MINORS' AGREEMENTS IN INDIA AND THE U. K.

- A COMPARATIVE SURVEY
Author(s): R. S. Pandey
Source: Journal of the Indian Law Institute , 1972, SPECIAL ISSUE : 1972 (1972), pp. 205-
252
Published by: Indian Law Institute

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MINORS' AGREEMENTS INJINDIA 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 competen

contract is found in section 1 1 of the Indian Contract Act, 1872. The secti
is couched in a positive form providing the qualification for being compete
to contract. As suggested by the Privy Council in the historic case,1
section should be construed in a negative form. According to their L
ships 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 categor

of persons viz., (i) a person who is not of the age of majority and (ii)
person of unsound mind; is that the mind of such persons is not in the sam
state in which the mind of a normal prudent man functions. In the cas
a minor the disability is due to the tenderness of age owing to which
faculty of reason and understanding has not developed to a particular
and in the case of a person of unsound mind because his mind gets wa
due to certain reasons. Because of immaturity of mind in one case an
unsoundness of mind in the other, these persons are not able to und
stand the nature of their acts and form a rational judgement thereof
their interests involved in the formation of a contract. Further, they
incompetent to give consent because due to their defective state of m
there can be no consensus ad idem which is a sine qua non for a cont
and consent flows from a mature or sound mind which these persons l
Therefore, the law attributes to them a disability which is inherent
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, co-

mpetence is the normal phase and incompetence is by way of exception.
From this it follows that in favour of competence there is a legal presu
mption and onus of proving incompetence lies on the party which avers
* Lecturer, Law School, Bañaras Hindu University, Varanasi.
1. MohoriBibi v. Dhurmodas Ghose , (1903) 30 I.A. 114 ; 30 Cal. 539.

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ÌÒ6 SOÜRNAL Ó/7 THE ÌNDI AN LA W INSTITUTE [1972]

it and, therefore, seeks to prove the contract void. Competence to c

ract does not mean the same thing as authority2 to contract. The for
relates inherently to the party and the latter to the agents or repres
tives of the parties. Section 11 contemplates a definition of inhe
incompetence to contract but does not include agents and representat
who contract on behalf of others and, therefore, are incapacitated to
ract under restraint provided in their authority to contract.

n. The age of majority

Section 3 of the Indian Majority Act 1875, lays down the law in t
regard.4 Accordingly, a minor attains majority in a case simpliciter when
attains 18 years of age but a minor under the superintendence of a Cou
Wards becomes a major at the age of 21 and not earlier. In Englan
such distinction has been drawn, and the age of majority is fixed the
21 years The two ages laid down in India lead to inconvenien
Further, this results in a very artificial distinction in the two cases
attainment of maturity of mind is the test for fixing a particular a
for majority, it is difficult to appreciate and rationalise as to how s
maturity is attained in one case at 18 and in the other it is postponed
attained three years latter merely because of the appointment of a gu
ian by the court or his property being under the Court of Wards. In
the later rule for a longer time imposes a restriction on the freedom o
person to deal with his property independently. It is worthwhil
consider whether this artificial distinction and a statutory bar which
tends disability for a further period of three years should be contin
even in the present state of society where Courts of Wards are now p
cally extinct although there are provisions for certificated guardians.

The law determining majority

Before the Indian Contract Act, 1872 came into effect the India
and other British subjects residing in India, in matters of legal liabi
2. For a neat distinction see Dharmeshwar v. Union of India , A.I.R. 1958 Ass.
3. Ibid.
4. This section provides :
Subject as aforesaid ; every minor of whose person or property, or both, a guard
other than a guardian for a suit within the meaning of Chapter XXXI of the
of Civil Procedure, has been or shall be appointed or declared by any Cour
Justice before the minor has attained the age of eighteen years, and every mino
whose property the superintendence has been or shall, be assumed by any Cou
Wards before the minor has attained that age shall, notwithstanding anything
tained in the Indian Succession Act or in any other enactment, be deemed to
attained his majority when he shall have completed his age of twenty one years
not before.
Subject as aforesaid, every other person domiciled in India shall be deeme
have attained his majority when he shall have completed his age of eighteen
and not before.
5. See V.G. Ramachandran, 1 The Law of Contract in India 329 (1970).

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 SPECIAL ISSUE : LA WS OF EVIDENCE AND CONTRACT 207

including contractual, were governed by their respective personal la

Thus the Hindus were governed by Hindu law, Muslims by Muslim la
and the English by the English law.
The age of majority in these laws was different.8 The India
Majority Act (9 of 1 875) gave a uniform rule and fixed the age of majo
at 18 not only for Hindus and Muslims but also for all the British sub
of the Crown domiciled in British India. This was a significant step,
the Act did not cover the cases of British subjects living in this count
for the time being and having their domicile in countries other than In
The Indian Contract Act incorporated the well-known principle of la
that the personal capacity to enter into a contract is determined by
law of domicile.7 However, the judicial opinion in India or even in Engl
on this point is controversial. Thus, in a Bombay case,8 a Hindu wido
executed a bond in Kolhapur which was outside British India at t
time. The widow was more than 16 years (i.e. to say a major accordin
to Hindu personal law as applicable in Kolhapur) and less than 18 year
of age, i.e., a minor according to the Indian law. Even after the death
her husband she lived in British 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 con-
tract was governed by lex domicile and accordingly she was a minor. There-
fore, 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 case9 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 Madras11 and
Calcutta12 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. In 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. 19 Bom. 697.
*. Ibid.
9. T.N.S. Firm v. Mohammed Hussain , A.I.R. 1933 Mad. 756.
10. For a full discussion see Dicey, Conflict of Laws (7th ed. 1958).
11. Raman Chettiyar v. Raman Chettiyar , A.I.R. 1954 Mad. 279.
12. Union of India v. Br ajen Saha , A. LR. 1953 Cal. 366.

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208 JOURNAL OF THE INDIAN LA W INSTITUTE [1972]

III. Minors' agreements in English law

Common law and Infants Relief Act, 1874

Contracts entered into by an infant in the United Kingdom ar
gulated by the common law which was modified by the Infants Relie
1874.18
According to the common law a minor's contract was voidable
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 :

(/) Contracts of loans, those for supply of goods other than neces-
saries, and those for accounts are stated to be absolutely void.
( ii ) 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 com-
plete 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 cases15 in which the courts have interpreted the sec-
tion 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 rati-
fication 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 (list 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.

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 209

are of no legal consequence whatsoever. Because protection of mi

has been extended to the infant due to his non-age and, therefore,
of minority cannot be raised by the opposite party either to the d
tage or to the advantage of the minor. The legislative policy obv
seems to provide relief to the infant and not to the other party
nessman dealing with the minor. Therefore, in appropriate cases a
may sue.16
Another instance of the position that the so-called 'absolutel
contract is not wholly void and destitute of any effect whatsoev
Valentini v. Canali 17 in which a house was leased to an infant who further
agreed to purchase the furniture for £ 102. £ 68 was paid to the land-
lord 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 th
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 contro-
versial. 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.170

Further, the Act has placed the infant in a disadvantageous situa-

tion18 as compared to his position under the common law.

Section 2 of the Infants Relief Act19

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 378.
17. (1889) 24 Q.B.D. 166.
17a. Cheshire and Fifoot, supra note 14.
18. See Anson, supra note 14 at 175.
19. Supra note 13.

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210 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

be so enforced in case the infant ratified them after attaining

Section 2 of the Infants Relief Act, 1874 hits these contracts a
vides that no person shall be sued as a result of post majority ra
of these contracts entered into during infancy. This will co
contracts which required express ratification for their validity i
contracts declared "absolutely void" under section l20 of the Infa
Act, 1874 and certain other contracts such as contracts to m
plain import of the section seems to be that it makes ratification ine
and no action can be brought in a court of law. It follows that
if any, other than the court, can be availed of.21
Some other interesting points emerge from a reading of the
It protects an infant completely from the enforcement of any contr
three exceptions apart) against him even if he ratifies the contrac
ently in his post minority age but the section does not expressly pre
minor from enforcing the contract against the opposite party. O
the contracts falling under section 1 of the Act declared as "ab
void" cannot be enforced by the minor either during infancy or
cessation of his minority and ratification during majority. Such
apart an infant continues to enjoy his position as it obtained un
common law.22 Secondly, the section has two significant parts
by the first 'or' occurring therein. The first part relates to 'a promi
after full age to pay any debt contracted during infancy' and t
relates to 'any promise or contract' made during infancy. Obvio
distinction emerges from the section between debts contracted durin
on the one hand and other promises or contracts entered into du
period of infancy on the other. In the former case the effect is t
taken during infancy is not actionable as a result of either ratificatio
majority or fresh promise to pay. But this principle does not hol
the latter case of contracts or promises other than those of debt
cases also ratification after majority is not possible and they are not,
fore, actionable but distinct from the cases of debts, they are
enforceable if there is a new promise supported by a fresh cons
However, the contracts of debts after ratification are not action
if they are later supported by a premise and a fresh considerat
juristic view is that such a distinction between contracts of debts
contracts is rather perplexing.23 This gives rise to another comp
namely,, the distinction between ratification simpliciter of a past pr
infancy and a new promise independent of this old one support
fresh consideration.24
20. Ibid.
21. See Atiyah, The Law of Contract 85 (1961).
22. Anson, supra note 14 at 176.
23. For a brief historical perspective and legislative policy of the Act see Cheshire
and Fifoot, supra note 14 at 381.
24. For an illustration and distinction between the two see Cheshire and Fifoot,
supra note 14 at 381-82 ; Anson, supra note 14 at 176-177.

