Petitioners were subscribers to a chit fund. They sued to recover from the stakeholder Rs. 36, being the amount paid by them for 18 instalments at Rs. 2 a month.
The defendants set up the usual dishonest plea that the fund was a lottery and their plea was accepted by the lower Court.
Two questions arise:—
1. Whether the fund is a lottery;
2. If it is, whether the subscriptions are recoverable.
On both of these questions there is a great conflict of authority. The cardinal feature of this fund and of all the other funds dealt with in the decisions cited before me is this:—that lots are drawn for prizes monthly and that the winners get Rs. 50 the full amount of the chit—without any liability for further subscriptions. After the 50th drawing, the unsuccessful subscribers get back the full, amount of their subscriptions, but without interest.
On the first question, Phillips. J., held in Sankunni v. Ikkora Kutti(1) that a chit fund of this description was a lottery. The question arose again before Krishnan and Odgers, JJ. They agreed with Philips, J., on the first question but disagreed on the second. Krishnan, J., thought that the arrangement to give prizes was separable from the main contract, which was to return the subscriptions. Odgers, J., held that the subscriber was not entitled to recover. In Shanmuga Mudali v. Kumaraswami Mudali(2) Ramesam and Venkatasubba Rao, JJ., dissented from these two decisions on the first question and held that a fund of this kind was not a lottery at all. In P.V. Veeranan Ambalam v. Ayyachi Ambalam(3) Spencer and Madhavan Nair, JJ., declined to follow this decision and held that such a fund was a lottery. On the second question they disagreed with Krishnan, J., and agreed with Odgers, J.
I am informed that there are several unreported decisions on these questions. It is evident that funds of this sort are numerous. The promoters do not seem to have been proceeded against under the Criminal Law and the public must be in a state of complete uncertainty as to the legal position. The judiciary in the mufassal are in the same difficulty. It seems to me essential that the controversy should be set at rest as soon as possible. I therefore order that this petition be placed before the Honourable the Chief Justice with a view to its, being referred to a Full Bench.
[This petition again came on for bearing on 19th, 22nd and 24th March, 1926 before their Lordships Spencer, Ramesam and Beasley, JJ].
ORDER.
Spencer, J.—This suit was brought to recover Rs. 65.15.6 alleged to be due from the 1st defendant who promoted a chit fund to which the plaintiffs and others subscribed for 15 months till it was stopped.
The Principal District Munsif of Manamadura dismissed the suit upon the preliminary point that this chit fund constituted a lottery and that a suit to recover money contributed to a lottery would not lie. The 1st defendant raised this defence among others in his written statement: but no evidence was taken to establish whether this particular chit fund was a lottery. It is essential to know how it was organised and advertised and whether any one who liked could join by merely paying subscriptions. The rules of the fund as given in the printed book filed with the plaint are not sufficient to make this clear the learned District Munsif from his observation in paragraph 7 of his judgment appears to have held the opinion that the existence of a wager was the only teat whether there was or was not a lottery. But this is not a necessary consequence. If the only defence to this suit had been that the contracts between the individual sub-scribers and the promoter of the chit fund amounted to wagering contracts, then other considerations would arise for determination in respect of the plaintiffs' right to recover sums paid by them upon a consideration that failed.
Before the dismissal of the suit upon this preliminary point can be upheld, we must call for a finding to be returned within one month of the reopening of this Court after the ensuing summer vacation, whether an offence as defined by Sect. 294-A of the Indian Penal Code was committed when the chit transaction in suit was formed and whether all who joined in the transaction including the plaintiffs were guilty of an offence. Either side may adduce evidence upon this point.
Ten days will be allowed for objections.
Ramesam, J.—I agree that the finding has to be called for.
Beasley, J.—I agree.
[In compliance with the above order, the District Munsif of Manamadura submitted the following]
FINDING.
I am directed to submit a finding on the question. “Whether an offence as defined by Sect. 294-A of the Indian Penal Code was committed when the chit transaction in suit was formed and whether all who joined in the transaction including the plaintiffs were guilty of an offence.” As either side was allowed to adduce evidence on the point my predecessor on 5th April, 1926 fixed 26th April, 1926 for trial. On 26th April, 1926 1st defendant was absent and my predecessor directed an isthiyar to be put up and fixed 14th June, 1926 for trial on the question. By reason of change in the notification as to adjournment of Courts for the summer recess in this district the hearing date had to be altered as 5th July, 1926 instead of 12th May, 1926. As per the original notification this Court should have closed on the 3rd May, 1926 and reopened on 14th June, 1926. By reason of the subsequent change this Court closed on 17th May, 1926 and reopened on 28th June, 1926.
On 5th July, 1926 also 1st defendant was absent and so also his pleader. On that date I passed the following order: “Put up notice on the board saying that 19th July, 1926 is fixed for trial on the questions sent down by the High Court for findings.” I waited till 19th July, 1926 to see if 1st defendant would turn up on that date at least and adduce evidence. In spite of the aforesaid notice having been put up he has not chosen to appear and adduce evidence. 2nd defendant, his son, never appeared in these proceedings. Plaintiff offers no evidence for obvious reasons.
2. The plea was raised by the defendants. The onus is on them. Nothing is placed before me by them where from I could determine how the chit fund was organised and advertised and whether any one who liked could join by merely paying subscriptions—points considered to be essential for a satisfactory solution of the question whether the chit fund was a lottery. As observed in the order of remand the rules of the fund as given in the printed book filed with the plaint are not sufficient to make this clear. In spite of facilities having been afforded to defendants, they have not chosen to appear before me and let in evidence though I waited till this day. I must therefore answer the question in the negative.
