Charles Sargent, C.J.
1. The first question referred to us is whether oral evidence is admissible to prove that a contract for the purchase and sale of goods deliverable on a certain day was in reality a gaming transaction, on the ground that neither party intended there should be an actual buyer and seller, but only that the difference between the price when the bargain was made and the price at the time fixed for delivery should be paid by one or other of the parties. By Bombay Act III of 1865 Act III of 1865, Section 1. 'All contracts, whether by speaking, writing or otherwise, knowingly made to further or assist the entering into, effecting or carrying out agreements by way of gaining or wagering, and all contracts by way of security or guarantee for the performance of such agreements or contracts shall be null and void; and no suit shall be allowed in any Court of Justice for recovering any sum of money paid or payable in respect of any such contract or contracts, or any such agreement or agreements as aforesaid. Section 2.' No suit shall be allowed in any Court of Justice for recovering any commission, brokerage, fee or reward in respect of the knowingly effecting 'or carrying out, or of the knowingly aiding in effecting or in carrying out, or otherwise claimed or claimable in respect of, any such agreement by way of gaming or wagering, or any such contract as aforesaid, whether the plaintiff in such suit be or be not a party to such last-mentioned agreement or contract, or for recovering any sum of money knowingly paid or payable on account of any persons by way of commission, brokerage, fee or reward in respect of any such agreement by way of gaming or wagering or contract as aforesaid.' all contracts, whether by speaking, writing or otherwise, knowingly made to further or assist, &c;, shall be null and void. Now a contract in terms for the sale and delivery of goods at a certain time, but upon the understanding that it is not to be carried out, and only the difference of the prices paid, is a wagering contract or, as Mr. Justice Lindley said in Thacker v. Hardy 4 Q.B. Div., 689 (3) 3 Ad.: &.Ell., 689 ;' a time bargain, in the sense of an unenforceable bargain.' It is true that such a transaction is not declared by the Act to be illegal, but the existence of such' understanding' between the parties, of, in other words, of such an intention on their part is a fact within the interpretation clause of the Evidence Act, illustration (d); and as it would invalidate the contract by making it' null and void' might be proved under Section 92, proviso I of that Act, which provides that any fact (as interpreted by Section 3) may be proved which would invalidate the document. The case of Doe dem. Chandler v. Ford 3 Add &Ell.;, 649 is an illustration of this rule. There evidence was allowed to be given by the defendant that the annual value of the property on which an unregistered annuity was charged was less than the annuity, although there Was a covenant by defendant in the annuity deed that the property was of equal value; the object being to show that the annuity was null and void for want of registration under Act 53, Geo. III, c. 141 . In Grizewood v. Blane 11 C.B., 526 where two contracts in form for the sale and purchase of shares in certain railway companies to be delivered by a certain date were declared on, evidence was admitted in order to prove that the transaction amounted to gambling that at the time of entering into the contracts neither party meant to sell or purchase the shares; and in Thacker v. Hardy 4 Q.B. Div., 685 where the case was much discussed, no doubt was thrown on the admissibility of such evidence, although the Court thought that the jury were probably wrong in their conclusion. Lastly, in Maganbhai Hemchand v. Manehhabai Kallianchand 3 Bom. H.C. R 79, O.C.J . where the contract was in force for the sale of a share in the Mazagon Company, the case was remanded by the Court of appeal for trial on the issue' whether the contract was a wagering, with liberty to both parties to produce evidence.' The effect of proviso I to Section 92 does not appear to have been considered, at any rate from the above point of view, in Juggernanth Sew Bux v. Ram Dyal I.L.R., Calc., 791. We must, therefore, answer the first question in the affirmative, and remand the case to the Small Cause Court for the purpose of taking evidence.