1. ' This is defendant's second appeal against the appellate judgment and decree of learned District Judge, Attock, dated 7-2-1987, passed in Civil Appeal No. 312 of 1986. Sher Gul plaintiff, who is real brother of defendants sued them in the Civil Court at Attock, for recovery of Rs.1,14,000 to be recoverable from the estate of Amir Muhammad Khan, deceased. It was alleged that Amir Muhammad Khan, also a brother of the parties, had taken a loan (Qarza-e-hasna) of Rs.1,14,000 from plaintiff, but before loan could be repaid, he died on 3-1-1984, leaving behind him surviving plaintiff and defendants as his heirs. It was also alleged that payment was a charge on the legacy of the deceased and that the defendants were liable to pay the aforesaid debt to the extent of their legal shares in the property left by the deceased. Plaintiff claimed 1/4th share in the property of the deceased-debtor. Abdul Rahim and Mst. Khanum Ji, contested the suit, whereas, Zammarrad Khan and Muhammad Iqbal, defendants conceded to the claim of plaintiff and submitted concessional written statement. On contest raised in the 'pleadings, Court of first instance, settled following issues for determination.
(1) Whether the suit is not maintainable in its present form? OPD
(2) Whether Amir Muhammad Khan owed debt of Rs.1,14,000 to the plaintiff and he is entitled to recover from his legacy? OPP
(3) Whether Car No.GTA-5834 and Bungalow described in para 3 of the plaint is exclusively owned by defendant No.1? OPD.
(4) Whether defendants 1 and 4 are entitled to special costs under section 35(a) C .P . C .? 0 .P D
(5) Relief.
2. ' After issues, on the date fixed for recording evidence, plaintiff opened his case and commenced leading evidence. In course of plaintiff's evidence when the statement of Muhammad Iqbal, P.W.2, also a defendant in the suit, was being recorded Abdul Rahim offered to abide by the oath of aforesaid Muhammad Iqbal. Defendant No.1 said that, on loan, whatever statement Muhammad lqbal would make by taking oath on 'Talaq' shall be acceptable to him and he shall pay his share of debt. Proposed offer was accepted by plaintiff, and, Muhammad Iqbal also agreed to take this special form of oath. Muhammad Iqbal, also agreed that the special oath shall be taken in presence of some persons from parties' village. As none from the village was present on that date, proceedings were postponed to 17-12-1984 for Muhammad Iqbal to take the proposed special oath in the manner proposed and accepted. On 17-12-1984, defendant No.1 was stated to be indisposed and did not attend the Court. Consequently, proceedings were further adjourned to 9-1-1985. On this date, though the parties with their counsel as also Muhammad lqbal, who had to take the oath, were present before the Court, defendant No.1 submitted an application for permission to resile from his proposal. Application was entertained by the Court which called for reply from the opposite side, who resisted the application and submitted that defendant No.1 was bound by his offer and there was no legal justification for him to go out of his solemn commitment. Court heard arguments on the application and vide its decision dated 30-7-1985, declined the request and refused to permit the defendant to resile from his statement dated 2-12-1984. On this very date, Muhammad Iqbal, was examined. He took oath on 'Talaq' (oath of divorcing his wife) and stated that plaintiff had given Rs.1,14,000 as (Qarza-e-hasna) to Amir Muhammad Khan, in his presence. It had not been repaid and was recoverable from the estate of the deceased. He also stated that, if, he were to lie, his wife shall stand irrevocably divorced from him. On the basis of the statement made on special oath by Muhammad lqbal, Court ' gave decree for Rs.1,14,000 to the plaintiff and made it recoverable from the assets of the deceased in the hands of his legal representatives. As against defendant No.4, suit was decreed ex-parte.
3. ' Dissatisfied with the decision, Abdul Rahim went up in appeal before learned District Judge, Attock.
4. His appeal was dismissed and decision of the Trial Court was affirmed. Learned Judge below was of the opinion that special form of oath did not contravene section 8 of Oaths Act 1873, and the decision of the money suit could be made on the statement made upon the special oath as was administered in the present case.
5. ' Second appeal raises following important points; first, oath taken by defendant No.1 was opposed to and was in contravention of section 8 of the Oaths Act X of 1873; second, special oath was not administered in the manner proposed by defendant No.1; third, could defendant No.1 resile from his statement dated 2-12-1984; fourth, was defendant No.1 estopped to agitate against his own action in proposing special form of oath though it appeared to be in contravention of section 8 of the Oaths Act and save himself from the natural consequences of statement made by defendant No.3, fifth, could the suit be decreed for the entire debt excluding the share of the plaintiff who was also a heir of the deceased.
