1. This is a second appeal in a case in which both Courts have declared the plaintiff's right to redeem certain mortgages and directed him to do so. The plaintiff claimed to redeem as the reversioner of one Badal and one of the main defences to the suit was that the plaintiff was not the son of Bhikha through whom he claimed but was the illegitimate son of Bhikha's widow Musammat Pargashi. The plaintiff called one Dukharan Dube as a witness in support of his case. When this witness was called the defendants agreed that if the witness would eat kachcha food cooked by Musammat Pargashi the suit should be decreed against them. This was on the 14th December 1921. On the same date the agreement of the parties was reduced to writing by the Court and signed by the defendants including the present appellant Bhawani Prasad. Dukharan expressed his willingness to eat foot cooked by Musammat Pargashi and arrangements were made for food to be cooked by her and eaten by the witness on the following day. On that day the appellant made a further statement that if, after Musammat Pargashi had cooked the food, the plaintiff could serve it to the witness he was willing that the suit should be decreed. This was duly done and the witness ate the food. On the same day, before the case was decided, the appellant put in a written application resiling from his agreement and alleging that owing to the witness having lived in Bombay he had ceased to be particular in caste matters. Both the Courts below have found that the defendant had no good ground for resiling from the agreement and should not be permitted to do so. The case was, therefore, decreed in accordance with the agreement.
2. The defendant appeals to this Court and the plea pressed on his behalf is, that the agreement in question did not amount to an adjustment of the suit under Order XXIII, Rule 3, and that the willingness of the witness to eat food cooked by Musammat Pargashi could at most only be conclusive on the particular point it was directed to establish, namely, the plaintiff's legitimacy. At most, therefore, this issue should have been decided in favour of the plaintiff and the other issues should have been decided on evidence. Apart from authority, I should have been disposed to accept the view taken by the Courts below. There seems no reason, in the nature of things, why an agreement of this kind should not be treated as a lawful agreement and why a party who makes it should not be bound by it. The authorities of this Court appear to me, however, to be against it. The leading case cited is that of Muhammad Zahur v. Cheda Lal 14 A. 141 : A.W.N. (1892) 8 : 7 Ind. Cas. (N.S.) 460. In that case the parties agreed that if a particular statement was to be found in a bond in the possession of a witness the Court should decree the suit but should otherwise dismiss it. Mr. Justice Straight and Mr. Justice Knox who decided the case hold that the agreement could not be treated as an adjustment because no decree could be passed on the agreement as it stood. Something still remained to be done before a decree could be passed, namely, it had to be ascertained whether the statement in question was in the agreement or not. This is exactly parallel to the present case. No decree could have been passed on the agreement in this case as it stood. The Court had still to ascertain the willingness of the witness to eat the food which Musammat Pargashi cooked. Although cases in which a party has agreed that the suit should be dismissed if the other party takes an oath in particular form are not precisely parallel they also tend in the same direction. In several such cases, e.g., Moyan v. Pathukutti 81 M. 1 : 17 M.L.J. 545 : M.L.T. 98, and Parbhu Dayal v. Jamil Ahmad 64 Ind. Cas> 646 : 44 A. 117 : 19 A.L.J. 911 : (1922) A.I.R. (A.) 160 it has been held that, even if a party agrees that a suit should be dismissed, the oath taken can only be conclusive of the particular matter stated by the witness. Such agreements have not been treated as adjustments under Order XXIII, Rule 3. In the state of the authorities, I must hold that She defend he could not, thereafter, question the legitimacy of the plaintiff, and it must be held to have been definitely decided against him that the plaintiff is the legitimate son of Bhikha. The other issues must be decided on the merits.
3. I accordingly set aside the decrees of the Courts below and remand the case under Order XL, Rule 23, for decision of the remaining questions at issue. Costs here and heretofore will abide the result.