[This petition came on for final hearing after the return of the above finding from the lower Court on 28th February, 1927 before a Full Bench constituted as above].
JUDGMENT
Ramesam, J.—This case has been referred to a Full Bench on account of a conflict between the earlier decisions of this Court. The question is whether the terms of a chit fund transaction cannot be enforced in a Court of law. There are only two conceivable grounds on which Courts can refuse to enforce the terms of a chit fund: (1) that it is an unlawful transaction as it involves the commission of an offence under Sect. 294-A of the Indian Penal Code (Vide Sects. 23 and 24 of the Contract Act): (2) that it amounts to a wagering contract and is therefore void under Sect. 30 of the Contract Act In the present case we called for a finding as to whether an offence has been committed and the finding is that none has been committed as no office or place for the purpose of drawing any lottery was kept. The only other ground is whether it amounts to a wagering contract and I think this is all what Spencer, J., meant in P.V. Veeranan Ambalam v. Ayyachi Ambalam where he says:
“The civil law, however, goes further and prevents obligations arising out of lotteries being enforced in a Court of law whether the lottery is held in an office to which the public have access or in a private place,”
though he uses the word “lottery” and not the words “a wagering contract.” In my judgment in Shanmuga Mudali v. Kumaraswami Mudali also I concluded by saying that the chit fund before us was not a lottery and I did not use the words “wagering contract.” It would be convenient to use the latter term as that is the phrase used in the Contract Act. In Hampden v. Walsh a “wager” was described as a contract by A to pay money to B on the happening of a given event in consideration of B paying money to him on the event not happening.
In Thacker v. Hardy(4) Cotton, L.J, says:
“The essence of gaming and wagering is that one party is to win and the other to lose upon a future event which at the time of the contract is of an uncertain nature—that is to say, if the event turns out one way A will lose; but if it turns out the other way he will win.”
In Carlill v. Carbolic Smoke Ball Company Hawkins, J., defines a wager thus:—
“A wagering contract is one by which two persons professing to hold opposite views touching the issue of a future uncertain event mutually agree that, dependent upon the determination of that event, one shall win from the other, and that other shall pay or hand over to him, a sum of money or other stake; neither of the contracting parties having any other interest in that contract than the sum or stake he will so win or lose, there being no other real consideration for the making of such contract by either of the parties………………If either of the parties may win but cannot lose, or may lose but cannot win, it is not a wagering contract.”
In my opinion almost all the varieties of chit funds that have come up before the Courts in this Presidency including the present chit fund do not satisfy the above definitions and are not wagering contracts. It is said that there is an element of uncertainty in all of them and there is an inequality between the position of the parties. Some draw money early and are in a position to make larger gain by interest, others draw late and lose interest. In my opinion, loss of interest is not loss strictly so called. It may be failure to make a profit. If a person makes a hand loan to a friend and gets back his money after some time without any interest, he does not lose any part of his money but only fails to make a profit, namely, interest. There are so many varieties of interest ranging from zero to very high rates of interest. It cannot be said that any one is bound to earn a particular rate and that not earning a particular rate is loss. It is clear that in most chit fund transactions, no subscriber loses the money he has contributed; and so long as getting back the actual amount of subscription is always assured the interval of time, however long it may be, is immaterial and it cannot be said any subscriber loses. But even otherwise the definitions as given by the English Judges are not satisfied by these chili funds. I therefore adhere to the opinion expressed by me in Shunmuga Mudali v. Kumaraswami Mudali that these are all perfectly lawful transactions covered by the decision in Wallingford v. Mutual Society and they are enforceable in Courts. The opposite conclusion of Spencer and Madhavan Nair, JJ., in P.V. Veeranan Ambalam v. Ayyachi Ambalam was mainly based upon a judgment of Channel, J., in Richards v. Strack. That case never went up to the Court of Appeal and as pointed out in Halsbury's Law of England, Vol. XV, page 269, it is in-consistent with two earlier decisions of the Court of Appeal which were not considered by Channel, J., viz., Fuller v. Perryman and Hirst v. Williams and Perrymin decided by Esher, M. R., Smith and Rigby, L. JJ. These cases were not considered by Channel, J., and are clearly inconsistent with his judgment. Following these decisions and Wallingford v. Mutual Society(5) and the definitions of ‘wagering contract’ already cited I am of opinion that the suit chit fund is not a wagering contract and there is no objection to enforce its terms in a Court of law.
In this view it is unnecessary to consider the further contention of the petitioner that, even if the transaction itself is void as a wagering contract, the moneys paid can be refunded. Vide Barclay v. Pearson(6) and Hampden v. Walsh(7) already cited.
In conclusion I may say that if it is considered that obit fund transactions require to be regulated in the interests of the public to avoid the perpetration of fraud on poor and innocent persons, legislation on the lines of the Provident Fund Act is the proper course and not to declare them illegal by the straining of the law relating to wagering contracts. The decision of the Court below is reversed and the suit remanded for disposal according to law. The petitioner will get costs of his petition. The costs of the lower Court will abide and follow the result.
Sir Kumaraswami Sastriar, J.—I agree.
Beasley, J.—I agree.
K.V.S Petition allowed and suit remanded.