MINORS' AGREEMENTS INflNDIA AND THE U.K. A COMPARATIVE SURVEY R. S. Pandey* I. Introduction : the policy of law

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1 MINORS' AGREEMENTS INflNDIA AND THE U.K. A COMPARATIVE SURVEY R. S. Pandey* I. Introduction : the policy of law THE STATUTARY LAW dealing with the capacity of parties competent to contract is found in section 11 of the Indian Contract Act, The section is couched in a positive form providing the qualification for being competent to contract. As suggested by the Privy Council in the historic case, 1 the section should be construed in a negative form. According to their Lordships the principle embodied in the section may be stated in a better form : No person is competent to contract who is not of the age of majority according to the law to which he is subject, and who is not of sound mind, and is disqualified from contracting by any law to which he is subject. The policy of law for attributing incompetence to the two categories of persons viz., (i) a person who is not of the age of majority and (ii) a person of unsound mind; is that the mind of such persons is not in the same state in which the mind of a normal prudent man functions. In the case of a minor the disability is due to the tenderness of age owing to which the faculty of reason and understanding has not developed to a particular level and in the case of a person of unsound mind because his mind gets warped due to certain reasons. Because of immaturity of mind in one case and unsoundness of mind in the other, these persons are not able to understand the nature of their acts and form a rational judgement thereof on their interests involved in the formation of a contract. Further, they are incompetent to give consent because due to their defective state of mind there can be no consensus ad idem which is a sine qua non for a contract and consent flows from a mature or sound mind which these persons lack. Therefore, the law attributes to them a disability which is inherent in them. This paper proposes to deal with the legal implications of a minor's contract. An analysis of the section shows that in relation to contracts, competence is the normal phase and incompetence is by way of exception. From this it follows that in favour of competence there is a legal presumption and onus of proving incompetence lies on the party which avers * Lecturer, Law School, Banaras Hindu University, Varanasi. 1. Mohori Bibi v. Dhurmodas Ghose, (1903) 30 I.A. 114 ; 30 Cal. 539.

2 106 JOURNAL OF THE INDIAN LA W INSTITUTE tl972] it and, therefore, seeks to prove the contract void. Competence to contract does not mean the same thing as authority 2 to contract. The former relates inherently to the party and the latter to the agents or representatives of the parties. Section 11 contemplates a definition of inherent incompetence to contract but does not include agents and representatives who contract on behalf of others and, therefore, are incapacitated to contract under restraint provided in their authority to contract. II. The age of majority Section 3 of the Indian Majority Act 1875, lays down the law in this regard. 4 Accordingly, a minor attains majority in a case simpliciter when he attains 18 years of age but a minor under the superintendence of a Court of Wards becomes a major at the age of 21 and not earlier. In England no such distinction has been drawn, and the age of majority is fixed there at 21 years The two ages laid down in India lead to inconvenience. 5 Further, this results in a very artificial distinction in the two cases. If attainment of maturity of mind is the test for fixing a particular age for majority, it is difficult to appreciate and rationalise as to how such maturity is attained in one case at 18 and in the other it is postponed and attained three years latter merely because of the appointment of a guardian by the court or his property being under the Court of Wards. In fact, the later rule for a longer time imposes a restriction on the freedom of the person to deal with his property independently. It is worthwhile to consider whether this artificial distinction and a statutory bar which extends disability for a further period of three years should be continued even in the present state of society where Courts of Wards are now practically extinct although there are provisions for certificated guardians. The law determining majority Before the Indian Contract Act, 1872 came into effect the Indians and other British subjects residing in India, in matters of legal liability 2. For aneat distinction see Dharmeshwa^ v. Union of India, A.I.R Ass Ibid. 4. This section provides : Subject as aforesaid ; every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXT of the Code of Civil Procedure, has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendence has been or shall, be assumed by any Court of Wards before the minor has attained that age shall, notwithstanding anything contained in the Indian Succession Act or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty one years and not before. Subject as aforesaid, every other person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before. 5. See V.G. Ramachandran, 1 The Law of Contract in India 329 (1970).

3 SPECIAL ISSUE : LA WS OF EVIDENCE AND CONTRACT 207 including contractual, were governed by their respective personal laws. Thus the Hindus were governed by Hindu law, Muslims by Muslim law, and the English by the English law. The age of majority in these laws was different. 6 The Indian Majority Act (9 of 1875) gave a uniform rule and fixed the age of majority at 18 not only for Hindus and Muslims but also for all the British subjects of the Crown domiciled in British India. This was a significant step, but the Act did not cover the cases of British subjects living in this country for the time being and having their domicile in countries other than India. The Indian Contract Act incorporated the well-known principle of law, that the personal capacity to enter into a contract is determined by the law of domicile. 7 However, the judicial opinion in India or even in England on this point is controversial. Thus, in a Bombay case, 8 a Hindu widow executed a bond in Kolhapur which was outside British India at that time. The widow was more than 16 years (i.e. to say a major according to Hindu personal law as applicable in Kolhapur) and less than 18 years of age, i.e., a minor according to the Indian law. Even after the death of her husband she lived in Biitish India where her husband was domiciled. The question raised before the court was whether the law of domicile (Indian law) or lex loci contractus (Kolhapur law) was to be applied for fixing her liability under the bond. It was held that her capacity to contract was governed by lex domicile and accordingly she was a minor. Therefore, she was exonerated of liability under the bond. The lex domicile rule has not been followed uniformly. The courts have departed from this rule and applied lex loci contractus both in India and England. Thus, the Madras High Court in a case 9 applied lex loci contractus. Here a person over 18 years and under 21 having Indian domicile endorsed negotiable instruments in Ceylon. According to Ceylonese law he was a minor as the majority age there was 21 years. It was held that he was not liable for his endorsement. The learned judges relied on the celebrated work of Dicey. 10 The Madras view has been followed in subsequent Madras 11 and Calcutta 12 cases. It appears from a study of the diverse judicial views that lex loci contractus has been followed in mercantile contracts and lex situs in contracts involving immovable property for determining the age of majority. 6. Jn Hindu and Muslim laws there were conflicting rules relating to the age of majority. It was 21 years for the European British subjects and 25 years for the Britishers not domiciled in India. 7. Kashiba v. Shripat, (1895) I.L.R. l9bom S. Ibid. 9. TN.S. Firm v. Mohammed Hussain, A.I.R Mad For a full discussion see Dicey, Conflict of Laws (7th ed. 1958). 11. Raman Chettiyar v. Raman Chettiyar, A.I.R Mad Union of India v. Brajen Saha t A.LR Cal. 366*

4 208 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] III. Minors 9 agreements in English law Common law and Infants Relief Act, 1874 Contracts entered into by an infant in the United Kingdom are regulated by the common law which was modified by the Infants Relief Act, According to the common law a minor's contract was voidable at the instance of the minor. The word voidable was used in two different senses. 14 Beneficial contracts cf service were considered valid and contracts involving necessaries supplied to the minor were enforceable against him. The Infants Relief Act, 1874 introduced the following two innovations : (0 Contracts of loans, those for supply of goods other than necessaries, and those for accounts are stated to be absolutely void. (it) It is not possible for a minor to ratify those contracts by which he was not bound in common law, unless he ratifies them within a reasonable time after the attainment of majority. The words "absolutely void" occurring in section 1 have given rise to judicial controversy. The question that has arisen before the courts is whether the words "absolutely void" mean that the contract is a complete vacuum giving rise to no legal relationship whatsoever and there is complete absence of any legal right or liability on either side or they mean that the contract is merely voidable at the option of the minor in certain situations. There are cases 15 in which the courts have interpreted the section in its strict literal sense. Despite these authorities it can hardly be inferred that the contracts described under the act as "absolutely void" 13. The Infants Relief Act (37 and 38 Vict. C. 62) of 1874 reads : 1 All contracts, whether by speciality or by simple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contract for necessaries), and all accounts stated with infants, shall be void : Provided always that this enactment shall not invalidate any contract into which an infant may, by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable. 2. No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age. Betting and Loans (Infants) Act, 1892 further clarifies the protection given to an infant debtor. S. 5 lays down that an agreement by a person of full age to repay money lent to him during his infancy together with any negotiable instrument given for the purpose of rendering the agreement effective, shall be absolutely void. 14. See Cheshire and Fifoot, Law of Contract 367 (7th ed. 1969); Anson's Law of Contract (21st ed. 1956) at p. 170 refers these as positive voidable contracts and negative voidable contracts. 15. Reg. v. Wilson, (1879)5 Q.B.D. 28; Coutts & Co. v. Browne-Lecky, (1947) K.B. 104.

5 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 209 are of no legal consequence whatsoever. Because protection of minority has been extended to the infant due to his non-age and, therefore, the plea of minority cannot be raised by the opposite party either to the disadvantage or to the advantage of the minor. The legislative policy obviously seems to provide relief to the infant and not to the other party or businessman dealing with the minor. Therefore, in appropriate cases an infant may sue. 16 Another instance of the position that the so-called 'absolutely void' contract is not wholly void and destitute of any effect whatsoever. In Valentini v. Canali 17 in which a house was leased to an infant who further agreed to purchase the furniture for was paid to the landlord and the infant executed a promissory note in favour of the landlord for 34. He used the house as also the furniture for several months. Thereafter, he moved for rescission of the lease and claimed 68 paid by him. The court held, relying on violation of natural justice, that the claim to recover 68 cannot be upheld because he had enjoyed part of the consideration and the coutt ordered cancellation of the lease and the abandonment of the promissory note. It would follow from the above discussion that the expression "absolutely void" is confusing and controversial. Cheshire and Fifoot sum up its effect as follows : It would seem, therefore, that the phrase "absolutely void" is unfortunate and misleading. It is at least clear that the results normally associated with "void" contracts do not follow in this context, and there is much to be said for the view that the legislature in its anxiety to protect infants used technical words without appreciating their technical implications. The law as a result is still in a condition of doubt which, failing legislation, only fresh decisions can ultimately resolve. 17a Further, the Act has placed the infant in a disadvantageous situation 18 as compared to his position under the common law. Section 2 of the Infants Relief Act 19 At common law three categories of contracts, viz. (i) contracts for necessaries, (ii) beneficial contracts of service and (iii) contracts creating permanent interest in property in an infant, unless he abandoned them within a reasonable time after majority, were binding on the infant. All other contracts excepting these were voidable, i.e., the minor could enforce them if he so liked but they could not be enforced against the minor. In other words in relation to the opposite party they were void but they could 16. Cheshire and Fifoot. supra note 14 at (1889) 24 Q.B.D a. Cheshire and Fifoot, supra note See Anson, supra note 14 at Supra note 13.

6 210 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] be so enforced in case the infant ratified them after attaining majority. Section 2 of the Infants Relief Act, 1874 hits these contracts and provides that no person shall be sued as a result of post majority ratification of these contracts entered into during infancy. This will cover those contracts which required express ratification for their validity including contracts declared "absolutely void" under section l 20 of the Infants Relief Act, 1874 and certain other contracts such as contracts to marry. The plain import of the section seems to be that it makes ratification ineffective and no action can be brought in a court of law. It follows that remedies if any, other than the court, can be availed of. 21 Some other interesting points emerge from a reading of the section. It protects an infant completely from the enforcement of any contract (with three exceptions apart) against him even if he ratifies the contract subsequently in his post minority age but the section does not expressly prevent the minor from enforcing the contract against the opposite party. Of course, the contracts falling under section 1 of the Act declared as "absolutely void" cannot be enforced by the minor either during infancy or after the cessation of his minority and ratification during majority. Such exceptions apart an infant continues to enjoy his position as it obtained under the common law. 22 Secondly, the section has two significant parts separated by the first 'or' occurring therein. The first part relates to 'a promise made after full age to pay any debt contracted during infancy' and the latter relates to 'any promise or contract' made during infancy. Obviously, a distinction emerges from the section between debts contracted during infancy on the one hand and other promises or contracts entered into during the period of infancy on the other. In the former case the effect is that a debt taken during infancy is not actionable as a result of either ratification after majority or fresh promise to pay. But this principle does not hold good in the latter case of contracts or promises other than those of debts. In these cases also ratification after majority is not possible and they are not, therefore, actionable but distinct from the cases of debts, they are valid and enforceable if there is a new promise supported by a fresh consideration. However, the contracts of debts after ratification are not actionable even if they are later supported by a promise and a fresh consideration. The juristic view is that such a distinction between contracts of debts and other contracts is rather perplexing. 23 This gives rise to another complication, namely, the distinction between ratification simpliciter of a past promise in infancy and a new promise independent of this old one supported by a fresh consideration Ibid. 21. See Atiyah, The Law of Contract 85 (1961). 22. Anson, supra note 14 at For a brief historical perspective and legislative policy of the Act see Cheshire and Fifoot, supra note 14 at For an illustration and distinction between the two see Cheshire and Fifoot, supra note 14 at ; Anson, supra note 14 at

7 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 211 From the above discussion of the English law it appears that the English law of contract in this regard under the common law as altered by the Infants Relief Act is frought with ambiguity and judicial controversy. The observation of a celebrated jurist is not without significance: It will be seen from the working of this section (i.e. section 2 of the Infants Relief Act 1874) that its interpretation, like that of the first section, is not without difficulty. It would seem, however, that the effect is not to make a contract void in the sense in which lawyers normally attribute to that word. The infant, though he may not be sued in any contingency, may, it is generally thought, himself sue the other party. 25 The purpose of devoting space for a brief discussion of the provisions of the English law in this paper is to have a comparative view of the English law on the subject vis-a-vis the Indian law. It will be seen from the following treatment of the Indian law that the latter is comparatively a simpler law without much difficulty either in the statute or the authorities. IV. Minors' agreements in India Section ll 26 of the Indian Contract Act prescribes that all contracting parties should be competent to contract. Negatively paraphrasing the proposition stated therein it would mean that a person not being of the age of majority is incompetent to contract. This expression raises a significant question of practical importance, namely, if a minor actually makes an agreement, what will be its effect; whether, (a) it is absolutely void because of his incompetence, in the sense that no contract whatsoever has been formed giving rise to a legal relationship and, therefore, no suit can lie by or against him and it can also be not ratified later on attaining majority, or (b) a minor is incompetent to contract inasmuch as he cannot be bound by it but he can sue the opposite party, i.e., in legal terminology whether such a contract is voidable at the discretion of the minor. For a long time there was no judicial consensus on this point. Some High Courts in India took the former stand whereas certain others drawing inspiration from English decisions based on the principles of common law in respect of certain contracts in England held such a contract voidable at the minor's option and that it could be ratified later. In 1903 the Privy Council in a well known case 27 settled this dubious position and ruled that a contract entered into by a minor is an absolute 25. Cheshire and Fifoot, supra note 14 at S. 11 reads : Every person is competent to contract who is of the age of majority according to the law to which he is subject and who is of sound mind, and is not disqualified from contracting by any law to which he is subject. 27. See supra note 1.