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 SPEC Ï AL ISSUE : LAWS OF EVIDENCE AND CONTRACT 211

From the above discussion of the English law it appears that

English law of contract in this regard under the common law as alt
by the Infants Relief Act is frought with ambiguity and judicial co
versy. The observation of a celebrated jurist is not without significan

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 provis

of the English law in this paper is to have a comparative view of the Engl
law on the subject vis-a-vis the Indian law. It will be seen from the
lowing treatment of the Indian law that the latter is comparativ
simpler law without much difficulty either in the statute or the authorit

IV. Minors' agreements in India

Section II26 of the Indian Contract Act prescribes that all contrac
parties should be competent to contract. Negatively paraphrasin
proposition stated therein it would mean that a person not being of
age of majority is incompetent to contract. This expression rais
significant question of practical importance, namely, if a minor act
makes an agreement, what will be its effect; whether, (a) it is absol
void because of his incompetence, in the sense that no contract wha
ever has been formed giving rise to a legal relationship and, therefor
suit can lie by or against him and it can also be not ratified lat
attaining majority, or ( b ) a minor is incompetent to contract inas
as he cannot be bound by it but he can sue the opposite party, i.e ., in
terminology whether such a contract is voidable at the discretion o
minor. For a long time there was no judicial consensus on this p
Some High Courts in India took the former stand whereas certain o
drawing inspiration from English decisions based on the princip
common law in respect of certain contracts in England held such a
tract voidable at the minor's option and that it could be ratified lat
1903 the Privy Council in a well known case27 settled this dubious
tion and ruled that a contract entered into by a minor is an absolute
25. Cheshire and Fifoot, supra note 14 at 382.
26. S. 11 reads :
Every person is competent to contract who is of the age of majority according to
the iaw 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.

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212 JOURNAL OF THE INDIAN LAW INSTITUTE tl972]

nullity. It declared that a mortgage executed by a minor w

the mortgagee who provided money to the minor on the securi
recover the money so paid under sections 64 and 65 of the Co
Accordingly, no decree can be passed on the mortgage either
mortgagor personally or against the mortgaged property. Thi
has been uniformly followed by the Privy Council and the In
Courts in the cases before them. The legal basis for adopting
is that an agreement based on a minor's promise is void becau
is considered disabled and incapable of making a promise givin
legal liability on him because owing to want of maturity
understand the effect of the transaction on his interest. The
has in fact provided a protection to the minor making him im
the actions brought against him. It follows from this that in
contract being beneficial to him he can enforce it. In a recen
manager of a Hindu family entered into a transaction of sale an
ment to resell by registered documents with four persons
minor for whom his brother signed. The vendees agreed also
vey the same property to the vendors on the condition that th
back the sale price within the specified years. The court held
agreement was beneficial to the minor he is bound by it, and
tends that it was not for his benefit he can reconvey the pro
claim the return of the sale price.

V. Minors5 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 ne-
cessaries. Section 6829 of the Indian Contract Act lays down the statu-
tory 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 sec-
tion 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. 1963 All. 194.

29. 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 con-
dition in life, the person who has furnished such supplies is entitled to be re-
imbursed from the property of such incapable person.

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 SPECIAL ISSUE : LA WS OE EVIDENCE AŃD COŃTRAĆT 213

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 neces-
saries 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 ma-
intenance 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 necess-
aries.32
(c) In all cases necessaries are variable in accordance with the state
and condition of the infant himself.83
(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
cannot be 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 feceived 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 252.

31. Mohmood Ali v. Chinki, A.l.R. 1930 All. 128.
32. Ibid.
33. Ibid.
34. Jagoort Ram v. Mahadeo Prasad , (1909) I.L.R. 36 Cal. 768.
35. Ibid.

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¿14 ÍOÜRÑAL ÒF ŤHÉ ÍNDÍAÑ LAW ÍÑSTÍTUTE tl972]

be covered under the head of "necessaries".36

(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.87
(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.3* In another case39 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
view40 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 agąinst 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.48 Thus he has been held
liable for necessaries supplied to his wife or children or for the marriage
of his certain reletions43 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, 1874.44 Such con-
36. Tikki Lai v. Kewal Chand, A.I.R. 1940 Nag. 327 ; Nandan Prasad v. Ajudhia
(1910) l.L.R. 30 All. 325 (F.B.).
37. Supra note 12.
38. Venkata v. Timayya , (1899) Í.L.R. 22 Mad. 314.
39. Sadasheo v. Heer a, A.I.R. 1938 Nag. 65 ; Branson v. Appasamt , A.I.K. IVYI
Mad. 257.
40. Sundararaja v. Pattanathusanti , A.I.R. 1917 Mad. 306.
41. Sham v. Chowdhury , A.I.R. 1921 Cal. 872.
42. S. 68 of the Indian Contract Act. See supra note 29.
43. Nandan Prasad v. Ajudhia , supra note 36.
44. In fact such a contract is stated as an exception to the Infants Relief Act,
1874. See s. 1 of the Act, supra note 13.

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 SPECIAL ISSUE : LA WS OF EVIDENCE AND CONTRACT 215

tracts of necessaries are governed by the rules of common law as modif

by section 2 of the Sale of Goods Act, 1893.45 As the test of necessaries
Act adopts (a) suitability to the condition of the infant's life and ( b )
actual requirements at the time of sale and delivery. The former,
suitability to the condition of the infant's life, has been incorporated in th
Indian law46 as well. As regards what are necessaries and what are not th
is not much difference in the Indian and English judicial views becaus
making allowance for the variations in indigenous social and mercant
conditions in India, the Indian courts, in the absence of any definition
necessaries in the Indian Contract Act, have followed the English statu
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 con-
templated by section 248 of the Sale of 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 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 quesťon
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™ 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 con-
tract, 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 require-
ment at the time of the sale and delivery.
46. See s. 68 of the Contract Act.
47. See Anson, supra note 14 at 181-82.
48. Supra note 45.
49. See Nash v. Inman, (1908) 2 K.B. 1 ; Ryder v. WombwelK L.R. (1868) 4
Exch. 32.
50. (1840) 6 M and W 42.

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216 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

some gold rings and gold chain for watch but the question was le
jury whether these supplied articles were actually and reasonably
suitable to the person in his circumstances.
This position makes the English law more complicated as co
to the Indian law in many respects and the work of the court b
onerous.

The question to be determined by the jury is by no means

cate. What tests the jury has to apply? It has been suggested51 tha
must consider the character of goods supplied, actual circums
infant and extent to which the infant was supplied with
submitted that these tests are only illustrative and not exhaust
they are only relative and the minds of the juries are normal
be influenced by the provisions of section 2 of the Sale of Goo
The law in respect of creating burden on the plaintiff-t
proof of requirements under section 2 of the Sale of Goods
an unreasonable hardship on him. It is true that law provide
to the infant but in its effort to do so it should not burden
party with an impracticable demand. For example, how far i
ble to expect that the trader would probe deep and intrude i
fant's house to take an account of his belongings as to how m
things or waist coats (as was the case in Mash v. Inman 51) d
From the above discussions of Indian and English law, it clea
that the Indian law in this regard is comparatively simpler.
In India there is no provision for reference to the jury an
that the "necessaries" are basically a question of law to be
the judge without any dependence on the opinion of the jury.
The English law enjoins on the infant that he must pay
price52 for the necessaries sold and delivered to him. This im
infant's liability may be personal as well. In the Indian law t
not liable personally for the necessaries and no claim can be p
him for them. The statute creates a claim for reimbursemen
minor's property.68 In this respect the English law is more s
the Indian more generous towards the infant.

