SESHA AYYAR Vs. KRISHNA AYYAR

JUDGEMENT

(1.) This reference has been made upon a Civil Revision Petition in which the petitioner was defendant No. 3 in a suit brought by plaintiff-respondents to recover money paid as subscriptions to a prize kuri. Defendant No. 3 and the other defendants promoted this kuri for the purpose of raising funds for a temple. The plaint alleges that plaintiff No. 1 took two tickets in the kuri and had paid Rs. 270 representing 45 monthly payments on his two tickets. It states that the scheme was that the kuri was to be conducted for 50 months and that those subscribers who had not been so fortunate as to draw a prize were, at the close of the kuri after the 50 drawing, to be refunded the amount of the money subscribed by them. There is the further allegation that the kuri came to an end after payment of the 45 instalments and that despite the plaintiffs demand for a refund of his subscriptions no repayment has been made by defendants. The sum claimed is Rs. 270 which is the amount of 45 instalments paid by plaintiff No. 1 on his two tickets. The material defence to the claim, so far as this reference is concerned, is in para. 3 of the written statement, where the plea is raised that the agreement between the parties being in respect of a lottery unauthorised by Government was for an illegal object and was, therefore, unenforceable at law.

(2.) The lower Court held the defendants liable to refund the money. Hence the Revision Petition. The question has been referred to a Full Bench as there are decisions of this High Court on the status of kuris which are not always easy to reconcile. The first question to be decided is whether this kuri is a lottery. A lottery has been defined as the distribution of prizes by lot or chance without the use of any skill; see Archibold's Criminal Pleadings, Edn. 7, p. 1345. In the Oxford New English Dictionary, a lottery is defined as "an arrangement for the distribution of prizes by chance among persons purchasing tickets." Tickets of course are only the tokens of the chance purchased, and it is the purchase of this chance which is the essence of a lottery. And this is the test which has been adopted by the Courts in England in the later cases as making a thing a lottery. Thus, in Willis V/s. Young (1907) 1 K B 448 : 76 L J K B 390 : 51 S J 28 : 23 T L R 23 : 71 J P 26 : 96 L T 155, it was held that a lottery involves the collective contribution of the prize money by the competitors though some of them may have paid nothing: and Darling, J. stated that in his opinion an absolutely free and gratuitous distribution of chances, none of which had been paid for by the competitors, would not be a lottery. In Barllett V/s. Parker (1912) 2 K B 497 : 81 L J K B 857 : 23 Cox. C C 16 : 106 L T 869, too, it seems to have been accepted that the purchase of a chance of winning a prize made the thing a lottery. Taking this then as the definition of a lottery, it has to be seen whether the kuri in question comes within the definition. The character of the kuri appears from the printed kuri regulations. It consisted of 625 subscribers: each subscriber agreeing to pay at the rate of Rs. 3, per month for 50 months in all amounting to Rs. 150 per ticket [Clause 4]. On the 25 of every English month after March 25, 1929, one ticket will be drawn out of the 625 tickets and the winning ticket will be paid as prize Rs 150, without any liability to pay for future instalments. Fifty such tickets will be drawn in 50 months [Clause 5].

(3.) Then Clause 7 provides that at the end of the 51 month the 575 subscribers who have not drawn prizes will be repaid without interest, the total amount of their subscription viz., Rs. 150. Clause 6 shows the benefit which the temple was to derive from the arrangement; it permitted the subscription money to be deposited for interest with Banks and merchants or to be lent to subscribers, and the temple was to get the profit from these deposits and loans. So that a subscriber to the kuri had the prospect of at least getting back the amount of his total subscription of Rs. 150 at the termination of the drawings; but his purchase of a ticket for Rs. 3 gave him a chance of a prize of Rs. 150 if his ticket was drawn at the first drawing, a chance of a prize of Rs. 150 for a payment of Rs. 6 if his ticket was successful at the second drawing and so on down to the 49 drawing when the winner would get Rs. 150 for an expenditure of Rs. 147 on his ticket. In my opinion this kuri was clearly within the above mentioned definition of a lottery. But it has been contended that a lottery requires that the dominant motive of the persons participating in it is to gamble; and as a corollary to this proposition it is argued that a loss to some of the parties is a necessary element of a lottery. No case has been produced to show that the definition of lottery is qualified by the motives of the participants On the contrary in Hall V/s. Mac William (1902) 85 L T 239 : 20 Cox. C C 33 : 65 J P 742 : 17 T L R 561, where a lottery was a competition promoted by a newspaper with the object of increasing the number of its purchasers and of its circulation, Ridley, J. said: It may be that the owners of the newspapers have other objects in their mind as to what they will do and now they will benefit by the offering of these prizes; but as far as the purchaser is concerned I think he does buy with this newspaper the chance of obtaining the prize. which goes to show that the question, lottery or no lottery is not to be determined by the quality of the promoters motive. The contention, too, that it is an element of a lottery that some of the competitors must stand to lose, seems to be founded upon a misconception of the passage in Halsbury, Vol. 15, p. 525, which has been cited in its support. This passage reads: Though the gambling element does not appear to be wholly absent, yet it need not be common to all the adventurers it is enough if some of them stand to lose.