Patna High Court
Mahadeo Prasad And Anr. vs Srjug Prasad And Ors. on 11 December, 1951
Equivalent citations: AIR1952PAT208, AIR 1952 PATNA 208
JUDGMENT Sinha, J.
1. The only question that arises for determination in this application is whether the plaintiffs-petitioners are entitled in law to resile from the agreement, dated the 30th of June, 1949, by which the plaintiffs bound themselves to abide by the statement on special oath made by the defendants.
2. The plaintiffs had filed a suit for partition of the joint family properties in the year 1948. Soon after, the dispute between the parties was referred to the sole arbitration of one Babu Mohan Lal Gupta. Thereafter there was an agreement on the 16th of December 1948, in writing between the parties regarding the division of the immoveable properties. Another agreement was entered into between the paaties on the 30th of June 1949, in regard to the division and the manner of division of the moveables. The plaintiffs effered to abide by the statement on special oath of the defendant's Mathura Prasad and Sarjoo Prasad as to whether or not the money belonging to the joint family had been invested in the shop in dispute. This offer of the plaintiffs was accepted by the defendants. The relevant agreement is embodied in Clause 4. The arbitrator Babu Mohan Lal Gupta incorporated this agreement also in his award without dividing the prooarties or determining the extent of the same.
After certain objections filed by the parties, the award was remitted to the arbitrator for effecting complete partition. The said arbitrator, however, returned the writ without doing anything further, and on the 13th of December 1949, the Court recorded an order, an extract from which is as follows:
"He (the arbitrator) submitted his award and on consideraion of the objections filed by the parties to the award, it was remitted to him for partitioning the joint family properties completely and effectively according to the agreements and compromise made before him by the parties. Babu Mohanlal Gupta returned the writ unexecuted after it was remitted to him with certain directions. He did nothing, and now the question is what is to be done next. The 'parties do not want to resile from the positions taken by them before the arbitrator and from the terms of the agreements and compromises made by them before the arbitrator'.....The parties do not agree among themselves regarding the person to be appointed in place of Babu Mohanlal Gupta who has refused to act further and follow the directions of the Court....."
On the 14th of December 1949, however, the parties filed a petition and prayed that one Babu Kishore Narayan, Advocate, be appointed to effect partition. On the 21st of December 1949, however, the plaintiffs for the first time put in a petition with a prayer that the Court be pleased to order that the second agreement, dated the 30th June 1949, was unenforceable and not binding on the plaintiffs and to direct the Commissioner to be appointed by the Court to divide equally the jewelleries among the parties on the grounds mentioned in the petition. In this petition, it appears no reasons were given why the plaintiffs should be allowed to resile from the agreement, and on the 11th of February 1950, the Court held that, in the absence of any justifiable reasons, the plaintiffs could not withdraw from the agreement, but allowed the plaintiffs an opportunity to file a fresh application giving reasons for withdrawal of the plaintiffs from the agreement aforesaid. The plaintiffs accordingly filed an application giving reasons why they wanted to resile from the agreement, and this matter was ultimately disposed of by the learned Subordinate Judge by his order dated the 22nd of September 1950. He held that the reasons given were not sufficient and, therefore, the plaintiffs could not withdraw from the agreement. He also gave his finding on the merits in regard to the money invested in the shop in dispute. It is against this order that the present application in revision has been filed.
3. The learned Counsel has urged the following points in support of this application: (i) that the arbitrator cannot decide on special oath; (ii) that the party offering himself to be bound by the special oath of the other side can resile from that offer any moment before the other side has actually taken the special oath; and (iii) that the finding about the shop as to whether the money invested in the shop belonged to the family or not should not have been given by the Court below upon the plaintiffs' application desiring to resile from their agreement.
4. The first contention does not arise upon the facts of this case. The arbitrator in this case has not attempted to decide on special oath, when the agreement about special oath was made, the arbitrator very properly sent his award along with the agreement to the Court. I would, therefore, hold that there is no merit in this contention. The second is the main contention of the learned Counsel as to whether or not a party can be allowed to resile from his offer before the special oath has actually been taken. In my opinion, once an offer has been made by a party and accepted by the other, it cannot be revoked, Section 5 of the Indian Contract Act is quite clear on this point. It runs as follows:
"A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards."
