1. In this case one Gurlingava got an order for maintenance against her husband Basappa in October 1919 under Section 488, Criminal Procedure Code. Under that order the amount awarded as maintenance to her was Rs. 15 per month and it was expressly declared that that amount was 11 charge on the joint estate. This refers to the fact that Basappa was a member of a joint Hindu family consisting of himself and two brothers Dundappa and Shivalingappa. In the order with which we are now concerned it is stated by the Magistrate that these three brothers live separate, but their property is undivided. Gurlingava applied to the Magistrate, First Class, Hukeri, praying that a cloth shop, which it was alleged belonged to the three joint brothers at Sankeshwar, should be attached and the amount of maintenance due to her should be recovered in that manner. A warrant was issued for attachment of this property of the joint family accordingly, and the police under this authority attached certain sarees of the shop and produced them before the Magistrate, Shivlingappa then put in an application stating that the property attached by the police was not joint property, but was hie own self-acquired property, and asked that the attachment should therefore be removed He further contended that in any case the amount that could be recovered was only Rs. 180 and not Rs. 645 as claimed by Gurlingava, This latter contention was allowed by the Magistrate in view of the amendment of Section 488, under which maintenance for only one year prior to the date of the warrant is recoverable. On the other point, after inquiry he held that the property attached was not the separate property of Shivlingappa but was joint property, and that Shivlingappa was in possession of that property as manager of the joint family. He accordingly held that under the order of 1919, the maintenance chargeable on the joint family estate could be recovered from Shivlingappa in the manner proposed, namely by attachment and sale of the moveable property in question. From this order Shivlingappa has applied to us in revision.
2. The main contention of Mr. Desai on his behalf is that, assuming that the property in dispute is joint, as held by the First Class Magistrate, he has no jurisdiction to attach it under Section 488, Criminal Procedure Code, read with Section 386 of the same Code, This contention is based upon the fact that Section 488, Sub-section (3), authorises the Magistrate in case of breach of the order to issue a warrant for levying the amount due in the manner provided for levying fines, that is to say, in the manner provided by Section 386. Under Sub-section (1) of that section the Court can issue a warrant for levy of the amount by attachment and sale of any moveable property belonging to the offender, and there is a form provided for this particular warrant, namely No 37 of Schedule V, and a similar form for a warrant under Section 488, namely No 41, in that schedule Both these forms use the same language as that in Clause (a) of Sub-section (1) of Section 386, namely, moveable property 'belonging to' the person against whom an order has been either for maintenance or fine. The warrant in this particular case was issued accordingly, and we are not now concerned with the question of the issue of a warrant to a Collector of a District to realise the amount by execution under Clause (6) of Sub-section (1) of Section 386. Mr. Degai's contention is that the words 'belonging to' mean 'belonging exclusively to' the person concerned, and that a share in joint family property is not property belonging to Basappa which can be attached and sold under this particular power. He further refers us to the new sub-section 6 (A) and (B) inserted in Section 88 of the Criminal Procedure Code in 1923, under which inquiries can be made into claims preferred or objections made to the attachment of any property attached under that section. Ho says that this indicates that the legislature contemplated the possibility of an interest in the property being attached and dealt with under Section 88, and therefore has made provision for inquiries into such claims or objections, but that the same does not apply to Section 886, This argument, however, does not seem to me to be very cogent because Sub-section (2) of Section 386 authorises the Local Government to make rules for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of a warrant. It, therefore, does at any rate provide machinery by which inquiries can be made into claims and objections in a similar manner to claims and objections under Section 388, The main question, however, still remains whether Clause (a) of Section 386, Sub-section (1), should he construed as referring to property solely belonging to a person and as excluding any interest in joint family property or the like. There is no doubt authority for Mr. Desai's contention. In The Queen-Empress v. Sita Nath Mitra I. L. R. (1892) Cal. 478 the question was referred to the High Court whether joint moveable property war saleable under Section 386, Criminal Procedure Code, and the High Court in their order stated that 'in regard to moveables the Magistrate, we think, can only attach moveables of which the deceased was sole owner.' No reasons however are given for that particular ruling, and therefore it does not help us very much. There is another ruling to the same effect by the Madras High Court, recorded in Weir's Law of Offences and Criminal Procedure, 4th Edition, Vol. II, page 442. In that case the District Magistrate submitted for orders of the High Court certain proceedings in which a distress warrant had been issued for seizure and sale of moveable property belonging to the offender and two others, members of an undivided family. And the High Court say :-
The mode of levying pecuniary penalties must be strictly confined to the provisions of law that gives the jurisdiction. Section 307 (386) of the Code of Criminal Procedure directs that the warrant for the levy of fine ' shall authorise the distress and sale of any moveable property belonging to the
This language denotes things which may betaken by distress and then ' sold so an by the more act of sale to pass the property in thorn - not mere rights and interests or shares in joint moveables. In oases where the fine cannot be levied by the distress and still of the convict's own property, there is the very sufficient remedy of an alternative term of imprisonment.
