Valli Ammal and Another vs Arunachala Moopanar and Others

Abdur Rahman, J.—When the trial of a suit for a declaration that a certain alienation by defendant 1 as a widow would not affect the

plaintiff''s reversionary interests was about to commence, he challenged her (defendant 1) to take a special oath in a temple where camphor was to

be lighted by him and extinguished by her while taking the oath. This offer was duly accepted by defendant 1 and the trial Court consequently

appointed a Commissioner to administer the oath in the form proposed by the plaintiff. The date and time were fixed for the purpose, but on

account of certain negotiations between the parties to have the matter settled otherwise, the oath could not be administered and the Commissioner

submitted a report to the Court and related the circumstances in which the order of the Court could not be carried out. Since the defendant was

willing to take the oath, the trial Court ordered the plaintiff to pay another fee to the Commissioner, which he declined to do and his suit was

accordingly dismissed. As the plaintiff was not prepared to abide by his agreement the appeal filed by him was also dismissed by the Subordinate

Judge at Sivaganga. He then filed a second appeal to the High Court which was accepted by our learned brother Wadsworth, J., and the suit was

ordered to be remanded for trial on its merits. The defendant has now filed an appeal under the Letters Patent.

The only legal question which we have been called upon to answer in this appeal may for the sake of convenience be sub-divided into two:

(1) Should the Court order an oath to be administered in spite of a revocation of his offer by a challenger after the offer was accepted by the

opposite party who is willing to take the oath in pursuance of the agreement?

(2) Would the answer to the first question be different if the form of the oath offered requires the co-operation or the presence of the challenger at

the time when the oath is going to be administered in case the challenger refuses to co-operate or be present on the occasion?

A study of the provisions of the Indian Oaths Act would show that although a provision is made in the Act in regard to the contingency when the

person who is to take the oath refuses to do so, yet no procedure has been laid down in regard to the case when a challenger tries to resile from

his agreement. It has been held in a number of cases, however, that a challenger should not be allowed to resile from the agreement and the Court

should proceed to administer the oath in spite of a revocation of his offer by the challenger unless he is in a position to satisfy the Court that he has

good reasons for doing so. See the rulings Hira Lall v. Joggeswar (1912) 16 I.C. 733 (C), Abaji v. Bala I.L.R.(1896) Bom. 281, Thoyi Ammal v.

Subbaroya Mudali ILR (1899) Mad. 234 and Thukku Goundan v. Kuppanna Goundan (1912) 17 I.C. 339 (M.).

A contrary view has, however, been taken in a later Allahabad ruling, Rup Singh Nayal Vs. Mrs. Arjun Sen, where Bennet, J., relying on two

earlier decisions of that Court held that it was not necessary for a party to assign any reasons for resiling from an offer made by him to the opposite

party to take the oath even after it had been accepted.

The authorities on the basis of which the learned Judge appears to have arrived at that finding Tumman Singh v. Sheodarshan Singh ILR (1929)

All. 235, Bishambar v. Shri Thakurji Maharaj ILR (1931) All. 673 and Mt. Chand Rekha Vs. Babu Janki Prasad, are distinguishable. The

important fact which distinguishes Tumman Singh v. Sheodarshan Singh ILR (1929) All. 235 is that the statement recorded before the Subordinate

Judge in that case was, as stated by the learned Judges, only to the effect that the parties would accept certain terms which might be stated or

suggested by one Bagavant Singh.

Coming to Bishambar v. Shri Thakurji Maharaj ILR (1931) All. 673, it appears that the parties to the suit had agreed in that case that a certain

pleader might be appointed as a referee and that the case might be decided in accordance with the statement which he might make without any

oath being given to him. The learned Judges decided that case on the basis that the statement by the referee was not to be of the nature of evidence

on any particular fact, but rather of the nature of a pronouncement on the case.

A reference was made in that case to Salig Ram v. Wall Ahmad ILR (1926) All. 388, yet it appears in view of the two rulings mentioned above,

that the learned Judge did not fall in with the view expressed by Lindsay, J. No reference was however made to a Division Bench ruling of the

Allahabad High Court in Ram Narain Singh v. Babu Singh ILR (1895) All. 46 which laid down in unmistakable terms that a party offering to be

bound should not be allowed to revoke the offer after it had been accepted by the opposite party except upon the strongest possible grounds

which were proved to the satisfaction of the Court to be genuine. It would thus be clear that there is a great preponderance - even if there is no

unanimity - in favour of the view that a challenger should not be permitted to resile after his offer has been accepted by the other party unless good

ground is shown to the satisfaction of the Court by the challenger. Apart from the authorities I see no principle of law on which an agreement can

be allowed to be broken with impunity without any valid reason. It would therefore follow that if a party has not been permitted to resile from the

agreement to abide by the oath of his opponent, the Court must proceed to have it administered, and the statement thus given on oath would be

held to be conclusive of the facts thus stated on oath.

In this particular case, no circumstances have been shown to the satisfaction of the Court which would entitle the plaintiff to resile from the

agreement.

It may also be stated here that unless the oath is taken in pursuance of an agreement the case cannot be disposed of on the basis of a default

either on behalf of the challenger or by the acceptor. The provisions of Section 11 of the Indian Oaths Act can only be attracted after the oath has

been taken in accordance with the agreement arrived at between the parties as mentioned in Sections 9 and 10 of the Act. The order of dismissal

of the suit by the trial Court without administering the oath to the defendant was therefore obviously incorrect and was rightly set aside in second

appeal.

