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Shivlingappa Nijappa Tubchi v. Gurlingava Basappa Tubchi
Summary of the Legal Opinion
Factual and Procedural Background
In October 1919 Gurlingava obtained an order for maintenance against her husband Basappa under Section 488 of the Criminal Procedure Code (Cr PC). The order fixed maintenance at Rs. 15 per month and expressly declared that amount to be a charge on the joint estate. Basappa was a member of a joint Hindu family with two brothers, Dundappa and Shivlingappa. Some years later Gurlingava applied to the First Class Magistrate, Hukeri, for attachment of a cloth shop at Sankeshwar alleged to belong to the three joint brothers so that maintenance due to her could be recovered. A warrant was issued, the police attached certain sarees from the shop and produced them before the Magistrate. Shivlingappa applied to have the attachment removed, contending (1) the attached property was his self-acquired property and not joint property, and (2) only Rs. 180 was recoverable (not Rs. 645) because of an amendment to Section 488 limiting recovery to maintenance for one year prior to the date of the warrant. The Magistrate accepted the limitation on the amount recoverable, and after inquiry held that the sarees were joint property and that Shivlingappa, as manager of the joint family, could be made liable; he directed attachment and sale of the moveable property. Shivlingappa sought revision of that Magistrate's order to this Court.
Legal Issues Presented
- Whether a Magistrate has jurisdiction to attach and sell moveable property that forms part of a joint Hindu family estate under Section 488 of the Cr PC read with Section 386 of the Cr PC (i.e., whether the words "moveable property belonging to the offender" in Section 386 include a member's interest or share in joint family moveable property).
- Whether, in the specific facts of this case, the sarees attached were the separate (self-acquired) property of Shivlingappa or joint family property, and therefore whether attachment and sale in execution of the maintenance order was permissible.
- Whether the prior 1919 maintenance order expressly charging the joint estate affects the present right to execution against joint family property.
Arguments of the Parties
Shivlingappa (Applicant in Revision) / Mr. Desai (Counsel)
- Contended that Section 488, sub-section (3) authorizes levy only "in the manner provided for levying fines" via Section 386, and under Section 386(1)(a) the warrant authorizes attachment and sale of moveable property "belonging to the offender." The words "belonging to" should be interpreted as "belonging exclusively to" the person concerned.
- Argued that a share in joint family property is not property "belonging to" Basappa within the meaning of Section 386 and thus cannot be attached under that power.
- Relied on the legislative insertion of sub-sections 6(A) and (B) in Section 88 (Cr PC, 1923 amendment) allowing inquiries into claims or objections to attached property, arguing this demonstrates the legislature contemplated contested interests and that Section 386 does not provide similar accommodation.
- Before the Magistrate he also specifically asserted that the sarees attached were his self-acquired property (not joint property), and challenged the amount claimed by Gurlingava.
Gurlingava (Applicant for Execution / Respondent to Revision)
- Sought attachment of a cloth shop and moveable articles (sarees) alleged to belong to the three joint brothers so as to recover maintenance due under the 1919 order which declared maintenance a charge on the joint estate.
- Claimed a larger sum as recoverable (Rs. 645) though the Magistrate reduced this to Rs. 180 consistent with the statutory limitation for one year's arrears.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| The Queen-Empress v. Sita Nath Mitra | The Calcutta High Court had stated, regarding moveables, that the Magistrate "can only attach moveables of which the deceased was sole owner." | The Court acknowledged this authority but observed no reasons were given in that order and therefore it does not decisively assist; the Court did not adopt it as an absolute rule excluding attachment of a member's interest in joint moveable property. |
| Madras High Court case reported in Weir's Law of Offences and Criminal Procedure (4th Ed, Vol. II, p. 442) | Held that Section 386(1) language requires strict confinement to property "belonging to the offender" and that this denotes things that may be taken by distress and sold (i.e., the offender's own property) and not mere rights, interests or shares in joint moveables. | The Court regarded this ruling as carrying weight but declined to treat it as conclusively limiting "moveable property belonging to the offender" so as to exclude all interests in joint family property; the Court considered it unduly restrictive if applied universally. |
| Vasudev Bhat v. Venkatesh Sanbhav | Held that a coparcener in a Hindu family may alienate his share and that such a share may be taken in execution under a judgment against him (i.e., a judgment-creditor can reach a coparcener's specific share). | The Court cited this authority to show historical and judicial support in this Presidency for the proposition that a judgment-creditor can reach a member's share in joint family property; used to support the view that "belonging to" can include a member's interest. |
