Act IX of 1949 An Act to define and amend in certain respects the law relating to marriage, maintenance, guardianship, intestate succession, family management and partition applicable to persons governed by the Aliyasantana law of inheritance. Preamble.- Whereas it is expedient to define and amend in certain respects the law relating to marriage, maintenance, guardianship, intestate succession, family management and partition applicable to persons governed by the Aliyasantana Law of inheritance; it is hereby enacted as follows:-

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S.1 Short title, application and commencement

(1) This act may be called the Madras Aliyasantana Act, 1949.

(2) It shall apply :-

(a) to all Hindus and Jains who are governed by the Aliyasantana Law of inheritance; and

(b) to all Hindu and Jain males, whether governed by the said law or not, who have contracted or may contract marital alliances with Hindu and Jain females governed by the said law:

Provided that the provisions of Chapter IV shall not apply to jains. -

(3) It shall come into force at once.

S.2 Repeal of Madras Acts IV of 1896 and III of 1929

The Malabar Marriage Act, 1896, insofar of it as not been already repealed, and section 6 of the Jaina Succession Act, 1928, are hereby repealed.

S.3 Definitions

In this Act, unless there is anything repugnant in the subject or context-

(a) "Aliyasantana" means the system of inheritance in which descent is traced through the female line but does not include the system of inheritance known as the Marumakkathayam.

(b) (i) "kavaru", used in relation to a female, means the group of persons consisting of that female, her children and all her descendants in the female line;

(ii) "kavaru" used in relation to a male, means the kavaru of the mother of that male;

(c) "kutumba" means the group of persons forming a joint family with community of property governed by the Aliyasantana Law of inheritance;

(d) "major" means a person who has not completed the age of eighteen years;

(e) "minor" means a person who has not completed the age of eighteen years;

(f) "nissanthathi kavaru" means a kavaru which is not a santhathi kavaru;

(g) "prescribed" means as prescribed by rules made under this Act;

(

S.4 Marriage valid under the Act

(1) Save as provided in Section 5, the conjugal union of an Aliyasantana female with-

(i) a male belonging to the same community as such female, or

(ii) a male not belonging to such community and whether governed by the Aliyasantana Law or not, but being a Hindu or Jain, shall be deemed for all purposes to be a legal marriage, if-

(a) the parties to the union are not related to each other in such degree of consanguinity or affinity that conjugal union between them is prohibited by any custom or usage of the community to which they belong; and

(b) the union-

(i) was before the date on which this Act comes into force openly solemnised in accordance with the customary ceremonies prevailing in the community to which the parties belong or recognised by the community as a valid marriage; or

(ii) is openly solemnised on or after the date aforesaid and, where either or both the parties are minors, with the consent of the guardian or guardians of su

S.5 Marriage during continuance of prior marriage void

During the continuance of a prior marriage which is valid under section 4, any marriage contracted by either of the parties thereto on or after the date on which this act comes into force shall be void.

S.6 Dissolution of marriage

A marriage which is valid under section 4 may be dissolved on or after the date on which this Act comes into force

(a) by a registered instrument of dissolution executed by the parties thereto; or

(b) by an order of dissolution as hereinafter provided;

Provided that if either or both the parties is or are minors, the marriage shall not be dissolved until after the party has become a major or both the parties have become majors, as the case may be.

Nothing contained in this section shall be deemed to invalidate any dissolution of the marriage effected before the date on which this Act comes into force in accordance with the custom prevailing in the community to which the parties belong.

S.7 Rights of children of marriage, etc. not affected by dissolution of marriage

The dissolution of a marriage which is valid under section 4, whether by death or otherwise and whether before or after the commencement of this Act shall not affect in any way the legal status or rights under this Act of the children of such marriage or of their descendants.

