The burden of proving that a contract is a wagering contract lies on the party who alleges it.

( 1 ) THIS appeal is filed by the defendant against the decree passed by the District judge, Ujjain.

( 2 ) THE plaintiff firm Messrs. Baldeodas Manilal and Co. , filed a suit against the defendant for recovering a sum of Rs. 13,923-15-6 in the Court of District Judge, ujjain. The plaintiff alleged in the plaint that on 22-2-l946 the defendant borrowed from the plaintiff-firm a sum of Rs. 11,000-0-0 and promised to repay it with interest at 0-7-9 per cent per month ; that the defendant failed to pay this sum even after demand notice and the plaintiff had therefore to file the suit to recover it with interest.

( 3 ) THE defendant contested the claim. In his written-statement he contended :

(i) that the plaintiff-firm Baldeodas Manilal and Co. , was dissolved before the suit was filed and that Baldeodas, the ex-partner of the firm who alone, had brought the suit, was not competent to file it ; (ii) that the defendant firm Bulakhiram Bhagwandas was also a dissolved firm and that the defendant Sukhram was not liable for the claim against it ; (iii) that the defendant had not borrowed Rs. 11,000-0-0 or any other sum from the plaintiff firm on 22-2-1946 as loan as alleged in the plaint; that the defendant had entered into Naza-rana and Gali transactions and waida (forward) contracts with the plaintiif in which the defendant suffered losses and became liable to the plaintiff-firm for a sum of Rs. 11,195-5-0 ; that, this money was payable on 22-2-1946 on which date the defendant paid Rs. 195-5--0 in cash and carried over the balance in the Khata showing it as loan borrowed ; that the Nazrana and Gali transactions were wagering transactions and as the balance due on account of these transactions formed the consideration of the debit entry of Rs. 11,000, it was void and the claim on its basis was not capable of being enforced in a Court of law.

( 4 ) ON these pleadings, the trial Court framed five issues and decided all of them in plain- tiff's favour. The result was that the trial Court decreed the claim of the plaintiff-firm in full with costs against the defendant on 15-1-1954. It is against this decree that the present appeal is filed by the defendant.

( 5 ) BEFORE, proceeding further, it may be mentioned that the findings given by the trial Court on Issues 2, 4 and 5 have not been challenged by Mr. K. B. Saxena, learned counsel for the appellant during the course of his arguments before us. He raised only two contentions which are covered by Issues 1 and 3 which are as follows: 1. Whether after the dissolution of the firm Baldeodas Manilal and Co. , the suit could be instituted on its behalf and whether Baldeodas s/o manilal can file this suit as its owner? 3. Whether the sum of Rs. 11,0000-0 was due on Nazrana and Gali transactions which being of wagering nature, were void and whether the plaintiff is not entitled to recover it ?

( 6 ) MR. K. B. Saxena, learned counsel for the appellant did not dispute that the firm baldeodas Manilal and Co. , was dissolved before the suit was instituted and that baldeodas, the person who filed the suit was one of the partners of that firm. It was not and could not be disputed that as a partner of the dissolved firm, baldeodas was entitled to file the suit in the firm name as has been done in the present case. Mr. Saxena half-heartedly argued that in the plaint Baldeodas had described himself as owner of the firm which in fact he was not and therefore the suit as filed by Baldeodas was not competent. I do not see much force in this contention. According to Baldeodas, when the firm Baldeodas Manilal and Co. , was dissolved, the partners executed a deed of dissolution under the terms of which all the assets and liabilities of the firm were assigned to Baldeodas s/o Manilal, and he was expressly authorized "to recover the money due to the dissolved firm.

( 7 ) THE deed of dissolution is produced in this case at Ex. P-l and is proved by the plaintiff Baldeodas by examining two of the ex-pa