Minors' Agreements in India and The U.K. - A Comparative Survey (205-252)

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

THE STATUTARY LAW dealing with the capacity of parties competent to
contract is found in section 11 of the Indian Contract Act, 1872. The section
is couched in a positive form providing the qualification for being competent
to contract. As suggested by the Privy Council in the historic case,1 the
section should be construed in a negative form. According to their Lord-
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 categories
of persons viz., (i) a person who is not of the age of majority and (ii) a
person of unsound mind; is that the mind of such persons is not in the same
state in which the mind of a normal prudent man functions. In the case of
a minor the disability is due to the tenderness of age owing to which the
faculty of reason and understanding has not developed to a particular level
and in the case of a person of unsound mind because his mind gets warped
due to certain reasons. Because of immaturity of mind in one case and
unsoundness of mind in the other, these persons are not able to under-
stand the nature of their acts and form a rational judgement thereof on
their interests involved in the formation of a contract. Further, they are
incompetent to give consent because due to their defective state of mind
there can be no consensus ad idem which is a sine qua non for a contract
and consent flows from a mature or sound mind which these persons lack.
Therefore, the law attributes to them a disability which is inherent in
them.
This paper proposes to deal with the legal implications of a minor's
contract.
An analysis of the section shows that in relation to contracts, 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, Banaras Hindu University, Varanasi.
1. Mohori Bibi v. Dhurmodas Ghose, (1903) 30 I.A. 114 ; 30 Cal. 539.
106 JOURNAL OF THE INDIAN LA W INSTITUTE tl972]
it and, therefore, seeks to prove the contract void. Competence to cont-

ract does not mean the same thing as authority 2 to contract. The former
relates inherently to the party and the latter to the agents or representa-
tives of the parties. Section 11 contemplates a definition of inherent
incompetence to contract but does not include agents and representatives
who contract on behalf of others and, therefore, are incapacitated to cont-
ract under restraint provided in their authority to contract.
II. The age of majority
Section 3 of the Indian Majority Act 1875, lays down the law in this
regard. 4 Accordingly, a minor attains majority in a case simpliciter when he
attains 18 years of age but a minor under the superintendence of a Court of
Wards becomes a major at the age of 21 and not earlier. In England no
such distinction has been drawn, and the age of majority is fixed there at
21 years The two ages laid down in India lead to inconvenience.5
Further, this results in a very artificial distinction in the two cases. If
attainment of maturity of mind is the test for fixing a particular age
for majority, it is difficult to appreciate and rationalise as to how such
maturity is attained in one case at 18 and in the other it is postponed and
attained three years latter merely because of the appointment of a guard-
ian by the court or his property being under the Court of Wards. In fact,
the later rule for a longer time imposes a restriction on the freedom of the
person to deal with his property independently. It is worthwhile to
consider whether this artificial distinction and a statutory bar which ex-
tends disability for a further period of three years should be continued
even in the present state of society where Courts of Wards are now practi-
cally extinct although there are provisions for certificated guardians.
The law determining majority

Before the Indian Contract Act, 1872 came into effect the Indians
and other British subjects residing in India, in matters of legal liability
2. For aneat distinction see Dharmeshwa^ v. Union of India, A.I.R. 1958 Ass. 86.
3. Ibid.
4. This section provides :
Subject as aforesaid ; every minor of whose person or property, or both, a guardian,
other than a guardian for a suit within the meaning of Chapter XXXT of the Code
of Civil Procedure, has been or shall be appointed or declared by any Court of
Justice before the minor has attained the age of eighteen years, and every minor of
whose property the superintendence has been or shall, be assumed by any Court of
Wards before the minor has attained that age shall, notwithstanding anything con-
tained in the Indian Succession Act or in any other enactment, be deemed to have
attained his majority when he shall have completed his age of twenty one years and
not before.
Subject as aforesaid, every other person domiciled in India shall be deemed to
have attained his majority when he shall have completed his age of eighteen years
and not before.
5. See V.G. Ramachandran, 1 The Law of Contract in India 329 (1970).
SPECIAL ISSUE : LA WS OF EVIDENCE AND CONTRACT 207
including contractual, were governed by their respective personal laws.

Thus the Hindus were governed by Hindu law, Muslims by Muslim law,
and the English by the English law.
The age of majority in these laws was different.6 The Indian
Majority Act (9 of 1875) gave a uniform rule and fixed the age of majority
at 18 not only for Hindus and Muslims but also for all the British subjects
of the Crown domiciled in British India. This was a significant step, but
the Act did not cover the cases of British subjects living in this country
for the time being and having their domicile in countries other than India.
The Indian Contract Act incorporated the well-known principle of law,
that the personal capacity to enter into a contract is determined by the
law of domicile.7 However, the judicial opinion in India or even in England
on this point is controversial. Thus, in a Bombay case,8 a Hindu widow
executed a bond in Kolhapur which was outside British India at that
time. The widow was more than 16 years (i.e. to say a major according
to Hindu personal law as applicable in Kolhapur) and less than 18 years
of age, i.e., a minor according to the Indian law. Even after the death of
her husband she lived in Biitish India where her husband was domiciled.
The question raised before the court was whether the law of domicile
(Indian law) or lex loci contractus (Kolhapur law) was to be applied for
fixing her liability under the bond. It was held that her capacity to 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 Madras 11 and
Calcutta 12 cases. It appears from a study of the diverse judicial views
that lex loci contractus has been followed in mercantile contracts and lex
situs in contracts involving immovable property for determining the age of
majority.
6. Jn Hindu and Muslim laws there were conflicting rules relating to the age of
majority. It was 21 years for the European British subjects and 25 years for the Britishers
not domiciled in India.
7. Kashiba v. Shripat, (1895) I.L.R. l9Bom. 697.
S. Ibid.
9. TN.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. Brajen Sahat A.LR. 1953 Cal. 366*
208 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]
III. Minors9 agreements in English law

Common law and Infants Relief Act, 1874
Contracts entered into by an infant in the United Kingdom are re-
gulated by the common law which was modified by the Infants Relief Act,
1874.13
According to the common law a minor's contract was voidable at
the instance of the minor. The word voidable was used in two different
senses.14 Beneficial contracts cf service were considered valid and contracts
involving necessaries supplied to the minor were enforceable against him.
The Infants Relief Act, 1874 introduced the following two innovations :
(0 Contracts of loans, those for supply of goods other than neces-
saries, and those for accounts are stated to be absolutely void.
(it) It is not possible for a minor to ratify those contracts by
which he was not bound in common law, unless he ratifies
them within a reasonable time after the attainment of majority.
The words "absolutely void" occurring in section 1 have given rise
to judicial controversy. The question that has arisen before the courts is
whether the words "absolutely void" mean that the contract is a complete
vacuum giving rise to no legal relationship whatsoever and there is 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 (21st ed. 1956) at p. 170 refers these as positive voidable contracts and
negative voidable contracts.
15. Reg. v. Wilson, (1879)5 Q.B.D. 28; Coutts & Co. v. Browne-Lecky, (1947)
K.B. 104.
SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 209
are of no legal consequence whatsoever. Because protection of minority

has been extended to the infant due to his non-age and, therefore, the plea
of minority cannot be raised by the opposite party either to the disadvan-
tage or to the advantage of the minor. The legislative policy obviously
seems to provide relief to the infant and not to the other party or busi-
nessman dealing with the minor. Therefore, in appropriate cases an infant
may sue.16
Another instance of the position that the so-called 'absolutely void'
contract is not wholly void and destitute of any effect whatsoever. In
Valentini v. Canali17 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 the
consideration and the coutt ordered cancellation of the lease and the
abandonment of the promissory note. It would follow from the above
discussion that the expression "absolutely void" is confusing and 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.17a
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.
be so enforced in case the infant ratified them after attaining majority.

Section 2 of the Infants Relief Act, 1874 hits these contracts and pro-
vides that no person shall be sued as a result of post majority ratification
of these contracts entered into during infancy. This will cover those
contracts which required express ratification for their validity including
contracts declared "absolutely void" under section l 20 of the Infants Relief
Act, 1874 and certain other contracts such as contracts to marry. The
plain import of the section seems to be that it makes ratification ineffective
and no action can be brought in a court of law. It follows that remedies
if any, other than the court, can be availed of.21
Some other interesting points emerge from a reading of the section.
It protects an infant completely from the enforcement of any contract (with
three exceptions apart) against him even if he ratifies the contract subsequ-
ently in his post minority age but the section does not expressly prevent the
minor from enforcing the contract against the opposite party. Of course,
the contracts falling under section 1 of the Act declared as "absolutely
void" cannot be enforced by the minor either during infancy or after the
cessation of his minority and ratification during majority. Such exceptions
apart an infant continues to enjoy his position as it obtained under the
common law.22 Secondly, the section has two significant parts separated
by the first 'or' occurring therein. The first part relates to 'a promise made
after full age to pay any debt contracted during infancy' and the latter
relates to 'any promise or contract' made during infancy. Obviously, a
distinction emerges from the section between debts contracted during infancy
on the one hand and other promises or contracts entered into during the
period of infancy on the other. In the former case the effect is that a debt
taken during infancy is not actionable as a result of either ratification after
majority or fresh promise to pay. But this principle does not hold good in
the latter case of contracts or promises other than those of debts. In these
cases also ratification after majority is not possible and they are not, there-
fore, actionable but distinct from the cases of debts, they are valid and
enforceable if there is a new promise supported by a fresh consideration.
However, the contracts of debts after ratification are not actionable even
if they are later supported by a promise and a fresh consideration. The
juristic view is that such a distinction between contracts of debts and other
contracts is rather perplexing.23 This gives rise to another complication,
namely, the distinction between ratification simpliciter of a past promise in
infancy and a new promise independent of this old one supported by a
fresh consideration.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.
From the above discussion of the English law it appears that the
English law of contract in this regard under the common law as altered
by the Infants Relief Act is frought with ambiguity and judicial contro-
versy. The observation of a celebrated jurist is not without significance:
It will be seen from the working of this section (i.e. section 2 of

the Infants Relief Act 1874) that its interpretation, like that of
the first section, is not without difficulty. It would seem,
however, that the effect is not to make a contract void in the
sense in which lawyers normally attribute to that word. The
infant, though he may not be sued in any contingency, may, it
is generally thought, himself sue the other party. 25
The purpose of devoting space for a brief discussion of the provisions

