1. The important question of law for decision in this case is how far an adjudication by a court on an oath made by one of the parties to the suit would make the matter or issue covered by the adjudication res judicata in a subsequent litigation between the same parties where the subject matter of the suit is different. The facts necessary for the decision may be very briefly stated. The defendant in persent suit instituted O.S. 625 of 09 in the District Munsif's Court of Aska against the present plaintiff for the recovery ob Ji cents, of land and for the execution of a conveyance of 4 cent, of lands including the 1| cents. His case was that the defendant in that suit, who is the present plaintiff in the present suit, had entered into an agreement of exchange with him whereby he was bound to convey the 4 cents, in question. The present defendant alleged in that suit that he had already obtained possession of 21/2 cents, out of the 4 cents. A written agreement was put in evidence. The present plaintiff denied its genuineness. The question of its genuineness was decided by the Court on the oath taken by the present plaintiff denying its execution by him, the evidence given on oath being accepted as conclusive according to the provisions of the Indian Oaths Act. The result was that O.S. 625 was dismissed by the Munsif. The present suit was instituted by the plaintiff to recover possession from the defendant of 21/2 cents, out of the 4 cents. which, the plaintiff alleged, the defendant was in possession of as a trespasser. It will be remembered that the defendant had admitted possession in O.S. 625 of the extent now sued for, alleging that he was put in possession of the land of the plaintiff in accordance with the agreement set up by him. The plaintiff pleaded that the question of the genuineness of the agreement was res judicata in consequence of the decision in O.S. 625 that it was not genuine. The District Munsif upheld this view. On appeal the learned District Judge, Mr. Sadasiva Aiyar, came to a contrary conclusion, following the ruling of this Court in Kehsava v. Rudran I.L.R. (1882) M. 259 and holding that that decision was not overruled by Ahmed v Moidin I.L.R. (1901) M. 444. This appeal is from the District Judge's order remanding the suit for trial on the merits.
2. Before referring to the decided cases on the subject it would be convenient to refer to the provisions of the Indian Oaths Act X of 1873. Section 9 enacts that if a party to a judicial proceeding agrees to be bound by the oath of another party or witness in the proceeding in any form common amongst or held to be solemn and binding by, persons of the race or persuasion to which he belongs etc., the the Court may ask such party or witness whether or not he will make the oath. Section 10 lays down that, if he agrees, the Court may administer it or issue a commission to a person to administer it and authorise him to take the evidence of the person to be sworn or affirmed and return it to the Court.' Section 11 is important. Its terms are 'The evidence so given shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated.' There are no provisions further in the Act as to the procedure to be subsequently followed by the Court in the disposal of the suit; but the obvious effect of the provisions already referred to is that the Court should proceed to make its adjudication on the questions between the parties, taking the evidence given on the oath administered according to the agreement between the parties as conclusive proof of the matter sworn to. The result is that the adjudication of the contest is one made by the court itself. The suit is not settled by an agreement between the parties. The effect of taking the oath is merely to furnish conclusive evidence on the matter to which it relates whether the matter would be decisive of the whole controversy between the parties or only of a part of it. Such being the case it is difficult to see why the principles of res judicata should not be applicable to the decision given by the court simply because the evidence or part of the evidence on which it is based is furnished by the oath taken. The taking of the oath is no doubt result of an agreement between the parties that evidence should be given in a particular manner. But this does not make the decision of the suit any the less an adjudication pronounced by the Court itself. The party agreeing to the Oath would no doubt be estopped from disputing its conclusiveness; but the circumstance that a litigant is estopped from disputing any matter does not affect the decision pronounced being a solemn adjudication by the court; nor can it affect its binding effect between the parties and the application of the rules of res judicata to it. Further the matter to which the oath relates may be only one of several points necessary for the decision of a single main issue. It appears to be unreasonable to say that the decision the Court on the main issue should not estop the parties in a subsequent litigation, simply because one of the matters going to make up the issue was decided by the oath of one of them. It should be remembered that the result of an oath under the Oaths Act stands on a different footing from