COCHIN NAYAR ACT, 1938 [Act No. 29 of 1113]

COCHIN NAYAR ACT, 1938 [Act No. 29 of 1113]

Preamble - THE COCHIN NAYAR ACT, 1938  [Act No. 29 of 1113]

THE COCHIN NAYAR ACT, 1938 [Act No. 29 of 1113]

[Act No. 29 of 1113]

[ 22nd July, 1938]

PREAMBLE

Whereas it is expedient to consolidate and amend the Cochin Nayar Act, XIII of 1095, it is hereby enacted as follows:-

Section 1 - Short title and application

This Act may be called the Cochin Nayar Act, XXIX of 1113. It shall apply to all Nayars domiciled in Cochin, and to such Nayars not so domiciled, and to such non-Nayars, whether or not so domiciled, as have or shall have, marital relation with Nayars domiciled in Cochin.

It shall come into force at once.

Section 2 - Repeal

The Cochin Nayar Act, XIII of 1095, is hereby repealed.

Section 3 - Definitions

In this Act unless there is something repugnant in the subject or context:-

'Anandaravan' means any member of tarwad other than the Karanavan.

'Karanavan' means the senior major male member of a tarwad and, in the absence of such male member, the senior major female member thereof, unless there is a family usage by which the senior major female member is recognised as karanavan.

'Marumakkathayam' means a system of inheritance in which descent is traced in the female line.

'Minor' means a person who has not completed 18 years of age.

'Tarwad' means and includes all the members of a joint family with community of property governed by the Marumakkathayam law of inheritance.

'Thavazhi of female' means a group of persons consisting of that female, her children and her descendants in the female line or such of that group as are alive.

'Thavazhi of male' means the thavazhi of his mother.

Section 4 - Conjugal union of nayars to be valid marriages

(1)     Subject to the restrictions of consanguinity and affinity recognised by the community, the conjugal union of a Nayar female with-

(a)      aNayar male, or

(b)      any male, other than a Nayar with whom conjugal union is permitted according to social custom and usage, openly solemnised by the presentation of cloth to the female by the male or in any other customary form before the 23rd day of Edavam 1095 and subsisting on such date shall be deemed to be a legal marriage.

(2)     In the case of conjugal unions commenced before the 23rd day of Edavam 1095 and subsisting on that date, the courts shall presume that such unions were solemnised in the customary form.

Section 5 - Prohibition of marriages of females under 16 and males under 21

No marriage sol emnised after the date of this Act of a female under 16 years of age or of a male under 21 years of age shall be valid.

Section 6 - Notice of marriage

Notice of marriage under this Act shall be given by such person and to such authority and in such form and within such time as the Government may prescribe. Failure to give the prescribed notice shall be punishable with fine which may extent to Rs. 200 but such failure shall not invalidate the marriage or affect the legal rights of the parties to, or of the offspring of, such marriage.

Section 7 - Punishment for solemnization of marriage declared invalid under section 5

Whoever, being a male above 8 years of age, solemnises a marriage declared invalid under section 5 shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to Rs. 500 or with both.

Section 8 - Punishment for permitting marriage under section 5

Where, after the date of this Act, a marriage declared invalid under section 5 is solemnised by a minor, any person having charge of such minor, whether as parent or guardian or in any other capacity, who does any act to promote the marriage or permits it to be solemnized shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to Rs. 500 or with both.

Section 9 - District Magistrate to try offences under section 6, 7 & 8

No court other than that of the District Magistrate shall take cognisance of or try any offence under sections 6, 7 and 8 [1] [and except upon a complaint in writing made to such court by the Tahsildar or Deputy Thasildar of the Taluk in which the offence under any of these sections has been conirniuedi

Section 10 - Complaint to be filed within one year of the offence

No court shall take cognisance of any offence under sections 6, 7 and 8 save upon complaint made within one year of the commission of such offence.

Section 11 - Subsequent marriage of the male during the continuance of prior marriage void

The marriage of a male during the continuance of a prior marriage and performed after the coming into force of Act XIII of 1095 shall be void.

