Maclean, J. - (1.) The question submitted to us is whether the decision in the case of Juggernath Sewbux v/s. Ram Dyal, I.L.R. 9 Cal. 791 (1883) can now be regarded as law. With every respect to the learned Judges who decided that case, I should have been of opinion, apart from the expression of judicial opinion in the case, which I shall refer to in a moment, that upon the true construction of sec. 92 of the Indian Evidence Act, and specially having regard to proviso (1) of that section, that case had not been properly decided. It seems to me that the learned Judges have not given sufficient effect to the proviso in question. Without going into detail, it seems to me that it would be very difficult to hold that the case here did not fall within the precise terms of that proviso. But if there were any doubt upon this it seems to me that that doubt is set at rest by the observations of their Lordships of the Judicial Committee in the case of Kong Yee Lone & Co. v/s. Lowjee Nanjee, 5 C.W.N. 714 :, s.c. L.R. 28 IndAp 239 (1901). One can hardly suppose that the learned Judges who then composed that Committee in making the observations they did, could have lost sight of the provisions of sec. 92 of the Evidence Act, which is as binding in Rangoon, as in Calcutta. Their Lordships say "two parties may enter into a formal contract for the Bale and purchase of goods at a given price, and for their delivery at a given time. But if the circumstances are such as to warrant the legal inference that they never intended any actual transfer of goods at all, but only to pay or receive money between one another according as the market price of the goods should vary from the contract price at the given time, that is not a commercial transaction but a wager on the rise or fall of the market. The question is of which nature were the dealings which formed the consideration for the notes sued on ? Were they for genuine purchases of rice, or only for payment of money by one or the other according to the changes and chances of the market - How is the Court, in adjudicating on the case to ascertain what the circumstances are or what the real nature of the dealings was, unites the party who sets up that it is a wagering contract is allowed to go into evidence upon the matter? Under sec. 30 of the Contract Act, agreements by way of wager are void. How is the Court to arrive at a decision whether or not an agreement is void on the ground that it is by way of wager unless it is open to the party, who sets up that it is, to go into the evidence? Upon these grounds I think that the question referred to us must be answered in the negative, namely, that the case mentioned in the question submitted cannot be regarded as law, and that, with this intimation of our opinion the case must go back to the referring Court. The costs of this reference will be left to that Court to deal with. Cecil Michael Wilford Brett, J. I agree with the Chief Justice. Harry Lushington Stephen, J.
(2.) I also agree with the Chief Justice. Mitra, J.
(3.) I also agree with the Chief Justice. J.G. Wooddroffe, J. I agree that the question referred to the Full Bench should be answered in the negative. The rule of Evidence which is embodied in the first paragraph of sec. 92 of the Indian Evidence Act presupposes the validity of the transactions evidenced by the documents to which that rule is to be applied. If, therefore, that validity is impeached, it is no defence to point to the apparent rectitude of the document and to claim protection from enquiry under a rule which exists against the contradiction and variance of the terms only of those instruments the validity of which is not in question. In such cases, the Court is not bound by what has been described as the mere 'paper expressions' of the parties and is not precluded from inquiring into the real nature of the transaction between them. The first proviso to that section, therefore, declares that any fact may be proved which would invalidate any document. To prove that a contract is void as by showing that it is an agreement by way of wager is to invalidate it. It has been suggested, however, that the only cases in which oral evidence may be given to invalidate a document are those specifically mentioned in proviso (1), namely, fraud, intimidation, illegality, want of due execution or capacity, want or failure of consideration or mistake. But, in my opinion, this is not so, as the instances given are not exhaustive but, as appears from the use of the words "such as" are set out by way of illustration only. Assuming then that as has been argued, the present case does not come within the term "illegality" (which it is unnecessary to consider), it is still within the words of the proviso. The admissibility, therefore, of such evidence as that which the Defendant seeks to give in this case is not only not excluded by the general rule which is embodied in sec. 92 but is expressly recognised by the first proviso to that section.;