Rajendra Prasad Missir and Others vs Emperor

Courtney-Terrell, C.J.—The facts giving rise to Criminal Reference No. 18 of 1932 were as follows: One Ramnandan Missir was convicted under Sections 143 and 188, I.P.C., and u/s 17(2), Criminal Law Amendment Act. Under the latter section he was sentenced to 18 months rigorous imprisonment. Under each of the Sections 143 and 188, I, P.C., he was sentenced to a month''s rigorous imprisonment and a fine of Rs. 50. The fine was not paid, with the result that a warrant was issued for its realization. In execution of the warrant a buffalo and three chairs which were found on the premises occupied by Rajendra Prasad Missir, father of Ramnandan Missir, were seized. Thereafter Rajendra Prasad Missir appeared before the Magistrate who had issued the warrant and claimed the attached buffalo and chairs, alleging that they belonged not to Ramnandan but to the joint family of which he and the petitioner were members. Rajendra Prasad''s objection to the attachment was overruled.

In Criminal Reference No. 19 of 1932 one Maheshkant Chaudhry was convicted u/s 17, Criminal Law Amendment Act and sentenced to pay a fine of Rs. 50. The fine not having been paid, a warrant of attachment was issued, and in execution of the warrant 25 maunds of paddy, three maunds of marua and certain other articles were seized.

Thereupon Deonarain Chaudhry, father of Maheshkant, appeared before the Magistrate who had issued the warrant, and objected to the seizure. He claimed that the grain and other articles seized belonged to the joint family of which he and his son were members and that they were not the exclusive properties of his son. The objection was overruled by the Magistrate. The Sessions Judge of Darbhanga has referred both these cases to the High Court u/s 438, Criminal P.C. In the opinion of the Sessions Judge the property of the joint family was not attachable in either case in execution of the warrants that were issued, and he therefore recommended that the things seized should in both cases be released from attachment. The question for decision in Criminal Revision No. 251 of 1932 is precisely the same.

In all these cases the Magistrates who issued the warrants elected to adopt the procedure provided in Section 386(1)(a), i. e., they issued in each case, a warrant for the levy of the amount of the fine by attachment and sale of the moveable property belonging to the offender and the objections in all the oases are that moveable property not belonging to the offender has been seized in execution of the warrant. Section 386(1)(a) does not authorize the attachment of any property other than the moveable property belonging to the offender and the question therefore arises: in what manner can the moveable property of an offender be attached under that clause when the only moveable property of the offender is an undivided share in the moveable property of the joint family of which he is a member ? It is to be observed that Sub-section 2, Section 386, empowers the Local Government to make rules regulating the manner in which warrants under Sub-section (1)(a) are to be executed. We have been unable to ascertain that any rules have been made under this Sub-section.

Assuming that an undivided share in the moveable property of a joint family may ''''belong" to an individual member of the family, the assumption premises that other undivided shares belong to other members and I can find nothing in Section 386(1)(a) which authorizes the attachment of those shares. What has been done in the present cases is that things in which the respective offender as well as others have undivided shares have been physically seized in execution of the warrants that were issued. If this amounts to a legal attachment of the shares in those things of the respective offenders, it is also an attachment of the shares of others for which there is no warrant and which is not authorized by the statute. That seizure is not the proper method by which to reach an undivided share was pointed out by the Privy Council as long ago as 1871 in Syud Tuffuzzool Hossein Khan v. Raghoonath Pershad.

In that case under a remit from the Privy Council to the Court of first instance, to refer to arbitration the accounts of a partnership firm, a reference was duly made to arbitrators. Before any award was made the rights and interests of one of the parties were sold by Court in execution of a decree against him in another Court by a third party. The question before the Privy Council was whether the expectant claim under an inchoate award was "property" within the meaning of Section 205, Civil P.C., of 1859, so as to be saleable in execution of a decree. In support of the view that the sale was valid it was argued that the case was analogous to the sale of an undivided share in a joint Hindu family, the contention being that such an undivided share was ''''property" and was saleable in execution of a decree.

The judgment of the Privy Council was delivered by James, L. J., who said:

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 properly the subject of seizure under this particular process.

(i. e., a writ of attachment issued u/s 205, Civil P.C., of 1859). We can conceive of no method by which the undivided share of an individual in moveable property can be seized in the literal physical sense, without at the same time seizing the undivided shares of other persons, and as the statute does not authorize the seizure of such other shares we are driven to the conclusion that the undivided share of an individual cannot be seized u/s 386 1886 14 M. I.A. 40 (a). This was also the conclusion reached by Pigot and Hill, JJ., in Queen-Empress v. Sita Nath Mitra [1893] 20 Cal. 478. It is perhaps not without significance that although that case was decided in 1892, the legislature, when amending Section 386 in 1923, left that decision untouched. In each of these cases therefore the property attached will be released.