Misra, J.@mdashAppellant Srimati Suraj Kumari is the wife of Sri A. P. Sinha who was employed as Head Clerk-cum-Accountant in the Damodar Valley Corporation He was charged with defalcation of Government fund of a large amount exceeding Rs. 2,30,062/5/- and a prosecution was started against him. He was believed to have acquired properties also out of the amount of defalcation and an application was filed u/s 3 of the Criminal Amendment Ordinance No XXXVIII of 1944 for attachment of plots Nos. 1148 and 1149 of khata No. 52 khewat No. 2/2 on the Ratu Road of Ranchi town together with a pucca building standing thereon being Municipal Holding No 2944 Ward No. 1B within the Ranchi Municipality, and a pucca building standing on plot No. 8 being Municipal Holding No. 373 of Ward No. 8 within the Monghyr Municipality. As provided u/s 3 of the Ordinance the State of Bihar was to obtain an order oi attachment by the District Judge where Damodar Valley Corporation was situated and where A. P. Sinha was employed. In order to make the attached property available for realisation of the amount, if any procured by the accused person by committing one of the scheduled offences, the procedure provided for investigation u/s 5 of the Ordinance was followed by the District Judge, Hazaribagh and after having recorded the evidence, both oral and documentary led by the parties, he came to the conclusion that the appellant, the wife of A. P. Sinha who objected to the attachment of the property on the ground that it was her own personal property and her husband had no concern with it was unfounded The learned District Judge held that property was acquired by A. P Sinha and the claim of the appellant that it was her personal property was not substantiated. This appeal is directed against the judgment and order passed by the learned District Judge.
2. Mr. J. C. Sinha appearing on behalf of the appellant has raised a number of questions in support of his contention. He has urged in the first place that the Court below was in error in holding that this house was built by A. P. Sinha out of the money which he defalcated from the fund of the Damodar Valley Corporation. His argument is that although A. P. Sinha joined the service of the Damodar Valley Corporation in the year 1950, the land was acquired much earlier. Plot No. 1149 was purchased from Juthari Munda under exhibit 1/a on the 15th June, 1949 in the name of this lady and plot No. 1148 was purchased from Orjun-oraon under Exhibit 1 on the 22nd July 1950. Plot No. 1147 was acquired under Exhibit 1/b on the same date. The total considerations conveyed under plots nos. 1148 and 1149 was Rs. 3250. According to the appellant, she purchased this land out of her own money consisting partly of dowry obtained by her for her son''s marriage and partly out of the money she received by selling her gold and silver ornaments. Bricks were laid for the constructions of this house in 1947 and after the house came to be completed, Grihpravesh at this Ratu house was held on the 14th May, 1952. The marriage of her eldest son took place on the 7th June 1951. The period for which charge was framed against her husband for defalcation of the amount was December 1952 to March 1953, Hence it was clear that this property could not have been acquired bv her husband out of any money which the criminal Court may have found him to have defalcated as an employee of the Damodar Valley Corporation. Learned Counsel for the appellant has drawn my attention in this connection to certain documents which are Exhibits 5 and 5/a. Exhibit 5 was the application filed by the lady for purchase of materials for construction of the house dated the 10th December 1951 and another application is Ext. 5/a dated the 26th February, 1951. Exhibit D was an application by A. P. Sinha dated the 3rd February 1951 filed before the Sub-divisional Officer, Ranchi, applying for a gun license as a burglary was committed in his house by some desperate criminals. The document was filed to show that this house was already ready in February 1951.
3. Our attention has also been drawn by the learned Counsel to the evidence of opposite party witness No. 2, Jugal Kishore Singh. who was posted at Ranchi Kotwali Station from 1947 to 1952. He has stated as follows:--
"In 1952 the marriage party of the son of Sri A. P. Sinha had started from that house. 1 remember that I had attended that marriage party.
In 1948 a burglary case had been reported for his rented house also situated on Ratu Road. I had conducted the investigation of that case."
Further in cross-examination he stated as follows :--
"I was familiar with A. P. Sinha. I don''t remember how many times I saw him looking after the construction of his house. This was in 1951-1952. but I do not recollect the month or month when I saw him looking after the construction.
Opposite party witness No. 8 also stated as follows:
"I do not remember the date or year or month of attending the Grih Pravesh ceremony. I received an invitation card."
Mr. Sinha had endeavoured to built up his argument on the date of the construction of the house with reference to the above statement made by the witnesses examined on behalf of the State of Bihar. It may be stated that neither the petition of objection filed by the appellant set out the actual date of construction of the house nor the witnesses examined on her behalf including herself and her two sons say when the house was constructed. Thus there is a great lacuna in the evidence adduced by the appellant in view of the provision of Section 5(2) of the Ordinance that any person making an objection u/s 4 shall be required to adduce evidence to show that at the date of the attachment he had some interest in the property attached The omission to mention the date of construction by the appellant who was an objector would lead to an inference adverse to her
Mr. Sinha has, however, contended that since the above two witnesses for the opposite party have made statements which lend reasonable support to his contention that the house was ready in 1952, and so an inference can be drawn that it was completed prior to the period of defalcation from December 1952 to March 1953 for which period the husband of the appellant was found guilty of the offence, it is clear that the house was not built out of any part of the amount alleged to have been procured by her husband by committing any act of cheating the Damodar Valley Corporation of any amount.
