Dehradun
Abstract:
In
the midst of globalization fever, the people are grooming with wide-range of
information even before the age of majority. With the widening reach of
internet technologies, media outlets and many other applications, the people
are finding middle paths to success even by engaging themselves in low-virtue
deeds. As mentioned in the above sentences, the minors are also reaching
contracts with the second party—either knowingly or unknowingly in apparent bid
to cheat others. However, the Indian Contract Act envisages that the minors are
incompetent to hold any form of contracts. So, the contracts reached with minor
are void or simply not enforceable in any courts of law. Nevertheless, it poses
a serious concern before the courts of law that till when the minors would get
immunity? The contract act, though, envisages that the non-monetary items could
be recovered from a minor whenever he attains the age of majority in the line
with doctrine of restitution. On the contrary, in the case of marriage, the
contract act rolls out provisions in the favor a minor, envisaging that a minor
is entitled to enforce it.
Acknowledgement:
I would like to
express my profound gratitude to my respected Teacher and Supervisor of this
mini-project Dr. Jageshwar N. Singh, for his scholarly and insightful
supervision, without which the accomplishment of the present mini-research work
would have been impossible. I would like to thank my respected teacher for his
intuitive suggestions, and regular lectures.
It would be a
gross-injustice if I fail to remember my four-year Bachelors’ study in Nepal
and the very teachers who made me capable to join this LLB program here in
Dehradun. I pay a strong appreciation to my teachers who taught in my
graduation study—without their blessings my entire life would go in vain.
Similarly, my best
friend Naveen Chaudhary, and other counterparts like Nitee Rawat, Preeti Rawat,
Priyanka, Pooja, Preeti and among others have always stood by my side and
helped me in many grounds. So, I am equally thankful to them.
My deep thanks go
to entire teachers—especially Dr Jageshwor singh, Dr Mohit Negi, Mrs
Pallavi Gusain, Dr sharafat Ali—of
Siddhartha Law College whose standing ovation lectures mean a lot to me when it
comes to attain some legal insights and think for the would-be
legitimate-course that would shape my life in near future.
Subsequently, I
would also like to pay strong gratitude to both –google guru and Dr RK Bangia’s
scholarly book Contract-I—for helping me to collect and analyze the data.
Without their help, I would not be capable to draft this project.
Once again I would
like to thank my teacher—who never came down heavily notwithstanding I put some
nonsense questions during lecture period--for his motivational lectures and regular
classes. It would be an uphill task for me to complete this work before had I
not attended the classes regularly. So, tons of thanks go to my respected
teachers for their pledged teaching efforts.
Finally, I would
like to remember my Parents and almighty without whose blessings nothing would
have been possible.
Introduction:
At
a time when the entire world is emerged in globalization, the business world
and transacting partners felt the need of holding contracts through various
channels. In the midst of globalization fever, how come the contracting
partners be escaped from the attraction of contract acts. Amid the
modernization fever geared up the people of various quarters, the people
underscored the need of maintaining their business or transaction in the line
with contract act and other existing provisions in an apparent bid to respect
the rule of law.
The
Indian Contract Act was laid down in the soil of India in the holy year 1872,
aimed at advancing the essentials of lawful, unlawful, void and voidable
contracts. For the architects of the act, it was not easy to envisage entire
would be-situations coming across the contracts--despite the draftsmanship opined
the act very beautifully. It would be noteworthy to define contract in the line
with the Indian contract act. As per section 2(h) of the act, an agreement
enforceable by law is called a contract. So, the section very clearly, imparts
that the agreements which is not enforceable by law is void (mentioned in
section 2(g)). The word ‘Void’ generally means that ‘nullity’ or simply having
of no worth.
Moreover,
it would be further momentous here if mentioned about promisor and promise.
