MOTICHAND MAGANDAS Vs. KESHAV APPAJI KULKARNI

JUDGEMENT

(1.) This second appeal arises out of a suit, which is in form a suit to recover money due on a Khata, but in substance a suit to recover the amount due in respect of certain contracts entered into between the plaintiffs and the defendants.

(2.) The trial Court found that the contracts between the plaintiffs and the defendants were wagering contracts, and that certain contracts which the plaintiffs had entered into with third parties to cover some of the contracts between themselves and the defendants were not shown to be wagering contracts. It accordingly decreed the plaintiffs claim in respect of such contracts. The defendants appealed to the District Court and that Court held on the evidence that the common intention of the parties (the plaintiffs and the defendants) was to deal in differences only and to wager, and that it was a matter of indifference whether with a view to avoid the risk of certain contracts with the defendants the plaintiffs entered into contracts with third parties. The lower appellate Court disallowed the plaintiffs claim as regards all the contracts with the defendants.

(3.) The plaintiffs have appealed to this Court and it is urged on their behalf that the plaintiffs are Pakka, Adatias, that the contracts were entered into on the Pakki Adat system, and that in such a case where the plaintiffs enter into contracts with third parties to cover contracts entered into by them with the defendants, the intention of those third parties must be shown to be the same as the intention of the defendants to deal in differences only and to wager, and that it is not sufficient to show that the common intention of the plaintiffs and the defendants was to wager. In support of this contention Diwan Bahadur Rao has particularly relied upon the judgment in Bhagwandas v. Burjorji (1918) L.R. 45 I.A. 29 : 20 Bom. L.R. 561 Several other cases also were referred to in the argument. On behalf of the respondent it is urged that it is found as a fact that the common intention of the parties was to wager, that as a matter of law it is not essential to prove that the intention of the parties with -whom the plaintiffs entered into contracts also was to wager, and that the observation of the lower appellate Court as to the contracts between the plaintiffs and the third parties means nothing more than this that if there is satisfactory evidence to show the common intention of the parties, the intention of the third parties who entered into contracts with the plaintiffs with which the defendants have nothing! to do directly, would not matter under the circumstances. In short Mr. Shingne contends that it is a finding of fact which ought to be accepted in second appeal.