| Syud Tuffuzzool Hossein Khan v. Raghoonath Pershad (Privy Council) | Privy Council observed that a share in a family property is "property" and a decree-holder can reach it, but that certain processes of seizure may be inappropriate and other remedies (seizure, sequestration, receiver) may be more proper. | The Court relied on this decision to support the conclusion that a member's share is property and reachable by creditors; it quoted the Privy Council to show such shares are "specific, existing, and definite" and hence not excluded from attachment in principle. |
| Kalee Pudo v. Choitun | Couch, C.J., referring to the Privy Council, suggested that a creditor can have remedies against property to which his debtor may be entitled even if undivided. | The Court noted that this view has been followed in the Presidency and treated it as additional authority supporting the possibility that a member's interest in undivided joint property can be reached by execution. |
| Reg v. Lallu Karwar | Under the earlier Code, a view existed preventing attachment of immovable property belonging solely to the defaulter (historical prohibition in earlier law). | Madgavkar, J. observed that amendments (to Section 88) have removed the former prohibition against attachment of immovable property, so the earlier ruling in Reg v. Lallu Karwar no longer has the same force under the amended Code; he reserved opinion on the joint-property question itself. |
Court's Reasoning and Analysis
The Court (Fawcett, J.) began by stating the principal legal contention: whether Clause (a) of Section 386(1), which authorizes attachment and sale of "moveable property belonging to the offender," must be construed to mean exclusively property solely belonging to the offender and therefore to exclude any interest in joint family property.
Fawcett, J. reviewed authority to the contrary (Calcutta High Court in The Queen-Empress v. Sita Nath Mitra and the Madras High Court as reported in Weir). He acknowledged that these authorities suggest the Magistrate can only attach moveables of which the offender is sole owner, but he noted that the Queen-Empress decision gave no reasons and therefore was of limited assistance. The Madras decision was accorded weight but not accepted as determinative.
The Court then considered the statutory and historical context. It compared Section 386(1) of the Cr PC with the civil execution provision (Section 60 of the Code of Civil Procedure) and older Act VIII of 1859 (Section 205). The Court observed that civil execution law and historical rulings (including Vasudev Bhat and decisions of the Sudder Diwani Adalat) supported the proposition that a judgment-creditor may reach a coparcener's share in joint family property. The Privy Council in Syud Tuffuzzool Hossein Khan v. Raghoonath Pershad was cited for the proposition that such a share is property and reachable by creditors, though particular seizure processes may be inappropriate in some contexts.
On balance, Fawcett, J. concluded that he was not prepared to adopt Mr. Desai's absolute contention that a Magistrate could never direct attachment and sale of moveable joint family property under Section 386. He reasoned that interpreting the words "belonging to" as necessarily excluding a member's interest in joint family moveables would unduly exempt persons who have no separate property but a valuable interest in joint property from ordinary remedies for recovery (such as attachment and sale).
Nonetheless, Fawcett, J. emphasized that attachment of joint family property under Section 386 is a method of recovery that "should not ordinarily be resorted to." Importantly for the present case, the Court relied on the existence of the 1919 maintenance order expressly charging the joint estate with maintenance. Given that order, and Shivlingappa's failure to move earlier to set it aside if he objected, Fawcett, J. found insufficient ground in revision to interfere with the Magistrate's conclusion that the sarees were joint property and to dismiss the attachment.
Madgavkar, J. concurred in the result on two grounds: (1) the 1919 competent Magistrate's order fixing maintenance as a charge on the joint estate had not been set aside on appeal or revision and the present record did not clarify whether the petitioner had been party to or aware of that order; and (2) the Magistrate had recorded evidence and concluded the attached sarees were not the petitioner's self-acquired property. Madgavkar, J. acknowledged the broader question of whether joint family property can be proceeded against under Section 386 is arguable and not free from doubt, and he expressly reserved his opinion on that general question as unnecessary for deciding the present application.
Per curiam, the Court modified the Magistrate's order wording in the last paragraph to specify that the sarees ("potgi") are chargeable on the joint family estate and that, since Shivlingappa is the manager, recovery should be by attachment and sale of the moveable joint property in his possession, namely the sarees that were attached.
Holding and Implications
Holding: The Court dismissed the revision application. The Magistrate's order was upheld as modified to state that the sarees are chargeable on the joint family estate and that, as manager, Shivlingappa should have the amount recovered by attachment and sale of the moveable joint property in his possession (the sarees attached).
