1. This is an appeal which arisesout of the Oaths Act. A suit was filed by fourundivided Hindu brothers, one of whom wasa minor against defendant 1 and some tenantsfor a declaration of their title to certain immoveable property and for recovery of possession. At the trial of the suit, plaintiff 2, theyounger brother of plaintiff 1, was in Court,conducting the litigation and instructing theirlearned advocate. Plaintiff 2 issued a challengeto defendant 1, which was accepted to take anoath on the head of his eldest son. The otherplaintiffs were not present in Court. The challenge was made on 12-12-1947 and the suit adjourned for the taking of this very unusual oathto 16-12-1947. On that day, the other adultplaintiffs appeared and protested against thechallenge made by plaintiff 2 from which theyresiled. Despite their resiling, this oath wasadministered in Court on 16-12-1947 and thesuit dismissed with costs by the learned DistrictMunsif. In appeal, the learned SubordinateJudge held that the oath was not binding onplaintiffs 1, 3 and 4, who were entitled to resilefrom it and set aside the dismissal of the suitonly as against them and remanded it for freshdisposal. The learned Advocates agree that thatsuit has now been decreed after contest andthat an appeal against that decision is nowpending. The position created by the learnedSubordinate Judge's judgment is no doubt anomalous in that one of the plaintiffs has beennon-suited, the oath being held to be bindingon him only and that the suit has been retriedonly as regards plaintiffs 1, 3 and 4. In thisparticular suit, the anomaly does not result inany practical inconvenience or impossibility,seeing that in the event of plaintiffs 1, 3 and4 ultimately succeeding, they will get a decreefor 3/4th share of the suit property and thatthe oath being binding on plaintiff 2, he becomesdeprived of his share.
2. No decision has been placed before me, which covers the somewhat extraordinary facts in the present case. The learned Judge referred to two Allahabad decisions, -- 'Tulshiram v. Dayaram : AIR1925All604 and -- 'Ram Narayan Singh v. Babu Singh', 18 All 46 (B), in which two learned Benches deprecated an extraordinary oath of this kind as being improper. For a person to be challenged or to make an offer to take an oath on the head of his son is, as it appears to me, to give evidence on oath not contemplated by Section 8, Oaths Act, which specifically requires that the oath should be one not purporting to affect any third person. In : AIR1925All604 , the oath was not in fact taken as the plaintiff did not produce his son into Court. In that case, the Court proceeded to judgment under Order 17, Rule 3, Civil P. C. on the available material. In appeal a trial on the merits after allowing the parties opportunity to produce all evidence was ordered. In -- 18 All 46 (B) the oath agreed on was one by the defendant holding the arm of his son. In that case, the oath was administered that very day. The learned Bench made this observation:
'We have no hesitation in saying that the oath proposed should never have been administered. It was an oath understood and purporting to affect a third person and such an oath under Act 10 of 1873 is not an oath which could under any circumstances be lawfully administered.'
Since, however, it was in fact administered, it was however considered conclusive proof of the matters stated.
3. My attention has been drawn to a number of decisions, which are not in point. In -- 'Valliammal v. Arunachala Moopanar', AIR 1938 Mad 385 (C), it was held that once a challenge to take an oath was accepted, the challenger should not be permitted to resile after his offer has been accepted by the other party unless good ground is shown by the challenger to satisfy the Court. This decision is relied on for the position that the other plffs, in this case were legally precluded from resiling from the oath petn, filed by plff. 2. This was signed by plaintiff 2 and by the advocate. Plaintiff 2 was not conducting the suit under any power of attorney. He is said to have merely been in charge of the litigation. So far as he is concerned, I have no hesitation in holding that he had no right to bind the other plaintiffs by oath contrary to the provisions of Section 8, Oaths Act. The position may have been perhaps different if the other plaintiffs have not appeared on the scene and resiled even before the oath was administered. So far as the advocate is concerned, I entirely fail to see how he of all persons could bind the absent plaintiffs by signing the oath petition which was not contemplated by Section 8, Oaths Act and was in fact contrary to law. On the facts of this peculiar case, I have no hesitation in dismissing this appeal with costs, upholding the view of the learned Subordinate Judge that plaintiffs 1, 3 and 4 were in the circumstances entitled to resile from the oath petition filed on their behalf by plaintiff 2 and their learned advocate. Leave refused.