( 410 )
Present; Lascelles C.J. and Middleton J.SIMAN r. S1LUNDUHAMY et ah85—D. C. Matara, 1,438.
Oaths Ordinance, No. 9 oj UJOo—Agreement to take the oath —Subsequentrefusal—Procedure.
Where a party to a suit agrees to take the decisory oath and thenchanges his mind, he is in the same position as a person who hadoriginally refused to do so ; in such a case the Court- should recordthe fact of the refusal to take the oath and any reason assigned forthe refusal, and then proceed to try the case in the ordinary course.
rj HE facts are set out in the judgment of Lasce|les C.J.
Allan Drieberg, for the appellant.
A. St. V. Jayewardene, for the respondents.
June 20, 1911. Lascelles C.J.—
This is a testamentary action in which two of the heirs takeexception to certain items in the account of the administrator,namely, an item of Rs. 25, which the administrator claims to haveexpended out of his own pocket for funeral expenses, and a furtheritem of Rs. 51. Now, when the objections were heard in Court, anagreement was arrived, at to refer the matters in dispute to thedecisory oath of the parties ; and it was agreed that if the adminis-trator should swear in the temple that he had spent his own moneyto the extent of Rs. 25 for funeral expenses, the amount should beincluded, otherwise not, and also that if he swore that Rs. 51 wasdue from one Pedris, theamount should be included in his accounts.Now, having agreed to be bound by the decisory oath, the adminis-trator changed his mind, and announced his change of mind to theCourt, and ultimately he did not appear to take the oath at thetime and place appointed for the purpose. The District Judge hasheld that, inasmuch as the administrator has failed to take the oathin question, he is not entitled to the items in his account that werein dispite. Now, this is a matter which turns on the constructionof section 9 of the Oaths Ordinance of 1895. There are (wo casesin which this section has been discussed, namely, Fernando v. Perera'and Sinnetamby v. Vallinatchy.- In both these cases Mr. JusticeWood Renton discussed the point now under consideration, namely,
1 (1900) 12 N. L. R. 200.* (1900) 10 N. L R. 02.
( 411 )
as to what ought to be the result where a person, who hasoriginally agreed to take an oath, has subsequently changed hismind and refused to take the oath. Mr. Justice Wood Renton, inthe first of the cases to which I have referred, came to the conclusionthat the person who having first agreed to take the oath and thenchanged his mind is in the same position as a person who hadoriginally refused to do so, and that the proper course in such acase was that the Court should record the fact of the refusal to takethe oath and any reasons assigned for the refusal, and then proceedto try the case in the ordinary course. If we agree with the principlelaid down in .this case, the appeal is bound to succeed so far as itrelates to the two disputed items in the administrator's account.Personally, I always have been of opinion that these two judgmentscontain the most logical explanation of section 9 of the OathsOrdinance, and they possess the advantage of laying down a completerule of procedure ; whereas, on the other hand, if we construesub-section (4) of section 9 so as to refer only to the case where theparty originally refused to take tle oath, there is a casus omissus.I would follow the judgments in the two eases which have beencited, with the result that the appellant is entitled to succeed so faras it concerns the two items in the administrator’s account
I would allow the appeal so far as it relates to the items of Rs. 51and Rs. 25, and I think the appellant is entitled to the costs of thisappeal
I agree. I think that the construction given to section 9 ofOrdinance No.9 of 1885 by my brother Wood Renton in the two casesof Sinnetamby v. Vallinatchy1 and Fernando v. Perera1 is a correctone. If further authority is needed it is to be found in the case ofIyanohamy v. Carolis Appu* in which Chief Justice Bonser came toa similar decision, and on which my brother Wood Renton foundshis decision practically in Sinnetamby v. Vallinatchy.
As regards sub-section (4), section 9,1 think here the note thathas been taken down by the Judge with regard to the facts concern-ing the refusal may subsequently become relevant upon the hearingof the evidence to decide the actual issue which had been referredto the decisory oath, and then the Judge can, if he is satisfied thatthe reason given by the person who had agreed to take the oathand subsequently refused to do so is inadequate and a mere quibble,as Chief Justice Bonser said in his judgment, take that fact intoconsideration upon the decision of the case.
I agree that the appeal should be allowed with costs.
3 (m$) 10 N. L. B. 02.2 (1909) 12 N. h. B. 206.
3 (1900) 4 N. L. B. 70.
SIMAN v. SILUNDUHAMY et al