Section 12 - Polyandrous marriage whenever performed is void

A polyandrous marriage whether performed before or after this Act shall be void.

Section 13 - Prohibition of polygamy even in case of those having a personal law allowing it

No one having a personal law of his own allowing polygamy shall marry a Nayar female while already married to a caste wife or many a caste wife while having a Nayar wife already.

Section 14 - Dissolution of marriage

A marriage is dissolved by the death of either party or by either party renouncing Hinduism. It may also be dissolved in one of the following ways and those only, that is to say:-

(a)      by mutual consent evidenced by a registered document;

(b)      by a formal order of dissolution as hereinafter provided.

Section 15 - Petition for dissolution of marriage

A husband or wife (but not any person as the next friend of a minor wife) may present a petition for dissolution of the marriage in the principal Civil Court of Original jurisdiction within the local limits of whose jurisdiction the marriage was performed or the respondent resides or carries on business or personally works for gain; and where the petitioner is the husband, he shall be liable to pay reasonable compensation to the respondent.

Section 16 - Notice to be given to respondent

A copy of such petition as aforesaid shall be served by the court on the respondent at the expense of the petition and in the manner provided for the service of summons on a defendant in the Cochin Code of Civil Procedure.

Section 17 - Order of dissolution when and how passed

Six months after the service of the copy as aforesaid, if the petition is not withdrawn in the meantime, the court shall declare in writing the marriage dissolved and then proceed to determine and award the amount of compensation.

Section 18 - Compensation payable by husband renouncing Hinduism

When the marriage is dissolved on account of the husband renouncing Hinduism he shall be liable to pay reasonable compensation to his wife. Within one year from the date on which she has knowledge of such dissolution she may present a petition claiming such compensation to the principal Civil Court of original jurisdiction within the local limits of which she or the respondent resides. The Court shall fix a day for the hearing of the petition and after giving notice there of to the respondent, proceed to determine and award the amount of compensation.

Section 19 - Reasonable compensation how determined

What is reasonable compensation to be awarded under section 17 or section 18 shall, in case of dispute, be determined by the court after an enquiry into the position and means of the parties by without reference to the grounds of the proposed dissolution; and it shall, in no case, exceed Rs. 3,000.

Section 20 - Decree awarding compensation executable and appealable

The order awarding compensation shall tantamount to a decree and shall be executable as such and shall, subject to the payment of court fee on the amount is dispute, be appealable under the Cochin Code of Civil Procedure.

Section 21 - Restitution of conjugal rights

No court shall entertain a suit for restitution of conjugal rights or for judicial separation between parties marrying under this Act.

Section 22 - Maintenance of wife and minor children

(1)     The wife and minor children other than married minor daughters under the guardianship of their husbands shall be entitled to be maintained by the husband or the father, as the case may be:

Provided that the wife shall not be entitled to maintenance from the husband if she refuses to live with him without just cause.

(2)     Nothing contained in the sub-section (1) shall affect the right of any person to maintenance from his or her tarwad of the thavazhi properties.

(3)     In awarding maintenance under sub-section (1) the court shall have due regard to the means and circumstances of the person against and by whom maintenance is claimed and to the reasonable wants of the person claiming maintenance.

Section 23 - Guardianship of minor wife and child

The husband shall be the guardian of his minor wife in respect of her person and property and, subject to the provisions of section 24, the father shall be the guardian of his minor children, other than married minor daughters under the guardianship of their husbands, in respect of their person and property.

Section 24 - Guardianship of minor children by husband deceased or divorced

The mother shall be the guardian of the person and property of her minor children if their father is dead or the marriage of their parents is dissolved.

Section 25 - Saving of the operation of the Guardians and Wards Act, XVII of 1095

Nothing contained in sections 23 and 24 shall be deemed to affect the operation of the Cochin Guardians and Wards Act, XVII of 1095.

Section 26 - Property as to which a person is considered to have died intestate

A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.

Section 27 - Devolution of property left by Nayar male intestate

On the death intestate of a Nayar male, his property which is self-acquired or separate shall devolve in the order and according to the rules contained in sections 28 to 34.

