Mookerjee, J.:— This is an appeal by the plaintiffs in an action for recovery of money due in respect of sale and purchase of shares between then and the defendant from the 28th March 1913 to the 14th May, 1918. The defendants did not deny the transactions but pleaded that they were agreements by way of wager within the meaning of section 30 of the Indian Contract Act. He said in substance that the common intention of the parties was that there should be no delivery of the shares under any circumstances bub that there would be only settlement of differences. The substantial question in controversy between the parties, consequently, was, whether or not the transactions were agreements by way of wager.
2. Mr. Justice Greaves has correctly laid down the law on the subject.
3. He states that to ??? such a contract, a common intention to wager is essential and that speculation does not necessarily involve a contract by way of wager. Bhagwandas Parasram v. Burjorji Ruttonji Bomanji (1). Whether the transaction is speculation or wagering, most be determined by the Court; we have to look behind the form of the contract to the real intention of the parties, which may be gathered from the oral evidence and the actual transactions between them. Universal Stock Exchange v. Strachan (2). Now the evidence in this case consists of the testimony of the defendant Basir Ali on the one hand and of Sridhar who deposes, on the other hand, on behalf of the plaintiff firm. Mr. Justice Greaves has approached the evidence from the proper standpoint, and we agree with him that when a defence of this nature is taken, the Court is bound to scrutinise the evidence of the defendant with a good deal of suspicion. This is all the more necessary, where, as in the present case, the defendant receives and accepts payments when the dealing; are successful, but has recourse to the plea of wagering contract when the transactions end in loss. The learned Judge who had both the witnesses before him has commented on their demeanour; Basil ??? him as a very frank and ??? witness; but he was not prepared to ??? the same with regard to Sridhar, nor to accept his evidence upon the vital points in the case. One of these relates to the circumstances under which the acquaintance between the parties began; on this point, the learned Judge has stated explicitly that he prefers the story of Basir to that of Sridhar. The material portions of the evidence have been placed before us and forcibly Commented upon, but we are not prepared to come to a different conclusion.
4. The appeal is therefore dismissed with costs.
Fletcher, J.:— I agree.
5. Appeal dismissed.