of the English law in this paper is to have a comparative view of the English
law on the subject vis-a-vis the Indian law. It will be seen from the fol-
lowing treatment of the Indian law that the latter is comparatively a
simpler law without much difficulty either in the statute or the authorities.
IV. Minors' agreements in India
Section ll 2 6 of the Indian Contract Act prescribes that all contracting

parties should be competent to contract. Negatively paraphrasing the
proposition stated therein it would mean that a person not being of the
age of majority is incompetent to contract. This expression raises a
significant question of practical importance, namely, if a minor actually
makes an agreement, what will be its effect; whether, (a) it is absolutely
void because of his incompetence, in the sense that no contract whatso-
ever has been formed giving rise to a legal relationship and, therefore, no
suit can lie by or against him and it can also be not ratified later on
attaining majority, or (b) a minor is incompetent to contract inasmuch
as he cannot be bound by it but he can sue the opposite party, i.e., in legal
terminology whether such a contract is voidable at the discretion of the
minor. For a long time there was no judicial consensus on this point.
Some High Courts in India took the former stand whereas certain others
drawing inspiration from English decisions based on the principles of
common law in respect of certain contracts in England held such a con-
tract voidable at the minor's option and that it could be ratified later. In
1903 the Privy Council in a well known case27 settled this dubious posi-
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 law to which he is subject and who is of sound mind, and is not disqualified
from contracting by any law to which he is subject.
27. See supra note 1.
nullity. It declared that a mortgage executed by a minor was void and

the mortgagee who provided money to the minor on the security could not
recover the money so paid under sections 64 and 65 of the Contract Act.
Accordingly, no decree can be passed on the mortgage either against the
mortgagor personally or against the mortgaged property. This decision
has been uniformly followed by the Privy Council and the Indian High
Courts in the cases before them. The legal basis for adopting this view
is that an agreement based on a minor's promise is void because a minor
is considered disabled and incapable of making a promise giving rise to a
legal liability on him because owing to want of maturity he does not
understand the effect of the transaction on his interest. Therefore, law
has in fact provided a protection to the minor making him immune from
the actions brought against him. It follows from this that in case of a
contract being beneficial to him he can enforce it. In a recent case28 a
manager of a Hindu family entered into a transaction of sale and an agree-
ment to resell by registered documents with four persons including a
minor for whom his brcther signed. The vendees agreed also to recon-
vey the same property to the vendors on the condition that they received
back the sale price within the specified years. The court held that if the
agreement was beneficial to the minor he is bound by it, and if he con-
tends that it was not for his benefit he can reconvey the property and
claim the return of the sale price.
V. Minors' agreements for necessaries
Indian law
If under the law a minor is completely debarred from contracting,
a practical question arises as to how is a minor, destitute of relations and
resources, to preserve himself. To meet this situation and contingencies
of the similar type the law gives recognition to contracts of minors for 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.
SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 21*
circumstance a thing may or may not be necessary. The efforts of the

courts have been to narrow down so far as possible the ambit of 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.33
(d) Necessaries are those articles which a minor actually needs.
Things supplied to a minor will not essentially fall within the category of
necessaries giving rise to the liability on the minor within the meaning of
section 68 merely because the things are such as a person of his status
and condition in life may reasonably need for ordinary use. Further, they
canrotbe necessaries if the minor is already in possession of things of
that type irrespective of the fact whether the plaintiff supplied the things
in ignorance of this fact.34
(e) Besides meeting the condition and status test the plaintiff must
also show that they were suitable to his actual requirements at the time
of sale and delivery.35
(f) Under section 68 a minor is liable for the recovery of so much
of money received under a sale or mortgage as was utilised for the
marriage expenses of his sister. The reason for the decision seems to
be that according to the Hindu law a minor is under a legal duty to
arrange his sister's marriage but the expenses of his own marriage may not
30. Chappie v. Cooper, (1844) 13 M and W 252.

31. Mahmood Ah v. Chinki, A.I.R. 1930 All. 128.
32. Ibid.
33. Ibid.
34. Jagoon Ram v. Mahadeo Prasad, (1909) I.L.R. 36 Cal. 768.
35. Ibid.
be covered under the head of "necessaries".86

(g) Whether a particular contract is a contract for necessaries is a
question of fact.
(h) Closely connected with "necessaries" is the question as to what
are not necessaries. Obviously under the latter head are placed articles
which are luxurious, costly and unnecessary considering the stratum of
society from which the minor hales.37
(i) Authorities are not uniform on the question whether a minor's
agreement for legal services falls under the head of necessaries within the
meaning of section 68 of the Act. By and large the general view is that
such services provided for safeguarding proprietary rights of a minor in
properties are not within the ambit of necessaries, the reason being that
a guardian should be appointed to take care of such involved interest of
the minor. There are views to the contrary, e.g., expenses incurred in
defending a suit in which the infant's property is involved are recoverable,
as necessaries, from the minors's estate.38 In another 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 against him
or for obtaining his discharge is recoverable under the head necessaries.41
(j) Under the Act the minor is also bound for necessaries supplied
to any one whom he is legally bound to support.42 Thus he has been held
liable for necessaries supplied to his wife or children or for the marriage
of his certain 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) I.L.R. 30 All. 325 (F.B.).
37. Supra note 12.
38. Venkata v. Timayya, (1899) I.L.R. 22 Mad. 314.
39. Sadasheo v. Heera, A.I.R. 1938 Nag. 65 ; Branson v. Appasamu A.I.R. 1917
Mad. 257.
40. Sundararaja v. Pattanathusami, 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.
SPECIAL ISSUE : LA WS OF EVIDENCE AND CONTRACT 215
tracts of necessaries are governed by the rules of common law as modified

by section 2 of the Sale of Goods Act, 1893.45 As the test of necessaries the
Act adopts (a) suitability to the condition of the infant's life and (b) his
actual requirements at the time of sale and delivery. The former, i.e.,
suitability to the condition of the infant's life, has been incorporated in the
Indian law46 as well. As regards what are necessaries and what are not there
is not much difference in the Indian and English judicial views because
making allowance for the variations in indigenous social and mercantile
conditions in India, the Indian courts, in the absence of any definition of
necessaries in the Indian Contract Act, have followed the English statutes
and case law.
The other test that the goods supplied should be necessary to the
infant not only at the time of sale but also at the time of delivery leads to
a difficulty which has been neatly expressed and illustrated by Anson.47
There is another difficult question which English courts have faced,
viz., whether the 'necessaries' are a question of fact or of law or a mixed
question of fact ard law. This involves several stages in a case.
(/) To begin with, the court is concerned to determine as preliminary
question of law whether the article is possibly fit to be necessary as con-
templated by section 248 of the Sale cf Goods Act. The onus of proof
lies on the trader who supplied articles to the infant. He has to prove
the requirements of necessity demanded by the Act. If he is unable to do
so his cause is defeated and the court pronounces a verdict in favour of
the defendant infant because of the absence of adequate evidence from the
side of the plaintiff.4*
(if) If the court comes to a conclusion that the articles supplied may
prima facie and reasonably be capable of being judged as necessaries like
food or cloth, then it is an open question of fact as to whether they are
actually necessaries in respect of a particular fact situation. Such question
of fact the judge leaves to the jury to say whether in that fact situation
the things supplied are necessaries. It was so done in the case of Peters v.
Fleming,50 where the court held that it was not prima facie unreasonable for
an infant under-graduate of Cambridge in opulent circumstances to accept
45. It provides, as quoted by Anson, supra note 14 at 180, that the capacity to buy
and sell is regulated by the general law concerning capacity to contract and to transfer and
acquire property. Provided that where necessaries are sold and delivered to an infant or
to a person who by reason of mental incapacity or drunkenness is incompetent to 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. Inmwu (1908) 2 K.B* 1 ; Ryder v. Wombwelh L.R. (1868) 4
Exch. 32.
50. (1840) 6 M and W 42.
some gold rings and gold chain for watch but the question was left to the
jury whether these supplied articles were actually and reasonably necessary,
suitable to the person in his circumstances.
This position makes the English law more complicated as compared
to the Indian law in many respects and the work of the court becomes
onerous.
The question to be determined by the jury is by no means less intri-
cate. What tests the jury has to apply? It has been suggested51 that the jury
must consider the character of goods supplied, actual circumstances of the
infant and extent to which the infant was supplied with them. It is
submitted that these tests are only illustrative and not exhaustive. Further,
they are only relative and the minds of the juries are normally bound to
be influenced by the provisions of section 2 of the Sale of Goods Act.
The law in respect of creating burden on the plaintiff-trader for
proof of requirements under section 2 of the Sale of Goods Act imposes
an unreasonable hardship on him. It is true that law provides protection
to the infant but in its effort to do so it should not burden the opposite
party with an impracticable demand. For example, how far it is reasona-
ble to expect that the trader would probe deep and intrude into the in-
fant's house to take an account of his belongings as to how many clothes,
things or waist coats (as was the case in Mash v. Inman$1) does he have ?
From the above discussions of Indian and English law, it clearly emerges
that the Indian law in this regard is comparatively simpler.
In India there is no provision for reference to the jury and it follows
that the "necessaries" are basically a question of law to be decided by
the judge without any dependence on the opinion of the jury.
The English law enjoins on the infant that he must pay reasonable
price52 for the necessaries sold and delivered to him. This implies that the
infant's liability may be personal as well. In the Indian law the minor is
not liable personally for the necessaries and no claim can be pressed against
him for them. The statute creates a claim for reimbursement from the
minor's property. 53 In this respect the English law is more stringent and
the Indian more generous towards the infant.
Basis of minors9 liabilities for necessaries