S.8 Petition for dissolution

(1) A husband or wife may present a petition for dissolution of the marriage-

(a) if the place-

(i) where the marriage was contracted, or

(ii) where the respondent or petitioner at the time of the marriage, had a permanent dwelling or actually or voluntarily resided or carried on business or personally worked for gain, or

(iii) where the respondent or petitioner at the time when the petition is presented has a permanent dwelling or actually and voluntarily resides or carries on business or personally works for gain, is situated within the local limits of the jurisdiction of the Court of a District Munsif, in any such Court;

(b) if such place is not situated within the local limits of the jurisdiction of the Court of any District Munsif, in the Court of the Subordinate Judge or if there is no such Court, in the Court of the District Judge, within the local limits of whose jurisdiction such place is situated; and

(c) if such place is situate

S.9 Notice of petition

A copy of such petition shall be served on the respondent at the cost of the petitioner.

S.10 Order of dissolution of marriage

(1) On the motion of the petitioner made not earlier than six months, and not later than one year, after the service of the copy of the petition aforesaid, if the petition is not withdrawn in the meantime, the Court shall, on being satisfied after such enquiry as it thinks fit that a marriage which is valid under Section 4 was contracted between the parties, by order in writing, declare the marriage dissolved.

(2) The dissolution shall take effect from the date of the order.

S.11 Application of Civil Procedure Code to petitions

The provisions of the Code of Civil Procedure, 1908, (Central Act V of 1908) shall, so far as may be, apply to petitions under this Chapter.

S.12 Bar of suits for restitution of conjugal rights

No Court shall entertain a suit for restitution of conjugal rights between the parties to a marriage which is valid under section 4.

S.13 Maintenance of wife and minor children

(1) The wife, and minor children other than married daughters, 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 her husband, if she refuses to live with him without just cause.

(2) Nothing contained in sub-section (1) shall affect the right of any person to maintenance from his or the Kutumba or kavaru 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.

S.14 Guardianship of minor wife and children

The husband shall be the guardian of his minor wife in respect of her person and property, and subject to the provisions of section 15, the father shall be the guardian of his minor children other than married daughters under the guardianship of their husbands, in respect of their person and property:

Provided that such guardianship shall not extend to the right and interest of the wife or children in respect of their kutumba or kavaru properties:

Provided further that the custody of a minor child who has not completed the age of three years shall ordinarily be with the mother.

S.15 Mother to be guardian of minor children if father is dead or marriage is dissolved

The mother shall be the guardian of the person and property of her minor children if the father is dead or her marriage with him has been dissolved.

S.16 Saving

Nothing contained in Sections 14 and 15 shall be deemed to affect the provisions of the Guardian and Wards Act, 1890, (Central Act VIII of 1890).

S.17 Property as to which a person is deemed to die intestate

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

S.18 Devolution of property left by Aliyasantana male intestate

On the death intestate of an Aliyasantana male, his property, which is self-acquired or separate, shall devolve in the order and according to the rules contained in sections 19, 20, 21, 22, 23 and 24 .

S.19 Devolution where intestate has left lineal descendants

(1) Where the intestate has left surviving him any lineal descendant or descendants and also his mother or a widow or widows or both his mother and a widow or widows, the whole of the property shall devolve on them.

(2) In the absence of the mother and any widow, the whole of the property shall devolve on the lineal descendant or descendants.

S.20 Rules of distribution in such cases

The distribution of the property among the heirs referred to in section 19 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) (a) Each child (son or daughter) shall be entitled to an equal share.

(b) Where a child has predeceased the intestate, the lineal descendants of such child shall, subject to the provisions of clause (vi), entitled to the share which the child would have taken, had he or she survived the intestate.

(iv) (a) Grandchildren of the intestate by a deceased child shall be entitled to equal shares to what the deceased child would have taken, had he or she survived the intestate.

(b) Where any such grandchild has predeceased the intestate, the lineal descendants of such grandchild shall, subject to the provisions of clau

S.21 Devolution where intestate has left no lineal descendant but has left his mother

Where the intestate has not left surviving him any lineal descendant 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 devolve on the mother.

S.22 Devolution where intestate has left only mother's kavaru or widow or both

(1) Where the intestate has not left surviving him any lineal descendant or his mother but has left his mother's kavaru and a widow or widows, one-half of the property shall devolve on his mother's kavaru and the other half on his widow or widows in equal shares.