Basis of minors' liabilities for necessaries

The basisi of ari infant's liability is still unsettled. Two
opposite theories have been put forward. The advocates of
theory argue, that the infant's liability arises ex contractu.
suggested by Buckley, L.J., in Nash v. Inman 54 that:

The plaintiff when he sues the defendant for goods sup

during infancy, is suing him in contract on the footing
51. See Anson, supra note 14 at 181.
52. See proviso to s. 2 of the Sale of Goods, Act 1893.
53. S. 68 of the Act.
54. Supra note 49.

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 217

the contract was such as the infant, notwithstanding infancy

could make.54®

This theory proceeds on the fiction that in respect of necessa

infant is as much competent to contract as a major person. Obv
this is fallacious and is directly opposed to facts. Fictitious assum
of contractual capacity is the weakness of this theory.
The theory counter to the contractual-one bases infant's liabi
a quasi-contract. The infant is liable not because he has given an
sensus for paying for them but because he obtained a valuable a
from the other party for which justice and equity require him to pay
ble price for the advantage gained otherwise it would be an unjus
ment which the law will not allow. This theory was put for
Fletcher Moulton, L.J., in the same case of Nash v. Inman 55 an
Scrulton, L.J.56
The quest for the basis of the infant's liability is not on
theorist's academic interest but it is of practical significance
prominently manifested in the case of an executory contract for n
viz,, a contract in whicht the goods or services have not yet been
but only mutual promises stand on the two sides. The applic
these two theories to such contracts will yield entirely differen
regarding their validity. If the contractual or consensus theory i
the executory contract is enforceable against the infant even if th
have not been delivered but only promised. Obviously, it seems
hold the infant liable for such a situation. It will mean making t
liable for a contract of sale. Further, section 257 of the Sale of G
does not provide for necessaries only promised to be sold, it lay
rule for articles "sold and delivered". A search of a celebrated writer58
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 diffi-
cult 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 recover-
able but the proviso59 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 con-
tracts 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-
54a. /¿/š at 12.
55. Ibid ě
56. Pontypridd Union v. Drew, (1927) 1 K.B. 214. See for the relevant quotation
from the judgment, Cheshire and Fifoot, supra note 14 at 370«
57. Supra note 45.
58. Sir John Miles, 43 L.Q.R. 389.
59. See supra note 45.

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 218 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

contract to pay the price. So no liability can be found on the i

necessaries so contracted. The balance regarding correctness is
ably tilted in favour of the quasi-contractual theory of liability
for necessaries supplied to him.
Executory contracts for education60 have been treated dif
from the executory contracts for other things supplied as neces
former has been held valid and enforceable against the infa
judgment in Roberts v. Gray 62 seems to indicate that the liab
from contractual agreement based on consensus of a minor, as
a major. This is a point in favour of consensus or contractual t
Anson being aware of the difficulty observes :

These cases (i.e., Roberts v. Gray 64 and Doyle v. White65) m

have introduced an innovation into the law, but in the prese
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 authori-

ties in this regard, Cheshire67 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, apprentice-
ship, 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 educate68 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 370-371.
61. Roberts v. Gray, (1913) 1 K.B. 520. The following observation of Hamilton,
L.J., is significant in this regard:
I am unable to appreciate why a contract which is in itself binding because it is
a contract for necessaries not qualified by unreasonable terms can cease to be bind-
ing 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 61.
63. See supra notes 17 and 18.
64. See supra note 61 .
65. (1935) 1 K.B. 110.
66. Anson, supra note 14 at 187.
67. See Cheshire and Fifoot, supra note 14 at 371.
68. Regarding éducation there is a different view as well, see supra pp. 217-1 8.
69. See supra note lì*

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 ¡SPECIAL ÏSSUE : LA OF EVÏDENCE AND CONTRACT 219

has been statutorily safeguarded by proviso69 to section 1 of th

Relief Act, 1874. However, there is an authority70 for the view
meaning of this proviso is obscure. Further, it is a jurist's view that
the absence of this proviso the contracts of this type could not
affected.71
The validity of these contracts have been recognised from the early
times far anterior to the Infants Relief Act, 1874. The policy and reason
for such a view have been advanced as follows :
(0 Such contracts are to the obvious benefit of the minor to prepare
him as a self supporting person.
(iï) The contract in order to be valid must, on the whole, be for his
benefit.72
(iii) 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 all 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 time73 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 be-
coming major.
(viii) The acid test of the validity of such a contract is the infant's
benefit. Further, requirement74 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. 211.
71. See Anson, supra note 14 at 183.
72. De Francesco v. Bar num , (1890) 45 Ch. D. 930. Also Clements v. L. and N.W.
Rly.9 (1894) 2 Q.B. 482.
73. 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 373.
75. Supra note 66.

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220 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

contests. In spite of infancy the contract was held valid. T

the view was that the licence was essential for his profession
and the contract was closely analogous to a contract of
analogous doctrine has been applied in a recent case.76
(ix) It follows from the discussion in (viii) that contract
beneficial to the infant may not be valid if they are not con
vice or analogous to them. Thus it has been a well se
principle that a minor is not bound by a trading contract i
contract being for the infant's benefit. The instant cases a
NielcP 7 and Mercantile Union Guarantee Corporation v. Bale18 w
were hold not bound though contracts were for the benefit t
they were trading contracts. Such contracts are exception
rule of validity of contracts of service, etc.19 It is noteworth
these cases cited by Cheshire and Fifoot the contracts w
against the minor, which meant onerous on the infant.
whether the courts will take the same view if infants make
the opposite party say where after the infant delivered the g
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 sec-
tion7080 the minor is, of course, entitled for compensation but his right
here does not emerge from his contract stricto sensu ; it arises from relation-
ship which resemble to those created by a contract, i.e., ex contractu . How-
ever, there are authorities81 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
Adib82 where the father (natural guardian) entered into a contract of

76. See supra note 73.

77. (1912) 2 K.B. 419.
78. (1937) 2 K.B. 489.
79. See Cheshire and Fifoot, supra note 14 at 373.
80 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. J ay aro o Nar ay an, Í.L.R. 13 Bom. 50; A. T. Raghava
Chariar v. Srinivas , A.T.R. 1917 Mad. 630 F.B. ; see also A.I.R. 1934 Lah. 480.
82. A.I.R. 1949 Bom. 215.

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 221

service on behalf of his minor daughter, Rajrani with Prem Adib, p

prietor of a film producing concern. The terms of the contract, br
stated, were that for a period of one year Rajrani was to act as a
actress in the defendant's studio for a sum of Rs. 9,500 payable in tw
equal instalments. Rajrani sued through her next friend for the reco
of Rs. 8,708 as damages suffered by her due to the defendant's brea
ontract, Desai, J., held the contract void for being without considera
because under section 1 1 the girl being a minor was not competent to
tract and her promise was not enforceable. Logically it follows from
that her promise to serve would provide no consideration for the pro
of the defendant to pay her a salary. The claim was turned dow
the ground that in effect there was no contract enforceable at law in
absence of consideration, hence no breach occurred. Desai, J., observ

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

damages must be based on damage suffered by the guardian and not
the damage suffered by the minor.84 This view found support
Beaumont, C.J., in Khirnji Kuverji v. Lalji Kar amasi. *r°
In English law a minor may enter into a contract of apprenticesh
but he cannot be sued thereon.86
In India the Apprentices Act of 1850 makes provision for c
tracts of apprenticeship in the nature of contracts of service
binding on the minors. In English law contracts of service and appr
83. Id. at 218.
84. Abdul Razak v. Mohomed Hussain, A.I.R. 1917 Bom. 61 .
85. A.I.R. 1941 Bom. 129, Desai, J , in Rajrani' s case points out that Beaumont,
C.J., was in error in thinking that in Abdul Razak v. Mod. H us sain, 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 bride-
groom himself. However, Desai, J., agrees with the view laid down by Beaumont, C.J.
86. Pollard v. Rause , (1910) I.L.R. 33 Mad. 288.

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 Ill JOURNAL OF TtíE INDIAN LAW INSTITUTE tl972]

ticeship are placed at par and grouped under the broad category
tracts for necessaries.87 In Indian law a contract of marriage by t
for his daughter's marriage has been held anologous to a con
apprenticeship by the minor's father.88 The reason for so equat
tracts of marriage with the contracts of apprenticeship by these auth
is the benefit of the minor.89 However, neither a contract of p
service nor a contract of marriage can be ordered to be specific
formed so that in either case the apprentice or the girl cannot
pelled to carry out his or her part of the contract against his or her
Even so, if it is an enforceable contract, the other result, name
liability in damages of the party committing a breach of the co
would follow. The predominant consideration for the enforceab
contracts of service and apprenticeship is the benefit of the mi
follows that if they are detrimental to the minor they are void.
in Rajrani v. Prem Adib 91 observed:

Now though according to English Law the minor would be l

ble in case of contract of service where the contract was for his
benefit, it is clear that under s.l 1, Contract Act, the minor's cont-
ract being void, the minor would not be held liable: See Mohori
Bibee v. Dhurmodas Ghose , 30 I.A. 1 14: (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 con-
cerned 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 con-
tract 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 65.
88.. Purshottam Dos Tribhovan Das v. Purshottam Mangal Das , (1896) I.L.R., 21
Bom. 23, per Candy, J. Also Fernandez v. Gort salves, A.I.R. 1925 Bom. 97, per Tarapore-
walla, J.
89. However, Desai, J., in ¡Rajrani case, supra note 82, differs from 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 88.
91. Supra note 82 at 220.