The basis of an infant's liability is still unsettled. Two mutually
opposite theories have been put forward. The advocates of contractual
theory argue that the infant's liability arises ex contractu. It has been
suggested by Buckley, L.J., in Nash v. Inman^ that:
The plaintiff when he sues the defendant for goods supplied
during infancy, is suing him in contract on the footing that
51. See Anson, supra nDte 14 at 181.
52. See proviso to s 2 of the Sale of Goods, Act 1893.
53. S. 68 of the Act.
54. Supra note 49.
the contract was such as the infant, notwithstanding infancy,

could make. 54a
This theory proceeds on the fiction that in respect of necessaries the

infant is as much competent to contract as a major person. Obviously,
this is fallacious and is directly opposed to facts. Fictitious assumption
of contractual capacity is the weakness of this theory.
The theory counter to the contractual-one bases infant's liability on
a quasi-contract. The infant is liable not because he has given any con*
sensus for paying for them but because he obtained a valuable advantage
from the other party for which justice and equity require him to pay suita-
ble price for the advantage gained otherwise it would be an unjust enrich-
ment which the law will not allow. This theory was put forward by
Fletcher Moulton, L.J., in the same case of Nash v. Inman55 and also by
Scrulton, LJ. 5 6
The quest for the basis of the infant's liability is not only of a
theorist's academic interest but it is of practical significance which is
prominently manifested in the case of an executory contract for necessaries
viz., a contract in whicht the goods or services have not yet been supplied
but only mutual promises stand on the two sides. The application of
these two theories to such contracts will yield entirely different results
regarding their validity. If the contractual or consensus theory is applied
the executory contract is enforceable against the infant even if the articles
have not been delivered but only promised. Obviously, it seems unjust to
hold the infant liable for such a situation. It will mean making the infant
liable for a contract of sale. Further, section 257 of the Sale of Goods Act
does not provide for necessaries only promised to be sold, it lays down a
rule for articles "sold and delivered". A search of a celebrated 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. Id. at 12.
55. Ibid.
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,
contract to pay the price. So no liability can be found on the infant for
necessaries so contracted. The balance regarding correctness is consider-
ably tilted in favour of the quasi-contractual theory of liability of a minor
for necessaries supplied to him.
Executory contracts for education60 have been treated differently
from the executory contracts for other things supplied as necessaries. The
former has been held valid and enforceable against the infant.61 The
judgment in Roberts v. Gray92 seems to indicate that the liability arises
from contractual agreement based on consensus of a minor, as much as
a major. This is a point in favour of consensus or contractual theory.83
Anson being aware of the difficulty observes :
These cases (i.e., Roberts v. Gray*4 and Doyle v. White65) may
have introduced an innovation into the law, but in the present
state of authorities it is difficult to state the nature of the
infant's liability with assurance.66
To obviate the difficult situation created by the two sets of 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,
LJ,, is significant in this regard:
I am unable to apprtciate why a contract which is in itself binding because it is
a contract for necessaries not qualified by unreasonable terms can cease to be 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 G\.
63. See supra notes 17 and 18.
64. See supra note 61,
65. (1935) 1K.B. 110.
66. Anson, supra note 14 at 187.
67. See Cheshire and Fifoot, supra note 14 at 371.
68. Regarding education there is a different view as well, see supra pp. 217-18.
69. See supra note 13*
has been statutorily safeguarded by proviso69 to section 1 of the Infants

Relief Act, 1874. However, there is an authority 70 for the view that the
meaning of this proviso is obscure. Further, it is a jurist's view that even in
the absence of this proviso the contracts of this type could not have been
affected.71
The validity of these contracts have been recognised from the early
times far anterior to the Infants Relief Act, 1874. The policy and reason
for such a view have been advanced as follows :
(/) Such contracts are to the obvious benefit of the minor to prepare
him as a self supporting person.
(if) The contract in order to be valid must, on the whole, be for his
benefit.78
(Hi) If it is not to his benefit he is free to give it up.
(iv) The contract is valid prima facie. Where its validity is challenged,
it is the jurisdiction of the court to construe the contract in ali its facets
and determine whether it is in a greater measure advantageous to the
minor.
(v) Substantially beneficial nature of the contract should relate to
the 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. Barnum, (1890) 45 Ch. D. 930. Also Clements v. L. aniN.W.
Rly.y (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.
220 JOURNAL OF THE INDIAN LA W INSTITUTE [1972]
contests. In spite of infancy the contract was held valid. The reason for
the view was that the licence was essential for his professional proficiency
and the contract was closely analogous to a contract of service. The
analogous doctrine has been applied in a recent case.76
(ix) It follows from the discussion in (viii) that contracts howsoever
beneficial to the infant may not be valid if they are not contracts of ser-
vice or analogous to them. Thus it has been a well settled judicial
principle that a minor is not bound by a trading contract in spite of the
contract being for the infant's benefit. The instant cases are Cowern v.
Nield77 and Mercantile Union Guarantee Corporation v. Bale78 where infants
were hold not bound though contracts were for the benefit to them because
they were trading contracts. Such contracts are exception to the general
rule of validity of contracts of service, etc.™ It is noteworthy that in both
these cases cited by Cheshire and Fifoot the contracts were enforced
against the minor, which meant onerous on the infant. It is doubtful
whether the courts will take the same view if infants make a claim against
the opposite party say where after the infant delivered 'the goods and sued
for the price.
Indian law
In India it is not possible for a minor to succeed in a suit for
damages for the breach of contract of service entered into by the minor
himself for the simple reason that a minor's contract is void. Under 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
Adib,82 where the father (natural guardian) entered into a contract of

77. (1912) 2 K.B. 419.
78. (1937) 2 K.B. 489.
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. Jayaroo Narayan, LL.R. 13 Bom. 50; A. T. Raghava
Chariarv. Srinhas, A.T.R. 1917 Mad. 630 F.B. ; see also A.I.R. 1934 Lah. 480.
82. A.I.R. 1949 Bom. 215.
SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 2li
service on behalf of his minor daughter, Rajrani with Prem Adib, pro-
prietor of afilmproducing concern. The terms of the contract, briefly
stated, were that for a period of one year Rajrani was to act as a film
actress in the defendant's studio for a sum of Rs. 9,500 payable in twelve
equal instalments. Rajrani sued through her next friend for the recovery
of Rs. 8,708 as damages suffered by her due to the defendant's breach of
ontract, Desai, J., held the contract void for being without consideration
because under section 11 the girl being a minor was not competent to con-
tract and her promise was not enforceable. Logically it follows from this
that her promise to serve would provide no consideration for the promise
of the defendant to pay her a salary. The claim was turned down on
the ground that in effect there was no contract enforceable at law in the
absence of consideration, hence no breach occurred. Desai, J.? observed;
In my opinion if, the only consideration for the contract was

the promise of the plaintiff's father that the plaintiff shall serve
the defendant, then the damages which the plaintiff's father
could have recovered from the defendant, in a suit filed by him
against the defendant, would be the damages sustained by the
plaintiff's father himself. I do not see any principle of law under
which the plaintiff, who is not bound by the agreement, can
obtain higher damages than what the plaintiff's father could
himself have recovered had he chosen to file the suit, simply
because the plaintiff may be permitted by law to sue in her own
name in respect of such a contract. It is clear on looking at the
particulars of damages that what the plaintiff seeks to recover
is damages sustained by herself and not by her father. Those
damages, in my opinion, the plaintiff cannot recover.83
In contracts by the guardian of a minor on his behalf, measure of

damages must be based on damage suffered by the guardian and not on
the damage suffered by the minor.84 This view found support from
Beaumont, C.J., in Khirnji Kuverji v. Lalji Karamasi.85
In English law a minor may enter into a contract of apprenticeship,
but he cannot be sued thereon.86
In India the Apprentices Act of 1850 makes provision for con-
tracts of apprenticeship in the nature of contracts of service to be
binding on the minors. In English law contracts of service and appren-
83. Id. at 218.
84. AbdulRazak v. MohomedHussain, A.I.R. 1917 Bom. 61.
85. A.LR. 1941 Bom. 129, Desai, J , in RajranVs case points out that Beaumont,
C.J., was in error in thinking that in Abdul Razak v. Mod. Hussain, supra note 84, the
plaintiff was the father of the bridegroom and that the contract was between the respective
parents of the prospective bridegroom and the bride ; the plaintiff in fact was the bride-
groom himself. However, Desai, J., agrees with the view laid down by Beaumont, C J .
Z6. Pollard v. Rause, (1910) I.L.R. 33 Mad. 288.
222 JOURNAL OF THE INDIAN LAW INSTITUTE tl972j
ticeship are placed at par and grouped under the broad category of con-
tracts for necessaries.87 In Indian law a contract of marriage by the father
for his daughter's marriage has been held anologous to a contract for
apprenticeship by the minor's father.88 The reason for so equating con-
tracts of marriage with the contracts of apprenticeship by these authorities
is the benefit of the minor.89 However, neither a contract of personal
service nor a contract of marriage can be ordered to be specifically per-
formed so that in either case the apprentice or the girl cannot be com-
pelled to carry out his or her part of the contract against his or her wishes.
Even so, if it is an enforceable contract, the other result, namely, the
liability in damages of the party committing a breach of the contract
would follow. The predominant consideration for the enforceability of
contracts of service and apprenticeship is the benefit of the minor.90 It
follows that if they are detrimental to the minor they are void. Desai, J.,
in Rajrani v. Frem Adib91 observed:
Now though according to English Law the minor would be lia-

