Asutosh Mookerjee, J.
1. This is an appeal by the plaintiffs in an action for recovery of money due in respect of sale and purchase of sharas between them and the defendant from the 28th March 1918 to the 14th May 1918. The defendant did not deny the transactions, but pleaded that they were agreements by way of wager within the meaning of Section 30 of the Indian Contract Act. He said in substance that the common intention of the parties was that there should be no delivery of the shares under any circumstances but that there would be only settlement of differences. The substantial question in controversy between the parties, consequently, was, whether or not the transactions were agreements by way of wager.
2. Mr. Justice Greaves has correctly laid down the law on the subject. He states that to constitute such a contract, a common intention to wager in essential and that speculation does not necessarily involve a contract by way of wager, Bhagwandas Parasram v. Burjorji Ruttonji Bomanji 44 Ind. Cas. 284 : 22 C.W.N. 625 : 23 M.L. T. 203 : 34 M.L.J. 305 : 4 P.L.W. 229 : 16 A.L.J. 241 : 27 C.L.J. 358 : (1918) M.W.N. 315 : 20 Bom. L.R. 561 : 7 L.W. 577 : 42 B. 373 : 11 Bur. L.T. 211 : 45 I.A. 29 (P.C.). Whether the transaction is speculation or wagering, must be determined by the Court; we have to look behind the form of the contract to the real intention of the parties, which may be gathered from the oral evidence and the actual transactions between them. Universal Stock Exchange v. Strachan (1896) A.C. 166 : 65 L.J.Q.B. 429 : 74 L.T. 468 : 44 W.R. 497 : 60 J.P. 468. Now, the evidence in this case consists of the testimony of the defendant Basir Ali on the one hand and of Sridhur who deposes, on the other hand, on behalf of the plaintiff firm. Mr. Justice Greaves has approached the evidence from the proper standpoint, and we agree with him that when a defance of this nature is taken, the Court is bound to scrutinise the, evidence of the defendant with a good deal of suspicion. This is all the more necessary, where, as in the present case, the defendant receives and accepts payments when the dealings are successful, but has recourse to the plea of wagering contract when the transactions end in loss. The learned Judge, who had both the witnesses before him, has commented on their demeanour; Basir struck him as a very frank and straightforward witness; but he was not prepared to say the same with regard to Sridhur, nor to accept his evidence upon the vital points in the case. One of these relates to the circumstances under which the acquaintance between the parties began ; on this point, the learned Judge has stated explicitly that he prefers the story of Basic to that of Sridhur. The material portions of the evidence have been placed before us and forcibly commented upon, but we are not -prepared to come to a different conclusion.
3. The appeal is, therefore, dismissed with costs.
Ernest Fletcher, J.
4. I agree.