8 212 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] nullity. It declared that a mortgage executed by a minor was void and the mortgagee who provided money to the minor on the security could not recover the money so paid under sections 64 and 65 of the Contract Act. Accordingly, no decree can be passed on the mortgage either against the mortgagor personally or against the mortgaged property. This decision has been uniformly followed by the Privy Council and the Indian High Courts in the cases before them. The legal basis for adopting this view is that an agreement based on a minor's promise is void because a minor is considered disabled and incapable of making a promise giving rise to a legal liability on him because owing to want of maturity he does not understand the effect of the transaction on his interest. Therefore, law has in fact provided a protection to the minor making him immune from the actions brought against him. It follows from this that in case of a contract being beneficial to him he can enforce it. In a recent case 28 a manager of a Hindu family entered into a transaction of sale and an agreement to resell by registered documents with four persons including a minor for whom his brcther signed. The vendees agreed also to reconvey the same property to the vendors on the condition that they received back the sale price within the specified years. The court held that if the agreement was beneficial to the minor he is bound by it, and if he contends that it was not for his benefit he can reconvey the property and claim the return of the sale price. V. Minors' agreements for necessaries Indian law If under the law a minor is completely debarred from contracting, a practical question arises as to how is a minor, destitute of relations and resources, to preserve himself. To meet this situation and contingencies of the similar type the law gives recognition to contracts of minors for necessaries. Section of the Indian Contract Act lays down the statutory law in this respect. The courts have been seized with the intricate problem of determining as to what are necessaries in a particular case. Section 68 of the Act does not define and explain the term necessaries. The courts in India have drawn much guidance on this subject from the English decisions. It depends on the fact situation of each case whether the minor's agreement is for necessaries within the contemplation of section 68 or not. Necessaries vary from person to person according to his circumstances or in the case of the same person depending upon his varying 28. Ganga Singh v. Santosh Kumar, A.I.R All S. 68 reads : If a person, incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person.

9 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 21* circumstance a thing may or may not be necessary. The efforts of the courts have been to narrow down so far as possible the ambit of necessaries to reduce the liability of the minor in his favour within reasonable limits. The policy underlying such tendency of courts seems to be an endeavour to provide shield to the minors against the designs of persons dealing with minors under the fake garb of necessaries. No clear cut standards or tests have been given by the courts for determining necessaries in a case but certain general statements have been made which give some indications regarding the meaning of necessaries. Thus : (a) Necessaries are necessaries for life to keep the body and soul of the minor together. In this context it would mean food, raiment, and lodging. 30 Necessaries cover money urgently needed for the requirements of the minor but should not be confined only to the basic requirements of the minor such as food and clothing. 31 (b) Proper upbringing in society of the minor is as necessary as maintenance of his body. Therefore, necessaries for him are not confined only to bare necessities of life but they will include many other things which will help over-all development of the personality of the minor. Thus educational expenses, instructions in art or trade or intellectual, moral or religious information, medical service, may be necessaries. 32 (c) In all cases necessaries are variable in accordance with the state and condition of the infant himself. 33 (d) Necessaries are those articles which a minor actually needs. Things supplied to a minor will not essentially fall within the category of necessaries giving rise to the liability on the minor within the meaning of section 68 merely because the things are such as a person of his status and condition in life may reasonably need for ordinary use. Further, they canrotbe necessaries if the minor is already in possession of things of that type irrespective of the fact whether the plaintiff supplied the things in ignorance of this fact. 34 (e) Besides meeting the condition and status test the plaintiff must also show that they were suitable to his actual requirements at the time of sale and delivery. 35 (f) Under section 68 a minor is liable for the recovery of so much of money received under a sale or mortgage as was utilised for the marriage expenses of his sister. The reason for the decision seems to be that according to the Hindu law a minor is under a legal duty to arrange his sister's marriage but the expenses of his own marriage may not 30. Chappie v. Cooper, (1844) 13 M and W Mahmood Ah v. Chinki, A.I.R All Ibid. 33. Ibid. 34. Jagoon Ram v. Mahadeo Prasad, (1909) I.L.R. 36 Cal Ibid.

10 214 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] be covered under the head of "necessaries". 86 (g) Whether a particular contract is a contract for necessaries is a question of fact. (h) Closely connected with "necessaries" is the question as to what are not necessaries. Obviously under the latter head are placed articles which are luxurious, costly and unnecessary considering the stratum of society from which the minor hales. 37 (i) Authorities are not uniform on the question whether a minor's agreement for legal services falls under the head of necessaries within the meaning of section 68 of the Act. By and large the general view is that such services provided for safeguarding proprietary rights of a minor in properties are not within the ambit of necessaries, the reason being that a guardian should be appointed to take care of such involved interest of the minor. There are views to the contrary, e.g., expenses incurred in defending a suit in which the infant's property is involved are recoverable, as necessaries, from the minors's estate. 38 In another case 39 such expenses were held unrecoverable for the reason that (i) there could not be in law a valid contract between the plaintiff solicitor and the minor, (ii) the services were repudiated by the minor on attaining majority. A similar view 40 has been expressed with regard to professional services rendered to the minor, which were not beneficial to him. However, expenses for legal services rendered for defending the minor against a charge of crime or for bringing an action for a tort are recoverable as necessaries; similarly money borrowed for his defence in the case of a criminal charge against him or for obtaining his discharge is recoverable under the head necessaries. 41 (j) Under the Act the minor is also bound for necessaries supplied to any one whom he is legally bound to support. 42 Thus he has been held liable for necessaries supplied to his wife or children or for the marriage of his certain reletions 43 or for the funeral of his parents. English law It will not be out of place to consider here the English law regarding necessaries and to institute a comparison of the two laws. A contract for goods supplied or to be supplied involving necessaries for the minor is not covered by the Infants Relief Act, Such con- 36. Tikki Lai v. Kewal Chand, A.I.R Nag. 327; Nandan Prasad v. Ajudhia (1910) I.L.R. 30 All. 325 (F.B.). 37. Supra note Venkata v. Timayya, (1899) I.L.R. 22 Mad Sadasheo v. Heera, A.I.R Nag. 65 ; Branson v. Appasamu A.I.R Mad Sundararaja v. Pattanathusami, A.I.R Mad Sham v. Chowdhury, A.I.R Cal S. 68 of the Indian Contract Act. See supra note Nandan Prasad v. Ajudhia, supra note In fact such a contract is stated as an exception to the Infants Relief Act, See s. 1 of the Act, supra note 13.

11 SPECIAL ISSUE : LA WS OF EVIDENCE AND CONTRACT 215 tracts of necessaries are governed by the rules of common law as modified by section 2 of the Sale of Goods Act, As the test of necessaries the Act adopts (a) suitability to the condition of the infant's life and (b) his actual requirements at the time of sale and delivery. The former, i.e., suitability to the condition of the infant's life, has been incorporated in the Indian law 46 as well. As regards what are necessaries and what are not there is not much difference in the Indian and English judicial views because making allowance for the variations in indigenous social and mercantile conditions in India, the Indian courts, in the absence of any definition of necessaries in the Indian Contract Act, have followed the English statutes and case law. The other test that the goods supplied should be necessary to the infant not only at the time of sale but also at the time of delivery leads to a difficulty which has been neatly expressed and illustrated by Anson. 47 There is another difficult question which English courts have faced, viz., whether the 'necessaries' are a question of fact or of law or a mixed question of fact ard law. This involves several stages in a case. (/) To begin with, the court is concerned to determine as preliminary question of law whether the article is possibly fit to be necessary as contemplated by section 2 48 of the Sale cf Goods Act. The onus of proof lies on the trader who supplied articles to the infant. He has to prove the requirements of necessity demanded by the Act. If he is unable to do so his cause is defeated and the court pronounces a verdict in favour of the defendant infant because of the absence of adequate evidence from the side of the plaintiff. 4 * (if) If the court comes to a conclusion that the articles supplied may prima facie and reasonably be capable of being judged as necessaries like food or cloth, then it is an open question of fact as to whether they are actually necessaries in respect of a particular fact situation. Such question of fact the judge leaves to the jury to say whether in that fact situation the things supplied are necessaries. It was so done in the case of Peters v. Fleming, 50 where the court held that it was not prima facie unreasonable for an infant under-graduate of Cambridge in opulent circumstances to accept 45. It provides, as quoted by Anson, supra note 14 at 180, that the capacity to buy and sell is regulated by the general law concerning capacity to contract and to transfer and acquire property. Provided that where necessaries are sold and delivered to an infant or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price. Therefore, necessaries in this section mean goods suitable to the condition of life of such infant or other person, and to his actual requirement at the time of the sale and delivery. 46. See s. 68 of the Contract Act. 47. See Anson, supra note 14 at Supra note See Nash v. Inmwu (1908) 2 K.B* 1 ; Ryder v. Wombwelh L.R. (1868) 4 Exch (1840) 6 M and W 42.

12 216 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] some gold rings and gold chain for watch but the question was left to the jury whether these supplied articles were actually and reasonably necessary, suitable to the person in his circumstances. This position makes the English law more complicated as compared to the Indian law in many respects and the work of the court becomes onerous. The question to be determined by the jury is by no means less intricate. What tests the jury has to apply? It has been suggested 51 that the jury must consider the character of goods supplied, actual circumstances of the infant and extent to which the infant was supplied with them. It is submitted that these tests are only illustrative and not exhaustive. Further, they are only relative and the minds of the juries are normally bound to be influenced by the provisions of section 2 of the Sale of Goods Act. The law in respect of creating burden on the plaintiff-trader for proof of requirements under section 2 of the Sale of Goods Act imposes an unreasonable hardship on him. It is true that law provides protection to the infant but in its effort to do so it should not burden the opposite party with an impracticable demand. For example, how far it is reasonable to expect that the trader would probe deep and intrude into the infant's house to take an account of his belongings as to how many clothes, things or waist coats (as was the case in Mash v. Inman $1 ) does he have? From the above discussions of Indian and English law, it clearly emerges that the Indian law in this regard is comparatively simpler. In India there is no provision for reference to the jury and it follows that the "necessaries" are basically a question of law to be decided by the judge without any dependence on the opinion of the jury. The English law enjoins on the infant that he must pay reasonable price 52 for the necessaries sold and delivered to him. This implies that the infant's liability may be personal as well. In the Indian law the minor is not liable personally for the necessaries and no claim can be pressed against him for them. The statute creates a claim for reimbursement from the minor's property. 53 In this respect the English law is more stringent and the Indian more generous towards the infant. Basis of minors 9 liabilities for necessaries The basis of an infant's liability is still unsettled. Two mutually opposite theories have been put forward. The advocates of contractual theory argue that the infant's liability arises ex contractu. It has been suggested by Buckley, L.J., in Nash v. Inman^ that: The plaintiff when he sues the defendant for goods supplied during infancy, is suing him in contract on the footing that 51. See Anson, supra ndte 14 at See proviso to s 2 of the Sale of Goods, Act S. 68 of the Act. 54. Supra note 49.

