1. The petitioner was the defendant in a small cause suit and two claims were decreed against him and he now impugns the decree on the ground that for several reasons it is not according to law.
2. The first ground is that the judgment is lacking in form. The judgment is as follows: - After describing the cause of action on both counts the learned District Munsif says:
2. The defendant contends that the suit claim is not true.
3. The points for consideration are:
(1) Has the Court no jurisdiction?
(2) Is the suit for share of profits of a successful finished horse race not maintainable?
(3) Is the defendant not liable for astrologer's fees?
(4) What relief?
4. I find that the claim on each of the two heads is legally maintainable and true on the facts and should be allowed.
3. It is contented that the learned District Munsif here has clubbed together all the points for determination and has made a statement merely to the effect that he finds all the issues in favour of the plaintiff a kind of judgment which has been found by a single judge of this Court to be inconsistent with the terms of Order 20 Rule 4 Civil Procedure Code (See Moideen Koya v. Moideen Kutti Haji (1925) 49 M.L.J. 534. The provisions of Order 20 Rule 4 are:
Judgments of a court of small causes need not contain more than the points for determination and the decision thereon.
4. I am not prepared to say that this judgment does not conform to the rule. I certainly do not think that the learned District Munsif has clubbed all the issues. There were two main issues, one was the maintainability of the suit as it arose on the pleadings and the other was whether the facts of the case were true. The judgment is sufficient to show that the learned District Munsif applied his mind to the two points and he certainly has recorded his decisions on them.
5. The next point arises out of the nature of the claim for Rs. 31 odd being the proceeds of a bet. The plaintiff and the defendant, as found by the learned District Munsif, went to horse races together and they each put Rs. 10 on the same horse and the horse won. The person who actually entrusted the money to the book maker and who collected the money from the book maker was the defendant, and he gave back to the plaintiff not Rs. 40 which was half the total but only Rs. 10 which corresponded to half of the original stake. It is contended that the recovery of this money from the defendant is barred by Section 30 of the Indian Contract Act. That section says,
Agreements by way of wager are void; and no suit shall be brought for recovering anything alleged to be won on any wager.
6. I do not think that the section applies to the case at all.
7. The suit is clearly one for money had and received to the benefit of the plaintiff. The defendant was merely the agent of the plaintiff to make the bet. In England under the Gaming Act of 1845 in which Section 18 is more or less the same as Section 30 of the Indian Contract Act, the law is clear that money held in this way can be recovered. At p. 228 of Anson's Law of contract, 17th edition the English case De Mattos v. Benjamin (1894) 63 L.J. (Q.B. ) 248 : 70 L.T. 560 is cited and the effect is shortly stated as follows:
It is clear, however, that one who is employed to make bets on behalf of another and who receives the winnings cannot keep them. This is money received on behalf of another and is within the Act.
8. The same principle is followed in the case of the Rangoon High Court reported in Maung Po Htaik v. Bramadin : AIR1925Mad1229 .
9. The third point raised by the learned Counsel for the petitioner is that the amount claimed under the second head could not be decreed as the plaintiff's title to it depended on the assignment of a chose in action. The fact is that the defendant got the plaintiff to employ an astrologer to cast the horoscope of the defendant's son, and owing to subsequent misunderstandings the defendant did not pay the astrologer the agreed fee namely, Rs. 25 and the plaintiff had to pay it. The claim for this money is clearly enforceable and the learned Counsel's contention here that the astrologer really assigned to the plaintiff the right to collect the money rests on one sentence in the plaintiff's evidence,
I got an assignment from the astrologer.
10. On looking at the receipt which the astrologer gave it is quite clear that there was no kind of assignment, properly speaking of the right to collect the debt.
The astrologer says 'you have paid. I have received the money from yow and I give this to you as a receipt and a voucher to support your claim to recover from the defendant.
11. That is all.
12. The fourth ground of this petition is that the two causes are not of a kind which can be agitated in the same suit but it appears to me there is no objection to that proceeding.
13. Lastly, the petitioner urges the learned District Munsif was wrong in giving the plaintiff interest on the sums claimed. The learned Counsel for the respondent justifies the award of interest under Section 73 of the Indian Contract Act. In the case of both the sums--the money which was the proceeds of the bet and the money which the plaintiff had paid to the astrologer --the plaintiff was undoubtedly kept out of his money and the defendant undoubtedly had the use of the money and the fact which enabled the defendant to use the money was that he had broken his obligation to the plaintiff. It seems to me, therefore that the provisions of Section 73 of the Indian Contract Act would apply. The plaintiff is entitled not only to receive the money he ought to have been paid on the due date but also interest at a reasonable rate for the period during which he has been kept out of it.
14. In the result the petition is dismissed with costs.