1. We accept the finding that the contract was a wagering one. The further question is whether the money deposited by the plaintiff with the defendant as the security for the performance of his part of the contract is recoverable. There is no question of limitation.
2. The Lower Courts held that Section 65 of the Contract Act was applicable to the transaction. We are unable to agree with them. Section 30 makes a wagering contract void ah initio and to such a class of contracts, Section 65 has no application. In Ledu Coachman v. Hiralal I.L.R. (1915) Cal. 115 this view was taken. Despite the inclination of the learned Judges of the Bombay High Court in the earlier cases to apply Section 65 to such contracts the later view is in agreement with the Calcutta view. See Parshotam Veribhai v. Chatrasanghji I.L.R. (1916) 41 Bom. 546 in this Court Oldfield and Bakewell, JJ. held in Srinivasa Aiyar v. Sesha Aiyar (1917) 34 M.L.J. 282 that Section 65 does not cover moneys paid under a marriage brokerage contract. That principle is applicable to the present case. The question still remains whether the plaintiff is entitled to sue for the recovery of the money paid by him in furtherance of the contract of wager. We are clear that the direct prohibition contained in Section 30 does not prevent such a claim. This is not a suit to recover any money, due on any wager ', nor is the suit to recover money ' entrusted to any person to abide the result of any game or other uncertain event on which any wager is made.' In our opinion this latter clause applies only to cases of moneys left with stake-holders. It may be as Mr. Ramachandra Aiyar suggested that the money is sometimes left with one of the parties to the contract on account of his solvency or respectability. But the position he would occupy with reference to the money so paid will be that of a stakeholder. The entrustment referred to in the section can have no meaning when the money is left as a security for the due performance of the contract. We therefore hold that Section 30 does not prohibit the maintainability of such a suit.
3. This takes us to the general right of parties whose moneys are in the hands of another without the latter having any right to retain them. Ordinarily the person who paid the money is entitled to claim it back. But there may be such a conduct on the part of the person paying it as to disentitle him from recovering it; one instance is that of being a party to the perpetrated fraud. Another instance is where moral turpitude is attributable to the person who paid the money. The decision in Ledu Coachman v. Hiralal I.L.R. (1915) Cal. 115 is an illustration of the latter class of cases. The observations of the learned Judges in that case show that if there is no moral delinquency the plaintiff can sue to recover Gulab Chand v. Lalubhai I.L.R. (1909) 33 Bom. 411 and Haribhansraju v. Ratanji I.L.R. (1913) 38 Bom. 249 lay down the same principle.
4. These decisions derive support from a catena of English decisions which have held that even against a stake-holder, a suit for money will lie if he had not parted with the stake-money and the claim is founded not on the result of the wager. It is an a fortiori conclusion from these authorities that where money is not left with a stake-holder nor entrusted on condition that its disposal is to be determined by the result of the uncertain event, the money deposited as security must be returned. Hampden v. Walsh (1876) 1 Q.B.D. 189 O'Sullivan v. Thomas (1895) 1 Q.B.D. 698 and Burge v. Ashley Smith Ltd. (1900) 1 Q. B. 744 enunciate the proposition we have referred to.
5. In our opinion the general principle that a plaintiff whose hands have not been tainted by corruption and who has not committed any act which fixes him. with having been a party to a fraud is entitled to get back the money which he left with another is applicable to the present case. We uphold the judgment of the Courts below on this ground and dismiss the second appeal with costs.
6. The memorandum of objections is also dismissed with costs.