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 SPECJAŁ ISSUE : LAWS OF EVIDENCE AND CONTRACT 223

into by him personally, is he entitled to sue for obtaining practi-

cally the same relief simply because the contract has been en-
tered 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, ent

the minor himself or by the guardian is still shrouded in ju
versy. There has been no opportunity for the Supreme Co
the clouds of judicial conflicts. Desai, J.'s judgment is logical
cally well sustained in accordance with the statutory law.
realisation, as admitted by him,92 that as a result of this
minors may lose the benefit of contracts of service. Needl
it is opposed to the generally accepted principle of benefit
though there; are dicta contrary to the benefit theory. It i
the learned Judgde was fettered by the law of the legislatu
there is need for reconsideration93 of the law in this regard.

VII. Ratification

It is well settled principle of law that a minor's agreement is a co-

mplete 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 of its ratification does not arise. The consideration which
passed under the earlier void agreement due to minority cannot be impo-
rted in the contract which the minor makes after mine rity.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. Sree -
narayan ,96 where Rs. 7000 was the price of goods supplied during minority.
While executing a new pronote besides Rs. 7000 another sum of Rs. 76,
advanced as necessaries, 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 prono te executed on majority as a new one and binding.
92. Ibid.
93. See Conclusion, infra .
94. Govindram v. Piram Duita , A.I.R. 1935 Lah. 561 (F.B.) ; Shah Jetha Lai . v
Dar bar, A.I.R. 1953 Bom. 177.
95. Arunugan v. Doraisinga , (1914) I L R. 37 Mad. 38; Suraj Narain v. Sukhu
Ahir , A.I.R. 1928 AU. 440.
96. 11 C.W.N. 135,

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224 JOURNAL OF THE INDIAN LA W INSTITUTE [1972]

The view is shared by a celebrated well known author97 and som

Courts have accepted it.98
A minor is not obliged under law to pay a debt taken during
nority when he attains majority but he is free to exercise his discretio
way or the other. If he chooses to pay and actually pays the debt
racted during his minority, he cannot subsequently claim its refun
ground that the minority debt was void because the minor's cont
void but not unlawful. Money so paid has been considered to b
recoverable gift.89
If a minor commenced a transaction during minority and conti
ly takes it up and carries it on after emerging from disability of m
the person will be bound for the whole transaction.100 There is a
authority to the effect that if services are rendered during minority
continued in post minority period as well, a promise made by the p
the state of majority to compensate for the services in the two
enforceable against him for the services inclusive of those rendere
minority also.101
In a case102 a minor had taken several sums from a money le
during his minority, on attaining majority he executed a mortgage in
deration of the minority debts and fresh advance made at the tim
mortgage. It was held that the mortgage was valid only in respec
fresh advance even though the whole consideration stated in the m
was given to the mortgagor who returned the amount of the old
during minority. The court observed that the policy of the Act un
the minor's agreement and ratification could not be circumvente
intelligent device to give debts during minority and annexing it subseq
with a mortgage supported, in addition, by a fresh consideration
amounts This is different from the view propounded in Kundan
Sree Nar ay an. 103
English law precludes an action upon any ratification made af
age of any promise or contract mad« during infancy irrespective of an
consideration for ratification after full age. English law in this re
neatly stated and, therefore, few cases are found on ratification in
to a minor. In India in the absence of a clear verdict from the leg
the courts banking upon interpretation have veered round to mutu
troversial view.104 To settle such judicial controvesy it appears exp
97. Pollock and Mulla, Contract Act (8th ed. 1957J.
98. Bhola Rum & Harbans Lai v. Bhagat Ram , A.I.R. 1927 Lan. 24; Karim Khan v.
Godadmal, A.I.R. 1937 Nag. 390.
99. Anant Rai v. Bhagwan Rai , A.I.R 1940 All. 12.
100. Nihal Chand v. Jan Mohammad Khan , A.I.R. 1937 Sind 310.
101. Sindha v. Abrahim , I.L.R. 20 Bom. 755.
102. Narendra Lai Khan v. Hrishikesh Mukerjee , A.I.R. 1919 Cal. 815.
103. See supra note 94.
104. See supra notes 96, 102. Also the Cobind 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

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 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 guard
minor can elect to ratify them after cessation of minority. Con
ratified entitle the person to sue for damages for their breach.
American Insurance Co. v. Madan Lai} 05 cotton bales of a minor
sured against fire by his guardian on a policy. On the proper
destroyed by a fire, the minor was held entitled to sue on the i
policy for damages and benefit of the contract was conceded to hi
court. Likewise, a minor was allowed to sue for damages for bre
contract of marriage made by the father on her behalf. 106
A valid ratification must satisfy three necessary conditions10
(a) The minor has become a major person according to the releva
( b ) he had full knowledge of the nature and effect of the act of rati
upon his interests; {c) the ratification must show intentional ackn
ment of the liability for the act or transaction done on his behalf dur
minority, and ( d ) the transaction must be such as is capable of ratifi

VIII. Estoppel and minors' agreements

The rule of estoppel is laid down in section 115108 of the Indi

dence 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 plead-
ing 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 case110 settled the judicial controversy where the Privy
Council observed that a contract by a minor is a nullity and incapable of
former case Agha Haider, 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. 37.
105. A.I.R. 1935 Bom. 353.
106. Khirrtji Kiverji case supra note 85.
107. Bank of Montreal v. Dominion Gresham Guarantee and Casualty Co ., A.I.R,
1930 P.C. 278. See also Sri Ram v. Mohan Lai , A.l.R. 1935 Nag. 127.
108. 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.
109. Supra note 1.
110. Sadiq Ali Khan v. Jai Kishore, A.LR. 1928 P.C. 152-

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226 JOURNAL OF THE INDIAN LA W INSTITUTE [1972]

founding a plea of estoppel, even though, the minor made a false represe
tion as to age and induced the plaintiff to make the contract. The r
Sadiq Ali v. Jai Krishore 111 has been followed by the Indian High C
and accordingly many earlier decisions to the contrary have been ove
The principle underlying the dicision is that there can be no es
against a statute and section 115 of the Indian Evidence Act should
read subject to section 1 1 of the Indian Contract Act. There is
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 num-
ber 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

(1.) Mortgage : Following the principle of benefit to the minor, authori-
ties 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,113 a 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 consi-
deration 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 pro-
mise or such an agreement is a reciprocal promise by the minor
the whple 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.
112. Leslie v. SheilL [1914] 3 K.B. 607.
113, A.l.R. 1936 Pąt. 153.

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 SPÉCIAL ÏSStJE : LAWS OF EVIDENCE ANĎ 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 1 1 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 case114 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. 1100 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., reject-
ed the contention and held that under section 6 of the Transfer of Pro-
perty Act115 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

infant... can accept a gift even of propert

obligation though he will not be bound
and can repudiate it when he becomes co
tract.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 re-
pay 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 up-
holding the transaction. It may be that an infant having ad-
vanced 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 incom-
petent to make a contract the matter would stand on the foot-
ing 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 81.
1 15. Sec section 6 of the Transfer of Property Act.
116. Raghava Chariar case supra note 81 at 636.

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12% JOURNAL OF THE ÎNDÏAN LAW INSTITUTE Ü1972]

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.1160

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 In-
fants Relief Act has been construed in England. The Trans-
fer 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 obliga-
tion of his contract by his own act or to profit by his own
fraud: Maxwell on the Interpretation of Statutes, Edn. 5, p.
337. 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.
116a. Id. at 636-37.
117. Id. at 640, 641.

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 special Issue : Laws of evidence and contract 229

Loyalinga Chetty 118.