6. ' Facts are not in dispute and second appeal raises only legal issues. First point that I shall have to consider is whether the form of special oath proposed by defendant No.1 was opposed to rules of decency or affected a third party and could not be acted upon for giving decision of the money suit. This question turns on the construction to be placed on section 8 of the Oaths Act. It runs:- "If any party to, or witness in, any judicial proceedings offers to give evidence on oath or solemn affirmation in any form common amongst, or held binding by, persons of the race or persuasion to which he belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the Court may, if it thinks fit, notwithstanding anything hereinbefore contained, tender such oath or affirmation to him."
7. ' It is clear from sections 7 to 11 of Oaths Act that they relate to an offer by one party to be bound by the special oath made by other party or by any witness in the proceedings, that the Court is not bound to take the notice of the offer, that it may ask the other party or witness but it is discretionary with it not to do so, that if the offer is accepted by the other party or witness and he made a statement on the special oath, all that will happen is that the statement given by him will be conclusive proof of the matter stated in it and that all the matters excluding the one in respect of which the evidence has been given on special oath will still remain open for decision by the Court.
8. In the instant case, defendant No.1 had offered to be bound by the statement of Muhammad Iqbal in regard to his liability to pay the debt of the deceased. It is evident that though, it may be permissible to propose and take special oath, the oath administered under section 8 of the Oaths Act must not be repugnant to justice or decency and should also not affect a third party. Precise point whether oath on 'Talaq' could be proposed and administered came up for consideration in an analogous case before a Division Bench of the Punjab Chief Court in Nabi Bux v. Ram Jawaya; 66 P.R., 1910.
9. ' Oath dictated in this case was "If I lie in saying that I did not strike the balance and had paid the debt, may my wife be considered to have been divorced from me." Learned Judges of the Punjab Chief Court relied on two earlier decisions in Ruldu Mal v. Bhupa; 36 P.R., 1873, Ram Narain Singh v.
10. Babu Singh 1896 I L R 18 Allahabad 46, and observed that the "oath was repugnant to decency and purported to affect a third person." In Gul Ahmad Fazal Ahmad v. Abdul Aziz Abdul Karim; AIR 1940 Peshawar 26, Mir Ahmed J, Learned Judicial Commissioner, speaking on oath of 'Talaq' observed "it is obvious that for an oath to be administered by the Court, it is necessary that it should not be against decency and that it should not affect the rights of a third party. Divorcing one's wife is not a very respectable form of oath and certainly militates with decency. At the same time, it has the effect of divorcing the wife who is a third party". In arriving at the decision, learned Judge also approbated the decision of the Punjab Chief Court reported in 1966 P.R.
11. 1910. In my judgment, these decisions are on all fours with the facts of the case on hand and give material assistance to the decision of the legal issue raised in the second appeal. There is another decision from Allahabad, in Ram Naresh and another v. Ganesh Mistri; AIR 1952 Allahabad 680 (Lucknow Bench) which also assists the decision. In the afore-noticed judgment, Brij Mohan Lall, J of Allahabad High Court, on the special oath by placing hand on one's son had this to say "While it is permissible to administer the special oath, the special oath should comply with other requirements of S.8, viz. It should not be "repugnant to justice or decency and should not purport to affect any third person." The learned Judge below is of the opinion that swearing by son is opposed to decency. The parties are Chamars. In my view, swearing by son is not opposed to decency among Chamars. But at the same time I am of the opinion that Sukhan could not be made to swear by his son because such an oath affected a third person. The idea behind taking an oath of one's son is that in the event of the oath being false some evil may befall the son. In such a case the son is a third party who is thus, introduced in a dispute pending between two other parties. The idea of Legislature was that no third person should be involved where swearing takes place between two litigants. Therefore, making Sukhan swear by his son offended against the provisions of section 8." To me, with profound respects, it appears to be a correct statement of law with which I respectfully agree. Special form of oath proposed in the case not only was opposed to decency but its administration clearly affected a third party. Though the deponent was defendant in the suit, his wife was not party to it. It is evident that in the decision of the money suit proposed to be decided on the basis of special form of oath, wife of the deponent could not be put at stake. It was neither denied nor it could be that act of divorcing one's wife and that too without any fault on her part is not an approved action in the religion of Islam to which the parties belonged. Therefore, I have no hesitation to say that the oath proposed and accepted by defendant No.3, as dictated by defendant No.1 for decision of the civil suit was in clear contravention of section 8 of Oaths Act 1873 and could neither be proposed nor taken because it was both opposed to rule of decency and also affected the third party. It would have been a proper exercise of jurisdiction, if the Court in exercise of discretion vested in it, had intervened and prohibited the parties to propose a form of oath which was not permissible under the law to take. Second point does not present much difficulty. It is clear from the order dated 2-12-1984 that defendant No.3 namely Muhammad Iqbal, agreed to take the oath in presence of some persons from his village. It was an essential requirement of the agreement between the parties that oath shall be administered in presence of certain persons from the parties' village. Therefore, even if the form of special oath did not suffer from legal infirmity, it had to be administered in the manner and form, it was proposed by the defendant so as to have the desired legal effects. Needless to say, that if oath is not administered in the proposed form and agreed to be taken, statement made cannot be held binding and conclusive upon the other party. See Riaz Ahmad v. Muhammad Ismail and 2 others PLD 1976 Lah.
