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1959 (3) TMI 58 - SC - Indian LawsLegality of a partnership to carry on business in wagering contracts - suit barred under s. 69(1) of the Partnership Act - forbidden by law within the meaning of s. 23 of the Contract Act - Concept of Morality and Immoral - doctrine of public policy - HELD THAT - The common law of England and that of India have never struck down contracts of wager on the ground of public policy ; indeed they have always been held to be not illegal notwithstanding the fact that the statute declared them void. Even after the contracts of wager were declared to be void in England collateral contracts were enforced till the passing of the Gamina Act of 1892 and in India except in the State of Bombay they have been enforced even after the passing of the Act 21 of 1848 which was substituted by s. 30 of the Contract Act. The moral prohibitions in Hindu Law texts against gambling were not only not legally enforced but were allowed to fall into desuetude. In practice though gambling is controlled in specific matters it has not been declared illegal and there is no law declaring wagering illegal. Indeed some of the gambling practices are a perennial source of income to the State. In the circumstances it is not -possible to hold that there is any definite head or principle of public policy evolved by Courts or laid down by precedents which would directly apply to wagering contracts. Even if it is permissible for Courts to evolve a new head of public policy under extraordinary circumstances giving rise to incontestable harm to the society we cannot say that wager is one of such instances of exceptional gravity for it has been recognized for centuries and has been tolerated by the public and the State alike. If it has any such tendency it is for the legislature to make a law prohibiting such contracts and declaring them illegal and not for this Court to resort to judicial legislation. The learned counsel attempts to draw an analogy from the Hindu Law relating to the doctrine of pious obligation of sons to discharge their father s debts and contends that what the Hindu Law considers to be immoral in that context may appropriately be applied to a case under s. 23 of the Contract Act. - Neither any authority is cited nor any legal basis is suggested for importing the doctrine of Hindu Law into the domain of contracts. Section 23 of the Contract Act is inspired by the common law of England and it would be more useful to refer to the English Law than to the Hindu Law texts dealing with a different matter. In the circumstances we do not think that we could with justification allow the appellant to raise this new plea for the first time before us as it would cause irreparable prejudice to the respondents. We express no opinion on this point. For the foregoing reasons we must hold that the suit partnership was not unlawful within the meaning of s. 23 of the Indian Contract Act. In the result the appeal fails and is dismissed with costs. Appeal dismissed.
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