1. We think the question must be answered in the affirmative. Mr. Narasimha Aiyangar has called our. attention to two decisions of the Privy Council under Bengal Regulation XI of 1796 which apparently were not brought to the notice of the learned Judges who decided the cases mentioned in the reference. Under Regulation XI of 1796 Section 4 the Magistrate was to order the attachment of any land or other real property held by the absentee and under Section 6 on failure of the absentee to attend within six months after the attachment the lands were to be at the disposal of the Governor-General in Council. It was held by the Privy Council in Mussumat Goldb Koonwur v. The Collector of Benares and Raja Oodit Narain Singh (1847) 4 M.I.A. 246 under the Regulation in a case from Benares governed by the Mitakshara Law that the undivided interest of the defaulting member of the joint family passed to the alienee from Government and in Juggomohun Bukshee v. Boy Mothooranath Chowdry (1867) 11 M.I.A. 223 their Lordships again took the view that the share of the defaulting member of the joint family was liable to confiscation.
2. The provisions of Section 88 of the present Code of Criminal Procedure are wider than the Regulation in so far as they include moveable as well as immoveable property, but as regards procedure they deal with the matter in greater detail specifying the manner in which each description of property is to be attached. What has to be attached under the section in a case such as this is the share of the defaulting member of the joint family, which is of course subject to the right, of the other members of the family and may be realised by a Receiver in a suit for partition or otherwise. We are unable to agree with the observations of Subramania Aiyar, J. in Crl. R.C. No. 536 of 1903 that a Receiver cannot be appointed under the section to realise the share of the defaulting member, or that such an appointment would necessarily take the property out of the hands of the managing member. On the other hand we agree with Collins, C.J. and Shephard, J. in Crl. R.C. No. 560 of 1893 that there is nothing in the language of Section 88 to restrict the meaning of the word property and that it must include the rights and interests of persons who as members of an undivided family are jointly entitled to the property of the family.