In Madhab Koeri v. Baikuntha Karmakar and Others 11
other reason relying on section 41120 of the Transfer of P
defendant executed a mortgage bond, in favour of Baikun
and Ghosi Ram Karmarkar, the plaintiff respondents, who
secure the payment of a loan of Rs. 200. The plaintiff mino
suit claiming Rs. 389 as principal and interest. The learne
relying on a case121 that a promissory note executed in fa
and not involving any promise on his part or any contract
him can be enforced, held that the principle would
present case. Their Lordships further advanced the argum
another basis for their judgment viz :

Even if it should be held that the instrument in questio

suit ought to be cancelled on the ground that it is void
be remembered that the defendant has had the benefit of
the sum advanced by the plaintiffs under it and in such circum-
stances 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 case122 of Madras

High Court gives a better statement of law. The argument in the Patna
case123 is open to objection that it confines only to executed contract and
is not in harmony with the general import of section 1 1 of the Act,
whereas the alternative argument advocated in Madhab Koeri v. Baikuntha
Karmarkar 124 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. 312. See the reason advanced in this case. This was
followed by a single bench of the Allahabad H.C. in M unni Koer v. Madan Copal, (1916)
I.L.R.38 AU. 62 which was reversed on appeal.
119. (1919) 4 Pat. L.J. 682.
120. 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 persan 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 tha
transferee, after taking reasonable care to ascertain that the transferor had
power to make the transfer, has acted in good faith.
121. Supra note 1 19.
122. See Raghava Chariar case, supra note 81.
123. See supra note 119.
124. Ibid.

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230 Journal of the indian Law ínsťitVťe ti9t2ļ

anyone on his behalf.125 The decisions are based on the ground th

the minor cannot sell his property but he can be a transferee. Th
does not possess capacity to contract yet he has capacity under th
acquire. Section 55 of the Transfer of Property Act deals with the
of a vendor in respect of sale but the minor will not be handicaped
liabilities in the sense that he cannot enforce the sale in his favou
these liabilities are not created by a contract entered into by
There is a solitary instance of a, case124 where such sale in favour of
was held void but this case has been overruled by the Full Bench
now settled that the minor in whose favour a sale deed has been
is entitled to sue :
(2) Partition : The authorities have viewed partitions diff
from the cases of sale and mortgage. They have been treated
leases. Accordingly, it has been held that where a partition
alleged to have been effected by a father and his minor children
agreement such partition is void.12*
(3) Promissory notes, bonds , etc.: The principles adopte
mortgages and sales130 have been applied in the case of these inst
also. Therefore, a promissory note or other instruments of the lik
made in favour of a minor for consideration is enforceable by t
provided it does not create any promise on his part or any contrac
lity. The test is that no deteriment should accrue to the minor. T
for the decision is that the minor should be safeguarded in the
of the money due to him. Thus where the father of the plaintiff
city as the guardian advanced money to the needy defendant to en
to carry on a contract business for the consideration that the d
agreed to pay the minor half share of the profit in the business, the
was upheld.131 The reason given for the decision was that that i
to the guardian of a minor to advance the minor's money to othe
to earn profits for the minor.
(4) Partnership : Section 30 of the Partnership Act, 1932
terms provides that a minor cannot become a partner. The defin
partner in section 2(6-B) is designed to confer equal benefits
minor by treating him as a minor, but this does not mean to conf
minor the status of competent and full-fledged partner.188 Con

125. Ulf at Rai v. Gaurishankar, (1911) I.L.R. 33 All. 657; Raghunath B

Md.Baksh, 30 I.C. 201.
126. See supra note 118.
127. See, Raghava Charlar case, supra note 81.
128. See supra note 125.
129. Chettiar Firm v. Ng. Thaung , A.I.R. 1934 Rang. 2.
130. See supra pp. 226-230.
131. Gursaran Lai v. Sarai Kumar, A.I.R. 1956 All. 136.
132. See s. 30 of the Partnership Act, 1932.
133. Commissioner of Income tax Bom. v. M/s. Dwarkadas Khetan & Co., a.i.k.
1961 S.C. 681.

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 231

partnership between several persons including some minors are no

in toto but are enforceable only so far as the adult partners are conc
Only the adult members not the minors become partners though the
partners may be addmitted to the benefits of partnership provide
deed of partnership requires so.134 As long as a partnership dee
not include a minor as a full partner, the partnership deed cannot b
invalid because the guardian purported to contract on behalf of a
provided partnership is covered by provisions of section 30 of the P
ship Act, 1932. The guardian of a minor may agree to contribute cap
behalf of the minor. If it is one of the conditions on which benefits
being conferred, the guardian must either refuse to accept the bene
he must accept this term.185 The minor may in some cases avoid
agreement if it was not entered into for his benefit but the agree
remain, valid so long as the minor does not avoid it.136 The durat
a partnership has to be fixed between the major members. The gu
on behalf of a minor may agree to accept benefits of partnership pr
the duration is to the benefit of the minor. Consequently, a partn
deed embodying a clear agreement enabling the minor's guardian to
partnership benefits even after the original period is not void.137
(5) Contracts involving minors as transferors : Such contracts
under different categories. A set of contracts may be covered direc
the Indian Contract Act. Being beneficial, they may not be vo
essential requirement of consent in a contract may proceed by fic
law, through some assumed de facto guardian.139 Transfers in fav
minors made without consideration have unanimously been held b
thorities as valid. A common example of such a transaction is gift.
fers made by a minor where valuable consideration has been paid ha
held void Unless covered by any exception like necessaries. Yet ano
category which has been suggested is the class of contracts which
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 Commissioner of Income-tax, A.I.R. 1958 Pat. 177 contrary
view; see Duaram Vir v. Jogan Nath , A.I.R. 1968 Puni. 84 relying on A.I.R. 1916 P.C. 2.
135. Commissioner of Income-tax Mysore , Bangalore v. Shah Mohandas Sodhuram,
A.I.R. 1966 S.C. 15.
136. Id. at para 11.
137. Id. at para 12.
138. See J.P. Singhal and E.S. Subrahmanyam, the Indian Contract Act 281 (1967).
However, this veiw is controverted whether the contract is in effect, the minor's or
the guardian's, see Rajrani case, supra note 82.

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232 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

Contracts for purchase

The important authority on point is the case of Mir Sarwar
Fakhruddin Mahomed Chowdhuri ,139 where the minor's guard
contract on behalf of the minor for the purchase of immoveable
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 contract 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, irrespec-
tive 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 Bench141 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,142

But, the dissenting view relying on Mir SarwarjarCs case was express-
ed 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 öf a
minor to bind the minor or minor's estate by contract. But
so far as purchase of immovable property is concerned the
same rule 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
139. 39 I.A. 1.
140. Sonabhashi Kuar vś Ramdeo , A.I.R. 1951 Pat. 521.
141. Amir Ahmaa v. Mir Nizam Ali, A.I.R. 1952 Hyd. 120.
142. Id. at para 12.

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 233

minor's estate by a contract. Therefore, there canno

suit for specific performance of the contract when the co
is for the purchase of immovable property by a guardian
minor.143

The majority judgment in the above Full Bench case of

High Court relied on the Subrahmanyam v. Subba Rao .144 Th
judgment of Deshpande, J., seems to be formulated on th
between sale and purchase of property. It is submitted with resp
later145 view of the Privy Council which was relied upon by the
the Hyderabad High Court is better statement of law more i
with the theory of benefit to the minor as the basic purpos
provided to the minor is to save him from onerous terms. It
appreciate the distinction adopted by Deshpande, J., between
chase of immovable property even if the important tests fo
formance are fulfilled in the latter case of purchase viz., (i) t
a de jure guardian, (ii) he is competent to bind the minor by
and (iii) the contract is for the obvious benefit of the mino
these conditions the judicial controversy between the two a
would seem only to be apparent rather than real, and furth
situations of the cases are not identically the same on all four
Recently in a case,147 for want of mutuality, it was held
Mir Sarwarjarìs case, that an agreement made by the father
the minor for purchase of immovable property was void, it
enforced against minor by the opposite party. Accordingly
mutuality the minor after attaining majority cannot be all
specific performance.
The M.P. High Court was seized with a case148 to decide t
of a contract entered into by a natural or de facto guardian
the suit was brought by the appellants during their minorit
mother as their guardian who had entered into an agreemen
behalf for purchase of a house from the defendant for a cert
tion. Apart from this consideration was paid by way of earne
the remaining amount was to te paid at the time of registrat
deed. The defendant having failed to execute the sale deed a su
performance was instituted by the minors through the mo
friend. The court held that the contract was not enforc
minors. Bhave, J., observed :

We may further observe that after the passing of the

143. Id. at para 19.
144. A.I.R. 1948 P.C. 95.
145. Ibid.
146. See supra notes 139 and 144.
147. Bhola Nath v. Balbhadra Prasad, A.I.R. 1964 All. 527.
148. Ramchandra v. Manik Chand , A.I.R, 1968 M.P. 150*

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234 JO V F NAL OF TEE INDIAN LAW INSTITUTE [1972]