ble in case of contract of service where the contract was for his
benefit, it is clear that under s. 11, Contract Act, the minor's cont-
ract being void, the minor would not be held liable: See Mohori
Bibee v. Dhurmodas Ghose, 30 LA. 114: (30 CaL 539 P.C).
The contract of an apprenticeship entered into by the guardian
is protected by the Apprentices Act (19 of 1850) provided the
case falls within the terms of that Act, but no such exception
is made in case of contracts of service. I realise that as a result
of this judgment minors may lose the benefit of contracts of
service which have been considered so beneficial to them as to
be put in the category of necessaries. I am, however, not 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 Tribhoxan Das v. Purshottam Mangal Das, (1896) I.L.R., 21
Bom. 23, per Candy, J. Also Fernandez v. Gonsalves, A.I.R. 1925 Bom. 97, per Tarapore-
walla, J.
89. However, Desai, J., in^Rajrani case, supra note 82, differsfrom this view because
a contract of apprenticeship was valid in India due to the statute. Hence a contract of
personal service did not stand coeval with a contract of apprenticeship or marriage.
90. Fernandez v. Gonsalves, supra note 88.
91. Supra note 82 at 220.
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, entered into by
the minor himself or by the guardian is still shrouded in judicial contro-
versy. There has been no opportunity for the Supreme Court to dispell
the clouds of judicial conflicts. Desai, J.'s judgment is logically and techni-
cally well sustained in accordance with the statutory law. It is his own
realisation, as admitted by him,92 that as a result of this judgment the
minors may lose the benefit of contracts of service. Needless to say that
it is opposed to the generally accepted principle of benefit to the minor
though there are dicta contrary to the benefit theory. It is obvious that
the learned Judgde was fettered by the law of the legislature. Therefore,
there is need for 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 cf 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 minority.94 Most of the
High Courts conform to the view that a promissory note executed by a
person on attaining majority in consideration cf the earlier one executed
during minority for money received, is not enforceable in a court of law.95
However, there is a contrary view given in the case of Kundan Bibi v. Sree-
narayan** 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 necessartev-was mentioned and the creditor agreed to abstain
from suing for a year. As a resultant effect of this fact situation the court
interpreted the pronote executed on majority as a new one and binding,
92. Ibid.
93. See Conclusion, infra.
94. Govindramv. Piram Dmta, A.I.R. 1935 Lah. 561 (F.B ) ; Shah Jetha Lai. v.
Darbar, A I.R. 1953 Bom. 177.
95. Arunugan v. Doraisinga, (1914) I L.R. 37 Mad. 38; Suraj Narainv. Sukhu
Ahir, A.I.R. 1928 All. 440.
9& 11C.W.N. 135.
The view is shared by a celebrated well known author 97 and some High
Courts have accepted it.88
A minor is not obliged under law to pay a debt taken during mi-
nority when he attains majority but he is free to exercise his discretion one
way or the other. If he chooses to pay and actually pays the debt cont-
racted during his minority, he cannot subsequently claim its refund on the
ground that the minority debt was void because the minor's contract is
void but not unlawful. Money so paid has been considered to be un-
recoverable gift.99
If a minor commenced a transaction during minority and continuous-
ly takes it up and carries it on after emerging from disability of minority,
the person will be bound for the v/hole transaction. 100 There is another
authority to the effect that if services are rendered during minority and are
continued in post minority period as well, a promise made by the person in
the state of majority to compensate for the services in the two states, is
enforceable against him for the services inclusive of those rendered during
minority also.101
In a case102 a minor had taken several sums from a money lender
during his minority, on attaining majority he executed a mortgage in consi-
deration of the minority debts and fresh advance made at the time of the
mortgage. It was held that the mortgage was valid only in respect of the
fresh advance even though the whole consideration stated in the mortgage
was given to the mortgagor who returned the amount of the old debts
during minority. The court observed that the policy of the Act underlying
the minor's agreement and ratification could not be circumvented by an
intelligent device to give debts during minority and annexing it subsequently
with a mortgage supported, in addition, by a fresh consideration of small
amount., This is different from the view propounded in Kundan Bibi v.
Sree Narayan.1GZ
English law precludes an action upon any ratification made after full
age of any promise or contract made during infancy irrespective of any new
consideration for ratification after full age, English law in this respect is
neatly stated and, therefore, few cases are found on ratification in relation
to a minor. In India in the absence of a clear verdict from the legislature,
the'courts banking upon interpretation have veered round to mutually con-
troversial view.1(U To settle such judicial controvesy it appears expedient to
97. Pollock and Mulla, Contract Act (8th ed. 1957).
98. Bhola Ram & #arbahs Lai v. Bhagat Ram, A.I.R. 1927 Lah. 24; Karim Khan v.
Godadrnal A.I.R. 1937 >Jag. 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 Gobind Ram case, supra note 94. Suraj
Narain case, supra note 95, regarding ratification vis-a-vis. s. 25 (2) of the Act where in the
state the law with clarity by the legislature.

However, in respect of voidable contrcats made by the guardian a
minor can elect to ratify them after cessation of minority. Contracts so
ratified entitle the person to sue for damages for their breach. In Great
American Insurance Co. v. Madan Lai,105 cotton bales of a minor were in-
sured against fire by his guardian on a policy. On the property being
destroyed by a fire, the minor was held entitled to sue on the insurance
policy for damages and benefit of the contract was conceded to him by the
court. Likewise, a minor was allowed to sue for damages for breach of a
contract of marriage made by the father on her behalf.106
A valid ratification must satisfy three necessary conditions107 viz.,
(a) The minor has become a major person according to the relevant law;
(b) he had full knowledge of the nature and effect of the act of ratification
upon his interests; (c) the ratification must show intentional acknowledge-
ment of the liability for the act or transaction done on his behalf during his
minority, and (d) the transaction must be such as is capable of ratification.
VIII. Estoppel and minors' agreements
The rule of estoppel is laid down in section 115108 of the Indian Evi-
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 Ghose109 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 Harder, J., dissented from the three cases of Punjab. Budhamal v. Borai
Misir, 86 P.L.R. 1888; Karam Chand v. Basant Kuer, 11 I.C. 321 ; Prabhudial v. Shambhu
Nath, A.I.R 1920 Lah. 37.
105. A.I.R. 1935 Bom. 353.
106. Khimji 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.I.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. Sadig Ali Khan v. Jai Kishore, A.I.R. 1928 P.C* 152,
226 JOURNAL OF THE INDIAN LA W INSTITUTE [1972]
founding a plea of estoppel, even though, the minor made a false representa-
tion as to age and induced the plaintiff to make the contract. The rule in
Sadiq Ali v. Jai Krishore111 has been followed by the Indian High Courts
and accordingly many earlier decisions to the contrary have been overruled.
The principle underlying the dicision is that there can be no estoppel
against a statute and section 115 of the Indian Evidence Act should be
read subject to section 11 of the Indian Contract Act. There is no
difference on this position in English law.112
IX. Contracts beneficial to minors
The policy of law in declaring a minor incompetent to contract is to
provide protection, security, and immunity from liability being fixed on
him on the basis of an agreement. It follows a corollary that where the
minor is not burdened with a liability under a contract but benefits accrue
to him, he can acquire them without violating the principle of nullity of
a minor's agreement. Based on this premise the courts have held a 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
(I.) 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,11* SL mortgage was executed in
favour of a minor for a total consideration of Rs. 600 out of which Rs. 36
were paid in cash and the remaining was to lie with the mortgagee to be
paid to the creditors. The mortgage was supported as valid with the
following reason:
It is the promise by a minor which is unenforceable and an
agreement embodying such a promise cannot be a contract. But
an agreement as defined in section 2(e) of the Contract Act
does not necessarily consist of a set of promises forming 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 whole thing is void, but if the consideration for it is not a
promise, but is something actually done, there seems no bar in
the statute and no reason in principle why the result should
not be a valid contract.
This view seems to suggest that an agreement involving a promise in
111. Ibid.
112. Leslie v. Sheill, [1914] 3 K.B. 607.
113. A.LR. 1936 Pat. 153.
SPECIAL ISSUE ; LAWS OF EVIDENCE AND CONTRACT 221
the minor's favour in lieu of executed consideration is valid but executory

consideration in an identical situation will lead to a different result. It is
respectfully submitted that language of section 11 does not signify any
such distinction and its interpretation in this way is far fetched. In the
same Patna case it is observed that if a portion of the consideration for
the mortgage is retained by the mortgagee to be paid to the mortgagor's
creditors subsequently the mortgage is not enforceable for the reason that
the minor is encumbered for the future.
A Full Bench 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 S. 127. T.P. Act shows that...an
infant...can accept a gift even of property burdened wirh an
obligation though he will not be bound by the acceptance,
and can repudiate it when he becomes competent to con-
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.
115. See section 6 of the Transfer of Property Act.
116. Raghava Chariar case supra note 81 at 636.
22S JOUkNAL OF THE INDIAN LAW INSTITUTE El9?2]
Behari Ghose, the learned author of the Law of Mortgages in

India, states the law correctly when he says (p. 195) that an
infant, being a person capable of holding property, can well be a
mortgagee and that the disabilities which attend the creation of
a mortgage do not attach to the acceptance of a security. In
America also the law seems to be that an infant can take a
mortgage.116*
Shrinivas Aiyangar, J.117, throws further light on this and observes:

There is nothing therefore in the Contract Act which prevents an
infant from being a promisee; on the other hand the provisions
contained in the Act as regards minor parents, minor agents, and
in the Negotiable Instruments Act as to minor drawers and
indorsers suggest that the Indian Legislature recognized the
capacity of the minor to accept a promise. I, therefore, think it
clear that in cases where consideration passes from a third party,
or when competent consideration passes from the minor, the
minor can enforce the promise of an adult promisor.
But if a minor cannot sell or buy even for cash, there is no

