Madgavkar, J.:— This application raises an interesting point under Bombay Act 3 of 1865.
2. The parties are wrestlers and entered into an agreement as follows: firstly they were to wrestle in Poona on a certain day; secondly, the party failing to appear on that day was to forfeit Rs. 500 to the opposite party; thirdly, the winner was to receive Rs. 1,125 of the gate money. The defendant failed to appear in the ring and the plaintiff sued for Rs. 500. The plea of wagering raised by the defendant in the trial Court failed and he applies in revision.
3. It is argued for the petitioner that by reason of the agreement for payment to the winner, who was uncertain, the entire agreement fell under Section 1 of the Bombay Act 3 of 1865, and was by way of gaming or wagering, and the fact that wrestling is a test of skill and strength is material, and that the same result follows under Section 30 of the Contract Act. The statutes 8 & 9 Vic. Cl. 18, Ss. 9 and 10 are similar and have been so construed by the Courts in England in Diggle v. Higgs (1) and Trimble v. Hill (2).
4. On behalf of the opponent reliance is placed on the reasoning of the trial Court and on the case of Ramchandra v. Gangabison (3). The terms “gaming” and “wagering” are nowhere defined. The happening of an uncertain event may be one of the tests: See Sassoon v. Tokersey (4).
5. In an agreement, if different classes are separable, the fact that one clause is void does not necessarily cause the other clauses to fail. In the present case we are not satisfied that Cl. 2, which is now in question, cannot be separated from the last clause, and even on the view put forward by the petition the claim based on Cl. 2 would appear to be legal. But even the last point raised by the petitioner is not in our opinion proved. The words in the English statute are somewhat different. It is to be noted that in the present case the stakes did not come out of the pockets of the parties, but had to be paid from the gate money provided by the public, and, as pointed out in Shoolbred v. Roberts (5) by Phillimore, J. (as he then was) (p. 564):
“When there was a perfectly lawful coolest in a game of skill between two persons, the prize or success in that contest should be recoverable ??? it was subscribed for by outside persons, but not recoverable if it was subscribed for by the competitors themselves.”
6. Thus, in the present case, such a clause would not necessarily be void under the English statutes or under the Bombay Act. For these reasons, the view of the trial Court is, in our opinion, correct. The application is dismissed and the rule discharged with costs.
Barlee, J.:— I agree. The plaintiff and the defendant made an agreement to wrestle and the winner was to be rewarded by receiving the whole of the proceeds of the sale of tickets. It has been argued that this agreement was an agreement by way of wagering. The term “wagering” is not defined in the Contract Act; but the definition given by Sir William Anson, as quoted by Sir Dinshah Mulla in his Notes on Section 30 of the Contract Act is:
“A promise to give money or money's worth upon determination or ascertainment of an uncertain event.”
7. Another definition is to be found in Sassoon v. Tokersey :
“It is of the essence of a wager that such side should stand to win or lose according to the result of an uncertain event.”
8. In this case however there was no such agreement, since neither side stood to lose according to the result of the wrestling match. The agreement was that the winner was to take the whole of the proceeds of the gate, and though the loser was to get nothing he was not to pay anything and was not to be out of pocket in any way. In the esse quoted by the learned advocate this distinction is clear. In Diggle v. Higge each of the party deposited £200 to a stakeholder to abide the issue of a walking match and the loser was to forfeit his £200. In Shoolbred v. Roberts each party deposited £100 to abide the result of a billiard match. In each of the two cases the loser was actually to be out of pocket. Here, on the other hand, the loser merely failed to win the prize but forfeited nothing of his own.
9. Under these circumstances, I agree that the agreement cannot in any way be looked upon as one of wagering in law. Obviously, it was not a wagering agreement within the ordinary meaning of the word “wagering,” since the prize for the winner was not subscribed by the parties to the contest, but was to be subscribed by the general public who were expected to buy tickets.
10. I agree therefore that the application must be dismissed with costs.
R.M/R.K
11. Application dismissed.