Minority and Guardianship Act 1956 the authority of th

natural guardian even to transfer the minor's property for leg
necessity has been taken away. Snch transfers can now be effect-
ed 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 Sarwar
jan'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 wit

powers of the natural guardian.149 The clear import on simplest int
tion and spirit of that provision seems to be to provide protection
minor's immovable property from mortgage or charge or transfe
even at the instance of the natural guardian, without the permissio
court which is considered to be the most objective authority for sa
ing the interests of the minor. The use of the words "for the benefit
minor's estate" occuring in section 8(i) of the Act are quite signific
section clearly relates to the transfer of immovable property of th
by the devices mentioned in section 8 (2) (a) and (b). The section d
mention at all the case of purchase of property by the minor thro
guardian; neither the permission of the court is needed. If the gu
transaction is not beneficial to the minor, it can be struck down un
well recognised principle - "benefit to the minor" or transaction "oner
the minor". It is difficult to appreciate as to how did the court in the
case180 stretch the provisions of section 8 of the Act to cases of purch
minors through the guardian. It is further difficult to appreciate as to
section 8(3) missed the notice of the learned judge. Even accepting t
ment of the court for extending the provision to cases of purchase
it is not so the purport of the section, the transaction should ha
voidable at the minor's instance. Section 8(3) further supports the v
the basic purpose and spirit of the section is directed to the one
protection and safeguard of minor's interest in immovable property
the instance of disposals through the natural guardian. From the ju
it appears, it is submitted with respect, that the court gave undue weig
Mir Sarwnrjarfs case even to the disregard of the plain meaning of
8 of the Hindu Minority and Guardianship Act. Therefore, a caut
been sounded in accepting the decision and dictum of the court.161

Contracts for sale by guardians

Contracts made by a de jure or certificated guardian can be s
fically enforced by or against the minor provided two conditions a
149. See s. 8.
150. See supra note 148.
151. 4 A.S.l.L. 176 (1967-68)«

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 235

fied viz . (/) such guardian can enter into contracts on behalf of
so as to bind him ; (ii) the contracts are for the benefit of the minor
necessity.152 There is a judicial consensus on this point and the
Mir Sarwarjaďs case has been held not to apply in this situation
There is a judicial controversy regarding the validity of such con
One set of old authorities hold that the contract of a guardian
subject to the test of benefit to the estate and necessity being fulfil
authorities are reinforced by a ruling of152a the Privy Council
agreement in writing the respondent, being minor, agreed thr
mother to sell the lands in suit to appellants for a certain sum w
to be utilised for payment of certain debts of minor's deceased f
contract provided that a sale deed was to be executed, regist
delivered to the appellants at their expense. The appellants on fu
of conditions were let into possession of the land contracted to b
no sale deed was executed or registered). The respondent minor
his mother as next friend claimed possession of the land contrac
sold and mesne profits. Lord Morton of Henryton relying on Po
Mulla's Indian Contract Act , (7th edn.) and certain observations
Bibi9 s case applied the two aforesaid tests. It was held that the
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 Court153 which laid down
that a guardian has no authority to enter into a contract for sale of immov-
able 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 in-
variably satisfy the test of legal necessity and benefit to the estate accord-
ing as these expressions are understood in the personal laws of Hindus.
This position is not affected by the rule in Mir Sarwarjarfs case because
of the peculiar position "of the Karta or manager in Hindu law who repre-
sents the family as sui juris.
In a recent case154 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 1 1 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.

152. See supra note 144.

152®. Ibid.
153. Gopal Krishna v. Tugaran r, A.I.R. 1956 Bom. 566.
154. Miriyala Venkata Ramana Murthy v. Bodi Reddi Subbayamma. (1966) 1
Andh. W.R. 368.

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236 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

Contracts for lease

In a recent case155 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 agree-
ment between two parties is necessary, which he cannot make in view of
section 11. Relying on a Privy Council case156 the court held that the ¿fe
facto guardian cannot take the premises on lease for the minor for new
business to be started without legal necessity imposing liability.
In a case157 before the Madras High Court a suit was filed by 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 coven-
ants 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 impossi-
bility 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 ; (ii) non-availability of remedy by way of specific performance does
not necessarily render the contract void ; and (iii) the remedy of the tenant
in the event of a breach of covenant can only be either by way of a deduc-
tion from rent or by way of a claim for damages or reimbursement of
moneys spent but he cannot avoid the contract.
There are authorities158 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.169
However, there is a catena of decisions160 which have taken a con-
trary view. These decisions proceed on the reason that a lease imports a

155. Jayakant v. D urga Shankar, A.I.R. 1970 Guj. 106 ; Zeb unni ssa Begum v.
Daughar, A.I.R. 1936 Mad. 564.
156. Benares Bank Ltd. v. Hari Narayan , A.I.R. 1932 P.C. 182.
157. Zebunnissa Begum case supra note 155.
158. See A.I.R. 1925 Mad. 833 ; Grinusdick v. Sweetman , (1909) 2 K.B. 740 ;
A.I.R. 1930 All. 1 F.B. ; A.I.R. 1929 Cal. 50, 39 Cal. 282 (P.C.) ; Pramala Basi Das v.
Jogeshwar Mandai , A.I.R. 1918 Pat. 626.
159. Raghava Chañar case, supra note 81.
160. See A.I.R. 1918 Pat. 626 ; A.I.R. 1970 Guj. 106 ; (1916) 40 Mad. 308 ; A.I.R.
1937 Mad. 147.

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 23?

covenant by the minor to pay rent and other reciprocal obligations. It w

so decided before the Amending Act 20 of 1920.161 Some later decision
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 interpre-

ted this proviso strido 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 1 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 defacto 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 case162 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 con-
tract 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-
161. Mulla, Transfer of Property Act 81 (5th ed. 1966).
162. Rose Fernandes v. Joseph , Gonsalves9 48 Bom. 673 (1924).

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Ž38 JOURNAL OF THE INDIAN LAW INSTITUTE tl972]

tory making a departure from the rule in Raghava Charaiar v. Sr

Raghavachariarlñ2ü which this court distinguished. The decision in
of Rose Fernandes was followed in several other cases. In a Patna cas
the High Court observed that when the parents of a minor boy a
arrange a marriage the position is different from the contract betw
adult man and woman ; in the former case whether the marriage ev
takes place will depend on the will of the minors and not solely o
parents. In the instant case the parents of a boy and a girl, both
minors, arranged a marriage between them. The girl's father
tilak to the father of the boy. It was later disclosed that the boy s
ed from epileptic fits. Hence the girl's father rescinded the agreem
sued for the amount of tilak paid. It was held that the marriage
take place due to default of the plaintiff, he could not recover the
In Daniel v. Mariamma 164 it was held that the court will grant d
for the loss arising from such breach of contract as suffered by the gu
not the minor. In another case165 it was held that in Hindu law if the
is dead the mother is legal guardian of minor children and she ca
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 ,166 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 1 1 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.1*1 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 168
162a. See Raghava Chariar case, supra note 81.
163. Janák Prasad v. Gopi Krishna Lai , A.I.R. 1947 Pat. 132.
164. A.I.R. 1951 Mad. 466.
165. Supra note 106.
166. A.I.R. 1935 Bom. 353.
167. A.I.R. 1954 Bom. 347,
168. Supra note 1 .

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 239

relied on by the opposite party seeking the court to declare the contr
insurance void on the ground of infancy the learned court held tha
proposition of the Privy Council was in general terms and pushed t
logical conclusion the Privy Council decision would have made it im
sible for the minor to get benefit under, or enforce, any contract en
into by him even when consideration had been wholly received by
other contracting party. The courts in India have, as a rule, con
application of the Privy Council ruling only to cases where a minor is cha
ed with obligations and the other party seeks to enforce those obliga
against the minor. Accordingly, the contention of the defendants tha
minor is not entitled to sue on the ground of his minority at the time of
contract was negatived by the court.

Contracts for purchase of shares

This point arose in Golcunda Industries Private Ltd . v. Registrar of C
panies 169 The appellant company allotted a number of shares to ce
persons including some minors. The company claimed that minors w
given shares because of contracts made through the minors' guardian
the purpose. The Registrar declined to register the return submitte
the company for the inclusion of minors as shareholders. The c
decided that the Registrar was obliged to register the return submitt
the company and it abstained from expressing any opinion on the p
whether or not a guardian can bind the minor by a contract for pur
of shares and whether or not such minor can be placed on the regist
members.
The counsel for the appellant company based on the authority of
Privy Council170 argued that the guardian can enter into a contrac
behalf of the minor provided that the contract so made is - (a) with
competence of the guardian ; ( b ) for the benefit of the minor. He
further support for his argument from section 8 of the Hindu Minority
Guardianship Act which empowers the guardian to do all acts which
necessary or reasonable and proper for the benefit of the minor or
realisation, protection, or benefit of the minor's estate. The respond
counsel argued that after the enactment of the Hindu Minority and
dianship Act, 1956, section 8, the guardian can in no case bind the m
by a personal covenant ; therefore, allotment of shares to the minor thro
the guardian's contract was beyond the power of the guardian. The
is the view of a writer171 even though the shares are for the benefit of
minor on the ground that the guardian is not competent to saddle
minor with such liability because of prohibition against creating a pe
liability. However, it is questionable whether the same will be the p
tion where the purchase of share does not result in personal liability
169. A.I.R. 1958 Delhi 170.
170. Sec supra note 144.
171. See supra note 5 at 330, 331.

