Lallubhai Shah, Acting C.J.
1. This is a reference from the Presidency Small Cause Courts, Bombay, under Section 69 of the Presidency Small Cause Courts Act, The question referred to us is: 'Are Teji Mandi contracts to be held as being wagers on account of their apparent nature and characteristics alone without any other proof of the intentions of the contracting parties or is evidence necessary to prove that such contracts were intended to be wagers?'
2. It appears from the terms of the reference that the learned Judge has felt some doubt on the point in view of the practice that is stated to be prevalent in the Presidency Small Cause Courts of treating such contracts as wagers without any farther proof that they are wagers. The learned Judge was of opinion that the practice was not justified and that in every case of such contracts as in every other case it must be proved whether the contracts were in the nature of wagers, that is, whether the common intention of the contracting parties at the time of the contract was to deal only in differences and under no circumstances to call for or give delivery.
3. In the first place, I desire to point out that this is hardly a question of law, or usage having the force of law, and I am not sure whether the reference could have been made. It was not only open to the Judge, but I think it was his duty, to decide, according to his view of the evidence in the particular case before him giving such weight as he might have thought proper to the practice referred to as obtaining in that Court.
4. But as the question is referred, I would answer the question in the negative, holding that it is necessary in such contracts as in any other contract to prove the common intention of the parties as a question of fact. In any opinion, the mere fact that the contract is a Teji contract or a Mandi contract or a Teji-Mandi contract with double option makes no difference to this point. It may be that if a party desires to prove that a particular contract of that description was a wagering contract, he may be able to do so with slight proof; and, under the circumstances of any particular case, it may be that the Court may be able to decide, without much outside evidence, as to whether that contract was in the nature of a wager or not. But to my mind it is essentially a question of fact which must be answered on the evidence in each case; and the mere fact of its being Teji-Mandi contract is not by itself sufficient to take it out of the ordinary rule that the party who pleads that the contract is void as it is in the nature of a wager has to prove that fact.
5. The practice is probably due to certain observations in Jessiram Juggonath v. Tulsidas Damodar I.L.R. (1912) 37 Bom. 264; 14 Bom. L.R. 617 and in the earlier case of Ramchandra v. Gangabison (1914) 12 Bom L.R. 590. The observations in Jessiram's case at p. 272 clearly show to my mind that it is really unsafe to lay down any general proposition in this matter; and whatever the opinion formed by a particular Court on the evidence in that particular case may be, the only general proposition which, in my opinion, can be safely enunciated is that the fact of the contract being a wager must be proved by the evidence in the case on the essential point whether the common intention of the contracting parties was to deal only in differences. It is hardly necessary to refer to any authorities on this point. Having regard to the nature of these contracts, in my opinion, it is neither possible nor desirable to lay down any general rule that they must be presumed to be wagering contracts without any proof as to the common intention of the contracting parties. There is a recent judgment of Mr. Justice Kincaid in Manubhai v. Keshavji (1921) 24 Bom. L.R. 60 where the same view is indicated. We do not desire to express any opinion on the evidence in this case, and by answering the question referred to us, we do not mean to say anything more than this that on the evidence in the case it is for the Court to decide whether in this particular case the contracts were wagering contracts or not. Costs to be costs in the cause and to be taxed as on the Original Side.
6. I agree to the answer proposed to the question propounded by the Court of Small Causes. The difficulty that I feel in this matter is that I do not precisely apprehend what is the point of law that is submitted to us. The question as framed is: 'Are agreements of Teji and Mandi necessarily to be held as wagers on account of their nature and characteristics alone or is evidence necessary to prove that the contracts were intended to be wagers ?'
7. Now if it is to be taken that we are asked whether as a matter of law such contracts are necessarily to be held as wagers, then the answer clearly must be in the negative. For it is not even suggested that there is any rule of evidence or any other rule of law which can be held to exclude evidence as to the true nature of such contracts. It may be that as a matter of fact it has been found in practice that a large number of these contracts are wagering contracts, but that is no ground on which any rule of law can be based. All that can be said is that there is no legal presumption that a Teji or Mandi contract is a wagering contract and that it must be dealt with as any other contract, and that the rules that have been laid down for determining whether a contract is a wagering contract or not are applicable to this case just as much as to other contracts. The test is well known. Where it is shown that a common intention of the parties was that in no case delivery was to be taken or given but that in all cases differences should be paid then the parties are wagering. It is impossible to my mind to go beyond that and it in effect furnishes the answer to the question propounded.