In this case, as will appear from the facts mentioned above, the offer of the plaintiffs to abide by the special oath of the defendants had been accepted long before the plaintiffs filed an appln. to resile from that agreement, and it will appear from the passage underlined there single quoted) by me in the order of the Court below, dated 13-12-1949, that even up to that date the plaintiffs had not thought of resiling from the agreement which had been made long before that date. Learned Counsel has relied upon two cases of the Allahabad High Court. In, the case of "TUMMAN SINGH v. SHEODARSHAN SINGH', 52 All 235, it was held that a party was entitled to resile from his Offer to be bound by the special oath before the oath was actually taken. No authority is cited in support of that proposition in this case. The other Allahabad case, "RDP SINGH v. MBS. ARJUN SEN', AIR (22) 1935 All 276, is a single Judge case, it was held in the case that a party can resile from his offer before the statement on oath has been taken. In neither of these two cases the provision contained in Section 5 of the Contract Act was considered, and it further appears that the earliest decision of the Allahabad High Court was not considered in either of these two cases. The earliest Allahabad case which had taken a contrary view is reported as 'RAM NARAIN SINGH v. BABU SINGH', 18 All 46, and their Lordships laid down the law as follows:
"When the proposal has been made by a party to a proceeding and the Court in pursuance of the proposal has asked the party required to take a particular form of oath whether he will do so, and the party so asked has agreed to take the oath, then, under such circumstances, no permission should be accorded to the party who made the proposal to withdraw from it, except upon the strongest possible grounds proved to the satisfaction of the Court to be genuine grounds for revoking the proposal."
The other Allahabad case to which I would like to refer is the case of 'SIYA RAM v. JAGANNATH', 55 All 298. This is a single Judge decision, but, in my view, it has correctly laid down the law. Niamatullah, J., after referring the facts of the case, says:
"There was thus a completed agreement on the 31st of March 1932, under which the controversy in the suit was to be settled in accordance with the evidence of Sheocharan...... The agreement between the parties arrived at on the 31st March 1932, has to be considered like any other agreement in which an offer is made on one side and acceptance on the other."
It appears that the view of several other High Courts is also the same. This view is supported by the authorities of the Bombay, Madras arid the Calcutta High Courts: "THOYI AMMAL v. SUB-BAHOYA MUDALT, 22 Mad 234; ABAJI V. BALA', 22 Bom 281 and 'KHAN MAHMUD v. SYEDALI', 35 Cal W N 130. In our own Court the cases mentioned above have been followed in the case of 'BALDEO SINGH v. NIRAS SINGH', AIR (33) 1946 Pat 272. After referring to the cases mentioned above, Sinha, J., has said as follows:
"These cases are authority for the proposition that an offer to be bound by the special oath of a particular person once accepted by the person concerned being a party to the suit cannot be withdrawn except on very cogent grounds which, in the opinion of the Court, justifies it in exercising its discretion not to allow the special oath being administered. But it is not open to the party to make such an offer, and then to withdraw it on frivolous grounds after it has been accepted by the other party. Such an offer may be withdrawn so long as it has not been accepted by the other party and acted upon."
Reference was made to Sections 8, 9 and 10 of the Indian Oaths Act by the learned Counsel appearing on behalf of the petitioners, but, in my opinion, these sections do not entitle a party to withdraw from the offer of being bound by special oath after once the said offer has been accepted by the other side. The Court, however, is not bound to administer the special oath and before the oath is taken, it is open to the Court to allow the party offering to be bound by such oath to resile from it for good and sufficient reasons. In this case, however, the Court below has rightly exercised its discretion in refusing the prayer of the plaintiffs to resile from their offer. I have, therefore, no hesitation in holding that in this case the petitioners are not entitled to resile from the offer of being bound by the statement on special oath of the defendants when the latter had already accepted the same.
5. I, however, find it difficult to uphold the order of the Court below which purports to deal with the merits of the case so far as the shop in dispute is concerned. The question before the Court was as to whether or not the plaintiffs should be allowed to back out from the agreement relating to the special oath, and the Court should not have given any decision on the merits.
6. I would, therefore, set aside the order of the Court below in regard to its finding upon the merits as to whether the money invested in the shop belonged to the joint family or not.
7. If the Court cannot itself administer the special oath, it should act under the provisions of Section 10 of the Indian Oaths Act by issuing a commission to any person to administer the same. It may just as well be that the Commissioner already appointed by the Court may be authorised to administer this oath in accordance with the provisions of that section.
8. In the result I would dismiss the application with the observations made above. In the circumstances of this case there will be no order for costs.
Ramaswami, J.
9. I agree.