Section 28 - Where intestate has left mother, widow, children and lineal descendants

Where the intestate has left surviving him a child or children, or a lineal descendant or descendants in the female line through a deceased daughter or daughters or both, and also his mother or a widow or widows or both, the whole of the property shall belong to them. In the absence of the mother and widow, the whole of the property shall belong to the child or children and such lineal descendant or descendants; and in the absence of the mother, widow and child, the whole of the property shall belong to such lineal descendant or descendants.

Section 29 - Rules of distribution in cases falling under section 28

The distribution of the property among the heirs referred to in section 28 shall be made in accordance with the following rules:-

(i)       The widow or, if there is more than one widow, each of the widows shall be entitled to a share equal to that of a child.

(ii)      The mother shall be entitled to a share equal to that of a child,

(iii)     Every child (son or daughter) shall be entitled to an equal share;

Provided that if a daughter has predeceased the intestate, the lineal descendants of such daughter in the female line shall be entitled to the share which such daughter would have taken had she survived the intestate,

(iv)    Grand-children by a deceased daughter, shall be entitled in equal shares to what their mother would have taken had she survived the intestate. Provided that if a grand-daughter has pre-deceased the intestate, the lineal descendants of such grand-daughter in the female line, shall be entitled to the share which such grand-daughter would have taken had she survived the intestate,

(v)      In like manner the property shall go to the surviving lineal descendants of the intestate in the female line where such descendants are in the degree of great grand-children or in a more remote degree.

Explanation I.--The descendants of a daughter, daughter's daughter or other female descendant in the female line shall not be entitled to any share in such property if such daughter, daughter's daughter or other descendant is alive at the time of the death of the intestate.

Explanation II.--The descendants of a son who has predeceased the intestate shall not be entitled to any share in such property.

Section 30 - Rules of distribution where intestate has left no child or descendant but only mother or widow or both

Where the intestate has not left surviving him any child or lineal descendant in the female line through a deceased daughter, but has left his mother and a widow or widows, one-half of the property shall devolve on his mother and the other half on his widow or widows in equal shares. In the absence of a widow the whole of the property shall belong to the mother.

Section 31 - Rules of distribution where intestate has left only widow or mother's thavazhi or both

Where the intestate has not left surviving him his mother or any child or lineal descendant in the female line through a deceased daughter but has left a widow or widows and his mother's thavazhi, one half of the property shall devolve on his widow or widows and the other half on such thavazhi. In the absence of such thavazhi the whole of the property shall belong to the widow or widows and in the absence of a widow, the whole of the property shall belong to such thavazhi.

Section 32 - Rules of distribution where intestate has left only father and maternal grand mother'sthavazhi

Where the intestate has not left surviving him any of the heirs mentioned in section 28, 30 and 31 but has left his father and his maternal grand-mother's thavazhi, one-half of the property shall devolve on his father and the other half on such thavazhi. In the absence of such thavazhi, the whole of the property shall belong to the father and in the absence of the father, the whole of the property shall belong to such thavazhi.

Section 33 - Rules of distribution where intestate has not left any of the heirs mentioned in sections 28, 30, 31 and 32

Where the intestate has not left surviving him any of the heirs mentioned in sections 28, 30, 31 and 32, the property shall devolve on the thavazhi of his mother's maternal grand-mother or on the thavazhi of a more remote female ascendant in the female line the nearer excluding the more remote.

Section 34 - Distribution of property devolving upon thavazhis under sections 31, 32, and 33

The property or share which devolves upon any of the thavazhis mentioned in sections 31, 32 and 33 shall be distributed among the members of such thavazhi on the stirpital principle.

Section 35 - Devolution of property left by Nayar female intestate

On the death intestate of a Nayar female, her property which is self-acquired or separate shall devolve in the order and according to the rules contained in sections 36 to 40.

Section 36 - Rules of distribution where intestate has left children and lineal descendants

Where the intestate has left surviving her children, or lineal descendants in the female line through deceased daughters or both, the whole of the property shall belong to him.