3. Now weight must of course be attached to that ruling. But it seems to me unduly to limit by Judge-made law the wide words 'movable property belonging to the offender,' There are no doubt considerations iii favour of the property that is attached ordinarily belonging exclusively to the offender. This clearly obviates disputes which cannot be dealt with by a Criminal Court, so well as by a civil Court. On the other hand, I think, considerable weight must be attached to the fact that, if it .is held that only moveable property solely belonging to the offender can be attached under Section 386, a person who, as a member of joint Hindu family, has no separate property but a very valuable interest in the joint family property, entirely escapes the ordinary provision made for the recovery of a fine by attachment and sale of moveable property. I think that, before the Court holds that this was really intended by the legislature, there should be clearer ground than exists at present for taking that view. I am supported in this by the corresponding provisions of the law in regard to recovery of a decretal debt by attachment and sale of the judgment-debtor's moveable property. The present law is contained in Section 60 of the Code of Civil Procedure, under which (subject to certain exceptions) the 'property, moveable or immoveable, belonging to the judgment-debtor or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of judgment-debtor or by another person in trust for him or on his behalf,' is liable to attachment and sale in execution of the decree against him. Thus it will be noted that this section uses the same words ' belonging to.' But Mr. Desai contends that the addition of the words 'over which or the profits of which he has a disposing power,' etc , extends the section to the case of a family property, and that the fact that the legislature did not insert corresponding words in Clause (a) of Sub-section (1) of Section 386 supports his contention. No doubt that is an argument which would be entitled to consideration if Section 60 of the Code of Civil Procedure was the sole law to be considered in connection with this question.
4. The history of the teachability of a judgment-debtor's 'interest in joint family property goes back to very early limes, before even a Civil Procedure Code was enacted. Thus before Act VIII of 1859 was enacted, it bad been held by the Sudder Diwani Adalat in this Province that a judgment-debtor's share in joint family property could be taken in execution under a judgment against him obtained by his personal creditor. The rulings to that effect will be found stated in Vasudev Bhat v. Venkatesh Sanbhav (1873) 10 B. H. C. R. 139 and in the elaborate judgment of Westropp G. J. it was held thus (p. 160):-
It must be regarded as the settled law of this Presidency, not only that one of several co-parceneras in a Hindu family may, before partition, and without the assent of his co--parceners, sell, mortgage, or otherwise alien, for valuable consideration, his share in the undivided family estate, moveable or immovable, but also that such a share may be taken in execution under a judgment against; him at the suit of his personal creditor.
5. Now the station in Act VIII of 1859 corresponding to Section 60 of the present Code is Section 205, which runs as follows :-
The following property is liable to attachment and sale in execution of a decree, namely lands, houses, goods, money, bank-notes, Government securities, bonds, or other securities for money, debts, shares, in the capital or joint stock of any Railway, Banking, or other Public Company or corporation and all other property whatsoever, moveable or immoveable, belonging to the defendant, and whether the sums be held in his own name or by another person in trust for him or on his behalf.
6. It will be noticed that the words used are ' property belonging to ' the defendant, and there are no words about his disposing power, such as are now contained in Section 60 of the present Code.
