We accept the finding that the contract was a wagering one. The further question is whether the money deposited by the plaintiff with the defendant as security for the performance of his part of the contract is recoverable. There is no question of limitation.
The Lower Courts held that Sect. 65 of the Contract Act was applicable to the transaction. We are unable to agree with them. Sect. 30 makes a wagering contract void ab initio; and to such a class of contracts, Sect. 65 has no application. In Ledu Coachman v. Hiralal Bose*(1), this view was taken. Despite the inclination of the learned Judges of the Bombay High Court in the earlier cases to apply Sect. 65 to such contracts, the later view is in agreement with the Calcutta view. See Parshottam Veribhai v. Chhatrasangji(2). In this Court, Oldfield and Bakewell, JJ., held in Letters Patent Appeal No. 233 of of 1916 that Sect. 65 does not cover monies paid under a marriage brokerage contract. That principle is applicable to the present case. The question still remains whether the plaintiff is entitled to sue for the recovery of the money paid by him in furtherance of the contract of wager. We are clear that the direct prohibition contained in Sect. 30 does not prevent such a claim. This is not a suit to recover any money “on any wager,” nor is the suit to recover money “entrusted to any person to abide the result of any game or other uncertain event on which any wager is made.” In our opinion this latter clause applies only to cases of monies left with stake-holders. It may be as Mr. Ramachandra Aiyar suggested that the money is sometimes left with one of the parties to the contract, on account of his solvency or respectability. But the position he would occupy with reference to the money so paid will be that of a stake-holder. The entrustment referred to in the section can have no meaning when the money is left as a security for the due performance of the contract. We, therefore, hold that Sect. 30 does not prohibit the maintainability of such a suit.
This takes us to the general right of parties whose monies are in the hands of another without the latter having any right to retain them. Ordinarily the person who paid the money is entitled to claim it back. But there may be such a conduct on the part of the person paying it as to disentitle him from recovering it. One instance is that of being a party to a perpetrated fraud. Another instance is where moral turpitude is attributable to the person who paid the money. The decision in I.L.R, 43 Cal, 115 is an illustration of the latter class of cases. The observations of the learned Judges in that case show that if there is no moral delinquency, the plaintiff can sue to recover. Gulabchand v. Fulbai and Haribhai Hansji v. Nathubhai Ratnaji, lay down the same principle.
These decisions derive support from a catena of English decisions which have held that even against a stake-holder a suit for money will lie, if he had not parted with the stake money and the claim is founded of on the result of the wager. It is an a fortiori conclusion from these authorities that where money is not left with a stake-holder, nor entrusted on condition that its disposal is to be determ led by the result of the uncertain event the money deposited as security must be returned. Hampden v. Walsh(3), O'Sullivan v. Thomas(4) and Burge v. Ashley and Smith(5), enunciate the proposition we have referred to.
In our opinion, the general principle that a plaintiff whose hands have not been tainted by corruption and who has not committed any act which fixes him with having been a party to a fraud is entitled to get back the money which he left with another is applicable to the present case. We uphold the judgment of the Courts below on this ground and dismiss the Second Appeal with costs.
The memorandum of objections is also dismissed with costs.
C. K.Appeal dismissed.