13 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 217 the contract was such as the infant, notwithstanding infancy, could make. 54a This theory proceeds on the fiction that in respect of necessaries the infant is as much competent to contract as a major person. Obviously, this is fallacious and is directly opposed to facts. Fictitious assumption of contractual capacity is the weakness of this theory. The theory counter to the contractual-one bases infant's liability on a quasi-contract. The infant is liable not because he has given any con* sensus for paying for them but because he obtained a valuable advantage from the other party for which justice and equity require him to pay suitable price for the advantage gained otherwise it would be an unjust enrichment which the law will not allow. This theory was put forward by Fletcher Moulton, L.J., in the same case of Nash v. Inman 55 and also by Scrulton, LJ. 56 The quest for the basis of the infant's liability is not only of a theorist's academic interest but it is of practical significance which is prominently manifested in the case of an executory contract for necessaries viz., a contract in whicht the goods or services have not yet been supplied but only mutual promises stand on the two sides. The application of these two theories to such contracts will yield entirely different results regarding their validity. If the contractual or consensus theory is applied the executory contract is enforceable against the infant even if the articles have not been delivered but only promised. Obviously, it seems unjust to hold the infant liable for such a situation. It will mean making the infant liable for a contract of sale. Further, section 2 57 of the Sale of Goods Act does not provide for necessaries only promised to be sold, it lays down a rule for articles "sold and delivered". A search of a celebrated writer 58 has not revealed even one case where liability has been fixed on an infant for articles of necessity just promised but undelivered. Therefore, it is difficult to found the infant's liability in this situation under the common law. There is another weakness of the contractual theory. If it were correct in the case of contracts for necessaries the contractual price should be recoverable but the proviso 59 to section 2 of the Sale of Goods Act provides for recovery of not contractual price but a reasonable price. In this sense the theory is opposed to the statutory law on the subject. If, however, the quasi-contractual theory is applied, the infant, in the case of executory contracts for services, will not be liable because he has not gained the articles to his advantage and there is neither unjust enrichment nor implied^quasi- 54 a. Id. at Ibid. 56. Pontypridd Union v. Drew, (1927) 1 K.B See for the relevant quotation from the judgment, Cheshire and Fifoot, supra note 14 at 370* 57. Supra note Sir John Miles, 43 L.Q.R See supra note 45,

14 218 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] contract to pay the price. So no liability can be found on the infant for necessaries so contracted. The balance regarding correctness is considerably tilted in favour of the quasi-contractual theory of liability of a minor for necessaries supplied to him. Executory contracts for education 60 have been treated differently from the executory contracts for other things supplied as necessaries. The former has been held valid and enforceable against the infant. 61 The judgment in Roberts v. Gray 92 seems to indicate that the liability arises from contractual agreement based on consensus of a minor, as much as a major. This is a point in favour of consensus or contractual theory. 83 Anson being aware of the difficulty observes : These cases (i.e., Roberts v. Gray* 4 and Doyle v. White 65 ) may have introduced an innovation into the law, but in the present state of authorities it is difficult to state the nature of the infant's liability with assurance. 66 To obviate the difficult situation created by the two sets of authorities in this regard, Cheshire 67 has suggested a solution that necessaries do not comprise education. It is respectfully submitted that segregation of education from necessaries is a doubtful proposition in the view of certain earlier authorities. VI. Beneficial contracts of service English law This category of contracts includes contracts of service, apprenticeship, education and other beneficial contracts of service which the infant enters into with a view either to eke out living for his sustenance or to receive instructions or to educate 68 himself in order to equip himself with ability to earn his livelihood in the post-education period. Their validity 60. For a detailed discussion of the subject see Cheshire and Fifoot, supra note 14 at Roberts v. Gray, (1913) 1 K.B The following observation of Hamilton, LJ,, is significant in this regard: I am unable to apprtciate why a contract which is in itself binding because it is a contract for necessaries not qualified by unreasonable terms can cease to be binding merely because it must be binding for all such remedies as are appropriate to the breach of it. (Quoted by Cheshire and Fifoot, supra note 14 at 187). 62. Supra note G\. 63. See supra notes 17 and See supra note 61, 65. (1935) 1K.B Anson, supra note 14 at See Cheshire and Fifoot, supra note 14 at Regarding education there is a different view as well, see supra pp See supra note 13*

15 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 119 has been statutorily safeguarded by proviso 69 to section 1 of the Infants Relief Act, However, there is an authority 70 for the view that the meaning of this proviso is obscure. Further, it is a jurist's view that even in the absence of this proviso the contracts of this type could not have been affected. 71 The validity of these contracts have been recognised from the early times far anterior to the Infants Relief Act, The policy and reason for such a view have been advanced as follows : (/) Such contracts are to the obvious benefit of the minor to prepare him as a self supporting person. (if) The contract in order to be valid must, on the whole, be for his benefit. 78 (Hi) If it is not to his benefit he is free to give it up. (iv) The contract is valid prima facie. Where its validity is challenged, it is the jurisdiction of the court to construe the contract in ali its facets and determine whether it is in a greater measure advantageous to the minor. (v) Substantially beneficial nature of the contract should relate to the time 73 when it was entered into. It is immaterial if it turned out to be less advantageous or ceased to be beneficial subsequently. (vi) The contract will not be adversely affected where some terms are advantageous to him and others are to his detriment, for it is unreasonable to expect that in any contract all the terms will be beneficial to one party only. Every service contract will definitely involve certain terms which would impose the burden on both the parties. In this context it is the resultant of the benefits and burden which matters and for making it valid the resultant advantage must tilt in favour of the minor. (vii) Where a contract of service is not substantially beneficial to the infant it is not void but voidable at his option which he should elect to exercise either during his minority or within a reasonable time after becoming major. (viii) The acid test of the validity of such a contract is the infant's benefit. Further, requirement 74 is that it must invariably be a contract of service or contract of apprenticeship in their real sense or it should be a contract identical to these. In Doyle v. White City Stadium Ltd."' 5 an infant professional boxer received a licence from the British Boxing Board of Control and agreed to abide by the rules of the board in all boxing 70. Duncan v. Dixon, (1890) 44 Ch. D See Anson, supra note 14 at De Francesco v. Barnum, (1890) 45 Ch. D Also Clements v. L. anin.w. Rly. y (1894) 2 Q.B A recent case, Chaplin v. Leshie Frewin Publishers Ltd., (1965) 3 All E.R. 764, considered the question of benefit at the time of recession, not at the time when the contract was made. 74. Cheshire and Fifoot, supra note 14 at Supra note 66.

16 220 JOURNAL OF THE INDIAN LA W INSTITUTE [1972] contests. In spite of infancy the contract was held valid. The reason for the view was that the licence was essential for his professional proficiency and the contract was closely analogous to a contract of service. The analogous doctrine has been applied in a recent case. 76 (ix) It follows from the discussion in (viii) that contracts howsoever beneficial to the infant may not be valid if they are not contracts of service or analogous to them. Thus it has been a well settled judicial principle that a minor is not bound by a trading contract in spite of the contract being for the infant's benefit. The instant cases are Cowern v. Nield 77 and Mercantile Union Guarantee Corporation v. Bale 78 where infants were hold not bound though contracts were for the benefit to them because they were trading contracts. Such contracts are exception to the general rule of validity of contracts of service, etc. It is noteworthy that in both these cases cited by Cheshire and Fifoot the contracts were enforced against the minor, which meant onerous on the infant. It is doubtful whether the courts will take the same view if infants make a claim against the opposite party say where after the infant delivered 'the goods and sued for the price. Indian law In India it is not possible for a minor to succeed in a suit for damages for the breach of contract of service entered into by the minor himself for the simple reason that a minor's contract is void. Under section70 80 the minor is, of course, entitled for compensation but his right here does not emerge from his contract stricto sensu; it arises from relationship which resemble to those created by a contract, i.e., ex contractu. However, there are authorities 81 to the effect that where the minor has given full consideration he can enforce the contract. It will be appreciated that this rule applies where the contract is wholly executed or partly executed. In the latter case he may have a quantum meruit claim. The position as regards the executory contract of the minor is not free from difficulty. Regarding validity of a contract of service made by the guardian of a minor on his behalf a recent case of importance is Rajrani v. Prem Adib, 82 where the father (natural guardian) entered into a contract of 76. See supra note (1912) 2 K.B (1937) 2 K.B See Cheshire and Fifoot, supra note 14 at See s. 70 of the Indian Contract Act, 1872 which runs as : Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or restore, the thing so done or delivered. 81. Hanmant Lakshman v. Jayaroo Narayan, LL.R. 13 Bom. 50; A. T. Raghava Chariarv. Srinhas, A.T.R Mad. 630 F.B. ; see also A.I.R Lah A.I.R Bom. 215.

17 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 2li service on behalf of his minor daughter, Rajrani with Prem Adib, proprietor of afilmproducing concern. The terms of the contract, briefly stated, were that for a period of one year Rajrani was to act as a film actress in the defendant's studio for a sum of Rs. 9,500 payable in twelve equal instalments. Rajrani sued through her next friend for the recovery of Rs. 8,708 as damages suffered by her due to the defendant's breach of ontract, Desai, J., held the contract void for being without consideration because under section 11 the girl being a minor was not competent to contract and her promise was not enforceable. Logically it follows from this that her promise to serve would provide no consideration for the promise of the defendant to pay her a salary. The claim was turned down on the ground that in effect there was no contract enforceable at law in the absence of consideration, hence no breach occurred. Desai, J.? observed; In my opinion if, the only consideration for the contract was the promise of the plaintiff's father that the plaintiff shall serve the defendant, then the damages which the plaintiff's father could have recovered from the defendant, in a suit filed by him against the defendant, would be the damages sustained by the plaintiff's father himself. I do not see any principle of law under which the plaintiff, who is not bound by the agreement, can obtain higher damages than what the plaintiff's father could himself have recovered had he chosen to file the suit, simply because the plaintiff may be permitted by law to sue in her own name in respect of such a contract. It is clear on looking at the particulars of damages that what the plaintiff seeks to recover is damages sustained by herself and not by her father. Those damages, in my opinion, the plaintiff cannot recover. 83 In contracts by the guardian of a minor on his behalf, measure of damages must be based on damage suffered by the guardian and not on the damage suffered by the minor. 84 This view found support from Beaumont, C.J., in Khirnji Kuverji v. Lalji Karamasi. 85 In English law a minor may enter into a contract of apprenticeship, but he cannot be sued thereon. 86 In India the Apprentices Act of 1850 makes provision for contracts of apprenticeship in the nature of contracts of service to be binding on the minors. In English law contracts of service and appren- 83. Id. at AbdulRazak v. MohomedHussain, A.I.R Bom A.LR Bom. 129, Desai, J, in RajranVs case points out that Beaumont, C.J., was in error in thinking that in Abdul Razak v. Mod. Hussain, supra note 84, the plaintiff was the father of the bridegroom and that the contract was between the respective parents of the prospective bridegroom and the bride ; the plaintiff in fact was the bridegroom himself. However, Desai, J., agrees with the view laid down by Beaumont, CJ. Z6. Pollard v. Rause, (1910) I.L.R. 33 Mad. 288.

18 222 JOURNAL OF THE INDIAN LAW INSTITUTE tl972j ticeship are placed at par and grouped under the broad category of contracts for necessaries. 87 In Indian law a contract of marriage by the father for his daughter's marriage has been held anologous to a contract for apprenticeship by the minor's father. 88 The reason for so equating contracts of marriage with the contracts of apprenticeship by these authorities is the benefit of the minor. 89 However, neither a contract of personal service nor a contract of marriage can be ordered to be specifically performed so that in either case the apprentice or the girl cannot be compelled to carry out his or her part of the contract against his or her wishes. Even so, if it is an enforceable contract, the other result, namely, the liability in damages of the party committing a breach of the contract would follow. The predominant consideration for the enforceability of contracts of service and apprenticeship is the benefit of the minor. 90 It follows that if they are detrimental to the minor they are void. Desai, J., in Rajrani v. Frem Adib 91 observed: Now though according to English Law the minor would be liable in case of contract of service where the contract was for his benefit, it is clear that under s. 11, Contract Act, the minor's contract being void, the minor would not be held liable: See Mohori Bibee v. Dhurmodas Ghose, 30 LA. 114: (30 CaL 539 P.C). The contract of an apprenticeship entered into by the guardian is protected by the Apprentices Act (19 of 1850) provided the case falls within the terms of that Act, but no such exception is made in case of contracts of service. I realise that as a result of this judgment minors may lose the benefit of contracts of service which have been considered so beneficial to them as to be put in the category of necessaries. I am, however, not concerned with the policy of Legislature under which all contracts of minors were made void and therefore unenforceable by or against the minor. He further observed : As the minor's contract is a void contract he is not entitled to sue for damages for breach of such contract including the contract of service where the contract was entered into by the minor himself... If then a minor cannot sue on a contract of service entered 87- Roberts v. Gray, supra note 61; Doyle v. White City Stadium, supra note Purshottam Dos Tribhoxan Das v. Purshottam Mangal Das, (1896) I.L.R., 21 Bom. 23, per Candy, J. Also Fernandez v. Gonsalves, A.I.R Bom. 97, per Taraporewalla, J. 89. However, Desai, J., in^rajrani case, supra note 82, differsfrom this view because a contract of apprenticeship was valid in India due to the statute. Hence a contract of personal service did not stand coeval with a contract of apprenticeship or marriage. 90. Fernandez v. Gonsalves, supra note Supra note 82 at 220.