(2) In the absence of the mother's kavaru, the whole of the property shall devolve on the widow or widows in equal shares; and in the absence of any widow, the whole of the property shall devolve on the mother's kavaru.

S.23 Devolution where intestate has left only father or maternal grandmother's kavaru or both

(1) Where the intestate has not left surviving him any of the heirs mentioned in Sections 19, 21 and 22 but has left his father and his maternal grandmother's kavaru, one half of the property shall devolve on his father and the other half on his maternal grandmother's kavaru.

(2) In the absence of the maternal grandmother's kavaru, the whole of the property shall devolve on the father; and in the absence of the father, the whole of the property shall devolve on the maternal grandmother's kavaru.

S.24 Devolution in other cases

Where the intestate has not left surviving him any of the heirs in Sections 19, 21, 22, and 23 the whole of the property shall devolve on the kavaru of his mother's maternal grandmother or other female ascendant in the female line, the near excluding the more remote.

S.25 Devolution of property left by Aliyasantana female intestate

On the death instestate of an Aliyasantana female, her property which is self-acquired or separate shall devolve as follows: -

(1) The whole of the property shall devolve on her lineal descendants, distribution among such descendants being made in accordance with the rules laid down in section 20, clauses (iii) to (vi).

(2) (a) In the absence of such descendants, one half of the property shall devolve on the kavaru of the intestate's mother and the other half on her husband.

(b) In the absence of her mother's kavaru, the whole of the property shall devolve on her husband; and in the absense of her husband, the whole of her property shall devolve on the mother's kavaru.

(3) In the absence of any of the relatives aforesaid, the property shall devolve on the kavaru of the maternal grandmother or of her female ascendant of the intestate, the nearer excluding the more remote.

S.26 Devolution of property left by non-Aliyasantana male intestate

(1) On the death of a male not governed by the Aliyasantana Law-

(i) who-

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

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

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

(a) a widow or widows,

(b) children,

(c) lineal descendants,

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

S.27 Possession and management of property until division is effected

(1) Where the whole of the property of any male or female intestate devolves under the foregoing provisions of this Chapter on any kavaru as such, the yejaman of the kavaru shall be entitled to the possession and management of such property until division thereof is effected.

(2) In all other cases, the oldest among the heirs of the intestate (including all the members of the kavaru on whom any portion of the property may have devolved) shall be entitled to the possession and management of such property until division thereof is effected.

S.28 Yajaman to keep accounts and yallow inspection etc.

(1) The yajaman shall keep true and correct accounts of the income and expenditure of the Kutumba; and every major member of the kutumba shall have the right to inspect the accounts of each fasli year at the kutumba house at any time in the months of August and September in the immediately succeeding fasli year, and also to take copies of, or extracts from such accounts:

Provided that nothing contained in this sub-section shall apply to any kutumba, the gross income of which from all sources, in any one year, does not exceed three thousand rupees.

(2) If the accounts are not made available for inspection as provided for in sub-section (1), the Civil Court of the lowest grade having original jurisdiction over the place where the whole or any part of the immovable property of the kutumba is situated or where the yajaman resides may, on application by any major member of the kutumba and after notice to the yajaman, pass an order causing the accounts to be produced in Cour

S.¹[29 Validity of sales mortgages with Possession and leases

(1) No sale or mortgage of any immovable property of a kutumba and no lease of any such property either for a premium returnable wholly or in part or for a period exceeding five years, shall be valid, unless it is executed by the yajaman, for consideration, for kutumba necessity or benefit and with the written consent of the majority of the major members of the kutumba.

(2) No lease of any immovable property of a kuturnba in cases not referred to in sub-section (1) shall be valid unless it is executed by the yajaman and where the Malabar Tenancy Act, 1929 confers fixity of tenure on the lessee, unless also the written consent of the majority of the major members of the Kutumba has been obtained to the lease.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be deemed to affect the validity of any mortgage or lease executed on or before the 27th July, 1950 in accordance with the law in force at the time of such execution.]

