An undivided share in moveable properties cannot be attached, seized, and sold under Section 386 (1) (a) of Cr. P. C.

( 1 ) THIS case has been referred to a Bench by one of us as involving an important question of law relating to the attachment in execution of maintenance order passed under Section 488 Cr. P. C. in favour of 1st defendant against her husband, the 2nd defendant. In execution of the decree the cattle and a cart were attached. The appellant who is the father of the 2nd defendant, filed an. objection petition stating that the cattle and the cart were his self-acquired property and were not liable to attachment and sale under a decree obtained against his son, the 2nd defendant. This objection petition was dismissed. The plaintiff filed the present suit for a declaration that the cattle and the cart were not liable to be attached.

( 2 ) THE 1st defendant resisted the claim of the appellant on the ground that the property in question belonged to the 2nd defendant and so it was rightly attached. The 2nd defendant remained ex parte.

( 3 ) NECESSARY issues were framed. Evidence was led by the parties. On the evidence, the trial court dismissed the suit holding that the cattle and the cart were part of the ancestral and joint family property of the appellant and defendant and that it was not the self-acquired property of the appellant. On appeal, the appellate court also took the same view and dismissed the appeal. The plaintiff now has come up in second appeal.

( 4 ) THE contention of the learned Counsel for the appellant is that when it is held that the attached property was the ancestral and joint family property, the same could not be attached, as coparcenary property does not belong to any one member of the coparcenary, but belongs to the joint family. He next contended that Clause (3) of Section 488 has prescribed the procedure for enforcement of the order and the procedure prescribed is the same as that provided for the recovery of fines under Section 386 (1) Cr. P. C. and that inasmuch as under this provision only the moveable property of the offender has to be attached and as the property does not belong exclusively to the offender, this property could not be attached. In support of this contention, the learned Counsel placed reliance on Rajendra Prasad v. Emperor, AIR 1932 Pat 292 (SB), Chandrika Singh v. State of Bihar, AIR 1954 Pat 25s, Sohna Singh v. Kartar Kaur, AIR 1931 Lah 532, Bansraj Das v. Secy of State, AIR 1939 All. 373, Shrawan v. Emperor, AIR 1933 Nag 248, and Manmathanath v. Emperor, AIR 1933 Cal 401.

( 5 ) MR. Vasant Rao, learned Counsel for the respondent while admitting that Clause 3 of Section 488 prescribed a procedure for the enforcement of the fine and that procedure is laid down in Section 386 (1), contends that that is only a procedure and that has nothing to do with the liability of the coparcener on the co-parcenary property to pay the maintenance. He further contended that when the co-parcenary property is liable for the payment of the maintenance amount, to say that the share in the co-parcenary property could not be attached and sold would not be a valid contention.

( 6 ) THE cases which have been cited by the learned Counsel for the appellant, no doubt, deal with recovery of fines; but they are not cases where an order made under Section 488 was sought to be executed. But when Sub-clause (3) of Section 488 definitely prescribes a mode of execution of an order passed under that section to be the same as that under Section 386, the contention of the learned counsel for the respondent that the cases cited by the appellants learned advocate cannot be applicable, is in our view, untenable. In strict theory the 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 a full ownership of the property to the purchaser so as to entitle him to immediate exclusive possession.