- (1.) NIYOGI , A.J.C. 1. This case arises out of a report made by the Additional Sessions Judge, Bhandara, under Section 438, Criminal P. C. One Harischandra Teli of Tumsar was convicted under Section 4 of Ordinance 5 of 1932 and sentenced to undergo imprisonment in addition to payment of a fine of Rs. 50. Harischandra underwent imprisonment on default of payment of fine. Thereafter a pair of bullocks was attached for recovery of the fine, but it was released by the Tahsildar on the objection of one Shrawan Teli. This was followed by another attachment of a pair of bullocks through the police. A similar objection preferred by Shrawan was however disallowed as it was found that the bullocks belonged to the joint family of which Harischandra was a member. The pair of bullocks was ordered to be sold by public auction for realizing the fine imposed on Harischandra. The important question raised in this reference is whether the pair of bullocks, in which Harischandra has only a coparcenary interest, can be attached and sold under Section 386(1)(a), Criminal P. C., for the recovery of the fine imposed on Harischandra alone.
(2.) IT is quite obvious to me that an undivided share of Harischandra in the property cannot be sold under that section. This question was recently considered by a Full Bench of the Patna High Court in Rajendra Prasad Missir v. Emperor AIR 1932 Pat 292. Section 386(1)(a) simply authorizes attachment of property belonging to the offender. 'Now, it cannot be said, when Harischandra has only a partial interest in the property, that the property belongs to him. In strict theory a coparcenary property does not belong to any one member of the coparcenary, but belongs to the joint family. A coparcener has only a right, title and interest in such property and the right, title and interest are capable of being sold. Such a sale however is not capable of passing the full ownership of the property to the purchaser so as to entitle him to immediate and exclusive possession. The law in this respect is now well settled; it is that a purchaser of an undivided share in a specific part of a joint family property cannot get possession of the property purchased except by partition of the whole estate : see Mohanlal v. Tekchand (1913) 9 NLR 18, Kamtaprasad v. Madhorao , Hanmandas Ramdayal v. Valabhdas AIR 1918 Bom 101 and Nanjaya Mudali v. Shanmuga AIR 1914 Mad 440. In such a case the purchaser only gets an equitable right to demand partition of the joint property and he is not entitled to actual possession until the partition is effected. Regard being had to the law set out above, I fail to see how the pair of bullocks in the present case can be physically seized, sold and corporeally delivered to the purchaser. In attaching the pair of bullocks the interest of others who are not liable for the claim is also attached. On a plain and proper interpretation of the section however attachment of the shares of persons other than the offender is not warranted. The observations made by their Lordships of the Privy Council in Tuffuzzool Hossein Khan v. Rughoonath Pershad (1870) 14 MIA 40 cited in Rajendra Prasad Missir v. Emperor AIR 1932 Pat 292 serve as a guide in the present case : 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 property the subject of seizure under this particular process. Their Lordships were considering whether the expectant claim under an in-choate award was "property" within the meaning of Section 205, Civil P. C., 1859, so as to be saleable in execution of a decree. Thus it would be evident that as the undivided share of a member of a joint family in a specific movable property is not capable of being seized and delivered to the purchaser, such a case cannot be dealt with under Section 386(1)(a). Capacity to give exclusive possession to the purchaser is the test of the applicability of Section 386(1)(a). Can you give possession of the pair of bullocks to the purchaser when he purchases only a partial interest in it ? There is no law or principle to warrant the deprival of the other members of the joint family of property in which only a share is sold.
(3.) FOR the foregoing reasons I agree with the view taken in Rajendra Prasad Missir v. Emperor AIR 1932 Pat 292, which itself follows the view taken in Queen-Empress v. Sita Nath Mitra (1893) 20 Cal 478. The Court of the Judicial Commissioner, Sind, also took the same view, as will appear from Pritamdas v. Emperor, AIR 1933 Sind 43. A different view in connexion with Section 488, Criminal P. C., was taken by Fawcett, J., in Shivlingappa v. Gurlingava AIR 1926 Bom 103, but it must be observed that Madgavkar, J., his colleague in the Bench, expressed his doubt as to the correctness of that view.;