1. It was sought to be argued before us that the finding as to the publication of the proclamation is not warranted by the evidence. We see no force in this contention.
2. In the view taken by the Pull Bench, the further question arises whether the attachment by the Government takes away the right of the 3rd plaintiff to claim a share in the property. The property is found to have been ancestral. It is also found that at the time of the attachment, namely July 1898, the second plaintiff was in the womb. The 3rd plaintiff was born some years after. On these facts the point for decision is whether the Government obtained an absolute right to the share of the 1st plaintiff as on the date of the attachment so as to deprive the 3rd plaintiff of his share on partition. The answer to this question is not free from difficulty. It is well-settled that an attachment by a Civil Court in execution of a decree does not confer a lien on the attaching creditor. Is the attachment under the Code of Criminal Procedure different in its nature and effect from a Civil attachment? The mode of attachment prescribed in Clauses (3) and (4) of Section 88 of the Code of Criminal Procedure is practically identical with the procedure to be observed under the Code of Civil Procedure. The difference arises from the language employed in Clause (7) of that section. Under that clause the property after the period prescribed is declared to be ' at the disposal of the Government'. If this clause is read with 3(d) and 4 (h) it seems to us that the accruing to Government by the property being at their disposal is only to secure to the Government the enjoyment of the income during the continuance of the attachment. (See also the case of Bishonath Sircar (1865) 8 W.R.Cr. Rule 63. There are no words in Section 88 or 89 vesting the property or the share of the absconder in the Government. Form V in Schedule V of the Code directs the Magistrate 'to hold the same (property) under attachment pending the further order of this Court.' It is not said that any further order was passed by the Magistrate. The intention apparently is to give the Government a hold on the property till the absconder surrenders himself. There is no indication in the section that by the process of attachment a confiscation of the property was to be effected. It seems to us that the Government cannot be in a better position than the absconder so far as the property under attachment is concerned.
3. In the opinion delivered by the Full Bench it is pointed out that the share attached is 'of course subject to the rights of the other members of the family' and that an appointment of a receiver to realise the share of the absconder would not ' necessarily take the property out of the hands of the managing member.' These observations indicate that quod the property attached, the rights of the Government are governed by the ordinary Hindu Law. The contrary view that the attachment effects a severance of the coparcenary would render these observations in the Judgment of the Full Bench meaningless. Mussamat Golab Kunwar v. The Collector of Benares (1847) 4 M.I.A. 246 was a case under Regulation IX of 179(5 which as regards attachment substantially lays down the same procedure as the Code. In that case the Governor-General in Council passed an order of confiscation subsequently. In the present case no such order was passed, nor was our attention drawn to any provision by which a confiscation can be made. Notwithstanding the order of confiscation, the Judicial Committee held that the widow of a member of the family was entitled to maintenance out of the ancestral estate. This is what they say ' The only other question is, the right of Mussamat Golab Kunwar to maintenance out of the whole of the property held to be ancestral. Nothing was urged at the bar against this right; and it appears to us that on the principle of the decree, it ought to have been recognised.' If the confiscation did not deprive the widow of her right to maintenance, it can only be on the ground that the property continued to be joint family property subject to the liabilities which rested on it in the hands of the owner.
4. In Juggomohun Bukshee v. Boy Mothooranath Chowdhry (1867) 11 M.I.A. 223 the Judicial Committee held that a confiscation under the Regulation had not the effect of affecting encumbrances and pointed out that the Regulation being a penal one should be construed strictly. These observations apply with equal force to Sections 87 to 89 of the Code of Criminal Procedure. The language of these sections do not warrant the construction that from the date of attachment the interests of the absconder is severed and vests in the Government. We must therefore hold that plaintiffs 2 and 3 are entitled to their 2/3 share in the properties in suit. We pass a preliminary decree for possession of the share to plaintiffs 2 and 3 and direct the District Munsif to pass a final decree as to past and future mesne profits. Parties to pay and receive proportionate costs throughout. Plaintiffs will pay the courtfee in the first instance and will get 2/3 of it from Government within three months from the date of the final decree.