possibility of his trading. Such unreasonable consequences
should, if possible, be avoided. It must be remembered that
provisions relating to transfer of moveables are to be found in
the Contract Act and there is nothing in that Act to prevent us
from construing those provisions in the way in which the 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.
116*. Id. at 636-37.
117. Id. at 640, 641.
Loyalinga Chetty118.
In Madhab Koeri v. Baikuntha Karmakar and Others119 gave yet an-
other reason relying on section 41120 of the Transfer of Property Act. The
defendant executed a mortgage bond, in favour of Baikuntha Karmarkar
and Ghosi Ram Karmarkar, the plaintiff respondents, who were minors, to
secure the payment of a loan of Rs. 200. The plaintiff minors instituted the
suit claiming Rs. 389 as principal and interest. The learned judges, held
relying on a case121 that a promissory note executed in favour of a minor
and not involving any promise on his part or any contractual obligation on
him can be enforced, held that the principle would govern also the
present case. Their Lordships further advanced the argument to provide
another basis for their judgment viz :
Even if it should be held that the instrument in question in this
suit ought to be cancelled on the ground that it is void, it must
be remembered that the defendant has had the benefit of
the sum advanced by the plaintiffs under it and in such 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 11 of the Act,
whereas the alternative argument advocated in Madhab Koeri v. Baikuntha
Karmarkar111 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 Munni Koer v. MadanGopal, (1916)
I.L.R.38 AH. 62 which was reversed on appeal.
119. (1919) 4 Pat. LJ. 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 peisan is the ostensible owner of such property and
transfers the same for consideration, the transfer shall not be voidable on the
ground that the transferor was not authorised to make it : provided that ths
transferee, after taking reasonable care to ascertain that the transferor had
power to make the transfer, has acted in good faith.
121. Supra note 119.
122. See Raghava Chariar case, supra note 81.
124. Ibid.
230 JOURNAL OF THE INDIAN LAW INSTITUTE £l$?2]
anyone on his behalf.125 The decisions are based on the ground that though
the minor cannot sell his property but he can be a transferee. Though he
does not possess capacity to contract yet he has capacity under the law to
acquire. Section 55 of the Transfer of Property Act deals with the liabilities
of a vendor in respect of sale but the minor will not be handicaped by these
liabilities in the sense that he cannot enforce the sale in his favour because
these liabilities are not created by a contract entered into by a minor.
There is a solitary instance of a, case126 where such sale in favour of a minor
was held void but this case has been overruled by the Full Bench.127 It is
now settled that the minor in whose favour a sale deed has been executed
is entitled to sue :
(2) Partition : The authorities have viewed partitions differently
from the cases of sale and mortgage. They have been treated just like
leases. Accordingly, it has been held that where a partition has been
alleged to have been effected by a father and his minor children by an
agreement such partition is void.12*
(3) Promissory notes, bonds, etc. : The principles adopted for
mortgages and sales130 have been applied in the case of these instruments
also. Therefore, a promissory note or other instruments of the like nature
made in favour of a minor for consideration is enforceable by the minor
provided it does not create any promise on his part or any contractual liabi-
lity. The test is that no deteriment should accrue to the minor. The basis
for the decision is that the minor should be safeguarded in the recovery
of the money due to him. Thus where the father of the plaintiff in capa-
city as the guardian advanced money to the needy defendant to enable him
to carry on a contract business for the consideration that the defendant
agreed to pay the minor half share of the profit in the business, the contract
was upheld.131 The reason given for the decision was that that it is open
to the guardian of a minor to advance the minor's money to other persons
to earn profits for the minor.
(4) Partnership : Section 30 of the Partnership Act, 1932 in clear
terms provides that a minor cannot become a partner. The definition of
partner in section' 2(6-B) is designed to confer equal benefits upon the
minor by treating him as a minor, but this does not mean to confer on the
mhor the status of competent and full-fledged partner.138 Contracts of
125. Ulfat Rai v. Gaurishankary(\9\\) I.L.R. 33 All. 657; Raghunath Baksh v.
Md.Baksh, 30 I.C. 201.
127. See, Raghava Chariar case, supra note 81.
129. Chettiar Firm v. Ng. Thaung, A.I.R. 1934 Rang. 2.
130. See supra pp. 226-230.
131. Gursaran Lai v. Saral Kumar, A.I.R. 1956 All. 136.
132. See s. 30 of the Partnership Act, 1932.
133. Commissioner of Incometax Bom. v. Mjs. Dwarkadas Khetan & Co,, A.I.R,
1961 S.C. 681.
SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 23l
partnership between several persons including some minors are not void
in toto but are enforceable only so far as the adult partners are concerned.
Only the adult members not the minors become partners though the minor
partners may be addmitted to the benefits of partnership provided the
deed of partnership requires so.134 As long as a partnership deed does
not include a minor as a full partner, the partnership deed cannot be held
invalid because the guardian purported to contract on behalf of a minor
provided partnership is covered by provisions of section 30 of the Partner-
ship Act, 1932. The guardian of a minor may agree to contribute capital on
behalf of the minor. If it is one of the conditions on which benefits are
being conferred, the guardian must either refuse to accept the benefits or
he must accept this term.135 The minor may in some cases avoid such an
agreement if it was not entered into for his benefit but the agreement
remain, valid so long as the minor does not avoid it.136 The duration of
a partnership has to be fixed between the major members. The guardian
on behalf of a minor may agree to accept benefits of partnership provided
the duration is to the benefit of the minor. Consequently, a partnership
deed embodying a clear agreement enabling the minor's guardian to accept
partnership benefits even after the original period is not void.137
(5) Contracts involving minors as transferors : Such contracts fall
under different categories. A set of contracts may be covered directly by
the Indian Contract Act. Being beneficial, they may not be void; the
essential requirement of consent in a contract may proceed by fiction of
law, through some assumed de facto guardian.138 Transfers in favour of
minors made without consideration have unanimously been held by au-
thorities as valid. A common example of such a transaction is gift. Trans-
fers made by a minor where valuable consideration has been paid have been
held void unless covered by any exception like necessaries. Yet another
category which has been suggested is the class of contracts which are in
essence beneficial or onerous to the minor. The former have been held
valid and enforceable. The latter have not been enforced against the minor.
X. Guardian's contract on behalf of minor
Such contracts may be of various types which are briefly considered

hereunder :
134. Sahai Brothers v. Commissioner of Income-tax, A.I.R. 1958 Pat. 177 contrary
view; see Duaram Vir v. Jagan Nath, A.I.R. 1968 Punj. 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.
138. See J.P. Singhal and E.S. Subrahmanyam, the Indian Contract Act 281 (1967).
However, this veiw i» conttoverted whether the contract is in effect, the minor's or
the guardian's, sec Rajrani case, supra note 82.
Contracts for purchase

The important authority on point is the case of Mir Sarwarjan v.
Fakhruddin Mahomed Chowdhuri,1*9 where the minor's guardian made a
contract on behalf of the minor for the purchase of immoveable property
and the court found the transaction beneficial. It was held that a minor's
guardian is not competent to create liability on the minor by an executory
contract for purchase of property. Differing from the view of the Division
Bench that there is no difference between the position and powers of a
manager and those of a guardian. Their Lordships observed :
It is not within the competence of a manager of a minor's estate
or within the competence of a guardian of a minor to bind the
minor or the minor's estate by a contract for the purchase of
immoveable property . as the minor in the present case was
not bound by the contiact there was no mutuality, and the
minor who has now reached his majority can not obtain specific
performance of the Contract.
By and large the Indian courts have followed this authority, 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.14a
But, the dissenting view relying on Mir Sarwarjan's 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 of a
minor to bind the minor or minor's estate by contract. But
so far as purchase of immovable property is concerned the
same ru]e cannot apply as it cannot be held that it is within
the competence of the manager of the minor's estate or within
the competence of a guardian of a minor to bind a minor or
139. 39 LA. 1. ~~
140. Sonabhashi Kuar v. Ramdeo, A.I.R. 1931 Pat. 521.
141. Amir Ahmaa v. Mir Nizam Ali, A.I.R. 1952 Hyd. 120.
minor's estate by a contract. Therefore, there cannot be a

suit for specific performance of the contract when the contract
is for the purchase of immovable property by a guardian of the
minor.143
The majority judgment in the above Full Bench case of Hyderabad

High Court relied on the Subrahmanyam v. Subba Rao.lu The dissenting
judgment of Deshpande, J., seems to be formulated on the distinction
between sale and purchase of property. It is submitted with respect that the
later145 view of the Privy Council which was relied upon by the Full Bench of
the Hyderabad High Court is better statement of law more in consonance
with the theory of benefit to the minor as the basic purpose of safeguard
provided to the minor is to save him from onerous terms. It is difficult to
appreciate the distinction adopted by Deshpande, J., between sale and pur-
chase of immovable property even if the important tests for specific per-
formance are fulfilled in the latter case of purchase viz., («) the guardian is
a de jure guardian, (//) he is competent to bind the minor by his contract,
and (Hi) the contract is for the obvious benefit of the minor. Subject to
these conditions the judicial controversy between the two authorities146
would seem only to be apparent rather than real, and further the fact
situations of the cases are not identically the same on all fours.
Recently in a case,147 for want of mutuality, it was held relying on
Mir Sarwarjarfs case, that an agreement made by the father on behalf of
the minor for purchase of immovable property was void, it could not be
enforced against minor by the opposite party. Accordingly, in absence of
mutuality the minor after attaining majority cannot be allowed to have
specific performance.
The M.P. High Court was seized with a case148 to decide the validity
of a contract entered into by a natural or de facto guardian. In that case
the suit was brought by the appellants during their minority through the
mother as their guardian who had entered into an agreement on minors'
behalf for purchase of a house from the defendant for a certain considera-
tion. Apart from this consideration was paid by way of earnest money and
the remaining amount was to be paid at the time of registration of the sale
deed. The defendant having failed to execute the sale deed a suit for specific
performance was instituted by the minors through the mother as next
friend. The court held that the contract was not enforceable by the
minors. Bhave, J., observed :
We may further observe that after the passing of the Hindu

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*
?34 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]
Minority and Guardianship Act 1956 the authority of the

natural guardian even to transfer the minor's property for legal
necessity has been taken away. Snch transfers can now be 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 with the
powers of the natural guardian.149 The clear import on simplest interpreta-
tion and spirit of that provision seems to be to provide protection to the
minor's immovable property from mortgage or charge or transfer by sale
even at the instance of the natural guardian, without the permission of the
court which is considered to be the most objective authority for safeguard-
ing the interests of the minor. The use of the words "for the benefit of the
minor's estate" occuring in section 8(i) of the Act are quite significant. The
section clearly relates to the transfer of immovable property of the minor
by the devices mentioned in section 8 (2)(a) and (b). The section does not
mention at all the case of purchase of property by the minor through the
guardian; neither the permission of the court is needed. If the guardian's
transaction is not beneficial to the minor, it can be struck down under the
well recognised principle—"benefit to the minor" or transaction "onerous to
the minor". It is difficult to appreciate as to how did the court in the above
case160 stretch the provisions of section 8 of the Act to cases of purchases by
minors through the guardian. It is further difficult to appreciate as to why
section 8(3) missed the notice of the learned judge. Even accepting the argu-
ment of the court for extending the provision to cases of purchase, though
it is not so the purport of the section, the transaction should have been
voidable at the minor's instance. Section 8(3) further supports the view that
the basic purpose and spirit of the section is directed to the one central
protection and safeguard of minor's interest in immovable property even at
the instance of disposals through the natural guardian. From the judgment
it appears, it is submitted with respect, that the court gave undue weight to
Mir Sarwarjarfs case even to the disregard of the plain meaning of section
8 of the Hindu Minority and Guardianship Act. Therefore, a caution has
been sounded in accepting the decision and dictum of the court.161
Contracts for sale by guardians
Contracts made by a dejure or certificated guardian can be speci-
fically enforced by or against the minor provided two conditions are satis-
149. See s. 8.
151. 4 A.SJ.L. 176 (1967-68).
SPECIAL ISSUE i LAWS OF EVIDENCE AND CONTRACT 235
fied viz. (i) such guardian can enter into contracts on behalf of the minor
so as to bind him ; (ii) the contracts are for the benefit of the minor or for
necessity.152 There is a judicial consensus on this point and the rule in
Mir Sarwarjan's case has been held not to apply in this situation.
There is a judicial controversy regarding the validity of such contracts.
One set of old authorities hold that the contract of a guardian is valid
subject to the test of benefit to the estate and necessity being fulfilled. These
authorities are reinforced by a ruling of15?a the Privy Council. By an
agreement in writing the respondent, being minor, agreed through the
mother to sell the lands in suit to appellants for a certain sum which was
to be utilised for payment of certain debts of minor's deceased father. The
contract provided that a sale deed was to bd executed, registered and
delivered to the appellants at their expense. The appellants on fulfilment
of conditions were let into possession of the land contracted to be sold (but
no sale deed was executed or registered). The respondent minor through
his mother as next friend claimed possession of the land contracted to be
sold and mesne profits. Lord Morton of Henryton relying on Pollock and
Mulla's Indian Contract Act, (7th edn.) and certain observations in Mohori
BibVs case applied the two aforesaid tests. It was held that the contract
was a valid one.
The other set of authorities hold the contract absolutely void. A very
recent case on the point is of the Bombay High 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 Sarwarjarts case because
of the peculiar positknTof 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 11 read
with sections 68 and 73 of the Act and that his share in the joint family
can be proceeded against for the realisation of the sum.