Implications:
- Direct effect on the parties: The Magistrate's execution order stands (as modified) permitting attachment and sale of the attached sarees to satisfy the maintenance charge declared to be on the joint estate by the 1919 order; Shivlingappa's revision application was dismissed.
- On the broader legal question whether a Magistrate may, under Section 386 of the Cr PC, attach and sell a member's interest in joint Hindu family moveable property, the Court did not lay down an absolute, conclusive rule. Fawcett, J. expressed reasons and inclination that such an interest can, in some circumstances, be reached under Section 386; Madgavkar, J. reserved his opinion on the general question as not necessary to decide the matter. Thus the Court's decision does not definitively settle the law in a manner that precludes further argument or authoritative pronouncement on the exact scope of Section 386 in relation to joint family interests.
Disposition: Application dismissed.
Fawcett, J.:— In this case one Gurlingava got an order for maintenance against her husband Basappa in October 1919 under Section 488 of the Cr PC. Under that order the amount awarded as maintenance to her was Rs. 15 per month and it was expressly declared that amount was a 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 Shivlingappa. 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 still undivided. Gurlingava applied to the Magistrate, First Glass. 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 sareses 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 his 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 S. 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 of the Cr PC, read with S. 386 of the same Code. This contention is based upon the fact that S. 488, sub.-S. (3), authorizes 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 S. 386. Under sub-S. (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 S. 488, namely No. 41, in that schedule. Both these forms use the same language as that in Cl. (a) of sub-S. (1) of S. 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 realize the amount by execution under Cl. (b) of sub-S. (1) of SA 386. Mr. Desai'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-S. 6(A) and (B) inserted in Section 88 of the Cr PC in 1923, under which inquiries can be made into claims preferred or objections made to the attachment of any property attached under that section. He says that this indicates that the legislature contemplated the possibility of an interest in the property being attached and dealt with under S. 88, and, therefore, has made provision for inquiries into such claims or objections, but that the same does not apply to S. 386. This argument, however, does not seem to me to be very cogent because sub-S. (2) of S. 386 authorizes 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 inquiry can be made into claims and objections in a similar manner to claims and objections under S. 88. The main question, however, still remains whether Cl. (a) of S. 386, sub-S. (1), should be 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. Sita Nath Mitra(1), the question was referred to the High Court whether joint moveable property was saleable under Section 386 of the Cr PC, 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, 4th 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 other 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 Cr PC directs that the warrant for the levy of fine ‘shall authorize the distress and sale of any moveable property belonging to the offender.”
“This language denotes things which may be taken by distress and then sold so as by the mere act of sale to pass the property in them—not mere rights and interests or shares in joint moveables. In cases where the fine cannot be levied by the distress and sale 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 “moveable property belonging to the offender.” There are no doubt considerations in 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 S. 386, a person who, as a member of a 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 cpc, under which (subject to certain exceptions) the “property, moveable or immovable, 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 the 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 Cl. (a) of sub-S. 1 of S. 386 supports his contention. No doubt that is an argument which would be entitled to consideration if section 60 of the cpc was the sole law to be considered in connexion with this question. The history of the attachability of a judgment-debtor's interest in joint family property goes back to very early times, before even a Code of Civil Procedure was enacted. Thus before Act VIII of 1859 was enacted, it had been held by the Sudder Diwani Adalat in this province that a judgment-debtor's share in joint family property could be taken in execution under a judgment against him obtained by his personal creditor. The rulings to that effect will be found stated in Vasudev Bhat v. Venkatesh Sanbhav(2), and in the elaborate judgment of Westropp, C.J, it was held thus (p. 160):
“It must be regarded as the settled law of this Presidency, not only that one of several coparceners in a Hindu family may, before partition, and without the assent of his coparceners, sell, mortgage, or otherwise alien, for valuable consideration, his share in the undivided family estate, moveable or immovable, but also that such a share may be taken in execution under a judgment against him at the suit of his personal creditor.”
4. Now the section in act viii of 1859 corresponding to S. 60 of the present Code is S. 205, which runs as follows:—
The following, property is liable to attachment and sale in execution of a decree, namely lands, houses, goods, money, bank-notes, Government securities, bonds, or other securities for money, debts, shares, in the capital or joint stock of any Railway, Banking, or other Public Company or Corporation and all other property whatsoever, moveable or immovable, belonging to the defendant, and whether the same be held in his own name or by another person in trust for him or on his behalf.”