According to section 2(b) of the act, when the person to whom proposal is made
signifies his ascent thereto, the proposal is said to be accepted. A proposal
when accepted becomes the promise. Subsequently, the latter section [2(c)]
defines about promisor and promise. One who initiates the procedure of
contracting is promisor or the first party while the receiving end is second
party or simply called promisee.
Further,
every promise or set of promises forming consideration for each other is an
agreement—as per section 2(e) of the act. While the aforementioned details
provide a bird eye view on the basic elements in contract, the essentials of a
valid contract furthers a concrete detail by providing the five different
basics. According to section 10 of the Indian act, there rolls out the
following essentials:
I.
An agreement should be between the two
parties
II.
Parties competent to the contract
(section 11)
III.
Lawful consideration (section 23)
IV.
Free consent (section 14)
V.
Not to be expressly declared to be void
(section 24-29)
As
the project is aimed at establishing the nature of minor’s agreement and the
role of minor in reaching any form of contract, it would be of worth to discuss
section 11. According to the section 11 of the act, one who has not attained
the age of majority, of unsound mind and disqualified by law is barred to reach
a contract. As per section 3 of the Indian majority act 1875, the age of
majority stands at 18 years, while maintained the age of majority at the
completion of 21 years in the case of a person whose legal guardian has been
appointed by the court.
The
project paper is divided in to various sections, ranging from introduction to
conclusion. The project author firmly believes that the present work could not
give a complete picture on such a widely debatable topic of natures’ of minor’s
agreement. So, it would be a miscarriage of justice to claim that the very work
would herald a new dimension on the study of capacity of contract. However, the
project author has tried his best to garner a short overview of the earlier
done work on the same area. Subsequently, the conclusion part would shade light
on the theme of this paper coupled with project author’s take in this regard.
Nature’s
of a minor’s agreement: A judicial Approach
As
discussed in earlier section, a minor is incompetent to reach a contract.
Further, a minor cannot be a party to the contract. The section 11 of the act
better defines that the contract reached by a minor shall be declared to be
void.
Amid
various forms of fraudulent activities mushrooming, even the minors or on their
behalf, the people are holding contracts in a fresh effort to cheat others.
After finding that even minors’ becoming a partner in void agreements, the
controversy ripened among the courts of law. The jurists and the legal pundits
were at odds after observing that even minor’s agreement was taking aerial root
in a fresh bid to deceive the second party. However, the controversy was put at
rest by the decision of the Privy Council in the case of Mohri Bibi v.
Dharmodas Ghose.[1]
It was held that the agreement by a minor is void.[2]
The
facts of the Mohri Bibi v. Dharmodas Ghose are as follows.
“The
plaintiff Dharmodas Ghose, while he was a minor, mortgaged his property in
favor of the defendant, Brahmo Dutta, who was a money lender to secure a loan.
At the time of transaction, the attorney, who acted on behalf of the
money-lender, had the knowledge that the plaintiff was a minor.[3]”
Later
the minor brought an action against the money-lender stating that the mortgage
was void as the agreement was reached while he was a minor. However, the
money-lender had executed the contract even as he was aware about the age of
Dharmodas. According to the facts of the case, the defendant died—Brahmo
Dutta—died and the appeal was prosecuted by the executors.
The
court held that the agreement was not fraud, but mere a void. The justices
involved in the decision making process held that:
“There
can be no estoppels where the truth of the matter is known to both the parties,
and their lordships hold, that a false representation, made to person who knows
it to be false, is not such a fraud as to take away the privilege of infancy.[4]”
However,
in yet another contention, the defendant drawn the concern of the court by
citing the relevancy of sections 64 and 65 of the contract act. The section 64
of the act reads as:
“When
a person at whose option a contract is voidable rescinds it, the other party
thereto need not perform any promise therein contained which he is a promisor.