The provisions of clauses (iii). (iv) and (v) of section 29, and of Explanations I and II to that section shall apply to the distribution of the property among the children and lineal descendants of the intestate.

Section 37 - Rules of distribution where intestate has not left any of the heirs mentioned in section 36

Where the intestate has not left surviving her any of the heirs mentioned in section 36 but has left her husband and the thavazhi of her mother, one half of the property shall devolve on the husband, and the other half on such thavazhi. In the absence of the husband, the whole of the property shall devolve on such thavazhi and in the absence of such thavazhi, the whole of the property shall devolve on the husband.

Section 38 - Rules of distribution where intestate leaves father and maternal grandmother's thavazhi

Where the intestate has not left surviving her any of the heirs mentioned in sections 36 and 37, but has left her father and her maternal grand-mother's thavazhi, one-half of the property shall devolve on her father and the other half on such thavazhi. In the absence of such thavazhi, the whole of the property shall devolve on the father and in the absence of the lather, the whole of the property shall devolve on such thavazhi.

Section 39 - Rules of distribution where intestate has not left any of the heirs mentioned in sections 36 to 38

Where the intestate has not left surviving her any of the heirs mentioned in sections 36, 37 and 38, the property shall devolve on the thavazhi of her mother's maternal grand mother or on the thavazhi of a more remote female descendant in the female line, the nearer excluding the more remote,

Section 40 - Distribution of property devolving upon thavazhis under sections 37, 38 and 39

The property or share that devolves upon any of the thavazhis mentioned in sections 37, 38 and 39 shall be distributed among the members of such thavazhi on the stirpital principle.

Section 41 - Devolution of property left by non-Nayar male intestate

(1)     On the death intestate of a male not being a Nayar

(i)       who-

(a)      has before Ihe date on which this Act comes into force, contracted a marriage with a Nayar female which is valid under section 4; or

(b)      has contracted on or after such date a marriage with a Nayar female which is valid under that section; and

(ii)      who has left surviving him by such marriage or marriages one or more of the following relations, namely:-

(a)      widow or widows,

(b)      children,

(c)      lineal descendants in the female line through deceased daughters, such relation or relations shall be entitled, if the intestate has also left relations who are heirs according to the personal law by which he is governed, to one-half of his property which is separate or self-acquired and if the intestate has left no such heirs, to the whole of such property:

Provided that the reasonable funeral expenses of the intestate shall first be deducted from such separate of self-acquired property,

(2)     The property devolving on the relations referred to in sub-clauses (a), (b) and (c) of clause (ii) of sub-section (1) shall be distributed among them in accordance with the rules contained in clauses (i), (iii). (iv) and (v) of section 29 and Explanation I and II to that section.

Section 42 - Possession and management of property until division

(1)     The senior major male member among the children and other lineal descendants through deceased daughters of the intestate or in the absence of any such male member the widow or if there is more than one widow, the senior among such widows, shall be entitled to possession and management of the property referred to in sections 27, 28, 30, 31 and 36 until division is effected.

(2)     In the case of the property referred to in section 41 if the intestate has left relations who are heirs according to the personal law by which he is governed, such heirs shall be entitled to possession and management of the property until division is effected.

(3)     The seniormost male member of the thavazhi mentioned in sections 32, 33, 34 and 35 shall be entitled to possession and management of the property referred to therein until division is effected.

Section 43 - Extent oftestamentary power

A Nayar may dispose of by will in writing, the whole of his, or her self-acquired and separate property and appoint an executor or executors to administer the will.

Section 44 - All members of the tarwad are co-proprietors and the Karanavan manager

Every member of a tarwad has proprietary interest in its properties. The Karanavan shall have the right of management and of possession, on behalf of tarwad, of such properties.

Section 45 - Maintenance of members of tarwad

Every member of a tarwad whether living in the tarwad house or not, is entitled to maintenance consistant with the income and circumstances of the tarwad.