adjudication of suits by oath formerly. The history of the law on the subject is fully set out by Muthusami Aiyar J. in Vasudeva Shanbog v. Naraina Pai (1879) I.L.R. 2 M. 356. The learned Judge points out that according to Regulation III of 1802 S3 the oath taken by a party itself formed the ground of adjudication by the court. In other words the oath was in itself decisive of the litigation and did not merely furnish evidence on which the Court was to Act. The same principle underlay Regulation IV and Regulation VI of 1816. The mode of adjustment of a suit by the oath of one of the parties was, according to the learned Judge, ignored by the Civil Procedure Code Act VIII of 1859 and Act X of 1861 repealed Regulation III of 1802 and it was held in K.U. Haje v. P.M. Raman Nambiar (1869) 4 M.H.C.R 422. That the court no longer possessed the power to Act tinder the procedure laid down in the earlier Regulations. In this state of the law the Oaths Act was passed in 1873. As already observed the policy of the Act was not to recognizee an oath as a mode of adjustment between the parties but to make the evidence given under the oath a species of conclusive proof. The result appears to be that the decision of any matter directly and substantially in issue in a former suit between the same parties would none the less be res judicata because the decision was based on the oath of one of the parties or of a witness in the former suit. The principle of res judicata is apparently applicable to findings of arbitrators where the agreement of arbitration does not oust the jurisdiction of the Courts (See Bigelow on Estoppel (5th Edition) p. 68), the reason being that though the arbitrators give an award, the adjudication is still is by the Court which has power to control the action of the arbitrators and set aside their award on certain well-known grounds. On the, other hand, where the award is made entirely out of court, the applicability of the rules of res judicata would seem to depend on whether the issues decided by them were themselves referred for their arbitration or only the subject matter of the controversy then pending between the parties, it being reasonable in the latter case to hold that the parties did not intend to do any thing more than settle the rights then referred to them, although for the purpose of doing so it might be necessary to arrive at findings upon various questions raised between the parties; see Redman on Arbitration p. 264, and the cases there cited; also Russell on or Arbitration and Award (8th Edition) p. 296. The same principle has been followed in India. See Wazeer Mahton v. Chuni Sing I.L.R. (1881) C. 727 and Vyaankatesh Chimaji v. Sakharam Daji I.L.R. (1896) B. 465. The extent of estoppel created by a decree of Court based on the consent of parties, that is, a compromise decree would also depend upon what according to the fair construction of the intention of the parties must be taken to be the basis on which the compromise proceeded, every thing covered by such basis being regarded as finally determined. See Rajah Kumar a Venkata Perumal Raja Bahadur v. Thatha Ramasami Chett I.L.R. (1911) . M. 75. There appears, therefore, to be no ground for any restriction of the application of the doctrine of res judicata to matters decided on oath administered under the Oaths Act, as the legislature has expressly provided that the oath merely furnishes the evidence on which the Court is to base its own decision. See Mayan v. Pathukutti (1907) 17 M.L.J. 545 where the effect of the provisions of the Act is explained.
3. We must now proceed to deal with the decided cases under the Act itself. In Keshava v. Rudran I.L.R. (1882) M. 259, the facts were that the title to the properties in dispute depended on the question whether a Nambudri to whom a girl was given in the Sarvaswadhanam form of marriage was affiliated to the girl's natural family and was made entitled to its properties The same was the question on which the decision of the title to another property in contest between the parties in a previous litigation depended. The question was then decided by the oath of one of the parties. The finding given in accordance with the oath was held to be not res judicata by Turner C.J. and Kindersley J. in the later suit. The learned Judges say, 'The oath having been taken, the Court is constrained to accept the statements of the deponent as true and cannot exercise its judgment in this matter. It would be highly dangerous to regard the decision of an issue so arrived at as an adjudication, operating as an estoppel in any future proceedings. The terms of the Act indicate that the party consents to be bound only in respect of the subejct matter of the pending proceedings. A party may be willing to risk so much on the conscience of his opponent. He knows what at the outside his loss will be; but it would be unreasonable to suggest that he should bind himself further than is necessary for the decision of the pending suit; and, as we have said, we do not understand that the law compels us to hold that he is bound to a greater extent.' This decision, the learned Judges say, was arrived at by them with some hesitation. There is nothing in any of the sections of the Act