152°. Ibid.
153. Gopal Krishna v. Tugaram, A.I.R. 1956 Bom. 566.
154. Miriyala Venkata Ramana Murthy v. Bodi Reddi Subbayamma. (1966) 1
Andh. W.R. 368.
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 de
facto guardian cannot take the premises on lease for the minor for new
business to be started without legal necessity imposing liability.
In a case157 before the Madras High Court a suit wasfiledby a Muslim
minor daughter through her father as next friend for recovery of rent on
the basis of a lease made by the father on behalf of the minor daughter.
The defendant pleaded the lease void because the lease contained 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; (it) non-availability of remedy by way of specific performance does
not necessarily render the contract void ; and (Hi) the remedy of the tenant
in the event of a breach of covenant can only be either by way of a 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.159
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. Durga Shankar, A.I.R. 1970 Guj. 106; Zebunnissa 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 Mandal, A.I.R. 1918 Pat. 626.
159. Raghava Chariar 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.
covenant by the minor to pay rent and other reciprocal obligations. It was
so decided before the Amending Act 20 of 1920.161 Some later decisions
to that effect felt bound by section 107 of the present Transfer of Property
Act which in effect provides:
Where a lease of immovable property is made by a registered
instrument or...each such instrument shall be executed by both
the lessor and the lessee.
The authorities, referred to in the foregoing paragraph, have interpre-
ted this proviso stricto sensu against the minor and observed that the minor
can neither be a lessor nor a lessee because he cannot execute the deed of
lease as required by section 107; irrespective of the lease being burdensome
or not onerous or to the minor's express benefit. It is difficult to understand
why the de facto guardian of the minor cannot execute the leases for
the minor which are not onerous and are for his benefit. Thejndicial
dicta in these decisions are as handicapped as the legislative law; it is
respectfully submitted, that they are in total disregard of the general
premise of providing protection to the minor for his benefit and not for his
detriment.
The mischief of the judicial rule resulting in hardship to the minor
from the technical interpretation of section J 07 can be, it is suggested,
mitigated by reconsideration of section 107 of the Transfer of Property Act
by the legislature by providing an exception to the general requirement of
registration of instruments creating a lease.
A reading of para (2) of section 107 shows that since all other leases
of immovable property by oral agreement accompanied by delivery of
possession can be made even without registration; and such a lease if made
by de facto guardian of a minor will be upheld because the section in such
cases dispenses with registration. This augments the present writer's
suggestion for reconsideration of section 107 in favour of the minor by the
legislature.
Contract for minors' marriage
In a Bombay 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, Gonsalves, 48 Bom. 673 (1924).
tory making a departure from the rule in Raghava Charaiar v. Srinivas

Raghavachariar162** which this court distinguished. The decision in the case
of Rose Fernandes was followed in several other cases. In a Patna case161
the High Court observed that when the parents of a minor boy and girl
arrange a marriage the position is different from the contract between an
adult man and woman ; in the former case whether the marriage eventually
takes place will depend on the will of the minors and not solely on their
parents. In the instant case the parents of a boy and a girl, both being
minors, arranged a marriage between them. The girl's father paid the
tilak to the father of the boy. It was later disclosed that the boy suffer-
ed from epileptic fits. Hence the girl's father rescinded the agreement and
sued for the amount of tilak paid. It was held that the marriage did not
take place due to default of the plaintiff, he could not recover the amount.
In Daniel v. Mariamma}** it was held that the court will grant damages
for the loss arising from such breach of contract as suffered by the guardian
not the minor. In another case165 it was held that in Hindu law if the father
is dead the mother is legal guardian of minor children and she can enter
into a contract of betrothal on behalf of her minor children and can
recover damages in case of breach of betrothal agreement.
Guardian's contract of insurance

The general principle of benefit to the minor has been extended in
the case of insurance also. The point for decision arose in Great American
Insurance Co. v. Madan Lai Saudlal.™* A policy of fire insurance was
taken by the de facto guardian of a minor for certain cotton bales. The
goods were burnt and the minor sued through his guardian as next friend.
Section 27 of the Guardians and Wards Act, 1890 enabled the guardian of
the minor to deal with the minor's property like a man of ordinary prudence
and empowered him for this purpose to do all reasonable and proper acts
for realisation, protection or benefit of the property. It was held that the
de facto guardian in this fact situation had such authority and that the
minor could sue in his own name. There is no logic for supporting this
decision except the policy of the benefit to the minor because in effect it
was the minor's agreement which cannot be sustained by section 11 of the
Indian Contract Act. The guardian acted only as the minor's agent.
Similar view was taken in Vijaykumar v. New Zealand Insurance Co.
Ltd.197 It was held that in case of an agent of a minor entering into a
contract of fire insurance on behalf of the guardian of a minor the minor is
entitled to sue. As regards the rule in Mohori Bibi v. Dhurmodas Ghose1**
162a. See Ragha\a Chariar case, supra note 81.
163. Janak Prasad v. Gopi Krishna Lai, A.I.R. 1947 Pat. 132.
164. A.I.R. 1951 Mad. 466.
166. A.I.R. 1935 Bom. 353.
167. ALR. 1954 Bom. 347,
168. Supra note U
relied on by the opposite party seeking the court to declare the contract of
insurance void on the ground of infancy the learned court held that the
proposition of the Privy Council was in general terms and pushed to a
logical conclusion the Privy Council decision would have made it impos-
sible for the minor to get benefit under, or enforce, any contract entered
into by him even when consideration had been wholly received by the
other contracting party. The courts in India have, as a rule, confined
application of the Privy Council ruling only to cases where a minor is charg-
ed with obligations and the other party seeks to enforce those obligations
against the minor. Accordingly, the contention of the defendants that the
minor is not entitled to sue on the ground of his minority at the time of the
contract was negatived by the court.
Contracts for purchase of shares

This point arose in Golcunda Industries Private Ltd. v. Registrar of Com-
panies™* The appellant company allotted a number of shares to certain
persons including some minors. The company claimed that minors were
given shares because of contracts made through the minors'guardians for
the purpose. The Registrar declined to register the return submitted by
the company for the inclusion of minors as shareholders. The court
decided that the Registrar was obliged to register the return submitted by
the company and it abstained from expressing any opinion on the point
whether or not a guardian can bind the minor by a contract for purchase
of shares and whether or not such minor can be placed on the register of
members.
The counsel for the appellant company based on the authority of the
Privy Council170 argued that the guardian can enter into a contract on
behalf of the minor provided that the contract so made is — (a) within the
competence of the guardian ; {b) for the benefit of the minor. He drew
further support for his argument from section 8 of the Hindu Minority and
Guardianship Act which empowers the guardian to do all acts which are
necessary or reasonable and proper for the benefit of the minor or for
realisation, protection, or benefit of the minor's estate. The respondent's
counsel argued that after the enactment of the Hindu Minority and Guar-
dianship Act, 1956, section 8, the guardian can in no case bind the minor
by a personal covenant; therefore, allotment of shares to the minor through
the guardian's contract was beyond the power of the guardian. The same
is the view of a writer171 even though the shares are for the benefit of the
minor on the ground that the guardian is not competent to saddle the
minor with such liability because of prohibition against creating a personal
liability. However, it is questionable whether the same will be the posi-
tion where the purchase of share does not result in personal liability, i.e.,
169. A.I.R, 1958 Delhi 170.
171. See supra note 5 at 330, 331.
it is not onerous ; on the other hand it is gainful and for the benefit of the
minor. It is submitted that the better view in such cases would be to hold
the purchase of shares by the guardian not void but voidable at t the option
of the minor. Such a view will be somewhat in consonance with the spirit
of section 8 (3)172 of the Hindu Minority and Guardianship Act, 1956
though it relates to-disposal of immovable property.
Family settlements
In a recent 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 Partap Singh v. Sant Kaur1™ 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
fatherVcollaterals 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 fartiily or & minor's father makes a compromise in good faith
involving the property of the minor. Such settlements will be valid and
cannot be avoided due to inequality of benefits except on the ground of
173. Mohd. Amin v. Vakil Ahmad, A.I.R. 1952 S.C. 358.
174. M a t 361.
175. Supra note 173 overruled A.I.R. 1919 Cal. 218 and A.I.R. 1929 Audh. 134.
176. AJ.R. 1938 P.C 181.
fraud, misrepresentations or mistake which vitiate it. This is based on the

principle of the Hindu law that the father or the manager of the family
property represents the minor and safeguards his interest. In this sense
he is validly a party to the settlement and law regarding contracts of
minors is not contravened.
Acknowledgement of debts
It is settled judicial view that the minor's guardian cannot acknow-
ledge the debt resulting in extension of the period of limitation and thereby
create liability on the minor. But he can do so if the guardian's act is
for the protection or benefit of the minor's property.177
In Bechu Singh v. Baldeo Prasad,178 the mother of the minor, Bechu*
Singh, executed a pronote for a certain sum in favour of the plaintiff for a
debt taken earlier by the minor's father and for the performance of funeral
ceremonies of Bechu Singh's father. The plaintiff sued for recovery and it
was admitted that the woman in the case was the natural and legal guardian
of the minor. Section 21 of the Limitation Act empowered the lawful
guardian to make an acknowledgement for the minor's benefit. The court
held that all conditions necessary to bind the minor and his estate were
present and the mother as the legal guardian of her son was competent to
enter into the new contract. However, the position would be different
if the person acknowledging the debt is not the legal guardian of the minor
under Hindu law.179
XI* Specific performance of contract
Specific performance and minors' agreement

