Mack, J. -
(1.) THIS is an appeal which arises out of the Oaths Act. A suit was filed by four undivided Hindu brothers, one of whom was a minor against defendant 1 and some tenants for a declaration of their title to certain Immovable property and for recovery of possession. At the trial of the suit, plaintiff 2, the younger brother of plaintiff 1, was in Court, conducting the litigation and instructing their learned advocate. Plaintiff 2 issued a challenge to defendant 1, which was accepted to take an oath on the head of his eldest son. The other plaintiffs were not present in Court. The challenge was made on 12 -12 -1947 and the suit adjourned for the taking of this very unusual oath to 16 -12 -1947. On that day, the other adult plaintiffs appeared and protested against the challenge made by plaintiff 2 from which they resiled. Despite their resiling, this oath was administered in Court on 16 -12 -1947 and the suit dismissed with costs by the learned District Munsif. In appeal, the learned Subordinate Judge held that the oath was not binding on plaintiffs 1, 3 and 4, who were entitled to resile from it and set aside the dismissal of the suit only as against them and remanded it for fresh disposal. The learned Advocates agree that that suit has now been decreed after contest and that an appeal against that decision is now pending. The position created by the learned Subordinate Judge's judgment is no doubt anomalous in that one of the plaintiffs has been non -suited, the oath being held to be binding on him only and that the suit has been retried only as regards plaintiffs 1, 3 and 4. In this particular suit, the anomaly does not result in any practical inconvenience or impossibility, seeing that in the event of plaintiffs 1, 3 and 4 ultimately succeeding, they will get a decree for 3/4th share of the suit property and that the oath being binding on plaintiff 2, he becomes deprived 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. : 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.
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.;