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1927 Supreme(SC) 43
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PHILLIMORE, LORD SINHA, LORD BLANESBURGH, SIR JOHN WALLIS, AND SIR LANCELOT SANDERSON.
INDAR PRASAD - Appellant
Versus
JAGMOHAN DAS (DEFENDANTS) - Respondents
On Appeal from the High Court of the Judicial Commissioner of Oudh.
Decided On : May. 17. 1927.
Solicitors for appellants:Barrow, Rogers & Nevill. Solicitors for respondents: T. L. Wilson & Co.
Under the Indian Oaths Act, 1873, a special oath or solemn affirmation in a form common to the deponent's persuasion is valid and conclusive if it is solemn and binding, regardless of whether a formal invocation or technical formula was used.
Headnote:(A) Indian Oaths Act, 1873 - Sections 8, 9, 10 and 11 - Special oath or solemn affirmation - Evidence given before a family deity - Validity and conclusiveness - Where a party offers to be bound by an oath or solemn affirmation in a form common to the race or persuasion of the other party, and such oath is administered in accordance with the customs of that persuasion, it is binding and conclusive proof against the party who offered to be bound - A formal invocation or technical oath is not an essential part of a special oath under Section 8 if the ritual is solemn and binding on the deponent's conscience - The presence of a deity during the making of statements is sufficient to constitute a solemn affirmation, rendering additional words of invocation superfluous.
(B) Interpretation of "Administer" - The term "administer" in the context of an oath or affirmation is of wide import and is satisfied when the statements are made in the presence of a court-appointed commissioner and according to the agreed-upon religious ritual.
Facts of the case:
A partition suit between members of a joint family involved a dispute over movable properties. The plaintiffs agreed to be bound by the admissions and denials of the defendant made in the presence of a family deity. Following the recording of these statements by a commissioner, the defendant denied the existence of most claimed properties, significantly reducing the amount due to the plaintiffs. The plaintiffs subsequently challenged the validity of this procedure, arguing it did not comply with the statutory requirements for oaths and affirmations under the Indian Oaths Act, 1873.
Findings of Court:
The court found that the agreement to be bound by the defendant's statements before the deity was effective and that the procedure followed constituted a valid administration of a special oath under the relevant statute.
Issues: Whether statements made by a party in the presence of a family deity, without a formal invocation, constitute a valid "oath or solemn affirmation" under Sections 8, 9, and 10 of the Indian Oaths Act, 1873, and whether such evidence is conclusive against the party who offered to be bound.
Ratio Decidendi: The court held that Section 8 of the Indian Oaths Act, 1873, allows for oaths in any form common to the deponent's race or persuasion. Such special oaths are distinct from the formal oaths prescribed by the High Court and do not require a technical formula or invocation if the ritual itself is solemn and binding. The presence of the deity is sufficient to satisfy the requirement of solemnity. Consequently, under Section 11, such evidence is conclusive proof against the party who offered to be bound.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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family law
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hindu law
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mitakshara school
- partition
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mitakshara school
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hindu law
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practice and procedure
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evidence
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oaths and affirmations
- indian oaths act, 1873
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oaths and affirmations
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evidence
Judgement
Appeal (No. 84 of 1925) by special leave from a decree of the Court of the Judicial Commissioner of Oudh (March 14, 1924) affirming a decree of the Subordinate Judge of Lucknow (July 25, 1922).
The appeal arose out of a suit for partition brought by the appellants (father and son) against the respondents (father and son), the first respondent being the brother of the first appellant.
The question for determination was whether the appellants were bound by certain admissions and denials made in the presence of a family deity, and before a commissioner appointed by the Court, in pursuance of an offer made by the first appellant at the hearing and accepted by the first respondent.
The facts are fully stated in the judgment of the Judicial Committee;
The trial judge held that the plaintiffs were so bound, and his decree was affirmed on appeal to the Court of the Judicial Commissioner.
1926. Nov. 29, 30. De Gruyther K.C. and Hyam for the appellants.
Dunne K.C. and Dube for the respondents.
The arguments sufficiently appear from the judgment. [Reference was made to the Indian Oaths Act, 1873. ss. 5-11; Omychund v. Barker ((1744) 1 Atk . 21.); Vasudeva Shanbog v. Naraina Pai (( 1879)
I. L. R. 2 M. 356.); and Chedi Lal v. Jwala Prasad .(( 1909) I. L. R. 31 A. 315.)]
May 17. The judgment of their Lordships was delivered by
LORD BLANESBURGH. This appeal arises out of a partition suit which has been pending in the Court of the Subordinate Judge of Lucknow for a period of nearly twelve years.
The plaintiffs and defendants are, in each case, father and son, all members of a Hindu family governed by the Mitakshara school of Hindu law and at one time joint. The first plaintiff is the elder brother of the first defendant. The sons, being both of them infants during the greater part of the critical period, do not, except for one incident concerning the second plaintiff, enter into the story. It will be convenient, therefore, frequently throughout this judgment to refer to the respective fathers as if they represented the entire interest on either side. When their Lordships refer to them as plaintiff or defendant they will do so in this sense.
The family owned property, both movable and immovable, of considerable extent and value, including a banking and pawnbroking business. Some time in 1914 the first plaintiff left the family house, not, as has been found, on account of any differences with the first defendant, but because of illness. Subsequently, however, differences arose between the brothers, so acute that the resumption of joint residence was apparently regarded by both as impracticable. It was in these circumstances that this suit for the partition of the entire family property, including that relating to the business, was commenced on September 23, 1915. It has been proceeding ever since.
To the plaint are attached lists, particularizing the properties to be partitioned. These included the immovable properties, the debts due, and the gold and silver ornaments pledged to the firm, together with brass and silver articles and other movables in possession of the parties.
In the plaint it is also alleged that in kothris, in the family dwelling-house, there had been locked up by the first defendant joint property in the shape of jewellery and cash, and also ornaments pledged to the firm. These articles the plaintiff could not completely specify, but he claimed that with any other joint property later discovered they should be included in the suit. The existence or non-existence of this property so referred to is the dispute which has mainly led to the altogether inordinate prolongation of the proceedings.
At first it seemed that there would be no serious difference on any question. On January 31, 1916, there were filed in Court two petitions for compromise, intimating the intention of the brothers to partition the immovable property amicably out of Court, and praying that a commissioner of partition should be appointed to divide