We have considered the evidence of opposite party witness No. 4 Tulsi Ram to the effect that A. P. Sinha, was a tenant living in his house for sometime and shifted to the new house after leaving his house. The witness stated that he came to stay in his house in 1935-1936 and left his house in 1953-1954 implying thereby that A. P. Sinha shifted into the newly constructed house in Katu Road between 1953-54 after the period for which the husband of the appellant was charged before the Criminal Court with the offence of having procured unlawfully Government money for Ms own use. The normal inference from the evidence on record, would no doubt be that the lady failed to establish that she built the house out of her personal fund, in the absence of any witness being examined that any dowry was advanced to the family of the appellant. There is also nothing to show as to what was the amount obtained by selling her silver and gold ornaments. This is apart from the omission on behalf of the appellant to state the exact date of the construction of the house. It is true, no doubt, that opposite party witness No. 2 made some statements that some kind of construction on this land in 1951-1952 was made but the evidence of opposite party No. 4 shows that in any case the house came to be completed in 1953-1954.
4. Mr. Sinha laid stress that the house would not be liable to be seized u/s 3 of the Ordinance if it could not be established that it was built out of the amount defalcated by the husband of the appellant Section 3 of the Ordinance in so far as it is relevant runs as follows:--
''''Where the State Government has reason to believe that any person has committed any scheduled offence . . . .(1). . . for the attachment under this Ordinance of the money or other property which the (State) Government believe the said person to have procured by means of the offence, or if such money or property cannot for any reason be attached or other property of the said person of value as nearly as may be equivalent to that of the aforesaid money or other property."
Although the first part of this section relating to attachment refers to money or property procured by means of the offence, but the second part refers to any other money or any other property of the accused persons. So in the present case the relevant point for consideration is not whether it was established on behalf of the State whether this house was built out of the amount defalcated but the real question for determination by the District Judge was whether this was the property of the accused. It is not, therefore, necessary to give any definite finding as to the date of the construction of the house, but on the evidence on record it is clear that the house may be reasonably taken to have been built by the husband of the appellant A. P. Sinha.
5. Mr. J. C. Sinha has however, urged that the question cannot be gone into in the present proceedings, as the money alleged to have been procured by A. P. Sinha by committing a scheduled offence, was the money of the Damodar Valley Corporation and not of the State of Bihar. The Damodar Valley Corporation cannot be regarded either as Government or a local authority or a person acting on behalf of any such Government authority. To support his point, he drew our attention to
The Advocate General, has however, contended in reply that it is not necessary to decide this question in the present case because the house to which the appellant laid claim had already been attached and, since Section 5 of the Ordinance puts the onus upon the objector to establish his or her claim to the property attached, if the finding be that the house did not belong to her, the objector would be precluded from raising the question as to whether it was liable to attachment in terms of the Ordinance. Mr. Sinha has contended that since the house" stood in the name of the appellant and she was living in the house, she certainly had interest in the property which would entitle her to raise the question as to whether it was liable to attachment in accordance with the provisions of the Ordinance. In my opinion however, it is difficult to accede to the contention put forward by learned counsel for the appellant as the procedure laid down u/s 5 of the Ordinance is that of a title suit and the burden is thrown upon the objector to show that on the date of attachment the objector is entitled to the property to be attached and if the objector would fail to establish the kind of interest contemplated by Clause 2 of Section 5 the claim of the objector must be dismissed and the objector could not be permitted to raise any question as to the competence of the proceedings in regard to the property.
Mr. J. C. Sinha contended that the word interest should not be taken to include the whole of or title to the property standing in the name of the appellant. Even if she happened to be a mere benamidar of the property this also would bring the case within the ambit of this provision but in this case, she admittedly was residing in the house, which lends support to her claim. In my opinion however, the word ''interest'' contemplated in Clause 2 is not any kind of interest but interest in the nature of title. If it were otherwise, even a lessee in possession might well claim the release of the property from attachment which obviously could not be the intention of the legislature. The word ''some'' no doubt occurs here which might be taken to widen the scope of the word ''interest''. But ''some'' here can reasonably be taken to mean the quantum and not nature of the interest which can only imply a right independent of the right to it of the person proceeded against in the criminal Court.
In the instant case, I have already found on the evidence that the house was built by A. P. Sinha and the lady could not claim it to be her personal property. She might be living in the house as wife of A. P. Sinha, but this would not be in derogation of the interest of A. P. Sinha but only as a dependent as a Hindu wife of her husband. As to her name being entered in the Municipal papers, I have already held, that this was material but from the evidence on record it was clear that the house was built by A. P. Sinha out of his own money and although the name of his wife stood in the Municipal papers. It could not be inferred that she spent any money of her own which would make it her personal property as she pleaded. In the circumstances, therefore, she cannot be taken in the eye of law to have any independent interest, of her own which would bring her claim within the ambit of Clause 2 of Section 5 of the Ordinance. In my opinion, therefore, the learned District Judge was right in coming to the conclusion that the house on the Ratu Road standing on plots nos. 1148 and 1149, the subject matter of the proceedings could not be held to be the personal property of the appellant and as such she had no locus standi to raise objection u/s 5 of the Ordinance,
6. The result is that there is no merit in the appeal which is hereby dismissed with costs.
B.D. Singh, J.
7. I agree.