19 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 223 into by him personally, is he entitled to sue for obtaining practically the same relief simply because the contract has been entered into for and on his behalf and for his benefit by his guardian? I have already referred to the fact that a minor cannot employ an agent, and, therefore, it cannot be said that the contract was entered into "for and on his behalf" in that sense... It seems that the law regarding contracts of service, entered into by the minor himself or by the guardian is still shrouded in judicial controversy. There has been no opportunity for the Supreme Court to dispell the clouds of judicial conflicts. Desai, J.'s judgment is logically and technically well sustained in accordance with the statutory law. It is his own realisation, as admitted by him, 92 that as a result of this judgment the minors may lose the benefit of contracts of service. Needless to say that it is opposed to the generally accepted principle of benefit to the minor though there are dicta contrary to the benefit theory. It is obvious that the learned Judgde was fettered by the law of the legislature. Therefore, there is need for reconsideration 93 of the law in this regard. VII. Ratification It is well settled principle of law that a minor's agreement is a complete nullity and unenforceable. Therefore, a later ratification by a minor on attainment of majority, of a contract formed during minority, does not give a contract legal force and hence no suit is maintainable on such subsequent agreement. As the minor's contract is void ab initio the question cf its ratification does not arise. The consideration which passed under the earlier void agreement due to minority cannot be imported in the contract which the minor makes after minority. 94 Most of the High Courts conform to the view that a promissory note executed by a person on attaining majority in consideration cf the earlier one executed during minority for money received, is not enforceable in a court of law. 95 However, there is a contrary view given in the case of Kundan Bibi v. Sreenarayan** where Rs was the price of goods supplied during minority. While executing a new pronote besides Rs another sum of Rs. 76, advanced as necessartev-was mentioned and the creditor agreed to abstain from suing for a year. As a resultant effect of this fact situation the court interpreted the pronote executed on majority as a new one and binding, 92. Ibid. 93. See Conclusion, infra. 94. Govindramv. Piram Dmta, A.I.R Lah. 561 (F.B ) ; Shah Jetha Lai. v. Darbar, A I.R Bom Arunugan v. Doraisinga, (1914) I L.R. 37 Mad. 38; Suraj Narainv. Sukhu Ahir, A.I.R All & 11C.W.N. 135.

20 224 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] The view is shared by a celebrated well known author 97 and some High Courts have accepted it. 88 A minor is not obliged under law to pay a debt taken during minority when he attains majority but he is free to exercise his discretion one way or the other. If he chooses to pay and actually pays the debt contracted during his minority, he cannot subsequently claim its refund on the ground that the minority debt was void because the minor's contract is void but not unlawful. Money so paid has been considered to be unrecoverable gift. 99 If a minor commenced a transaction during minority and continuously takes it up and carries it on after emerging from disability of minority, the person will be bound for the v/hole transaction. 100 There is another authority to the effect that if services are rendered during minority and are continued in post minority period as well, a promise made by the person in the state of majority to compensate for the services in the two states, is enforceable against him for the services inclusive of those rendered during minority also. 101 In a case 102 a minor had taken several sums from a money lender during his minority, on attaining majority he executed a mortgage in consideration of the minority debts and fresh advance made at the time of the mortgage. It was held that the mortgage was valid only in respect of the fresh advance even though the whole consideration stated in the mortgage was given to the mortgagor who returned the amount of the old debts during minority. The court observed that the policy of the Act underlying the minor's agreement and ratification could not be circumvented by an intelligent device to give debts during minority and annexing it subsequently with a mortgage supported, in addition, by a fresh consideration of small amount., This is different from the view propounded in Kundan Bibi v. Sree Narayan. 1GZ English law precludes an action upon any ratification made after full age of any promise or contract made during infancy irrespective of any new consideration for ratification after full age, English law in this respect is neatly stated and, therefore, few cases are found on ratification in relation to a minor. In India in the absence of a clear verdict from the legislature, the'courts banking upon interpretation have veered round to mutually controversial view. 1(U To settle such judicial controvesy it appears expedient to 97. Pollock and Mulla, Contract Act (8th ed. 1957). 98. Bhola Ram & #arbahs Lai v. Bhagat Ram, A.I.R Lah. 24; Karim Khan v. Godadrnal A.I.R >Jag Anant Rai v. Bhagwan Rai, A.I R 1940 All Nihal Chand v, Jan Mohammad Khan, A.I.R Sind Sindha v. Abrahim, I.L.R. 20 Bom ' Narendra Lai Khan v. Hrishikesh Mukerjee, A.I.R Cal , See supra note See supra notes 96, 102. Also the Gobind Ram case, supra note 94. Suraj Narain case, supra note 95, regarding ratification vis-a-vis. s. 25 (2) of the Act where in the

21 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 225 state the law with clarity by the legislature. However, in respect of voidable contrcats made by the guardian a minor can elect to ratify them after cessation of minority. Contracts so ratified entitle the person to sue for damages for their breach. In Great American Insurance Co. v. Madan Lai, 105 cotton bales of a minor were insured against fire by his guardian on a policy. On the property being destroyed by a fire, the minor was held entitled to sue on the insurance policy for damages and benefit of the contract was conceded to him by the court. Likewise, a minor was allowed to sue for damages for breach of a contract of marriage made by the father on her behalf. 106 A valid ratification must satisfy three necessary conditions 107 viz., (a) The minor has become a major person according to the relevant law; (b) he had full knowledge of the nature and effect of the act of ratification upon his interests; (c) the ratification must show intentional acknowledgement of the liability for the act or transaction done on his behalf during his minority, and (d) the transaction must be such as is capable of ratification. VIII. Estoppel and minors' agreements The rule of estoppel is laid down in section of the Indian Evidence Act. Sometimes the court is seized with a fact situation where the minor falsely represents himself to the opposite party as a major person and induces him to enter into a contract. When the other party sues ; can the minor take the defence of minority or should he be estopped from pleading minority? There was a sharp controversy in the judicial opinions. The point was raised in the case of Mohori Bibi v. Dhurmodas Ghose 109 but was not decided because facts of the case did not warrant a verdict from the court on this point. Their Lordships observed that there can be no estoppel where the truth of the matter is known to both parties and following the English authorities it was held that a false representation made to a person who knows it to be false, is not such a fraud as to take away the privilege of infancy. A later case 110 settled the judicial controversy where the Privy Council observed that a contract by a minor is a nullity and incapable of former case Agha Harder, J., dissented from the three cases of Punjab. Budhamal v. Borai Misir, 86 P.L.R. 1888; Karam Chand v. Basant Kuer, 11 I.C. 321 ; Prabhudial v. Shambhu Nath, A.I.R 1920 Lah A.I.R Bom Khimji Kiverji case Supra note Bank of Montreal v. Dominion Gresham Guarantee and'casualty Co., A.I.R P.C See also Sri Ram v. Mohan Lai, A.I.R Nag S. 115 of the Indian Evidence Act provides : When one person has by his declaration, act, or omission intentionally caused or permitted another person to believe a thing to be true and to act on such belief, neither he nor his representatives shall be allowed in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing Supra note Sadig Ali Khan v. Jai Kishore, A.I.R P.C* 152,

22 226 JOURNAL OF THE INDIAN LA W INSTITUTE [1972] founding a plea of estoppel, even though, the minor made a false representation as to age and induced the plaintiff to make the contract. The rule in Sadiq Ali v. Jai Krishore 111 has been followed by the Indian High Courts and accordingly many earlier decisions to the contrary have been overruled. The principle underlying the dicision is that there can be no estoppel against a statute and section 115 of the Indian Evidence Act should be read subject to section 11 of the Indian Contract Act. There is no difference on this position in English law. 112 IX. Contracts beneficial to minors The policy of law in declaring a minor incompetent to contract is to provide protection, security, and immunity from liability being fixed on him on the basis of an agreement. It follows a corollary that where the minor is not burdened with a liability under a contract but benefits accrue to him, he can acquire them without violating the principle of nullity of a minor's agreement. Based on this premise the courts have held a number of contracts as valid as they are beneficial to the minor. It is proposed to examine some of these contracts. Mortgage and sale in favour of minors (I.) Mortgage: Following the principle of benefit to the minor, authorities have generally held that mortgages in favour of minors are valid though different lines of reasoning have been adopted. For instance in Satyadeva Narayan Sinha v. Tirbeni Prasad, 11 * SL mortgage was executed in favour of a minor for a total consideration of Rs. 600 out of which Rs. 36 were paid in cash and the remaining was to lie with the mortgagee to be paid to the creditors. The mortgage was supported as valid with the following reason: It is the promise by a minor which is unenforceable and an agreement embodying such a promise cannot be a contract. But an agreement as defined in section 2(e) of the Contract Act does not necessarily consist of a set of promises forming consideration for each other. Every promise is an agreement, that is to say, a promise made by an adult in favour of a minor is an agreement by the adult. If the consideration for such a promise or such an agreement is a reciprocal promise by the minor the whole thing is void, but if the consideration for it is not a promise, but is something actually done, there seems no bar in the statute and no reason in principle why the result should not be a valid contract. This view seems to suggest that an agreement involving a promise in 111. Ibid Leslie v. Sheill, [1914] 3 K.B A.LR Pat. 153.

23 SPECIAL ISSUE ; LAWS OF EVIDENCE AND CONTRACT 221 the minor's favour in lieu of executed consideration is valid but executory consideration in an identical situation will lead to a different result. It is respectfully submitted that language of section 11 does not signify any such distinction and its interpretation in this way is far fetched. In the same Patna case it is observed that if a portion of the consideration for the mortgage is retained by the mortgagee to be paid to the mortgagor's creditors subsequently the mortgage is not enforceable for the reason that the minor is encumbered for the future. A Full Bench case 114 advanced a different reason for holding a mortgage in favour of a minor valid. A suit was brought for the recovery of a sum of Rs due on a mortgage executed in favour of a minor mortgagee who wholly advanced the mortgage money to the mortgagor. The appellant contended that the whole transaction is absolutely void. Wallis, C.J., rejected the contention and held that under section 6 of the Transfer of Property Act 115 property may be transferred to a minor as he is not a person legally disqualified to be a transferee within the meaning of section 6 (h). The general scheme of the Transfer of Property Act is that minors may be transferees but not transferors. Transfer to a minor by way of sale or by mortgage is good. Abdur Rahim, J., observed: An infant is capable of acquiring property by gift which the law requires must be accepted S T.P. Act shows that...an infant...can accept a gift even of property burdened wirh an obligation though he will not be bound by the acceptance, and can repudiate it when he becomes competent to contract. 116 The mortage in favour of a minor for money already advanced by him differs from sale only in this: that in addition to a transfer by the mortgagor of an interest in immovable property for purposes of security, there is a promise on his part to repay the loan. But as there is no question in such a case as to the validity either of any transfer or of any contract made by the infant there is nothing that prevents the Court from upholding the transaction. It may be that an infant having advanced money on mortgage on certain terms, for instance, that he will not require repayment until a specified date, would still be at liberty to repudiate the bargain, and to sue before the due date to recover his money in spite of the stipulation to the contrary. But that is because the law considering him incompetent to make a contract the matter would stand on the footing that the mortgagee was in possession of the infant's money without any title. Among writers of text-books Dr. Rash 114. Raghava Chariar case, supra note See section 6 of the Transfer of Property Act Raghava Chariar case supra note 81 at 636.

24 22S JOUkNAL OF THE INDIAN LAW INSTITUTE El9?2] Behari Ghose, the learned author of the Law of Mortgages in India, states the law correctly when he says (p. 195) that an infant, being a person capable of holding property, can well be a mortgagee and that the disabilities which attend the creation of a mortgage do not attach to the acceptance of a security. In America also the law seems to be that an infant can take a mortgage. 116 * Shrinivas Aiyangar, J. 117, throws further light on this and observes: There is nothing therefore in the Contract Act which prevents an infant from being a promisee; on the other hand the provisions contained in the Act as regards minor parents, minor agents, and in the Negotiable Instruments Act as to minor drawers and indorsers suggest that the Indian Legislature recognized the capacity of the minor to accept a promise. I, therefore, think it clear that in cases where consideration passes from a third party, or when competent consideration passes from the minor, the minor can enforce the promise of an adult promisor. But if a minor cannot sell or buy even for cash, there is no possibility of his trading. Such unreasonable consequences should, if possible, be avoided. It must be remembered that provisions relating to transfer of moveables are to be found in the Contract Act and there is nothing in that Act to prevent us from construing those provisions in the way in which the Infants Relief Act has been construed in England. The Transfer of Property Act when enacted came into force only in limited areas, though now it has been extended to nearly the whole of British India. In places where both the Acts are in force the two Acts should be read together and we are not bound to hold, in the absence of express language to that effect, that transfers by infants, at any rate, of moveables are absolutely void. These provisions after all were enacted for the benefit of incapacitated persons and need not be interpreted so as to enable an adult party to defeat or impair the obligation of his contract by his own act or to profit by his own fraud: Maxwell on the Interpretation of Statutes, Edn. 5, p The incompetency to transfer, of course, prevents the minor being bound by it. That has been the law in England both before and after the Infants' Relief Act and the Sale of Goods Act. The Full Bench case referred to above overruled Navakoti Narayan Chetty v. 116*. Id. at Id. at 640, 641.