The party rescinding a voidable contract shall, if he has received any benefit
there under from another party to such a contract, restore such benefit, so far
as may be, to the person from whom it was received.[5]”
However,
the court observed that section 64 was applicable in the case of a voidable
contract. The court further advanced that section 64 was not applicable in case
of minor’s agreement as it falls in the nature of void contract. In a
significant blow to the money-lender, the court heralded that the minor could
not asked to pay the amount even though he has reached the age of majority in
fresh context.
In
yet another subtle bow to the defending side, the court held that even section
65 was not applicable to the minor’s agreement.
The
section 65 reads as:
“When
an agreement is discovered to be void or when a contract becomes void, any
person who has received any advantage under such agreement or contract is bound
to restore it or to make the compensation for it, to the person from whom he
received it.[6]”
However,
coming down heavily on the interpretation given by the Privy Council, the Law
Commission of India forwarded a recommendation. And the recommendation reads
as:
“We
feel that the judicial committee had not correctly interpreted section 65 and
we are of the opinion that an agreement is void or is discovered to be void
even though the invalidity arises by reason of the incompetency of a party to a
contract. We recommend that an explanation be added to section 65 to indicate
that that section should be applicable where a minor enters in to an agreement
on the false representation that he is a minor.[7]”
However,
the amendment is yet to be made in the line with the recommendation advanced by
the law commission of India.
Nevertheless,
expressing his confidence, the money-lender drew the concern of the court in yet
another contention by citing the provision envisaged under section 41 of the
Specific Relief Act, 1877.
The
section 41 reads as:
“On
adjusting the cancellation of an instrument, the court may require the party to
whom such relief is granted to make any compensation to the other which justice
may require.”
However,
in the similar vein, court quashed the contention of the money-lender, saying
the money has been advanced with the full knowledge of the infancy of the
plaintiff. Eventually, the court held that the claim for refund under Specific
Relief Act was disallowed and can’t be asked to compensate the borrowed money
to the money-lender at the hands of plaintiff.
So,
from the above discussions, three things become clear. One, any contract
reached with minor is void. Secondly, minor can’t be a party to the contract.
Eventually, even as the agreement has reached with minor under the full
knowledge about his infancy, the second party could not enforce the agreement
though the minor—first party here—attain the age of majority with passage of
time. Moreover, there provides ground for minor to take advantage of his
infancy.
To accentuate the relevancy of ‘minors’
agreement is void’, the other different cases are cited here with.
In
the case of, Khangul v. Lakha Singh (AIR 1928)[8],
Lahore High Court also held that the laws of estoppels does not apply to the
minor. The reason advanced by the then Chief Justice Shadi Lal, is however,
different. Putting a contrary view, the Chief Justice went on to herald that
agreement by a minor is void as the law of estoppels, which is rule of
evidence, being a general law has not much to do with special law contained in
Indian Contract act. Though he did not clearly elaborated the irrelevancy of
laws of estoppels, he, however, was clearly referring that the law of contract
was competent enough to deal with such type matters. Might be keeping that
view, the Chief Justice Shadi Lal, also seconded the verdict of Privy Council
and held that laws of estoppels does not apply to minor.
In
a significant gesture, the Lahore High court held that where a minor had
performed his part of the agreement and delivered the goods, he was held
entitled to maintain a suit for the recovery of their price in the case of
Abdul Gaffar v. Piare Lal[9].
Meanwhile, a promissory note executed in favor of a minor is valid and can be
enforced in a court which was held in the case of Sharaft Ali vs. Noor Mohd.
The
doctrine of restitution in minor’s agreement: A judicial Approach
According to English law, if a minor has obtained undue
benefit in any transaction, he is required to restore back the benefit so
received by him, under the equitable doctrine of restitution. The
much-acclaimed commentator of legal studies Dr RK Bangia in his scholarly
book—Contract I-- writes that under the doctrine, he is asked to restore back
the exact things taken by him. However, it is only applicable to goods or
property received by minor so long as they can be traced, and are still in his
possession. Bangia further points out that since, it is difficult to identify
the money and to prove whether it is the same money or different one, the
doctrine does not apply to money. Even as regarding goods or property, if the
same have been consumed or transferred and are no more traceable, the doctrine
of restitution does not apply here.