Section 46 - Anandaravan's right to see tarwad property safe

Every member of a tarwad has the right to see that the tarwad estate is properly administered by the Karanavan and is duly conserved for the use of the tarwad and that of his or her right to succeed to Karanavanship is in no way impaired.

Section 47 - Right to seek removal of Karanavan

Every member of a tarwad has I he right to seek the removal of the Karanavan by a decree of court if it can be shown that he is physically, or mentally or morally imcapable of transacting its affairs or that he habitually mismanages the concerns of the tarwad or that he is guilty of a kind tending to defeat the very purpose for which the tarwad exists.

Section 48 - Renunciation of right in tarwad

Any member of a tarwad shall be at liberty to give up this rights in the tarwad at any time and every karanavan his right of management as Karanavan after it becomes vested in him, by the execution of a registered deed of renunciation.

Section 49 - Delegation of powers by Karanavan

No Karanavan shall delegate his powers to any one.

Section 50 - Karanavan to keep accounts of management

The Karanavan of a tarwad shall keep true and correct accounts of the income and expenditure of the tarwad. The original or attested copy of the accounts of each year shall be available for inspection in the tarwad house by the major Anandaravans once in a year throughout the month of Kanni following. Any such Anandaravan may take copies of or extracts from such accounts.

Section 51 - Karanavan to maintain inventory of all movables and immovables

The Karanavan shall maintain a true and correct inventory of all the movable and immovable properties belonging to the tarwad. The original or attested copy of the inventory shall be available for inspection by the major Anandarvans once in a year throughout the month of Kanni and any Anandaravan may take copies of or extracts from such inventory.

Section 52 - Karanavan entitled to a share of the net income

The Karanavan shall be entitled at the end of the year to appropriate for himself besides his maintenance an amount not exceeding 25 percent but subject to a maximum of Rs. 900 out of the tarwad income which remains after meeting of the tarwad expenses including interest on tarwad debts.

Section 53 - Consent of major members necessary to validate alienations of tarwad property

Except with the written consent of all the major members of the tarwad wherever possible, no Karanavan shall sell, [2] [Lease, mortgage or pledge tarwad properties, movable or immovable] or grant renewals of kanom for a period of more than twelve years, or give discharges of mortgages or pledges.

For the purposes of this section, movables do not include usufructs and grains realized in the shape of pattom, michavaram, renewal fees or interest.

Section 54 - Mortgages and alienations when invalid

No sale, mortgage, pledge or other alienation of tarwad property or debt shall bind the lanvad unless it is executed or made or contracted for tarwad necessity or it is executed or made or contracted by or with the written consent of all the major members of the tarwad, when there are only major members in the tarwad.

Section 55 - Burden of proving tarwad necessity

The burden of proving tarwad necessity shall be on the purchaser, mortgagee, pledge or other alienee or creditor, as the case may be. But the court may presume such necessity where all the major members of the tarwad are parties to or have given their written consent to the transaction.

Section 56 - What decrees shall bind the tarwad

No decree shall bind a tarwad unless it be obtained against all the members thereof. But the mere omission to implead any member other than the Karanavan shall not be taken to invalidate it if the decree-holder proves that such omission was not due to his negligence and the tarwad was liable for the claim upon which it is based.

Section 57 - Receiver to be appointed when tarwad consists of minors only

Where a tarwad consists only of minor members, the principal Civil Court of original jurisdiction within the local limits of which it is situated may, on the application of any one interested in it appoint on such terms as the court deems fit a receiver to manage its affairs till any one of the minor members attains majority.

Section 58 - Thavazhi management

The provisions of this Chapter shall apply to all thavazhis in a tarwad possessing separate thavazhi property.

Section 59 - Any member can claim partition

Every member of a tarwad shall be entitled to claim his share of the properties of the tarwad. Such share shall be so much of the tarwad properties as will fall to him if a division per capita were made among all the members of the tarwad at the time.

Section 60 - Female member to claim shares of her minor children

Every female member who claims to get her share of the tarwad properties shall also claim and shall also be entitled to get the shares of her minor children in such properties.