25 SPECIAL ISSUE ; LAWS OF EVIDENCE AND CONTRACT 129 Loyalinga Chetty 118. In Madhab Koeri v. Baikuntha Karmakar and Others 119 gave yet another reason relying on section of the Transfer of Property Act. The defendant executed a mortgage bond, in favour of Baikuntha Karmarkar and Ghosi Ram Karmarkar, the plaintiff respondents, who were minors, to secure the payment of a loan of Rs The plaintiff minors instituted the suit claiming Rs. 389 as principal and interest. The learned judges, held relying on a case 121 that a promissory note executed in favour of a minor and not involving any promise on his part or any contractual obligation on him can be enforced, held that the principle would govern also the present case. Their Lordships further advanced the argument to provide another basis for their judgment viz : Even if it should be held that the instrument in question in this suit ought to be cancelled on the ground that it is void, it must be remembered that the defendant has had the benefit of the sum advanced by the plaintiffs under it and in such circumstances it would be within the competence of the Court under section 41 of the Specific Relief Act in granting relief to the defendant to make him pay such compensation as justice may require. It is submitted with respect that the Full Bench case 122 of Madras High Court gives a better statement of law. The argument in the Patna case 123 is open to objection that it confines only to executed contract and is not in harmony with the general import of section 11 of the Act, whereas the alternative argument advocated in Madhab Koeri v. Baikuntha Karmarkar 111 contemplates invalidating the contract and then adopts a far fetched argument to provide compensation because the defendant had the benefit of the sum ; the argument stands at the cost of an obviously valid agreement. A duly executed transfer by way of sale, for the reasons as in the case of transfer through mortgages, is valid and enforceable by the minor or 118. (1910) I.L.R. 33 Mad See the reason advanced in this case. This was followed by a single bench of the Allahabad H.C. in Munni Koer v. MadanGopal, (1916) I.L.R.38 AH. 62 which was reversed on appeal (1919) 4 Pat. LJ See section 41 of the Transfer of Property Act which runs : Where, with the consent, express or implied, of the persons interested in immovable property, a peisan is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it : provided that ths transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith Supra note See Raghava Chariar case, supra note See supra note Ibid.

26 230 JOURNAL OF THE INDIAN LAW INSTITUTE l$?2] anyone on his behalf. 125 The decisions are based on the ground that though the minor cannot sell his property but he can be a transferee. Though he does not possess capacity to contract yet he has capacity under the law to acquire. Section 55 of the Transfer of Property Act deals with the liabilities of a vendor in respect of sale but the minor will not be handicaped by these liabilities in the sense that he cannot enforce the sale in his favour because these liabilities are not created by a contract entered into by a minor. There is a solitary instance of a, case 126 where such sale in favour of a minor was held void but this case has been overruled by the Full Bench. 127 It is now settled that the minor in whose favour a sale deed has been executed is entitled to sue : (2) Partition : The authorities have viewed partitions differently from the cases of sale and mortgage. They have been treated just like leases. Accordingly, it has been held that where a partition has been alleged to have been effected by a father and his minor children by an agreement such partition is void. 12 * (3) Promissory notes, bonds, etc. : The principles adopted for mortgages and sales 130 have been applied in the case of these instruments also. Therefore, a promissory note or other instruments of the like nature made in favour of a minor for consideration is enforceable by the minor provided it does not create any promise on his part or any contractual liability. The test is that no deteriment should accrue to the minor. The basis for the decision is that the minor should be safeguarded in the recovery of the money due to him. Thus where the father of the plaintiff in capacity as the guardian advanced money to the needy defendant to enable him to carry on a contract business for the consideration that the defendant agreed to pay the minor half share of the profit in the business, the contract was upheld. 131 The reason given for the decision was that that it is open to the guardian of a minor to advance the minor's money to other persons to earn profits for the minor. (4) Partnership : Section 30 of the Partnership Act, 1932 in clear terms provides that a minor cannot become a partner. The definition of partner in section' 2(6-B) is designed to confer equal benefits upon the minor by treating him as a minor, but this does not mean to confer on the mhor the status of competent and full-fledged partner. 138 Contracts of 125. Ulfat Rai v. Gaurishankar y (\9\\) I.L.R. 33 All. 657; Raghunath Baksh v. Md.Baksh, 30 I.C See supra note See, Raghava Chariar case, supra note See supra note Chettiar Firm v. Ng. Thaung, A.I.R Rang See supra pp Gursaran Lai v. Saral Kumar, A.I.R All See s. 30 of the Partnership Act, Commissioner of Incometax Bom. v. Mjs. Dwarkadas Khetan & Co,, A.I.R, 1961 S.C. 681.

27 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 23l partnership between several persons including some minors are not void in toto but are enforceable only so far as the adult partners are concerned. Only the adult members not the minors become partners though the minor partners may be addmitted to the benefits of partnership provided the deed of partnership requires so. 134 As long as a partnership deed does not include a minor as a full partner, the partnership deed cannot be held invalid because the guardian purported to contract on behalf of a minor provided partnership is covered by provisions of section 30 of the Partnership Act, The guardian of a minor may agree to contribute capital on behalf of the minor. If it is one of the conditions on which benefits are being conferred, the guardian must either refuse to accept the benefits or he must accept this term. 135 The minor may in some cases avoid such an agreement if it was not entered into for his benefit but the agreement remain, valid so long as the minor does not avoid it. 136 The duration of a partnership has to be fixed between the major members. The guardian on behalf of a minor may agree to accept benefits of partnership provided the duration is to the benefit of the minor. Consequently, a partnership deed embodying a clear agreement enabling the minor's guardian to accept partnership benefits even after the original period is not void. 137 (5) Contracts involving minors as transferors : Such contracts fall under different categories. A set of contracts may be covered directly by the Indian Contract Act. Being beneficial, they may not be void; the essential requirement of consent in a contract may proceed by fiction of law, through some assumed de facto guardian. 138 Transfers in favour of minors made without consideration have unanimously been held by authorities as valid. A common example of such a transaction is gift. Transfers made by a minor where valuable consideration has been paid have been held void unless covered by any exception like necessaries. Yet another category which has been suggested is the class of contracts which are in essence beneficial or onerous to the minor. The former have been held valid and enforceable. The latter have not been enforced against the minor. X. Guardian's contract on behalf of minor Such contracts may be of various types which are briefly considered hereunder : 134. Sahai Brothers v. Commissioner of Income-tax, A.I.R Pat. 177 contrary view; see Duaram Vir v. Jagan Nath, A.I.R Punj. 84 relying on A I.R P.C Commissioner of Income-tax Mysore, Bangalore v. Shah Mohandas Sodhuram, A.I.R S.C Id. at para Id. at para See J.P. Singhal and E.S. Subrahmanyam, the Indian Contract Act 281 (1967). However, this veiw i» conttoverted whether the contract is in effect, the minor's or the guardian's, sec Rajrani case, supra note 82.

28 232 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] Contracts for purchase The important authority on point is the case of Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri, 1 * 9 where the minor's guardian made a contract on behalf of the minor for the purchase of immoveable property and the court found the transaction beneficial. It was held that a minor's guardian is not competent to create liability on the minor by an executory contract for purchase of property. Differing from the view of the Division Bench that there is no difference between the position and powers of a manager and those of a guardian. Their Lordships observed : It is not within the competence of a manager of a minor's estate or within the competence of a guardian of a minor to bind the minor or the minor's estate by a contract for the purchase of immoveable property. as the minor in the present case was not bound by the contiact there was no mutuality, and the minor who has now reached his majority can not obtain specific performance of the Contract. By and large the Indian courts have followed this authority, irrespective of the fact whether the minor is a Muslim or a Hindu with separate property. 140 However, a different view was taken by a Full Bench 141 of the Hyderabad High Court which held : Though a minor who has agreed to purchase property through his guardian cannot generally sue for specific performance of the contract, where the guardian is a de jure guardian and is competent to bind the minor by his contract and the contract is also for the obvious benefit of the minor, the minor cannot bring such a suit. 14a But, the dissenting view relying on Mir Sarwarjan's case was expressed by Deshpande, J., in these terms : A suit for specific performance can be instituted in case the contract is for the sale of the property of the minor by a guardian, if it is within the competence of the manager of a minor's estate or within the competence of the guardian of a minor to bind the minor or minor's estate by contract. But so far as purchase of immovable property is concerned the same ru]e cannot apply as it cannot be held that it is within the competence of the manager of the minor's estate or within the competence of a guardian of a minor to bind a minor or LA. 1. ~~ 140. Sonabhashi Kuar v. Ramdeo, A.I.R Pat Amir Ahmaa v. Mir Nizam Ali, A.I.R Hyd Id. at para 12.

29 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 233 minor's estate by a contract. Therefore, there cannot be a suit for specific performance of the contract when the contract is for the purchase of immovable property by a guardian of the minor. 143 The majority judgment in the above Full Bench case of Hyderabad High Court relied on the Subrahmanyam v. Subba Rao. lu The dissenting judgment of Deshpande, J., seems to be formulated on the distinction between sale and purchase of property. It is submitted with respect that the later 145 view of the Privy Council which was relied upon by the Full Bench of the Hyderabad High Court is better statement of law more in consonance with the theory of benefit to the minor as the basic purpose of safeguard provided to the minor is to save him from onerous terms. It is difficult to appreciate the distinction adopted by Deshpande, J., between sale and purchase of immovable property even if the important tests for specific performance are fulfilled in the latter case of purchase viz., («) the guardian is a de jure guardian, (//) he is competent to bind the minor by his contract, and (Hi) the contract is for the obvious benefit of the minor. Subject to these conditions the judicial controversy between the two authorities 146 would seem only to be apparent rather than real, and further the fact situations of the cases are not identically the same on all fours. Recently in a case, 147 for want of mutuality, it was held relying on Mir Sarwarjarfs case, that an agreement made by the father on behalf of the minor for purchase of immovable property was void, it could not be enforced against minor by the opposite party. Accordingly, in absence of mutuality the minor after attaining majority cannot be allowed to have specific performance. The M.P. High Court was seized with a case 148 to decide the validity of a contract entered into by a natural or de facto guardian. In that case the suit was brought by the appellants during their minority through the mother as their guardian who had entered into an agreement on minors' behalf for purchase of a house from the defendant for a certain consideration. Apart from this consideration was paid by way of earnest money and the remaining amount was to be paid at the time of registration of the sale deed. The defendant having failed to execute the sale deed a suit for specific performance was instituted by the minors through the mother as next friend. The court held that the contract was not enforceable by the minors. Bhave, J., observed : We may further observe that after the passing of the Hindu 143. Id. at para A.I.R P.C Ibid See supra notes 139 and Bhola Nath v. Balbhadra Prasad, A.I.R All Ramchandra v. Manik Chand, A.I.R M.P. 150*

30 ?34 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] Minority and Guardianship Act 1956 the authority of the natural guardian even to transfer the minor's property for legal necessity has been taken away. Snch transfers can now be effected only after obtaining the sanction of the Court. We, therefore, feel that the law laid down by their Lordships of Privy Council in Subrahmanyam's case, that such contracts could be specifically enforced, has lost its authority and the dictum in Mir Sarwarjan's case, 39 Ind. App., would now be applicable with all force, to all the contracts of natural guardians whether sale or purchase of property, if no permission of the court is obtained. The Hindu Minority and Guardianship Act, 1956 deals with the powers of the natural guardian. 149 The clear import on simplest interpretation and spirit of that provision seems to be to provide protection to the minor's immovable property from mortgage or charge or transfer by sale even at the instance of the natural guardian, without the permission of the court which is considered to be the most objective authority for safeguarding the interests of the minor. The use of the words "for the benefit of the minor's estate" occuring in section 8(i) of the Act are quite significant. The section clearly relates to the transfer of immovable property of the minor by the devices mentioned in section 8 (2)(a) and (b). The section does not mention at all the case of purchase of property by the minor through the guardian; neither the permission of the court is needed. If the guardian's transaction is not beneficial to the minor, it can be struck down under the well recognised principle "benefit to the minor" or transaction "onerous to the minor". It is difficult to appreciate as to how did the court in the above case 160 stretch the provisions of section 8 of the Act to cases of purchases by minors through the guardian. It is further difficult to appreciate as to why section 8(3) missed the notice of the learned judge. Even accepting the argument of the court for extending the provision to cases of purchase, though it is not so the purport of the section, the transaction should have been voidable at the minor's instance. Section 8(3) further supports the view that the basic purpose and spirit of the section is directed to the one central protection and safeguard of minor's interest in immovable property even at the instance of disposals through the natural guardian. From the judgment it appears, it is submitted with respect, that the court gave undue weight to Mir Sarwarjarfs case even to the disregard of the plain meaning of section 8 of the Hindu Minority and Guardianship Act. Therefore, a caution has been sounded in accepting the decision and dictum of the court. 161 Contracts for sale by guardians Contracts made by a dejure or certificated guardian can be specifically enforced by or against the minor provided two conditions are satis See s See supra note A.SJ.L. 176 ( ).