limiting the effect of the evidence given on oath to the: subject-matter of the pending proceedings. The Act merely lays down that any question in dispute may be decided according to the evidence given on oath by one of the parties. The learned Judges seem to treat the decision in such a case as resting on the consent of the parties, and their judgment is based on their interpretation of the extent of the consent given. That this was the view taken by them is clear from their reliance in support of their view on Jenkins v. Robertson (1875) L.R. 1 Sc. A. 117, where the question was whether compromise decree passed in a suit instituted by a person for the establishment of a public right of way in a Scotch Court would be binding as res judicata upon other members of the community. We have already observed that in our opinion this view is not correct and that the decision where the oath is taken under the Act cannot be regarded as standing on the same footing as a compromise decree. In Timmappayya v. Lakshmi Narayana I.L.R. (1883) M. 284, Innes and Kindersley JJ. held that a decree obtained against the father in a Hindu family would not be binding on his sons where the matter in dispute was settled by the oath of the opponent party. Keshava v. Rudran I.L.R. (1882) M. 259, was relied on in support of the judgment. The case cannot be regarded as an authority for the position that a finding arrived at on an oath would not be binding on the same parties in a subsequent litigation. In fact, the learned Judges referred to the terms of the Oaths Act according to which the oath is conclusive evidence only against the person who offered to be bound thereby. It may well be held that the representative character of the father would not entitle him to bind his sons by consenting to abide by the oath of his opponent. It was on this ground really that the learned Judges held that the rule laid down by the Privy Council in Girdharee Lall v. Kantoo Lall (1888) 1 I.A. 321, as to the effect of the sale of family property in execution of a decree against the father of a Hindu family against the sons was not applicable to the case. In Ahmed v. Moidin I.L.R. (1901) M. 444, Shephard and Bash yam Ayyangar JJ. held that a finding on a question of title given on the effect of an oath according to the Oaths Act in a previous litigation between the parties with respect to the rents for certain years due under a lease would be res judicata in a subsequent suit for the rents of succeeding years and for possession of the property. It should be noticed, however, that in that case the first Court gave a judgment in the previus suit on evidence given in Court and not under the Oaths Act. That judgment was confirmed on appeal in accordance with an oath taken under the Act. The decision of the learned Judges, however, proceeded on the broad ground that the fact that the judgment given by the Appellate Court proceeded on evidence furnished by the oath did not make any difference. They observed 'Moreover, as between the parties, we are of opinion that a decree arrived at after the taking of an oath on a question of fact involved in the case is none the less a final adjudication'. They then proceeded to point out that the case of Jenkins v. Robertson (1875) L.R. 1 Sc. A. 117, was explained in In re South American and Mexican Co. (1895) 1 Ch. 37 See with regard to this the judgment in Raja Kumara Venhata Perumal Raja Bahadur v. Thatha Ramasamy Chetty I.L.R. (1911) M. 75. They distinguished the case of Keshava v. Rudran I.L.R. (1882) M. 259, from the one before them. With all deference we may express the doubt whether there was any distinction between the two cases, which could lead to a real difference. Badiaddin Ahmed v. Nizamuddin Haider I.L.R. (1908) C. 386, referred to in the judgment of the learned District Judge, can hardly be regarded as having any bearing. In that case proceedings taken under Section 144 of the Criminal Procedure Code were settled by an oath taken by one of the parties. The result of an order in sucti a proceeding does not prevent a suit in a Civil Court by the unsuccessful party to establish his right to any property concerned in the proceedings. The understanding between the parties would also seem to have been (see page 388) that the right to agitate the title to the land in question there, by a Civil suit, should not be affected. The doctrine of res judicata would not apply to a prior decision in a criminal proceeding between the parties in a Court which would have no jurisdiction to try the later proceedings in the civil litigation. It need hardly be observed that the scope of the doctrine cannot be extended by the fact that the decision of any matter proceeded on evidence furnished by an oath. The observation of the learned Judges who decided the case 'In our opinion the oath is not binding as conclusive evidence in any proceeding, other than that in which it was taken' must be taken with reference to the facts of the case.
4. We are of opinion that the judgment of the District Munsif on the question of res judicata was right. We reverse the order of the Lower Appellate Court and restore the decree of the District Munsif with costs both here and in the Lower Appellate Court.