This topic has incidently been discussed above at some length and
relevant cases have also been referred to.180 The law on this subject may
be briefly summarised. It is settled view that a contract by the minor
himself cannot be specifically enforced because there is actually want of an
enforceable contract, and there is no mutuality.
Mir Sarwarjan v. Fakhruddin Mahomed181 introduced the doctrine
of mutuality in India and ruled that the manager of a minor's estate or
his guardian cannot bind the minor or his estate by a contract for
purchase of immovable property and for the want of mutuality the
minor cannot obtain specific performance of contract after attaining
majority.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;
In Subrahamanyam v. Subb Rao,18* where the agreement was by the

minor's guardian to sell his property it was held that such agreement can be
specifically enforced by or against the minor provided two conditions are
fulfilled viz., (0 the contract is within the competence of the guardian to
enter into such contract on behalf of the minor to bind him and (i7) it is
for the benefit of the minor. In absence of these two conditions the con-
tract cannot be specifically enforced.
In Sitarama Rao v. Venkataramd*8* the later Privy Council case185 has
been explained and an attempt was made to reconcile Mir Sarwarjan's
case and it has been observed that it has not been rendered ineffective by
later decisions of the Privy Council. The courts in India have veered
round the two aforesaid cases of the Privy Council. In a recent 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.1'7
Jn India the doctrine of mutuality was introduced by Mir Sarwarjan's
case.188 However, Specific Relief Act of 1877 did not at all give any
indication of the application of the doctrine and some old authorities
expressed the view that the doctrine for artificiality has not been accepted
183. See supra note 114-
184. A I R . 1956 Mad. 261.
185. See supra note 142
186. A.I.R. 1969 Mad. 470.
187. See Ashburner, Equity 405 (?nd ed.) Willis'ort, A Treatise on the Law of
Contracts (3rd ed. 1957 by Jaeger) ; 2 American Restatement of Law : comments on
S. 372 (1959).
188. See supra note 18L
by the legislature. Since Mir Sarwarjan's case want of mutuality has been
successfully pleaded as a defence in a suit for specific performance. How-
ever, ihere is no dearth of authorities189 which have criticised the doctrine
and expressed doubt regarding its application injndia.
The doctrine has been held inapplicable in case of unilateral pro-
mises where the promisee received consideration.190
The Law Commission in its report 191 has given an indication in
favour of abrogation of the theory of mutuality and accordingly recom-
mended t h a t :
...On the contrary we would do away with the doctrine in

Sarwarjan's case by inserting in section 22 a proviso embodying
the law as stated in the American Restatement.
In result the sub-section ( 4 ) m has been newly added in section 20 of

the Specific Relief Act of 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.in 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 guardiari is enforceable both by and against the
minor in case the alienation is for his benefit.194
Sub-section 4 of section 20 of the Specific Relief Act, 1963 further cuts
at the root of the doctrine of mutuality. This section in effect provides that
if all other conditions are fulfilled and no other equity opposes the plaintiff
specific performance will not be refused for want of mutuality. So mutuality
as a necessary companion of specific performance has been divorced.
189. Subrahamanyam case, supra note 144 ; Surya Prakasan 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 specifie performance of a contract merely on
the ground that the contract is not enforceable at the instance of the other party.
194. Imambandi v. Mutsaddi, A.LR. 1918 P.C. 11.
XII. Restitution or compensation in a minor's agreement
English law of restitution

The English law of restitution has a considerable bearing on the
Indian law on this subject and certain authorities196 drew inspiration there-
from. Therefore, it is apposite to consider briefly the law of restitution in
English law. Equity is the soul of the doctrine of restitution in English
law. Common law provides immunity to the infant against his act of
fraud or misrepresentation regarding his age and induces the other party
to form a contract with him under peretence of majority. Where a minor
falsely misrepresenting his age, takes a loan of money or any other goods
not covered by "necessaries" an action at common law against the minor
will not succeed either on the express contract or on money he had re-
ceived. Equity came forward to mitigate, to some extent, the rigour of
this rule of common law which does violence to morality and justice be-
cause infants should be as much prevented from practising fraud and mis-
representation for their advantage as the adults. Infancy is a disability
or incapacity which should not be helped to the extent of giving them
licence for making gains out of misrepresentation. Therefore, equity in-
vented a principle which compels the infant to restitute, under certain
conditions, the ill-gotten gain to the opposite party.
The leading authority on this point is Leslie (R) Ltd. v. Sheill,19*
where the plaintiffs were a firm of registered money lenders and the de-
fendant infant told a lie regarding his age that he was major. On this
faith he obtained a loan from the plaintiffs who sued for recovery of the
loan with interest. In the judgments of Lord Sumner, Kennedy, LJ., and
A. J. Lawrence, J, it was held that the plaintiffs cannot succeed to recover the
loan which is void according to the Infants Relief Act, 1874 for the reason197
that the money was paid to be used as the defendant's own, he used; it is
impossible to trace it and restore the very things got by fraud; ordering the
loan of money to be paid will not be restitution but repayment specially when
the money paid has been dissipated. So it is clear that in case of money
loans the doctrine of restitution will not apply excepting that very remote
rather impossible situation where the very notes, coins etc., were in posses-
sion of the minor and were identifiable. The restitution will not be possible
in case of other goods also which have passed out of the infant's possession.
So, a very narrow field is left where the principle of restitution will apply
in case of goods which continue to be in the possession of the minor at the
time of the suit and they are identifiable.198 The view of a celebrated
jurist is that the limits of this doctrine are somewhat ill-defined.199
195. Ajudhia Prasad v. Chandan Lai, A.I.R. 1937 AIL 610. (F.B.).
197. For the logical reasoning see the observations of Lord Sumner, id at 618 and
619 and A.T. Lawrence, J., id. at 627.
198. Clarke v. Cobley (1789) 2 Cox. Eq. Cases 173.
With regard to restitution an intricate question arises where the
infant obtains goods by misrepresentation of his age but has either
sold them and possesses the sale proceeds or has obtained another article
in exchange for the goods taken per fraud. The question arose in Stocks v.
Wilson?** where the infant had sold some of the furniture (non-necessary
goods) received through misrepresentation of his age. The plaintiff
sought relief in equity for recovery of the value of goods. Lush, J., held in
the circumstances, the defendant was liable to account for the amount
which he got by sale or assignment of goods. There is a controversy in
this decision and the decision of Leslie (R) Ltd. v. Sheill.201 An attempt202
has been made to reconcile the two mutually conflicting decisions on the
basis of some distinguishing fact situation in the two cases.
Indian law of compensation

On the point whether a minor who fraudulently misrepresenting his
age enters into a contract with a party, is liable to restore the benefit re-
ceived under his contract in Mohori Bibi v. Dhuramodas Ghose203 it was
argued against the minor that he was so liable under sections 64 and 65
but the Privy Council interpreted the word 'person' occurring in the two
sections to mean a person competent to contract and accordingly held
that these sections were inapplicable in case of a minor who cannot be
ordered for restitution under these provisions. The view of the Privy
Council that under section 65 a minor cannot be ordered to restore or
make compensation was considered in Harnath Kaur v. Inder Bahadur.204,
Sir Lawrence Jenkins interpreted the words "discovered to be void"
occurring in section 65 of the Indian Contract Act to mean, in the first 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.

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.
246 JOURNAL OP THE INDIAN LA W INSTITUTE [1972]
of the 5th Law Commission which though conscious of the judicial conflict
regarding expression "discovered to be void" yet felt the necessity of re-
taining that expression for certain reason. It would be pertinent to quote
the view of the Law Commission here:
Though we are anxious to remove expressions which give rise
to a conflict of judicial opinon we do not consider it advisable
to do away with the expression "discovered to be void" inas-
much as in particular circumstances, it may be relevant for the
purposes of limitation.
While dealing with section 11 we have already recommended
that a provision may be made in section 65 to the effect that
where an agreement is entered into by a minor falsely 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 BibVs case has been .accepted by the Law
Commission only in the situation where, despite the knowledge of infancy,
a party enters into a contract with the minor, in that case section 65 would
not apply.
The other provisions in India relevant to the point in discussion are
in sections 38 and 41 2 0 6 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 BiWs
case held that the peculiar circumstances of this case where the opposite
party entered into the contract with full knowledge of minority did not
warrant their application but it observed that in proper cases equitable
relief under the aforesaid provisions could be given in favour of a party
which entered into a contract with the minor without knowledge of his
infancy. The word used in the section is compensation not restitution.
This judical dictum was relied on by many courts 207 in India to grant relief
against the fraudulent minor.
In India on the point of restitution there is no consensus of judicial
authorities. The important leading authority is Khangul v. Lakha Singh208
representing one Jine of decisions. The case involved two material points
205. See the Thirteenth Report of the Fifth Law Commission on the Indian Contract
Act, 37 (1958).
206. Ss. 38 and 41 of the old Specific Relief Act correspond respectively to ss. 30
and 41 of the Specific Relief Act of 1963.
207. Dattaram v. Vinayak (1928) I.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.IJL 1928 Lah. 609 (F.B.).
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, CJ„ in a closely reasoned and illuminating judgment after
critical appraisal of relevant c^se law made out the following important
points of law:
(0 The first question was answered in negative. He concluded
that balance of judicial authority in India, as also in English law, was in
favour of the rule that in the nature of the circumstances of the contract as
aforesaid the minor is not estopped from pleading infancy to avoid the con-
tract. Section 11:5 of the Evidence Act should be read subject to provisions
of the Contract Act declaring a transaction entered into by a minor void.
(//) The doctrine of restitution finds expression in section 41 of the
Specific Relief Act. Where a minor executes an instrument in favour of
the other party for a certain sum by falsely representing his age, the 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
notbe allowed when the award thereof would tentamount to. repayment
of money borrowed on the strength of a void transaction. His lordship
ordered money compensation and cited several authorities^09 in India which
ordered refund of money received by the minor before allowing him to
recover his property sold or mortgaged.
(Hi) It w£s argued that this jurisdiction can be exercised only when
the minor invokes the aid of the court as plaintiff. The argument was
not accepted by the learned Chief Justice and he held that equitable 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.
Thfe transaction bas been wiped out and it is fair that both the parties
should revert to their original position.
(iv) Section 39 and 41 of the Specific Relief Act show that the
jurisdiction conferred is to be exercised when the minor himself is plaintiff.
209. Jagannath Singh case, supra note 207 ; Balak Ram v. Dadu, (1910> 76 P.R.,
(1910) 7I.C 1000; Saral QkandMitttr v.'MohaniBibi (1898) LL.R. 25 Cal. 371*
However, the doctrine of restitution is not confined tocases covered by that