12. 1320. In regard to the third point, whether the defendant No.1 could be permitted to resile from his offer, after it had been accepted by the opposite side, suffice it to say that the special oath was one which it was not permissible for the Court to allow to be administered in view of section 8 of the Oaths Act, as it affected a third party. Correct course for the Court to adopt was to have permitted the defendant to resile from his statement dated 2-12-1984. The allegation made in the application for withdrawal from the proposed offer may have been and very likely was false. However, that may be, it was impermissible for the oath to be taken as it clearly contravened section 8 of the Oaths Act. Refer Tulshi Ram v. Daya Ram A" I R 1925 Allahabad 604. As for the question, whether an agreement between the parties that the Court may decide the dispute between them in accordance with the statement made by a third person, left any option for the person who made the offer to go out of the agreement, it has been held in Muhammad Akbar and another v.
13. Muhammad Aslam and another PLD 1970 SC 241, Mst. Asifa Sultana v. Honest Traders, Lahore and another PLD 1970 SC 331, Attiqullah v. Kafayatullah 1981 SCMR 162, that the agreement was in the nature of a contract and the Court could in its discretion decline to hold the party by it. However, exercise of discretion must depend on the the facts and circumstances of each case. In the case on hand, as the special form of oath proposed to Muhammad Iqbal was violative of section 8 of the Oaths Act, the Court would have rightly acted if it had allowed the parties to go out of the agreement. Now comes the question of estoppel. Decision reported in 1966 P.R. 1910, reference to which has already been made above, also assists the decision on this issue. It may be advantageous to quote the extract from the judgment of their Lordships where they observed "We see no reason for holding, as was held in the Allahabad case that the acceptance by the defendant and his taking the oath dictated by the plaintiff validated the oath though obviously in contravention of section 8, and created a bar to any objection by the plaintiff. The Court was not competent to tender the oath to the defendant and was consequently barred from accepting the evidence of the defendant so sworn and it was not a case of mere repudiation by the plaintiff. The course adopted in Ruldu Mal v. Bhupa (1), was in our opinion, the correct course." In decision reported in AIR 1952, Allahabad 678, though special oath administered was found to contravene section 8 of the Oaths Act, yet the learned Judge declined interference in revisionary jurisdiction with this observation. "But it may also be pointed out that it is discretionary with this Court to interfere in references made under S. 438 Criminal P.C. No party can claim interference by this Court as a matter of right. Since Sukhan has already made his opponent take a special oath and has thus, put him to the infamy which sometimes attaches to such oath taking in Court, it is improper on his part to rely on a technical ground and to resile from a stand taken by him, simply because the evidence with which he offered to be bound turned out to be unfavourable to him. I am not prepared to exercise my discretion in favour of such a person." With immense respects to the learned Judge, for grounds to follow I am unable to agree with this part of his judgment; first, it is not a case of revision and the dispute arises in second appeal; second, the decision proceeds on distinguishable facts; third, I would prefer to rely on a Division Bench judgment of Punjab Chief Court, which, later, also earned approbation in Gul Ahmad Fazal Ahmad v. Abdul Aziz Abdul Karim; AIR 1940 Peshawar 26, and lastly, right of the defendant to plead patent illegality cannot be foreclosed. In the circumstances, I feel that plea of estoppel cannot be successfully raised against defendant E No.1 and I hold accordingly. Last comes the point as to whether the decree for the entire sum could be passed against the defendants. Plaintiff claims that Amir Muhammad Khan, his brother had taken a loan of Rs.1,14,000 from him and that it being a charge on his legacy, defendants were liable to pay proportionately to the shares in the property of the deceased.
14. Plaintiff, as brother was also an heir. To the extent of his own share, he could not claim the decree and was bound to adjust the same from the total amount claimed in the suit. On this score also, the impugned judgments and decrees are infirm and cannot be maintained.
15. ' For reasons given above, I accept the appeal, set aside decrees passed by the Courts below and direct the Trial Court to proceed from the stage where the suit was when special form of oath was proposed. Record evidence and give decision on merits in accordance with law. Costs to be borne as incurred. Records be returned. Parties to appear before the learned Trial Court on 26-5-1987.