1. An interesting point of law has arisen in this case. One Tigala Satyanarayana Rao was charged for murder under Section 243, Hyderabad Penal Code Section 302, Indian Penal Code. The accused absconded & did not present himself before the Mag. The Mag. thereupon, under Section 77 Hyderabad Cr. P.C.(Section 87, Indian Cr. P.C.) caused a proclamation to be issued requiring the accused to appear before him & when the accused failed to appear the Mag. directed the attachment of the property belonging to the absconder under Section 73, Hyderabad Ct P.C. Section 88, Union Cr. P.C.
2. The absconder Satyanarayana Rao happened to be a member of a Hindu joint family. He possessed no separate property. In execution of the Mag.'s order, property consisting of a dwelling house, cattle, lands, grain etc, was Attached. At this stage Tigal Veerayya, another member of the joint family filed an objection petn. objecting to the attachment on the ground that joint family property could not be attached. The Mag. enquired into the case & held that the absconder held one-third share in the dwelling bouse & moveable properties & directed that the house & the moveable properties be sold & one-third of the amount realised by sale of the properties be deposited in Ct, & the remaining 2/3 paid to Tigal Veerayya. As regards the lands, he held that the absconder held l/l8 share. He likewise directed l/l8 share in the land of the absconder to be sold & further directed that the auction-purchaser be put in joint possession of the lands with other members of the joint family. It is against this order that Tigala Veerayya, the objector has filed this revision.
3. It is settled law that the share of a defaulting member of a Hindu joint family is liable to confiscation when proceedings are taken under Section 77, Hyderabad Cr. P.C.(Section 88, Union Cr. P.C.) This view receives support from the decision of the Privy Council in Mt Gulab Kunwar v. Collector of Benaras 4 M. I. A. 246 : 7 W. R. 47 P.C..
4. Where proceedings relating to attachment are taken under Section 77, the property attached is said to be at the disposal of the Govt. & the Govt. thereupon becomes entitled to the usufruct or income from the property, so long as the attachment subsists.
5. Further where the property attached is only the interest of a member of a Hindu joint family, rights of the Govt. would be governed by ordinary principles of Hindu Law, under which there would be no severance in status.
6. Applying the above two principles the only procedure that could be adopted in a case like this would be to appoint a Receiver to collect the share of the absconder in the income.
7. We, therefore, set aside the order of the Mag. & direct that a Receiver be appointed for the collection & realisation of the absconder's share in the income of the property attached. Revision is allowed & the case sent back to the Mag. to act according to the directions given above.