7. The Privy Council in Syud Tuffuzzool Hussein Khan v. Raghoonath Pershad (1871) 14 M. I. A. 40 considered a case where the judgment-debtor sued upon a chance of success under an award not yet made, which had been put up to auction and bought by him. Their lordships hold that, as this Section 205, to which I have just referred, used the word 'property,' and as mere right of suit was not 'property' but a title to recover future property, the judgment creditor could not recover the amount he sought by that particular process. But the judgment also deals with the question whether such a share could not be attached and sold in execution under this Section 205. Their Lordships said (p, 50):-
Mr. Leith referred in his argument to the family property of Hindoos, and urged that such a share in such property may be attached and sold in execution. No doubt can be entertained that such a share is property and that a Decree-holder can reach it, It is specific, existing, and definite; but it is not properly the subject of seizure in this particular process, (that is to say, the process by which the decree-holder bad tried to get it in that particular case), hut rather by process direct against the Owner of it, whether by seizure or sequestration, or appointment of a Receiver.
8. In Kalee Pudo v. Ghoitun (1877) 22 W. R. 214 Couch G. J. refers to this ruling, and suggests that a creditor of a member of a joint Hindu family under this Section 205 has a remedy against the property to which his debtor may be entitled although it may be undivided property of the family, and it cannot be predicated that he has any definite share of it. That view has been followed at any rate in this Presidency. Therefore it seems to me that there is authority, in regard to the corresponding provisions of the Civil Procedure Code, for holding that the words 'moveable property belonging to' suffice to cover a share in a joint Hindu family estate, so far as it consists of moveable property. Accordingly I am not prepared to go the length of Mr. Desai's contention and hold that, in no circumstances whatever, will a Magistrate be justified in directing the attachment of joint family property and having it sold.
9. On the ether hand, as I have already said, that is a method of recovery which should not ordinarily be resorted to. But in the present case we have the fact that so long ago as 1919 an order, whether right or wrong, was passed, under which the maintenance was made chargeable on the joint family estate. It seems to me very improbable that the present applicant Shivlingappa, who is the real brother of Basappa, although living separate from him, did not become aware of this order; and certainly, if it had come to his notice, as I think it certainly must have, it was his duty to have moved the Court at that time to have it set aside, if he objected to it. In the present case, in view of that order and his not having set it aside, I do not think that in revision there is sufficient ground for our interfering with the action taken by the Magistrate. I would, therefore, dismiss this application,
10. I agree in the order proposed by my learned brother on two grounds.
11. The first is that there is an order by a competent Magistrate in 1919, directing the amount of maintenance to be a charge on the joint estate, That order has not been disturbed in appeal or in revision. The record and proceedings are not before us and it is impossible to say how far the present petitioner, the brother of the husband of Gurulingava, was or was not a party to that order and how far it was passed with his knowledge and consent, His present application is in revision against an order directing execution under Section 386 against certain saris in the shop which Gurulingava, the wife of Basappa, alleged were his joint estate within the meaning of Section 488,
12. Secondly, the defence of the present petitioner before the Magistrate was that the saris which were attached were his own self-acquired property, and not joint property. On this point the Magistrate has recorded evidence and came to the conclusion that the saris were not the self acquired property of the petitioner, These two grounds suffice, I think, to cause the present application to fail,
13. The third question argued in this application mainly is whether the joint family property in which the offender has any interest, can or cannot be proceeded against under Section 386 of the Code of Criminal Procedure The question to my mind is not free from doubt. The former prohibition against attachment of immoveable property belonging .solely to the defaulter has been removed by the express words of clause 6 (A) and (B) of Section 88, Criminal Procedure Code, as amended, so that the view of this Court under the old Code in Reg. v. Lallu Karwar (1868) 5 B.H.C.R. 83 no longer holds good. But as regards joint property the legislature, although it had before it the decision of the Calcutta High Court in The Queen-Empress v. Sita Nath Mitra I. L. R.(1892) Cal. 478 and of the Madras High Court in the case in Weir's Law of Offences and Criminal Procedure, 4th Edition, Vol. II, p. 442, has not in express terms amended the section. The matter is, therefore, arguable and as it is not to my mind absolutely necessary for the decision of the present application, I reserve my opinion on it.
14 Per curiam. On the application of Mr, Desai, the Government Pleader not objecting, we modify the Magistrate's order in the last paragraph so as to read as follows :-
The potgi is chargeable on the joint family estate and Shivlingappa being the manager it should be recovered by attachment and sale of the moveable joint property in his possession, namely, saris that were attached.