Section 61 - When partition of minor member's share can be decreed

The court may decree partition of the share of a minor member of a tarwad in the properties Of the tarwad where such partition would, in the opinion of the court, be to such minor's interest.

Section 62 - Nature of right to tarwad property before partition

Until partition, no member of the tarwad shall be deemed to have a definite share in the tarwad property liable to be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein.

Section 63 - Partiton of tavazhi properties

The provisions of sections 59, 60, 61 and 62 shall apply to all thavazhis in a tarwad possessing separate thavazhi properties.

Section 64 - Construction of bequests gifts, etc; to wife or wife and children

Where a person bequests or makes a gift of any property to, or purchases any property in the name of, his wife alone or his wife and one or more of his children by such wife together, such property shall, unless a contrary intention appears from the will or deed of gift or purchase or from the conduct of the parties, be taken as thavazhi property; by the wife, her sons and daughters by such person and the lineal descendants of such daughters in the female line:

Provided that in the event of partition of the property taking place under this Chapter, the property shall be divided on the stirpital principle, the wife being entitled to a share equal to that of a son or daughter.

Section 65 - Power of court to direct sale, etc; of property incapable of division

If any property or right divisible under this Chapter is incapable of actual division or cannot be divided without seriously lessening its value or utility, the court shall have power to direct the sale or enjoyment in common or by turns of such property or right as the circumstances of the particular case would permit.

Section 66 - Impartible tarwads

All tarwads whose registration as impartible tarwads under Chapter VIII of Act XIII of 1095 remains in force on the date on which this Act comes into force shall be exempt from the operation of the sections as to partition in this Act.

Section 67 - Impartible

It shall be competent to any tarwad mentioned in section 66, to exempt itself from the provisions of this Chapter by a notice to the DiwanPeishkar stating its desire to cancel the registration previously made, provided that such notice shall be agreed to and signed by not less than two thirds of the major members of such tarwad.

Section 68 - Order of DiwanPeishkar cancelling impartibility

On receipt of a notice under section 67 the DiwanPeishkar shall, if he is satisfied that it is agreed to and signed by the majority mentioned above, cancel the registration of impartibility.

Section 69 - DiwanPeishkar to file such notice and maintain tarwad register

The DiwanPeishkar shall keep a register of all impartible tarwads and note therein all notices received under section 67 and all orders passed under section 68. Any member of the public is entitled to get a copy of such register or any portion thereof.

Section 70 - DiwanPeishkar's orders to be final

All proceedings taken by the DiwanPeishkar under the Chapter shall be deemed to be judicial proceedings and his orders shall be final.

Section 71 - Partition destroys, impartibility

If a partition takes place in any tarwad mentioned in section 66, the provisions of this Chapter shall ipso facto cease to apply to the units into which it is divided.

Section 72 - Adoption when to be made

Where a tarwad consists of only male members or of only female members past the period of child-bearing, or of both, the Karanavan may, with the consent in writing of all the other members of the tarwad make an adoption for the purpose of perpetuating the family. Such adoption may be of one or more females with or without males.

Section 73 - Rights and duties of the adoptees

The adoptees shall have in the adopted family all rights and duties as appertain to the members born therein and shall be liable to take the customary Theetturam from His Highness the Maharaja.

Section 74 - Marriages dissolved before Act XIII of 1095 came into force not affected by this Act

Nothing in this Act shall:-

(a)      Confer any rights on the parties to, or off-spring of, a marriage dissolved before Act XIII of 1095, or

(b)      affect rules of Marumakkathayam law, custom or usage except to the extent hereinbefore expressly provided for.

Section 75 - Application of Chapter II, III and IV to persons subject to personal law marrying or have married Nayar females

The provisions of Chapters II, III and IV of this Act shall apply also to such non-Nayar males as have married, or may marry, Nayar females, though they may have a personal law in regard to matters dealt with in those Chapters;

Proviso:- 

Provided that a person who has made a declaration under the proviso to section 54 of the Nayar Act, XIII of 1095; but has not cancelled it as provided therein shall be exempt from the provisions of Chapter IV of this Act.