An undivided share of a member in a joint family property cannot be sold under Section 386(1)(a), Criminal P. C., for the recovery of a fine imposed on the member alone.

Niyogi, A J C—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, 1932 AIR(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, 1918 AIR(Bom) 101 and Nanjaya Mudali v. Shanmuga, 1914 AIR(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, 1932 AIR(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.

3. 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 giv