SHIVLINGAPPA NIJAPPA TUBCHI Vs. GURLINGAVA BASAPPA TUBCHI

JUDGEMENT

(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/s. Sita Nath Mitra (1892) I. L. R. 20 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, 4 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 Criminal P. C. 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 Civil P. C., 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.