S.30 Validity of mortgages without possession and debts

No mortgage without possession of any kutumba property and no debt shall bind the kutumba unless the mortgage is executed or the debt is contracted by the yajaman and for kutumba necessity.

S.31 Maintenance of members of kutumba

(1) Every member of a kutumba, whether residing in the kutumaba house or not, shall be entitled to separate maintenance consistent with the income and circumstances of the kutumba and with due regard to the reasonable wants of such member.

Explanation:- The share that a member of a kutumba would be entitled to on a partition under the Act shall not be the criterion in determining the maintenance payable to him.

(2) The maintenance payable to a member of a kutumba shall be paid only out of the income realised from the kutumba properties and shall be a charge on such income.

(3) After this Act comes into force, no suit shall lie for arrears of maintenance for a period exceeding two years.

S.32 Right to remove yajaman by suit

(1) Any member of a kutumba may institute a suit in a Civil Court for the removal of the yajaman: -

(i) for any malfeasance, misfeasance, breach of trust of neglect of duty in respect of the kutumba; or

(ii) for any misappropriation or improper dealing with the income of the properties of the kutumba; or

(iii) for unsoundness of mind or any physical or mental infirmity which unfits him for discharging the functions of a yajaman; or

(iv) for any other sufficient cause which, in the opinion of the court, makes his continuance as yajaman injurious to the interests of the kutumba.

(2) A Court trying a suit under sub-section (1) may, if it considers that it is not necessary to direct the removal of the yajaman, pass such orders as it thinks fit having regard to the welfare of the kutumba and the circumstances of the case.

S.33 Relinquishment of right of management by yajaman

Any yajaman may, by a registered document, give up his right of management.

S.34 Application of Chapter to Kavarus

The provisions of this Chapter shall apply to every kavaru possessing separate properties as if it were a kutumba.

S.35 Right of kavaru to claim partition

(1) Any kavaru represented by the majority of its major members may claim to take its share of all the properties of the kutumba over which the kutumba has power of disposal and separate from the kutumba:

Provided that: -

(i) where a kavaru is consists of only two persons, such a claim may be made by either of them:

(ii) no kavaru shall make such a claim during the life time of any ancestress common to such kavaru and to any other kavaru or kavarus of the kutumba, who has not completed fifty years of age, unless-

(a) she has signified her consent in writing, or

(b) two-thirds of the major members of the kavaru join in making the claim for partition;

(iii) the common ancestress may on her own volition claim a partition.

(2) the share obtained by the kavaru shall be taken with all the incidents of kutumba property.

Explanation:- For the purposes of this Chapter:-

(a) a male member of a kutumba, or a female member t

S.36 Ascertainment of shares at partition

(1) Any kavaru entitled to partition under section 35 shall be allotted a share of the kutumba properties in accordance with the provisions of sub-section (2)

(2) (a) If on the date on which a partition is claimed any of the members of the kutumba who are nearest in degree to their common ancestress is removed four degrees or more from such ancestress, then, the division shall be effected in the following manner: -

(i) In three-fourths of the kutumba properties, the kavaru shall be allotted such share as would fall to it, if a division thereof were made per-capita among all the members of the kutumba then living.

(ii) In the other one fourth of the kutumba properties, the kavaru shall be allotted such share as would fall to it, if a division thereof were made among the kavaru per stirpes.

(b) In other cases, the division shall be effected in the following manner:-

(i) In one half of the kutumba properties, the kavaru shall be allotted such share as

S.37 Application of chapter of kavarus

The provisions of this Chapter shall apply to every kavaru possessing separate properties as if it were a kutumba.

S.38 Rules

(1) The provincial Government may make rules consistent with this Act to carry into effect the purposes thereof.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all matters expressly required or allowed by this Act to be prescribed.

(3) All rules made under this section shall be published in the Fort St. George Gazette and on such publication shall have effect as if enacted in this Act.

S.39 Saving

Nothing contained in this Act shall be deemed to affect any rule of Aliyasantana law, or usage, except to the extent expressly laid down in this Act.