section. The doctrine rests upon the principle that an infant cannot be
allowed by a court of equity to take advantage of his own fraud. There is
no warrant either in principle or equity for general rule that the relief shall
never be granted in a case where the infant happens to be the defendant.
No such distinction seems to have been drawn in English cases.
(v) His Lordship continued that the contract or any stipulation there-
in should never be enforced, the exact form of the relief will depend upon
the peculiar circumstances of the each case. The grant of relief is not an
enforcement of contract but a restoration of the pre-contract state. The
relief is granted not because there is a contract; it is not performance of
contract but its negation.
(vi) The mere fact that grant of relief, in effect, yields the same re-
suit as the consequence from performance of contract does not justify
refusal of the relief if circumstances of the case warrant its grant by the
court.
Thus, Shadi Lai, C.J., applied the equitable doctrine generously and
in wide terms and did not confine only to the provisions of sections 39 and
41. In doing so he made a remarkable and innovating departure from
the Leslie (R) Ltd. v, Shiell210 which formed the source and basis in a
number of decisions in India for the view exactly contrary to that of
Shadi Lai, C J.
In Ajudhia Prasad y. Chandan Lai211 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 Moftori BibVs case and
relied on it regarding sections 64 and 65. The conclusion of Sulaiman,
C.J., may be briefly stated :
(0 No estoppel can be pleaded against a statute. If the Act declares
that the contract by a minor is void nothing can prevent the minor
from pleading that such a contract is void on the grounds of his minority.
(ii) The rules of equity that can be applied are well recognised rules
which have been accepted in England. It is hardly open to an Indian
court to invent a rule of equity for the first time contrary to the principles
of English law. If the law in England is clear and there is no statutory
enactment in India one should hesitate to introduce any supposed rule of
equity in conflict with that law.
It is submitted with respect that this is a narrow interpretation in
contrast with the judgment in KhanguVs case.
(Hi) Refering to the remark of Shadi Lai, C. J., in JChanguVs case that
he was unable to follow the distinction pointed out in the Leslie case and

211. A.I.R. 1937 All. 610.
212. See supra note 208 On the authority this restitution was granted in a number
ofcaees. Appasami v. Narayansami, A.I.R. 1930 Mad. 945 ;Budha v. Lakshmi, A.LR.
1929 Lah. 800 ; Mamnath case, supra note 207, Abdus v. Nusrat, A JLR. 1937 Avdh. 370.
though that there was no real difference between restoring property and
refunding property except that the property can be identified but the cash
cannot be traced, Sulaiman C. J„ observed:
Where a contract of transfer of property is void, and such pro-
perty can be traced, the property belongs to the promisee and
can be followed. There is equity in his favour for restoring
the property to him, but where the property is not traceable
the only way to grant compensation would be almost
tentamount to enforcing the minor's pecuniary liability under
the contract which is void. The distinction is to obvious to
be ignored.811
The Chief Justice failed to appreciate Lord Kenyon's "aphorism
quoted in KhanguPs case" that "Minority was to be used as a shield and
not as a sword."
(iv) Sulaiman, C.J., expressed his disagreement with Shadi Lai, C.J's
view that grant of equitable restitution against the minor is irrespective
of the fact whether the minor is a plaintiff or defendant in the suit. He
gave a contrary view to the effect that in certain situations restitution
could be granted against the minor as a plaintiff but it cannot be given
when the minor is sued as a defendant, which would mean enforcing a void
contract against him under the cloak of equity for which there is no rule
of equity, justice and good conscience. Sulaiman, C.J., referred to the
dissenting judgment of Harrison, J.
Though, AJudhia Prasad v. Chandan Lai was followed in a recent
case214 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 the contract.
However, as it is a void contract the minor has no liability to pay compen-
sation. The Law Commission recommended, accordingly, a new section
36.216 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 ofv restitution the authorities are
sharply divided laying down different rules. Pollock and Mulla217 hold the
view of Shadi Lai, CJ., 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 11 (8th ed. 1957).
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.222 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
218. See supra note 191 at Para 90..
219. Supra note 205 at 20.
221. See the view of Denning, L.J., quoted in supra note 205 at 1.
222. See supra note 205 at 2.
and economic, scientific and technological. Needless to say that the

legislature has made sporadic rather negligible effort to touch the law of
contract as a whole, much less the minor's agreement. The current of
decisions down to the centenary year, by and large, show a traditional
approach reiterating the former law marked by a remarkable desideratum
of a functional and progressive approach. Very seldom the courts have
pointed out deficiencies or lacuna or policy consideration underlying the
law of the statute. The courts have at times been lukewarm in providing
protection to the minor and they followed the strict letter of the law
because of their limitation to function within the framework of the section
even though this course of action yielded disadvantage to the minor, of
which the courts were conscious but had to express regret due to restriction
imposed by the legislature. At the same time there has been a catena of
cases in which the courts exhibited a gesture to protect the interest of the
minors when they were not restricted by the legislature. Further, a review
of the cases will reveal that several aspects of the minors' agreements are
shrouded in judicial controvesy by two mutually contradictory lines of
authorities. The law in this respect needs a uniform settlement at the
instance either of the highest court of the land or the legislature.
The Fifth Law Commission of India submitted the thirteenth Report
on the Contract Act, 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 ^nd made certain recommendation825 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 Bibis 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
225. See suprat pp. 249-250.
226. See supra note 205 at 20, 30.
are briefly mentioned hereunder:

(/) The two ages of majority 18 and 21 in certain situations import an
artificial distinction which should be abandoned and uniform age for all
minors should be adopted.
(ii) It should be considered whether 21 or 18 or even lesser age
should be fixed as the age of majority in view of (a) demand from many
quarters for a less age for voting; (b) the fact that it continues disability on
a person for a longer period; (c) the government is contemplating to lower
down the age of voting from 21 to 18 by amending the Constitution.227
(«7) An exception be made to the general requirement of registra-
tion of instruments creating a lease, in respect of leases created by the
de facto guardian and for the minor's benefit.
(iv) Contracts of service beneficial to the minor be protected even if
entered into by the guardian on his behalf.
(v) Contracts of service entered into by the minor himself be made
enforceable by him if beneficial to him.
(vf) To obviate the difficulty created by Rajrani v. Prem Adib,228 due
to strict interpretation of the Indian statutory law, contracts of service be
placed under Indian Apprentices Act (19 of 1850) to enable the minor to
sue for damages in case of breach of the contract of service against the
minor. In the socio-economic condition of the present society if a minor
enters into a contract of service to stand as a respectable self-supporting
person the law should help rather than obstruct him to eke out his living.
The problem of an orphan minor in destitute circumstances would be
rather acute and his laudable effort to maintain himself by a contract of
service or apprenticeship should find support from law and the party
which seeks to deter from such contract on the sole ground of minority
should be compelled by law to pay damages to the minor for breach of
such a contract.
(vff) Contracts of service and marriage be treated as contracts of
necessaries in order to give benefit to the minor. When these contracts
are placed at par with necessaries the parties intending to contract with a
minor will feel more secure and prompted.
(mi) On the point of ratification there is judicial controversy which
needs settlement by a restatement of the law by the legislature.229
227. See the Hindustan Times, 27 June 1972 p. 3.


Minors' Agreements in India and The U.K. - A Comparative Survey (205-252)

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MINORS' AGREEMENTS INflNDIA AND THE U.K.

I. Introduction : the policy of law

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

II. The age of majority

The law determining majority

including contractual, were governed by their respective personal laws.

III. Minors9 agreements in English law

are of no legal consequence whatsoever. Because protection of minority

It would seem, therefore, that the phrase "absolutely void" is

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

Section 2 of the Infants Relief Act19

be so enforced in case the infant ratified them after attaining majority.

It will be seen from the working of this section (i.e. section 2 of

The purpose of devoting space for a brief discussion of the provisions

IV. Minors' agreements in India

Section ll 2 6 of the Indian Contract Act prescribes that all contracting

nullity. It declared that a mortgage executed by a minor was void and

V. Minors' agreements for necessaries

circumstance a thing may or may not be necessary. The efforts of the

30. Chappie v. Cooper, (1844) 13 M and W 252.

be covered under the head of "necessaries".86

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

Basis of minors9 liabilities for necessaries

the contract was such as the infant, notwithstanding infancy,

This theory proceeds on the fiction that in respect of necessaries the

VI. Beneficial contracts of service

has been statutorily safeguarded by proviso69 to section 1 of the Infants

76. See supra note 73.

In my opinion if, the only consideration for the contract was

In contracts by the guardian of a minor on his behalf, measure of

Now though according to English Law the minor would be lia-

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

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

state the law with clarity by the legislature.

VIII. Estoppel and minors' agreements

the minor's favour in lieu of executed consideration is valid but executory

An infant is capable of acquiring property by gift which the law

Behari Ghose, the learned author of the Law of Mortgages in

Shrinivas Aiyangar, J.117, throws further light on this and observes:

But if a minor cannot sell or buy even for cash, there is no

X. Guardian's contract on behalf of minor

Such contracts may be of various types which are briefly considered

Contracts for purchase

minor's estate by a contract. Therefore, there cannot be a

The majority judgment in the above Full Bench case of Hyderabad

We may further observe that after the passing of the Hindu

Minority and Guardianship Act 1956 the authority of the

152. See supra note 144.

Contracts for lease

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

Guardian's contract of insurance

Contracts for purchase of shares

fraud, misrepresentations or mistake which vitiate it. This is based on the

XI* Specific performance of contract

Specific performance and minors' agreement

In Subrahamanyam v. Subb Rao,18* where the agreement was by the

Specific performance and mutuality

...On the contrary we would do away with the doctrine in

In result the sub-section ( 4 ) m has been newly added in section 20 of

XII. Restitution or compensation in a minor's agreement

English law of restitution

Indian law of compensation

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