31 SPECIAL ISSUE i LAWS OF EVIDENCE AND CONTRACT 235 fied viz. (i) such guardian can enter into contracts on behalf of the minor so as to bind him ; (ii) the contracts are for the benefit of the minor or for necessity. 152 There is a judicial consensus on this point and the rule in Mir Sarwarjan's case has been held not to apply in this situation. There is a judicial controversy regarding the validity of such contracts. One set of old authorities hold that the contract of a guardian is valid subject to the test of benefit to the estate and necessity being fulfilled. These authorities are reinforced by a ruling of 15?a the Privy Council. By an agreement in writing the respondent, being minor, agreed through the mother to sell the lands in suit to appellants for a certain sum which was to be utilised for payment of certain debts of minor's deceased father. The contract provided that a sale deed was to bd executed, registered and delivered to the appellants at their expense. The appellants on fulfilment of conditions were let into possession of the land contracted to be sold (but no sale deed was executed or registered). The respondent minor through his mother as next friend claimed possession of the land contracted to be sold and mesne profits. Lord Morton of Henryton relying on Pollock and Mulla's Indian Contract Act, (7th edn.) and certain observations in Mohori BibVs case applied the two aforesaid tests. It was held that the contract was a valid one. The other set of authorities hold the contract absolutely void. A very recent case on the point is of the Bombay High Court 153 which laid down that a guardian has no authority to enter into a contract for sale of immovable property on behalf of the minor ; for want of mutuality the contract is not binding on either party because minority stalls mutuality. However, there is judicial consensus on the point that in case of a Hindu joint family a contract for the purchase or sale of property of the family having minor members can be enforced by or against the whole family including the minor but it is essential that such contract must invariably satisfy the test of legal necessity and benefit to the estate according as these expressions are understood in the personal laws of Hindus. This position is not affected by the rule in Mir Sarwarjarts case because of the peculiar positkntof the Karta or manager in Hindu law who represents the family as sui juris. In a recent case 154 where the guardian of a minor entered into an agreement to sell the minor's property and the advance received was used for the benefit to the minor, it was held that the minor is bound to return the amount of advance so delivered to him for his use under section 11 read with sections 68 and 73 of the Act and that his share in the joint family can be proceeded against for the realisation of the sum See supra note Ibid Gopal Krishna v. Tugaram, A.I.R Bom Miriyala Venkata Ramana Murthy v. Bodi Reddi Subbayamma. (1966) 1 Andh. W.R. 368.

32 236 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] Contracts for lease In a recent case 155 a minor's de facto guardian took a premises on lease executed by him on behalf of the minor and started a new business for the minor's sake. It was held that the de facto guardian has no authority to create obligations to bind the estate of a minor by acts which are not for necessity because the lease creates an obligation on part of the minor to pay stipulated rent; there are reciprocal obligations cast on him as mentioned in section 108-B of the Transfer of property Act. Further, for a lease an agreement between two parties is necessary, which he cannot make in view of section 11. Relying on a Privy Council case 156 the court held that the de facto guardian cannot take the premises on lease for the minor for new business to be started without legal necessity imposing liability. In a case 157 before the Madras High Court a suit wasfiledby a Muslim minor daughter through her father as next friend for recovery of rent on the basis of a lease made by the father on behalf of the minor daughter. The defendant pleaded the lease void because the lease contained covenants which were not enforceable against the minor lessor. Cornish, J., held that a covenant is a different thing to a condition, although the failure of a condition may put an end to a term but failure of convenant or impossibility of its enforcement will not have the same effect on the term. The failure of lessor's covenants as being unenforceable against him due to minority will not enable the lesee to avoid the lease. Veradachariar, J., took the same'view for the reason that (/) according to Mahommedan law the father as a guardian can leave property of minor daughter for her benefit; (it) non-availability of remedy by way of specific performance does not necessarily render the contract void ; and (Hi) the remedy of the tenant in the event of a breach of covenant can only be either by way of a deduction from rent or by way of a claim for damages or reimbursement of moneys spent but he cannot avoid the contract. There are authorities 158 which have expressed views similar to that of Cornish, J., and Veradachariar, J., referred to in foregoing paragraphs. These decisions seem to proceed on the premise that the principles recognised or enacted for the benefit or protection of minors need not necessarily be held to apply to their prejudice. 159 However, there is a catena of decisions 160 which have taken a contrary view. These decisions proceed on the reason that a lease imports a 155. Jayakant v. Durga Shankar, A.I.R Guj. 106; Zebunnissa Begum v. Daughar, A.I.R Mad Benares Bank Ltd. v. Hari Narayan, A.I.R P.C Zebunnissa Begum case supra note See A.I.R Mad. 833; Grinusdick v. Sweetman, (1909) 2 K.B. 740; A.I.R All. 1 F.B.; A.I.R Cal. 50, 39 Cal. 282 (P.C.); Pramala Basi Das v. Jogeshwar Mandal, A.I.R Pat Raghava Chariar case, supra note See A.I.R Pat. 626 ; A.I.R Guj. 106 ; (1916) 40 Mad. 308 ; A.I.R Mad. 147.

33 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 237 covenant by the minor to pay rent and other reciprocal obligations. It was so decided before the Amending Act 20 of Some later decisions to that effect felt bound by section 107 of the present Transfer of Property Act which in effect provides: Where a lease of immovable property is made by a registered instrument or...each such instrument shall be executed by both the lessor and the lessee. The authorities, referred to in the foregoing paragraph, have interpreted this proviso stricto sensu against the minor and observed that the minor can neither be a lessor nor a lessee because he cannot execute the deed of lease as required by section 107; irrespective of the lease being burdensome or not onerous or to the minor's express benefit. It is difficult to understand why the de facto guardian of the minor cannot execute the leases for the minor which are not onerous and are for his benefit. Thejndicial dicta in these decisions are as handicapped as the legislative law; it is respectfully submitted, that they are in total disregard of the general premise of providing protection to the minor for his benefit and not for his detriment. The mischief of the judicial rule resulting in hardship to the minor from the technical interpretation of section J 07 can be, it is suggested, mitigated by reconsideration of section 107 of the Transfer of Property Act by the legislature by providing an exception to the general requirement of registration of instruments creating a lease. A reading of para (2) of section 107 shows that since all other leases of immovable property by oral agreement accompanied by delivery of possession can be made even without registration; and such a lease if made by de facto guardian of a minor will be upheld because the section in such cases dispenses with registration. This augments the present writer's suggestion for reconsideration of section 107 in favour of the minor by the legislature. Contract for minors' marriage In a Bombay case 162 a contract of marriage was entered into between the defendant and the plaintiff's father that the former will marry the plaintiff within two years failing which the defendant was to pay Rs. 2,000 as damages. The parties were Roman Catholics among whom the marriages were arranged by parents according to their customs and parents always settled marriages for the benefit of the parties to the marriages. The defendant committed breach of contract. The court held that such a contract by the guardian is valid and passed a decree for damages. The verdict in the case is based on the principle of contract being for the benefit of the minor. The court took this view even though the contract was yet execu Mulla, Transfer of Property Act 81 (5th ed. 1966) Rose Fernandes v. Joseph, Gonsalves, 48 Bom. 673 (1924).

34 238 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] tory making a departure from the rule in Raghava Charaiar v. Srinivas Raghavachariar 162 ** which this court distinguished. The decision in the case of Rose Fernandes was followed in several other cases. In a Patna case 161 the High Court observed that when the parents of a minor boy and girl arrange a marriage the position is different from the contract between an adult man and woman ; in the former case whether the marriage eventually takes place will depend on the will of the minors and not solely on their parents. In the instant case the parents of a boy and a girl, both being minors, arranged a marriage between them. The girl's father paid the tilak to the father of the boy. It was later disclosed that the boy suffered from epileptic fits. Hence the girl's father rescinded the agreement and sued for the amount of tilak paid. It was held that the marriage did not take place due to default of the plaintiff, he could not recover the amount. In Daniel v. Mariamma}** it was held that the court will grant damages for the loss arising from such breach of contract as suffered by the guardian not the minor. In another case 165 it was held that in Hindu law if the father is dead the mother is legal guardian of minor children and she can enter into a contract of betrothal on behalf of her minor children and can recover damages in case of breach of betrothal agreement. Guardian's contract of insurance The general principle of benefit to the minor has been extended in the case of insurance also. The point for decision arose in Great American Insurance Co. v. Madan Lai Saudlal. * A policy of fire insurance was taken by the de facto guardian of a minor for certain cotton bales. The goods were burnt and the minor sued through his guardian as next friend. Section 27 of the Guardians and Wards Act, 1890 enabled the guardian of the minor to deal with the minor's property like a man of ordinary prudence and empowered him for this purpose to do all reasonable and proper acts for realisation, protection or benefit of the property. It was held that the de facto guardian in this fact situation had such authority and that the minor could sue in his own name. There is no logic for supporting this decision except the policy of the benefit to the minor because in effect it was the minor's agreement which cannot be sustained by section 11 of the Indian Contract Act. The guardian acted only as the minor's agent. Similar view was taken in Vijaykumar v. New Zealand Insurance Co. Ltd. 197 It was held that in case of an agent of a minor entering into a contract of fire insurance on behalf of the guardian of a minor the minor is entitled to sue. As regards the rule in Mohori Bibi v. Dhurmodas Ghose 1 ** 162 a. See Ragha\a Chariar case, supra note Janak Prasad v. Gopi Krishna Lai, A.I.R Pat A.I.R Mad Supra note A.I.R Bom ALR Bom. 347, 168. Supra note U

35 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 239 relied on by the opposite party seeking the court to declare the contract of insurance void on the ground of infancy the learned court held that the proposition of the Privy Council was in general terms and pushed to a logical conclusion the Privy Council decision would have made it impossible for the minor to get benefit under, or enforce, any contract entered into by him even when consideration had been wholly received by the other contracting party. The courts in India have, as a rule, confined application of the Privy Council ruling only to cases where a minor is charged with obligations and the other party seeks to enforce those obligations against the minor. Accordingly, the contention of the defendants that the minor is not entitled to sue on the ground of his minority at the time of the contract was negatived by the court. Contracts for purchase of shares This point arose in Golcunda Industries Private Ltd. v. Registrar of Companies * The appellant company allotted a number of shares to certain persons including some minors. The company claimed that minors were given shares because of contracts made through the minors'guardians for the purpose. The Registrar declined to register the return submitted by the company for the inclusion of minors as shareholders. The court decided that the Registrar was obliged to register the return submitted by the company and it abstained from expressing any opinion on the point whether or not a guardian can bind the minor by a contract for purchase of shares and whether or not such minor can be placed on the register of members. The counsel for the appellant company based on the authority of the Privy Council 170 argued that the guardian can enter into a contract on behalf of the minor provided that the contract so made is (a) within the competence of the guardian ; {b) for the benefit of the minor. He drew further support for his argument from section 8 of the Hindu Minority and Guardianship Act which empowers the guardian to do all acts which are necessary or reasonable and proper for the benefit of the minor or for realisation, protection, or benefit of the minor's estate. The respondent's counsel argued that after the enactment of the Hindu Minority and Guardianship Act, 1956, section 8, the guardian can in no case bind the minor by a personal covenant; therefore, allotment of shares to the minor through the guardian's contract was beyond the power of the guardian. The same is the view of a writer 171 even though the shares are for the benefit of the minor on the ground that the guardian is not competent to saddle the minor with such liability because of prohibition against creating a personal liability. However, it is questionable whether the same will be the position where the purchase of share does not result in personal liability, i.e., 169. A.I.R, 1958 Delhi See supra note See supra note 5 at 330, 331.

36 240 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] it is not onerous ; on the other hand it is gainful and for the benefit of the minor. It is submitted that the better view in such cases would be to hold the purchase of shares by the guardian not void but voidable at t the option of the minor. Such a view will be somewhat in consonance with the spirit of section 8 (3) 172 of the Hindu Minority and Guardianship Act, 1956 though it relates to-disposal of immovable property. Family settlements In a recent case 173 the point was considered by the Supreme Court which held that a deed of family settlement involving a Muslim minor as a party represented by his brother as a de facto guardian is void and not binding on the minor despite the fact that the settlement was beneficial to the minor; was followed for a long period. It was observed that under the Muslim law a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called "a de facto guardian" has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant : If the deed of settlement was void it could not be void only qua the minor plaintiff but would be void altogether qua all the parties including those who were sui juris. 174 This judgement explodes the theory of the benefit to the minor in the family settlement, which was relied upon in many cases to hold the settlement valid. 175 However, it follows as a logical conclusion from the judgement that the position would be different if the settlement is made by the legal guardian of the minor. A similar view was taken in Partap Singh v. Sant Kaur 1 where the parties involved were Hindus. It was held that where there is no person who has authority either under the law of contract or personal law of minors to make a compromise on their behalf, a compromise entered into by minors settling dispute of inheritance between the minors and their fathervcollaterals cannot be upheld. Further, such transaction cannot be valid on the ground of family settlement because a party cannot by describing a, contract as family settlement claim for it an exemption from the law governing the capacity of a person to make a valid contract. The legal situation will be entirely different in a case where karta of a joint Hindu fartiily or & minor's father makes a compromise in good faith involving the property of the minor. Such settlements will be valid and cannot be avoided due to inequality of benefits except on the ground of 172. See supra note Mohd. Amin v. Vakil Ahmad, A.I.R S.C Mat Supra note 173 overruled A.I.R Cal. 218 and A.I.R Audh AJ.R P.C 181.

