The main legal point established in the judgment is that a challenger should not be allowed to resile from the agreement unless good reasons are shown, and the consequences of waiver should be considered in fulfilling the terms of the agreement.

Abdur Rahman, J.

1. When the trial of a suit for a declaration that a certain alienation by defendant 1 as a widow would not affect the plaintiffs 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.

2. 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?

3. 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 I.L.R. (1899) Mad. 234 and Thukku Goundan v. Kuppanna Goundan (1912) 17 I.C. 339 (M.).

4. A contrary view has, however, been taken in a later Allahabad ruling, Rup Singh v. Mrs. Arjun Sen AIR1935All276 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.

5. The authorities on the basis of which the learned Judge appears to have arrived at that finding Tumman Singh v. Sheodarshan Singh I.L.R. (1929) All. 235, Bishambar v. Shri Thakurji Maharaj I.L.R. (1931) All. 673 and Chand Rekha v. Janki Prasad AIR1932All404 are distinguishable. The important fact which distinguishes Tumman Singh v. Sheodarshan Singh I.L.R. (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.

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