This brings us to the second but more difficult question. It has been contended on behalf of the appellants that, in view of the plaintiff''s own

conduct, in trying to resile from the agreement and refusing to participate in the proceedings to be taken for the administration of the oath and

lighting camphor which he was to do in accordance with the offer made by him, it should be held that this part of the offer has been waived and

cannot in any case be insisted upon by him. In our opinion there is a great deal of force in this contention. It has already been held that the party

cannot be permitted to resile from the agreement unless good cause is shown on his behalf. In the absence of any such cause being shown, would it

be right to hold that a party should be allowed to achieve his object by his refusal or failure to carry out the terms of the agreement when he cannot

achieve by showing satisfactory reasons to the Court for the purpose of resiling from the agreement. In our opinion this would be intolerable and

cannot be permitted.

It was held in Mackay v. Dick (1881) L.R. 6 A.C. 251 that if in the case of a contract of sale and delivery, which makes acceptance of the

thing sold and payment of the price conditional on a certain thing being done by the seller, the buyer prevents the possibility of the seller fulfilling the

condition, the contract is to be taken as satisfied. Lord Watson, in delivering his judgment, says at page 270:

They have been thwarted in the attempt to fulfil that condition by the neglect or refusal of the appellant to furnish the means of applying the

stipulated test; and their failure being due to his fault, I am of opinion that, as in a question with him, they must be taken to have fulfilled the

condition.

The noble Lord adds:

The passage cited by Lord Shand from Bell''s Principles (Section 50) to the effect that ''if the debtor bound under a certain condition have

impeded or prevented the event, it is held as accomplished. If the creditor has done all that he can to fulfil a condition which is incumbent on

himself, it is held sufficient implement''.

Lord Blackburn in his judgment at page 264says:

And by his own default he can now never be in a position to call upon the pursuers to take back the machine, on the ground that the test had not

been satisfied, (sic), as far as regards that, keep, and consequently pay for it.

The same principle has been enunciated in Halsbury, Volume VII, paragraph 308 (Hailsham edition):

The performance of a condition precedent is excused where the other party has prevented its performance, or has done something which puts it

out of his power to perform his part of the contract, or has intimated that he does not intend to perform it. In the latter case he has made himself

liable for a breach of the contract, and has dispensed with the performance of any promise which was originally a condition precedent to his

liability.

Our learned brother Wadsworth, J., felt that rulings such as Thoyi Ammal v. Subbaroya Mudali ILR (1899) Mad. 234 and others quoted by

me in an earlier portion of this judgment could not be safely applied to a case like this where the challenger was to perform some act in compliance

with the form of oath stated in the agreement. He therefore preferred to apply Section 12 of the Act to the challenger also on the ground that if the

suit had to proceed on the refusal to take the oath by the person who had once agreed to take it, there was no reason why should the challenger

be not placed in the same position. A ruling of this Court in Hathoor Gramathil Valia Manayilparkum Okkilikkara Siddayya and Another Vs.

Munnambeth Ambu Nair, was referred to by him in support of his decision.

We have considered the matter very carefully and feel that this would be extending the provisions of Section 12 of the Act in a manner which is

not justifiable. Had the legislature intended Section 12 to apply to a challenger, it would have said so. The reason of a provision for a person who

had decided to accept the oath was clear. It has been provided in Section 12 of the Act that nobody could be compelled to take an oath against

his will. A provision had thus to be made for the case when a party declined to take the oath after he had accepted the offer made in that behalf.

The same reason however does not apply to the challenger. Moreover, no reasons have been given by the learned Judge who decided Hathoor

Gramathil Valia Manayilparkum Okkilikkara Siddayya and Another Vs. Munnambeth Ambu Nair, and in the absence of any cogent reasons we

are, within deference, unable to agree with him.

The legal position then is that the plaintiff, who was to light camphor in accordance with the offer made by him and has refused to perform that

which he had undertaken to do, should be taken to have waived that condition. Moreover, it does not appear to us to be very material whether

camphor is burnt by the plaintiff or by some one else on his behalf so long as it is extinguished by the defendant at the time when she is taking the

oath.

The duty of administering the oath under the Act devolves on the Court and it cannot be said to be acting in excess of its powers if it orders the

Commissioner to be appointed by it, to perform certain terms which the challenger now refuses to execute in spite of his agreement. In the

circumstances mentioned above the only order which could, in our opinion, be passed in this appeal appears to be to give the plaintiff another

opportunity to carry out his part of the agreement and light camphor on the date and time to be now fixed by the Court in the temple where the

oath is to be taken and which the defendant should be required to extinguish when the oath is being taken by her. If the plaintiff refuses to be

present or to light camphor, it may be lighted under the orders of Court by the Commissioner who is appointed to administer the oath. The

camphor must however be extinguished by the defendant when she is taking the oath.

It is hardly necessary to add that if the oath is taken by the defendant, her statement must be taken to be conclusive u/s 11 of the Act so far as

this suit is concerned. If she however fails to take the oath there is no other alternative for the Court but to proceed u/s 12 of the Act.

For the foregoing reasons the appeal must be allowed with costs and the suit remanded to the trial Court for compliance in terms of the order

above stated. The costs of the trial Court shall abide the result. As the appeal was wrongly dismissed by the Subordinate Judge without any oath

having been actually taken by the defendant and had to be allowed to that extent in the second appeal, there will be no order as to costs in the first

and second appeals.