37 SPECIAL ISSUE ; LAWS OF EVIDENCE AND CONTRACT 241 fraud, misrepresentations or mistake which vitiate it. This is based on the principle of the Hindu law that the father or the manager of the family property represents the minor and safeguards his interest. In this sense he is validly a party to the settlement and law regarding contracts of minors is not contravened. Acknowledgement of debts It is settled judicial view that the minor's guardian cannot acknowledge the debt resulting in extension of the period of limitation and thereby create liability on the minor. But he can do so if the guardian's act is for the protection or benefit of the minor's property. 177 In Bechu Singh v. Baldeo Prasad, 178 the mother of the minor, Bechu* Singh, executed a pronote for a certain sum in favour of the plaintiff for a debt taken earlier by the minor's father and for the performance of funeral ceremonies of Bechu Singh's father. The plaintiff sued for recovery and it was admitted that the woman in the case was the natural and legal guardian of the minor. Section 21 of the Limitation Act empowered the lawful guardian to make an acknowledgement for the minor's benefit. The court held that all conditions necessary to bind the minor and his estate were present and the mother as the legal guardian of her son was competent to enter into the new contract. However, the position would be different if the person acknowledging the debt is not the legal guardian of the minor under Hindu law. 179 XI* Specific performance of contract Specific performance and minors' agreement This topic has incidently been discussed above at some length and relevant cases have also been referred to. 180 The law on this subject may be briefly summarised. It is settled view that a contract by the minor himself cannot be specifically enforced because there is actually want of an enforceable contract, and there is no mutuality. Mir Sarwarjan v. Fakhruddin Mahomed 181 introduced the doctrine of mutuality in India and ruled that the manager of a minor's estate or his guardian cannot bind the minor or his estate by a contract for purchase of immovable property and for the want of mutuality the minor cannot obtain specific performance of contract after attaining majority Annapaganda v. Sangadigyapa, (1902) 26 Bom A.I.R Audh Ramaswamy Pillai v. Kasinath Iyer, A.I R Mad. 226 ; Ramcharan Das v. Gaya Prasad, (1908) 5 A.L J These cases were considered and distinguished, supra note Supra pp (1912) 39 I.A Supra p, 232;

38 242 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] In Subrahamanyam v. Subb Rao, 18 * where the agreement was by the minor's guardian to sell his property it was held that such agreement can be specifically enforced by or against the minor provided two conditions are fulfilled viz., (0 the contract is within the competence of the guardian to enter into such contract on behalf of the minor to bind him and (i7) it is for the benefit of the minor. In absence of these two conditions the contract cannot be specifically enforced. In Sitarama Rao v. Venkataramd* 8 * the later Privy Council case 185 has been explained and an attempt was made to reconcile Mir Sarwarjan's case and it has been observed that it has not been rendered ineffective by later decisions of the Privy Council. The courts in India have veered round the two aforesaid cases of the Privy Council. In a recent case 186 before the Madras High Court a suit was brought for specific performance. The plaintiff's father sold a property to the defendant who on the same date executed a registered deed of agreement for resale in favour of the vendor. Subsequently, the plaintiff's father assigned the rights under the agreement of resale to the plaintiffs who were then minors. The plaintiffs claimed specific performance. The defendants, inter alia, pleaded minority and that test of mutuality was not satisfied. It was held that the contract was not hit by want of mutuality; the original contract was between two adults and the contract was certainly valid and the fact that the assignee was a minor did not mean that the contract could not be enforced mutually inter se by one party against the other ; the test of mutuality should be satisfied on the date the contract was entered into and not on the day of its enforcement. Specific performance and mutuality Specific performance precisely means that the parties shall fulfil their respective terms of the contract. The court in its discretion grants it and it serves as an adequate reparation. The test of mutuality should be satisfied in order to obtain specific performance. It means that the rights of one party under the contract cannot be enforced against the other if the latter cannot enforce its own rights against the former. The doctrine of mutuality has been vehemently deprecated. 1 ' 7 Jn India the doctrine of mutuality was introduced by Mir Sarwarjan's case. 188 However, Specific Relief Act of 1877 did not at all give any indication of the application of the doctrine and some old authorities expressed the view that the doctrine for artificiality has not been accepted 183. See supra note AIR Mad See supra note A.I.R Mad See Ashburner, Equity 405 (?nd ed.) Willis'ort, A Treatise on the Law of Contracts (3rd ed by Jaeger) ; 2 American Restatement of Law : comments on S. 372 (1959) See supra note 18L

39 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 243 by the legislature. Since Mir Sarwarjan's case want of mutuality has been successfully pleaded as a defence in a suit for specific performance. However, ihere is no dearth of authorities 189 which have criticised the doctrine and expressed doubt regarding its application injndia. The doctrine has been held inapplicable in case of unilateral promises where the promisee received consideration. 190 The Law Commission in its report 191 has given an indication in favour of abrogation of the theory of mutuality and accordingly recommended that:...on the contrary we would do away with the doctrine in Sarwarjan's case by inserting in section 22 a proviso embodying the law as stated in the American Restatement. In result the sub-section (4) m has been newly added in section 20 of the Specific Relief Act of If in accordance with personal law of a minor the guardian of the minor makes a purchase of or sale of property, the doctrine of mutuality is precluded from application. Likewise, the doctrine will not apply in those cases where power is bestowed on the guardian by some other law like the Guardians and Wards Act, The Hindu Minority and Guardianship Act, 1956 has given a set-back to the doctrine and has considerably impaired the authority of Subrahmanyam v. Subba Rao. in Now under section 8 of the Hindu Minority and Guardianship Act, 1956 sanction of the court is necessary even in case of disposals by natural guardian for legal necessity and benefit of estate. Further, the guardian in no case can bind the minor by a personal covenant. For persons other than Hindus there is no such provision. It would seem that in this extent the mutuality doctrine has yet a role to play being further delimited by sub-section 4 of section 20 of the Specific Relief Act, However, personal law of Muslims provides that transfer of a minor's property by his de jure guardiari is enforceable both by and against the minor in case the alienation is for his benefit. 194 Sub-section 4 of section 20 of the Specific Relief Act, 1963 further cuts at the root of the doctrine of mutuality. This section in effect provides that if all other conditions are fulfilled and no other equity opposes the plaintiff specific performance will not be refused for want of mutuality. So mutuality as a necessary companion of specific performance has been divorced Subrahamanyam case, supra note 144 ; Surya Prakasan v. Ganguraju, A.I.R Andhra 33 (F.B.) A.I.R All See 9th Report of the Law Commission on the Specific Relief Act Sub-see. 4 reads : The Court shall not refuse to any party specifie performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party See supra note Imambandi v. Mutsaddi, A.LR P.C. 11.

40 244 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] XII. Restitution or compensation in a minor's agreement English law of restitution The English law of restitution has a considerable bearing on the Indian law on this subject and certain authorities 196 drew inspiration therefrom. Therefore, it is apposite to consider briefly the law of restitution in English law. Equity is the soul of the doctrine of restitution in English law. Common law provides immunity to the infant against his act of fraud or misrepresentation regarding his age and induces the other party to form a contract with him under peretence of majority. Where a minor falsely misrepresenting his age, takes a loan of money or any other goods not covered by "necessaries" an action at common law against the minor will not succeed either on the express contract or on money he had received. Equity came forward to mitigate, to some extent, the rigour of this rule of common law which does violence to morality and justice because infants should be as much prevented from practising fraud and misrepresentation for their advantage as the adults. Infancy is a disability or incapacity which should not be helped to the extent of giving them licence for making gains out of misrepresentation. Therefore, equity invented a principle which compels the infant to restitute, under certain conditions, the ill-gotten gain to the opposite party. The leading authority on this point is Leslie (R) Ltd. v. Sheill, 19 * where the plaintiffs were a firm of registered money lenders and the defendant infant told a lie regarding his age that he was major. On this faith he obtained a loan from the plaintiffs who sued for recovery of the loan with interest. In the judgments of Lord Sumner, Kennedy, LJ., and A. J. Lawrence, J, it was held that the plaintiffs cannot succeed to recover the loan which is void according to the Infants Relief Act, 1874 for the reason 197 that the money was paid to be used as the defendant's own, he used; it is impossible to trace it and restore the very things got by fraud; ordering the loan of money to be paid will not be restitution but repayment specially when the money paid has been dissipated. So it is clear that in case of money loans the doctrine of restitution will not apply excepting that very remote rather impossible situation where the very notes, coins etc., were in possession of the minor and were identifiable. The restitution will not be possible in case of other goods also which have passed out of the infant's possession. So, a very narrow field is left where the principle of restitution will apply in case of goods which continue to be in the possession of the minor at the time of the suit and they are identifiable. 198 The view of a celebrated jurist is that the limits of this doctrine are somewhat ill-defined Ajudhia Prasad v. Chandan Lai, A.I.R AIL 610. (F.B.) Supra note For the logical reasoning see the observations of Lord Sumner, id at 618 and 619 and A.T. Lawrence, J., id. at Clarke v. Cobley (1789) 2 Cox. Eq. Cases See Cheshire and Fifoot, supra note 14 at 384.

41 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 245 With regard to restitution an intricate question arises where the infant obtains goods by misrepresentation of his age but has either sold them and possesses the sale proceeds or has obtained another article in exchange for the goods taken per fraud. The question arose in Stocks v. Wilson?** where the infant had sold some of the furniture (non-necessary goods) received through misrepresentation of his age. The plaintiff sought relief in equity for recovery of the value of goods. Lush, J., held in the circumstances, the defendant was liable to account for the amount which he got by sale or assignment of goods. There is a controversy in this decision and the decision of Leslie (R) Ltd. v. Sheill. 201 An attempt 202 has been made to reconcile the two mutually conflicting decisions on the basis of some distinguishing fact situation in the two cases. Indian law of compensation On the point whether a minor who fraudulently misrepresenting his age enters into a contract with a party, is liable to restore the benefit received under his contract in Mohori Bibi v. Dhuramodas Ghose 203 it was argued against the minor that he was so liable under sections 64 and 65 but the Privy Council interpreted the word 'person' occurring in the two sections to mean a person competent to contract and accordingly held that these sections were inapplicable in case of a minor who cannot be ordered for restitution under these provisions. The view of the Privy Council that under section 65 a minor cannot be ordered to restore or make compensation was considered in Harnath Kaur v. Inder Bahadur. 204, Sir Lawrence Jenkins interpreted the words "discovered to be void" occurring in section 65 of the Indian Contract Act to mean, in the first instance, "an agreement discovered to be not enforceable by law" which expression would mean "an agreement that was void in that sense from its inception" as distinct from a "contract that becomes void" under section 2(j). Briefly, according to this later decision of the Privy Council section 65 would cover cases of minors' contract which are void from their inception. As regards the verdict on this point in Mohori BibVs case it is said that the interpretation on this point should be strictly confined to the peculiar situation where the fact of minority was in the knowledge of the opposite party. It logically follows from this as a necessary inference that the minor would be liable to restitute or pay compensation to the other party under section 65 when the other party had not the knowledge of minority at the moment of the formation of the contract but subsequently discovered it to be void (i.e. not enforceable by law). This point drew attention 200. (1913) 2 K.B See supra note See Anson, supra note 14 at ; also Cheshire and Fifoot, supra note 14 at 384* Supra note A.I.R P.C. 403.

42 246 JOURNAL OP THE INDIAN LA W INSTITUTE [1972] of the 5th Law Commission which though conscious of the judicial conflict regarding expression "discovered to be void" yet felt the necessity of retaining that expression for certain reason. It would be pertinent to quote the view of the Law Commission here: Though we are anxious to remove expressions which give rise to a conflict of judicial opinon we do not consider it advisable to do away with the expression "discovered to be void" inasmuch as in particular circumstances, it may be relevant for the purposes of limitation. While dealing with section 11 we have already recommended that a provision may be made in section 65 to the effect that where an agreement is entered into by a minor falsely representing that he is a major, the agreement will be one within the purview of section 65. At the same time we want to make it clear that section 65 should not have any application to cases of agreements entered into with persons incompetent to contract with full knowledge of their incompetency. 205 The authority of Mohori BibVs case has been.accepted by the Law Commission only in the situation where, despite the knowledge of infancy, a party enters into a contract with the minor, in that case section 65 would not apply. The other provisions in India relevant to the point in discussion are in sections 38 and of the Specific Relief Act, Needless to say that these reliefs are based on principles of equity. Regarding these provisions the judicial committee in Mohori BiWs case held that the peculiar circumstances of this case where the opposite party entered into the contract with full knowledge of minority did not warrant their application but it observed that in proper cases equitable relief under the aforesaid provisions could be given in favour of a party which entered into a contract with the minor without knowledge of his infancy. The word used in the section is compensation not restitution. This judical dictum was relied on by many courts 207 in India to grant relief against the fraudulent minor. In India on the point of restitution there is no consensus of judicial authorities. The important leading authority is Khangul v. Lakha Singh 208 representing one Jine of decisions. The case involved two material points 205. See the Thirteenth Report of the Fifth Law Commission on the Indian Contract Act, 37 (1958) Ss. 38 and 41 of the old Specific Relief Act correspond respectively to ss. 30 and 41 of the Specific Relief Act of Dattaram v. Vinayak (1928) I.L.R. 28 Bom. 181; Mamnath Kumar v. Exchange Loan and Co., A. I. R Cal. 567; Kamta Pd. v. Sheo Gopal (1904) I. L. R. 26 All. 342; Vaikunta Ram v. Authmoolan % 38 Mad. 1071; Jagannath Singh v. Lalla (1909) I. L. R. 31 All A.IJL 1928 Lah. 609 (F.B.).