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240 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

it is not onerous ; on the other hand it is gainful and for the be

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 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 case173 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 settle-
ment valid.175 However, it follows as a logical conclusion from the judge-
ment that the position would be different if the settlement is made by the
legal guardian of the minor.
A similar view was taken in Far tap Singh v. Sant Kaur 176 where the
parties involved were Hindus. It was held that where there is no per-
son 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
father's collaterals cannot be upheld. Further, such transaction cannot be
valid on the ground of family settlement because a party cannot by describ-
ing 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 family or a 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 49.
173. Mohd. Amin v. Vakil Ahmad , A.I.R. 1952 S.C. 358.
174. Id. at 361.
175. Supra note 173 overruled A.I.R. 1919 Gal. 218 and A.I.R. 1929 Audh. 134*
176. A.I.R. 1938 P.C. 181.

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 241

fraud, misrepresentations or mistake which vitiate it. This is

principle of the Hindu law that the father or the manager o
property represents the minor and safeguards his interest.
he is validly a party to the settlement and law regarding
minors is not contravened.

Acknowledgement of debts
It is settled judicial view that the minor's guardian cann
ledge the debt resulting in extension of the period of limitation a
create liability on the minor. But he can do so if the guar
for the protection or benefit of the minor's property.177
In Bechu Singh v. Baldeo Prasad,1™ the mother of the mi
Singh, executed a pronote for a certain sum in favour of the p
debt taken earlier by the minor's father and for the performance
ceremonies of Bechu Singh's father. The plaintiff sued for re
was admitted that the woman in the case was the natural and
of the minor. Section 21 of the Limitation Act empowere
guardian to make an acknowledgement for the minor's benef
held that all conditions necessary to bind the minor and his
present and the mother as the legal guardian of her son was
enter into the new contract. However, the position would be
if the person acknowledging the debt is not the legal guardian
under Hindu law.179

XI. Specific performance of contract

Specific performance and minors' agreement

This topic has incidently been discussed above at some le
relevant cases have also been referred to.380 The law on this
be briefly summarised. It is settled view that a contract by
himself cannot be specifically enforced because there is actually w
enforceable contract, and there is no mutuality.
Mir Sarwarjan v. Fakhruddin Mahomed 181 introduced t
of mutuality in India and ruled that the manager of a mino
his guardian cannot bind the minor or his estate by a c
purchase of immovable property and for the want of m
minor cannot obtain specific performance of contract af
majority.182
177. Annapaganda v. Sangadigyapa , (1902) 26 Bom. 221.
178. A.I.R. 1933 Audh 133.
179. Ramaswamy Pillai v. Kasinath Iyer , A.I R. 1928 Mad. 226 ; Ramcharan Das
v. Gaya Prasad , (1908) 5 A.L J. 375. These cases were considered and distinguished,
supra note 178.
180. Supra pp. 231-237.
181. (1912) 39 I.A. 1.
182. Supra p, 232,

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242 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

In Subrahamanyam v. Subb Rao ,183 where the agreement

minor's guardian to sell his property it was held that such agree
specifically enforced by or against the minor provided two c
fulfilled viz. y (i) the contract is within the competence of t
ąnter into such contract on behalf of the minor to bind him
for the benefit of the minor. In absence of these two conditions the con-
tract cannot be specifically enforced.
In Sitar ama Rao v. Venkatar ama}** the later Privy Council case185 has
been explained and an attempt was made to reconcile Mir Sarwarjaďs
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 case186
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. A' 7
In 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 1 14.
184. A.I.R. 1956 Mad. 261.
185. See supra note 142.
186. A I.R. 1969 Mad. 470.

187. See Ashbuiner, Equity 405 (?nd cd.) V/iIlisłcn. A Treatisj on the Law
Contracts (3rd ed. 1957 by Jaeger) ; 2 American Restatement of Law : comment
S. 372 (1959).
188. See supra note 181«

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 243

by the legislature. Since Mir Sarwarjarís case want of mutuality has

successfully pleaded as a defence in a suit for specific performance. H
ever, there is no dearth of authorities189 which have criticised the do
and expressed doubt regarding its application in, India.
The doctrine has been held inapplicable in case of unilateral p
mises where the promisee received consideration.190
The Law Commission in its report191 has given an indication
favour of abrogation of the theory of mutuality and accordingly rec
mended 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)192 has been newly added in section 20 of

the Specific Relief Act of 1963.
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, 1890. The Hindu Minority and
Guardianship Act, 1956 has given a set-back to the doctrine and has con-
siderably impaired the authority of Subrahmanyam v. Subba Rao .193 Now
under section 8 of the Hindu Minority and Guardianship Act, 1956 sanc-
tion 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,
1963. However, personal law of Muslims provides that transfer of a minor's
property by his de jure guardian 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.
189. Subrahamanyam case, supra note 144 ; Sur y a Prak asan v. Ganguraju , A.I.R.
1956 Andhra 33 (F.B.).
190. A.I.R. 1965 All. 83.
191 . See 9th Report of the Law Commission on the Specific Relief Act.
192. Sub-see. 4 reads :
The Court shall not refuse to any party spécifié performance of a contract merely on
the ground that the contract is not enforceable at the instance of the other party.
193. See supra note 144.
194. Imambandi v. M ut saddi, A.I.R. 1918 P.C. 11.

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244 JOURNAL OF THE ÏNDIAN 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
Indian law on this subject and certain authorities195 drew inspiration t
from. Therefore, it is apposite to consider briefly the law of restit
English law. Equity is the soul of the doctrine of restitution in E
law. Common law provides immunity to the infant against hi
fraud or misrepresentation regarding his age and induces the othe
to form a contract with him under peretence of majority. Where
falsely misrepresenting his age, takes a loan of money or any oth
not covered by "necessaries" an action at common law against the
will not succeed either on the express contract or on money he h
ceived. Equity came forward to mitigate, to some extent, the rig
this rule of common law which does violence to morality and jus
cause infants should be as much prevented from practising fraud a
representation for their advantage as the adults. Infancy is a dis
or incapacity which should not be helped to the extent of giving
licence for making gains out of misrepresentation. Therefore, eq
vented a principle which compels the infant to restitute, under
conditions, the ill-gotten gain to the opposite party.
The leading authority on this point is Leslie (R) Ltd. v. Sheill
where the plaintiffs were a firm of registered money lenders and
fendant infant told a lie regarding his age that he was major.
faith he obtained a loan from the plaintiffs who sued for recover
loan with interest. In the judgments of Lord Sumner, Kennedy, L
A J. Lawrence, J, it was held that the plaintiffs cannot succeed to rec
loan which is void according to the Infants Relief Act, 1874 for the re
that the money was paid to be used as the defendant's own, he u
impossible to trace it and restore the very things got by fraud; orderi
loan of money to be paid will not be restitution but repayment special
the money paid has been dissipated. So it is clear that in case of
loans the doctrine of restitution will not apply excepting that very
rather impossible situation where the very notes, coins etc., were i
sion of the minor and were identifiable. The restitution will not be
in case of other goods also which have passed out of the infant's po
So, a very narrow field is left where the principle of restitution w
in case of goods which continue to be in the possession of the min
time of the suit and they are identifiable.198 The view of a celeb
jurist is that the limits of this doctrine are somewhat ill-defined.199
195. Ajudhia Prasad v. C h andan Lal , A.I.R. 1937 All. 610. (F.B.).
196. Supra note 112.
197. For the logical reasoning see the observations of Lord Sumner, id at
619 and A.T. Lawrence, J., id. at 627.
198. Clarke v. Coblev (1789Ì 2 Cox. Ea. Cases 173.
199. See Cheshire and Fifoot, supra note 14 at 384.

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT Ž45

With regard to restitution an intricate question arises where the

infam obtains goods by misrepresentation of his age but has eithe
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 ,200 where the infant had sold some of the furniture (non-necessary
goods) received through misrepresentation of his age. The plaintif
sought relief in equity for recovery of the value of goods. Lush, J., held i
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 attempt20
has been made to reconcile the two mutually conflicting decisions on th
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 re
ceived 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 he
that these sections were inapplicable in case of a minor who cannot
ordered for restitution under these provisions. The view of the Priv
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 ins-
tance, "an agreement discovered to be not enforceable by law" which ex-
pression 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 discover-
ed it to be void (i.e. not enforceable by law). This point drew attention

200. (1913) 2 K.B. 235.