5. It will be noticed that the words used are “property belonging to” the defendant, and there are no words about his disposing power, such as are now contained in S. 60 of the present Code.
6. The Privy Council in Syud Tuffuzzool Hossein Khan v. Raghoonath Pershad(3) considered a case where the judgment-debtor sued upon a chance of success under an award not yet made, which had been put up to auction and bought by him. Their Lordships held that, as this S. 205, to which I have just referred, used the word “property,” and as mere right of suit was not “property” but a title to recover future property, the judgment-creditor could not recover the amount he sought by that particular process. But the judgment also deals with the question A whether such a share could not be attached and sold in execution under this S. 205. Their Lordships said (p. 50):
“Mr. Leith referred in his argument to the family property of Hindus, and urged that such a share in such property may be attached and sold in execution. 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 in this particular process, (that is to say, the process by which the decree-holder had tried to get it in that particular case), but rather by process direct against the owner of it, whether by seizure or sequestration, or appointment of a Receiver.”
7. In Kalee Pudo v. Choitun(4) Couch, C.J, refers to this ruling, and suggests that a creditor of a member of a joint Hindu family under this S. 205 has a remedy against the property to which his debtor may be entitled although it may be undivided property of the family, and it cannot be predicated that he has any definite share of it. That view has been followed at any rate in this Presidency. Therefore it seems to me that there is authority, in regard to the corresponding provisions of the Code of Civil Procedure, for holding that the words “moveable property belonging to” suffice to cover a share in a joint Hindu family estate so far as it consists of moveable property. Accordingly I am not prepared to go the length of Mr. Desai's contention and hold that, in no circumstances whatever, will a Magistrate be justified in directing the attachment of joint family property and having it sold.
8. On the other hand, as I have already said, that is a method of recovery which should not ordinarily be resorted to. But in the present case we have the fact that so long ago as 1919 an order, whether right or wrong, was passed, under which the maintenance was made chargeable on the joint family estate. It seems to me very improbable that the present applicant Shivlingappa, who is the real brother of Basappa, although living separate from him, did not become aware of this order; and certainly, if it had come to his notice, as I think it certainly must have, it was his duty to have moved the Court at that time to have it set aside, if he objected to it. In the present case, in view of that order and his not having set it aside, I do not think that in revision there is sufficient ground for our interfering with the action taken by the Magistrate. I would, therefore, dismiss this application.
9. Madgavkar, J.:— I agree in the order proposed by my learned brother on two grounds.
10. The first is that there is an order by a competent Magistrate in 1919, directing the amount of maintenance to be a change on the joint estate. That order has not been distributed in appeal or in revision. The record and proceedings are not before us and it is impossible to say how far the present petitioner, the brother of the husband of Gurulingava, was or was not a party to that order and how far it was passed with his knowledge and consent. His present application, is in revision against an order directing execution under S. 386 against certain sarees in the shop which Gurulingava, the wife of Basappa, alleged were his joint estate within the meaning of S. 488.
11. Secondly, the defence of the present petitioner before the Magistrate was that the sarees which were attached were his own self-acquired property, and not joint property. On this point the Magistrate has recorded evidence and came to the conclusion that the saris were not the self-acquired property of the petitioner. These two grounds suffice, I think, to cause the present application to fail. The third question argued in this application mainly is whether the joint family property in which the offender has any interest, can or cannot be proceeded against under Section 386 of the Cr PC. The question to my; mind is not free from doubt. The former prohibition against attachment of immovable property belonging solely to the defaulter has been removed by the express words of Cl. 6 (A and B) of Section 88 of the Cr PC, as amended, so that the view of this Court under the old Code in Reg v. Lallu Karwar(5) no longer holds good. But as regards joint property the legislature, although it had before it the decision of the Calcutta High Court in The Queen-Empress v. Sita Nath Mitra and of the Madras High Court in the case in Weir's Law of Offences and Criminal Procedure, 4th Edition, Vol. II, p. 442, has not in express terms amended the section. The matter is, therefore, arguable and as it is not to my mind absolutely necessary for the decision of the present application, I reserve my Opinion on it.
12. Per Curiam.— On the application of Mr. Desai, the Government Pleader not objecting, we modify the Magistrate's order in the last paragraph so as to read as follows:
“The potgi is chargeable on the joint family estate and Shivlingappa being the manager it should be recovered by attachment and sale of the moveable joint property in his possession, namely, sarees that were attached.
13. Application dismissed.
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