the rights conferred on the Nair widow and children under S.21(1) of the Nair Act. Those sections only provide that the rights of the caste widows and children and the members of the illom will be subject to the provisions of S.21(1) of the Nair Act. Those sections only provide that the rights of the caste widows and children and the members of the illom will be subject to the provisions of S.21(1) of the Nair Act. So long as divided members of the illom are also heirs of a Malayala Brahmin under the customary law governing him and so long as there is nothing in Act III of 1106 to show that they ceased to be such heirs from the date of the commencement of that Act it has to be held that in the absence of caste widows and children and undivided members of the illom divided members will come in as his heirs. Under S.21(1) of the Nair Act and Nair widow and children are entitled only to one-half right in the properties if the deceased has left "heirs according to the law by which he is governed". It follows that the plaintiff can claim only one-half right in the properties of deceased Narayanan Elayad. 10. We, accordingly, confirm the judgment and decree of the court below and dismiss the appeal with costs. Dismissed.