201. See supra note 196.
202. See Anson, supra note 14 at 190-191; also Cheshire and Fifoot, supra note 14
at 384-385.
203. Supra note 1 .
204. A.I.R. 1922 P.C. 403.

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 246 JOURNAL OF THE INDIAN LA W INSTITUTE [1912]

of the 5th Law Commission which though conscious of the judicia

regarding expression "discovered to be void" yet felt the necessit
taining that expression for certain reason. It would be pertinent
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" inas-
much as in particular circumstances, it may be relevant for the
purposes of limitation.
While dealing with section 1 1 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 represen-
ting 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 con-
tract with full knowledge of their incompetency.205

The authority of Mohori Bibťs 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 41206 of the Specific Relief Act, 1877. Needless to say
that these reliefs are based on principles of equity.
Regarding these provisions the judicial committee in Mohori Bibťs
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 courts207 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 line of decisions. The case involved two material points
205. See the Thirteenth Beport of the Fifth Law Commission on the Indian Contract
Act, 37 (1958).
206. Ss. 38 and 41 ot tne oía apecmc imenei aci correspond respectively to ss. ¿u
and 41 of the Specific Relief Act of 1963.
207. Dattaram v. Vinayak (1928) Ï.L.R. 28 Bom. 181 ; Mamnath Kumar v. Exchange
Loan and Co., A. I. R. 1936 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. 21.
208. A.I.R. 1928 Lah. 609 (F.B.).

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 ¡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 represen-
tation 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, C.J., in a closely reasoned and illuminating judgment after
critical appraisal of relevant case 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 con-
tract. Section 115 of the Evidence Act should be read subject to provisions
of lhe 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 ins-
trument 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 oppo-
site 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
not be 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™9 in India which
ordered refund of money received by the minor before allowing him to
recover his property sold or mortgaged.
(///) It was 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 re-
medy of restitution should not be limited to the case of the minor being
plaintiff; it should apply irrespective of the minor being plaintiff or defen-
dant because the material circumstances in the two events are the same.
The transaction has 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.
209. Jagannath Singh case, supra note 207 ; Balak Rant v. D adu, (1910/ 76 P.R.,
(1910) 7 I.C. 1000 ; Sarai Chaud Mitter v. MohaniBibi U898) I.L.R. 25 Cal. 371.

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248 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

However, the doctrine of restitution is not confined to cases covered by th

section. The doctrine rests upon the principle that an infant cannot
allowed by a court of equity to take advantage of his own fraud. Ther
no warrant either in principle or equity for general rule that the relief sh
never be granted in a case where the infant happens to be the defend
No such distinction seems to have been drawn in English cases.
(v) His Lordship continued that the contract or any stipulation th
in should never be enforced, the exact form of the relief will depend
the peculiar circumstances of the each case. The grant of relief is no
enforcement of contract but a restoration of the pre-contract state
relief is granted not because there is a contract; it is not performan
contract but its negation.
(vi) The mere fact that grant of relief, in effect, yields the same
sult as the consequence from performance of contract does not just
refusal of the relief if circumstances of the case warrant its grant b
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 v. Chandan Lai 211 the Full Bench case of the Lahore
High Court212 was considered at length and criticised with logical reasoning
at the hands of Sulaiman, C.J., who referred to Mohori BibVs case and
relied on it regarding sections 64 and 65. The conclusion of Sulaiman,
C.J., may be briefly stated :
(/) 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.
(«) 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 ląw. 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 ręspect that this is a narrow interpretation in
contrast with the judgment in KhanguVs case.
(iii) Ufering, to the remark of Shadi Lal, C. J., in KhanguVs case that
lie was unable to follow the distinction pointed out in the Leslie case and

210. See supra note 112.

211. A.I.R. 1937 All. 610.
212. See supra noté 208. "Ori the authority this restitution was granted in a number
of caees. Appasami v. Narayansami , A.I.R. 1930 Mad. 945 ' Budha v. LakshmU A.I.R.
1929 Lah. 800 ; Mamnath case, supra note 207, Ahdus v. Nusrat , A.I.R. 1937 Audh» 370 i

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 249

though that there was no real difference between restoring prop

refunding property except that the property can be identified bu
cannot be traced, Sulaiman C. J„ observed :

Where a contract of transfer of property is void, and such p

perty can be traced, the property belongs to the promisee a
can be followed. There is equity in his favour for restoring
the property to him, but where the property is not tracea
the only way to grant compensation would be almos
tentamount to enforcing the minor's pecuniary liability und
the contract which is void. The distinction is to obvious to
be ignored.218

The Chief Justice failed to appreciate Lord Kenyon's "aphorism

quoted in Khangul's 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
c#uld 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*14 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 provision215
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 thefcontract.
However, as it is a void contract the minor has no liability to pay compen-
sation. The Law Commission recommended, accordingly, a new section
36.2ie This suggestion of the Law Commission has been incorporated, by
the legislature, in the form of section 33 of the Specific Relief Act, 1963.
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 restitution the authorities are
sharply divided laying down different rules. Pollock and Mulla217 hold the
view of Shadi Lai, C .J., in a Full Bench case to be a better statement of
213. supra note 211 at 617.
214. A.I.R. 1956 A.P. 182.
215. See supra note 191 (s. 36 of App. 1).
216. Id. at 44-46.
217. The Indian Contract Act 77 (8th ed. 1957).

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250 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

law. The view of the Law Commission218 is to the same effect. The Law
Commission further agrees with the opinion of Shadi Lai, C .J., that in or-
dering 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 mate-
rial 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.522 The course of rapid progress and over-
all 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

21 8. See supra note 1 91 at Para 90.

219. Supra note 205 at 20.
220. See supra note 205.
221. See the view of Denning, L.J., quoted in supra note 205 at 1.
222. See supra note 205 at 2.

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 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 251

and economic, scientific and technological. Needless to s

legislature has made sporadic rather negligible effort to touc
contract as a whole, much less the minor's agreement. Th
decisions down to the centenary year, by and large, show a t
approach reiterating the former law marked by a remarkable
of a functional and progressive approach. Very seldom the co
pointed out deficiencies or lacuna or policy consideration und
law of the statute. The courts have at times been lukewarm i
protection to the minor and they followed the strict letter
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, 1872. With regard to minor's agreements the com-
mission considered the subject of restitution only and the judicial con-
troversy in that regard between the full bench cases of the Lahore223 and
Allahabad224 High Courts. It felt inclined towards the view of the Lahore
High Court and made certain recommendation225 which has been acted
upon by the legislature. The Commission expressed its view on interpre-
tation of section 65 by the Judicial Committee in Mohori BibVs case and
recommended an explanation226 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 assur-
ance 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 com-
mission have not so far been adopted by the legislature. There is a felt
necessity for reconsideration and restatement of the law shorn off ambigui-
ties. While writing this paper certain points occurred to the author, which

223. See supra note 208.

224. See supra]note 195.
225. See supra , pp. 249-250.
226. See supra note 205 at 20, 30.

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252 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

are briefly mentioned hereunder:

(j') The two ages of majority 18 and 21 in certain situati
artificial distinction which should be abandoned and unifo
minors should be adopted.
(ii) It should be considered whether 21 or 18 or eve
should be fixed as the age of majority in view of (a) dema
quarters for a less age for voting; (b) the fact that it contin
a person for a longer period; (c) the government is contem
down the age of voting from 21 to 18 by amending the Con
(iii) An exception be made to the general requirement
tion of instruments creating a lease, in respect of leases c
de facto guardian and for the minor's benefit.
(iv) Contracts of service beneficial to the minor be pro
entered into by the guardian on his behalf.
(v) Contracts of service entered into by the minor him
enforceable by him if beneficial to him.
(vi) To obviate the difficulty created by Rajrani v. Prem Ad
to strict interpretation of the Indian statutory law, contrac
placed under Indian Apprentices Act (19 of 1850) to enable
sue for damages in case of breach of the contract of serv
minor. In the socio-economic condition of the present soc
enters into a contract of service to stand as a respectable
person the law should help rather than obstruct him to ek
The i problem of an orphan minor in destitute circumstan
rather acute and his laudable effort to maintain himself by
service or apprenticeship should find support from law an
which seeks to deter from such contract on the sole grou
should be compelled by law to pay damages to the minor
such a contract.
(vii) 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.
(viii) On the point of ratification there is judicial controversy which
needs settlement by a restatement of the law by the legislature.229

227. See the Hindustan Times , 27 June 1972 p. 3.

228. See supra note 82.
229. See supra note 104.

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