43 SPECIAL ISSUE: LAWS OF EVIDENCE AND CONTRACT 247 for consideration of the court viz., (a) whether the rule of estoppel applies against a minor who enters into a contract on the basis of false representation as to his age, and would he be precluded from defending himself on the ground of minority and (b) in a case of a contract entered into by him in a manner and circumstances as stated above, whether such a minor is within his rights to refuse the performance and continue to retain the benefits received under the contract. Whether it would make any difference in law if the minor is a plaintiff or defendant in the suit. Shadi Lai, CJ in a closely reasoned and illuminating judgment after critical appraisal of relevant c^se law made out the following important points of law: (0 The first question was answered in negative. He concluded that balance of judicial authority in India, as also in English law, was in favour of the rule that in the nature of the circumstances of the contract as aforesaid the minor is not estopped from pleading infancy to avoid the contract. Section 11:5 of the Evidence Act should be read subject to provisions of the Contract Act declaring a transaction entered into by a minor void. (//) The doctrine of restitution finds expression in section 41 of the Specific Relief Act. Where a minor executes an instrument in favour of the other party for a certain sum by falsely representing his age, the instrument is void. Section 39 which applies both to a void and a voidable instrument entitles the minor to seek its cancellation by the court. Then section 41 comes into action. On such cancellation the court may require the minor recipient of such relief to make any compensation to the opposite party which justice may require. Under this section the court has discretion to impose terms on the minor and to compel him to pay, by way of compensation, the same amount for which the instrument was executed. The statute nowhere says that pecuniary compensation should notbe allowed when the award thereof would tentamount to. repayment of money borrowed on the strength of a void transaction. His lordship ordered money compensation and cited several authorities^09 in India which ordered refund of money received by the minor before allowing him to recover his property sold or mortgaged. (Hi) It w s argued that this jurisdiction can be exercised only when the minor invokes the aid of the court as plaintiff. The argument was not accepted by the learned Chief Justice and he held that equitable remedy of restitution should not be limited to the case of the minor being plaintiff; it should apply irrespective of the minor being plaintiff or defendant because the material circumstances in the two events are the same. Thfe transaction bas been wiped out and it is fair that both the parties should revert to their original position. (iv) Section 39 and 41 of the Specific Relief Act show that the jurisdiction conferred is to be exercised when the minor himself is plaintiff Jagannath Singh case, supra note 207 ; Balak Ram v. Dadu, (1910> 76 P.R., (1910) 7I.C 1000; Saral QkandMitttr v.'mohanibibi (1898) LL.R. 25 Cal. 371*

44 248 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] However, the doctrine of restitution is not confined tocases covered by that section. The doctrine rests upon the principle that an infant cannot be allowed by a court of equity to take advantage of his own fraud. There is no warrant either in principle or equity for general rule that the relief shall never be granted in a case where the infant happens to be the defendant. No such distinction seems to have been drawn in English cases. (v) His Lordship continued that the contract or any stipulation therein should never be enforced, the exact form of the relief will depend upon the peculiar circumstances of the each case. The grant of relief is not an enforcement of contract but a restoration of the pre-contract state. The relief is granted not because there is a contract; it is not performance of contract but its negation. (vi) The mere fact that grant of relief, in effect, yields the same resuit as the consequence from performance of contract does not justify refusal of the relief if circumstances of the case warrant its grant by the court. Thus, Shadi Lai, C.J., applied the equitable doctrine generously and in wide terms and did not confine only to the provisions of sections 39 and 41. In doing so he made a remarkable and innovating departure from the Leslie (R) Ltd. v, Shiell 210 which formed the source and basis in a number of decisions in India for the view exactly contrary to that of Shadi Lai, C J. In Ajudhia Prasad y. Chandan Lai 211 the Full Bench case of the Lahore High Court 212 was considered at length and criticised with logical reasoning at the hands of Sulaiman, C.J., who referred to Moftori BibVs case and relied on it regarding sections 64 and 65. The conclusion of Sulaiman, C.J., may be briefly stated : (0 No estoppel can be pleaded against a statute. If the Act declares that the contract by a minor is void nothing can prevent the minor from pleading that such a contract is void on the grounds of his minority. (ii) The rules of equity that can be applied are well recognised rules which have been accepted in England. It is hardly open to an Indian court to invent a rule of equity for the first time contrary to the principles of English law. If the law in England is clear and there is no statutory enactment in India one should hesitate to introduce any supposed rule of equity in conflict with that law. It is submitted with respect that this is a narrow interpretation in contrast with the judgment in KhanguVs case. (Hi) Refering to the remark of Shadi Lai, C. J., in JChanguVs case that he was unable to follow the distinction pointed out in the Leslie case and 210. See supra note A.I.R All See supra note 208 On the authority this restitution was granted in a number ofcaees. Appasami v. Narayansami, A.I.R Mad. 945 ;Budha v. Lakshmi, A.LR Lah. 800 ; Mamnath case, supra note 207, Abdus v. Nusrat, A JLR Avdh. 370.

45 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 249 though that there was no real difference between restoring property and refunding property except that the property can be identified but the cash cannot be traced, Sulaiman C. J observed: Where a contract of transfer of property is void, and such property can be traced, the property belongs to the promisee and can be followed. There is equity in his favour for restoring the property to him, but where the property is not traceable the only way to grant compensation would be almost tentamount to enforcing the minor's pecuniary liability under the contract which is void. The distinction is to obvious to be ignored. 811 The Chief Justice failed to appreciate Lord Kenyon's "aphorism quoted in KhanguPs case" that "Minority was to be used as a shield and not as a sword." (iv) Sulaiman, C.J., expressed his disagreement with Shadi Lai, C.J's view that grant of equitable restitution against the minor is irrespective of the fact whether the minor is a plaintiff or defendant in the suit. He gave a contrary view to the effect that in certain situations restitution could be granted against the minor as a plaintiff but it cannot be given when the minor is sued as a defendant, which would mean enforcing a void contract against him under the cloak of equity for which there is no rule of equity, justice and good conscience. Sulaiman, C.J., referred to the dissenting judgment of Harrison, J. Though, AJudhia Prasad v. Chandan Lai was followed in a recent case 214 yet the view of the Law Commission is inclined in favour of the rule laid down by Shadi Lai, C.J., stated above and having well considered the two controversial authorities it recommended inclusion of a new provision 215 that when a defendant minor successfully defends a suit against him on the basis of void contract due to minority he must restore any benefit whether proprietary or monetary received by him through the contract. However, as it is a void contract the minor has no liability to pay compensation. The Law Commission recommended, accordingly, a new section This suggestion of the Law Commission has been incorporated, by the legislature, in the form of section 33 of the Specific Relief Act, Needless to say that the innovation is in the interest of the opposite party in name of justice and morality. It would seem that on the point of v restitution the authorities are sharply divided laying down different rules. Pollock and Mulla 217 hold the view of Shadi Lai, CJ., in a Full Bench case to be a better statement of 213. supra note 211 at A.I.R A.P See supra note 191 (s. 36 of App. 1) Id. at The Indian Contract Act 11 (8th ed. 1957).

46 250 JOURNAL OF THE INDIAN LAW INSTITUTE [1972? law. The view of the Law Commission 218 is to the same effect. The Law Commission further agrees with the opinion of Shadi Lai, C.J., that in ordering compensation the court is not enforcing a contract which is void; in fact the court attempts its best so far as possible to place the parties in their original state which obtained anterior to the contract. The Law Commission observed: This view appears to be more in consonance with the principles of equity and justice. It appears to us incongrous that while sections 38 and 41 of the Specific Relief Act apply to cases of minors the principles underlying those sections should not be applicable to cases under the contract. 219 Accordingly, the Law Commission recommended for addition of an explanation to section 65 so as to cover situation where a minor contracts on false representation as to his majority. 220 Conclusion The principles of the law of contract including the minor's agreement is embedded in the Indian Contract Act of 1872 which has drawn its material from the then extant English common law which itself was not in a well developed stage at that time. Moreover, in early days of paramount importance to land and laws therefore the law of contract as also of torts was dealt with technicality and rigidity and justice received a relegated treatment. 221 Since the year 1872 down to the current year vast changes of various nature have taken place. The Thirteenth Report of the Law Commission amply bears out that many of the provisions of the Act have become out of date due to flux of time and there is need for codification of supplementary principles. 222 The course of rapid progress and overall development in the country coupled with unsatisfactory wording of the Act faced the judiciary with a complex problem to interpret the Act so as to develop a progressive law of contract from the given old Act in order to meet the requirements of a developing nation and a welfare state. It can hardly be said with assurance that the courts have succeeded in any appreciable measure to do so in the limited sphere of law of contracts because they are considerably handicapped by the law of the legislature. Judicial interpretation and amendment are the two most significant instruments to fill the time lag between the law of statute passed at a point of time and onward march of the society with passage of time with varying contents of values, moral and religious, social and cultural, commercial 218. See supra note 191 at Para Supra note 205 at See supra note See the view of Denning, L.J., quoted in supra note 205 at See supra note 205 at 2.

47 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 251 and economic, scientific and technological. Needless to say that the legislature has made sporadic rather negligible effort to touch the law of contract as a whole, much less the minor's agreement. The current of decisions down to the centenary year, by and large, show a traditional approach reiterating the former law marked by a remarkable desideratum of a functional and progressive approach. Very seldom the courts have pointed out deficiencies or lacuna or policy consideration underlying the law of the statute. The courts have at times been lukewarm in providing protection to the minor and they followed the strict letter of the law because of their limitation to function within the framework of the section even though this course of action yielded disadvantage to the minor, of which the courts were conscious but had to express regret due to restriction imposed by the legislature. At the same time there has been a catena of cases in which the courts exhibited a gesture to protect the interest of the minors when they were not restricted by the legislature. Further, a review of the cases will reveal that several aspects of the minors' agreements are shrouded in judicial controvesy by two mutually contradictory lines of authorities. The law in this respect needs a uniform settlement at the instance either of the highest court of the land or the legislature. The Fifth Law Commission of India submitted the thirteenth Report on the Contract Act, With regard to minor's agreements the commission considered the subject of restitution only and the judicial controversy in that regard between the full bench cases of the Lahore 223 and Allahabad 224 High Courts. It felt inclined towards the view of the Lahore High Court ^nd made certain recommendation 825 which has been acted upon by the legislature. The Commission expressed its view on interpretation of section 65 by the Judicial Committee in Mohori Bibis case and recommended an explanation 226 to be added to section 65 and some more changes for clarity. So far these recommendations have not found favour from the legislature and translated into an enactment. Besides these two aspects of minors' agreement there are many other facets of the subject which, as is evident from the foregoing treatment, are far from clarity and certainty due to unsatisfactory wording of the Act and have given rise to conflicts of judicial opinion. Therefore, the law regarding the minor's agreement cannot with assurance be said to be in a satisfactory state divorced of judicial conflicts and other uncertainties. The Law Commission has not expatiated on all the aspects of the subject in its entirety. Certain recommendations of the commission have not so far been adopted by the legislature. There is a felt necessity for reconsideration and restatement of the law shorn off ambiguities. While writing this paper certain points occurred to the author, which 223. See supra note See supra note See supra t pp See supra note 205 at 20, 30.

48 252 JOURNAL OF THE INDIAN LAW INSTITUTE [1972] are briefly mentioned hereunder: (/) The two ages of majority 18 and 21 in certain situations import an artificial distinction which should be abandoned and uniform age for all minors should be adopted. (ii) It should be considered whether 21 or 18 or even lesser age should be fixed as the age of majority in view of (a) demand from many quarters for a less age for voting; (b) the fact that it continues disability on a person for a longer period; (c) the government is contemplating to lower down the age of voting from 21 to 18 by amending the Constitution. 227 («7) An exception be made to the general requirement of registration of instruments creating a lease, in respect of leases created by the de facto guardian and for the minor's benefit. (iv) Contracts of service beneficial to the minor be protected even if entered into by the guardian on his behalf. (v) Contracts of service entered into by the minor himself be made enforceable by him if beneficial to him. (vf) To obviate the difficulty created by Rajrani v. Prem Adib, 228 due to strict interpretation of the Indian statutory law, contracts of service be placed under Indian Apprentices Act (19 of 1850) to enable the minor to sue for damages in case of breach of the contract of service against the minor. In the socio-economic condition of the present society if a minor enters into a contract of service to stand as a respectable self-supporting person the law should help rather than obstruct him to eke out his living. The problem of an orphan minor in destitute circumstances would be rather acute and his laudable effort to maintain himself by a contract of service or apprenticeship should find support from law and the party which seeks to deter from such contract on the sole ground of minority should be compelled by law to pay damages to the minor for breach of such a contract. (vff) Contracts of service and marriage be treated as contracts of necessaries in order to give benefit to the minor. When these contracts are placed at par with necessaries the parties intending to contract with a minor will feel more secure and prompted. (mi) On the point of ratification there is judicial controversy which needs settlement by a restatement of the law by the legislature See the Hindustan Times, 27 June 1972 p See supra note See supra note 104.