“In
the case of Leslie v. Sheill, the defendant falsely misrepresented himself to
be a major, and obtained two loans of £ 200 each from the plaintiffs, who were
money-lenders. The plaintiffs brought an action to recover £475 being, being
the amount of loan taken and interest thereon. It was held by the court of
appeal that the money could not be recovered. If that were allowed, that would
amount to enforcing the agreement to repay the loan, which is void under the
Infant’s Relief Act, 1874. It was explained that the object of the doctrine of
restitution is to restore back that ill gotten gains taken by the minor, rather
than enforcing the contract[10].”
However,
the position is not much different in India. A minor cannot be ordered to make
compensation for a benefit obtained under a void agreement, because Sections 64
and 65 of the Contract Act, which deal with restitution, apply only to
contracts between competent parties and are not applicable to a case where
there is not and could not have been any contract at all (Kanta Prasad vs. Sheo
Gopal Lai)[11].
The
court may, however, in certain cases, while ordering for the cancellation of an
instrument, at the instance of a minor, require for the cancellation of an
instrument, require the minor plaintiff to make compensation to the other party
to the instrument.[12]
This is as per Section 33 of the Specific Relief Act, 1963, which states as
follows:
"On
adjudging the cancellation of an instrument, the Court may require the party to
whom such relief is granted, to restore, so far as may be any benefit which he
may have received from the party and to make any compensation to him which
justice may require."
Thus,
the Court will compel restitution by a minor when he is a plaintiff. For
example, if a minor sells a house for Rs. 50,000 and later on, files a suit to
set aside the sale on the ground of minority, he may be directed by the Court
to refund the purchase money received by him before he can recover possession
of the property sold (Jager Nath Singh vs Lalta Prasad).[13]
The
scholars believe that it may be emphasized that Section 33 of the Specific
Relief Act, 1963, is framed so as to afford relief in only a case where the
minor himself as plaintiff seeks the assistance of Court and the Section is
inapplicable as he happens to be merely a defendant in a suit by the person who
dealt with him when he was a minor. This Section is based on the well known
principle that "he who seeks equity must do equity.[14]"
Beneficial agreements with minor are valid contracts:
A judicial interpretation
The
minors are not competent enough to take decisions on their own. Secondly, they
can also not judge which one is whether right or not. Any agreement which is of
some benefit to the minor and under which he is required to bear no obligation,
is valid. In other words, a minor can be a beneficiary e.g., a payee, an
endorsee or a promise under a contract and it was held in the case of Goekda
Latcharao vs Vishwanadham Bhomayya.[15]
Thus money advanced by a minor can be recovered by him by a suit because he can
take benefit under a contract.
A
duly executed transfer by way of sale or mortgage in favour of a minor, who has
paid the whole of the consideration money, is enforceable by him or by any
other person on his behalf, which was held in the case of Raghava Chariar vs.
Srinivasa. Where a minor purchaser of immovable property was, subsequent to his
purchase, disposed by a third party, it was held that the minor could recover
from his vendor the sum which he has paid as purchase money (Walidad Khan vs.
Janak Singh[16].
Secondly,
a minor purchaser of immovable property was held entitled to recover possession
of property purchased from his vendor, when refused by vendor—was held in the
case of Collector of Meerut vs Hardian[17].
A promissory note executed in favour of a minor is valid and can be enforced in
a court, held in the case of Sharaft Ali vs. Noor Mohd.
Where
a minor had performed his part of the agreement and delivered the goods, he was
held entitled to maintain a suit for the recovery of their price, held in the
case of Abdul Gafar vs Piare Lal.
No ratification on attaining the age of majority:
Ratification
means the subsequent adoption and acceptance of an actor agreement. The
commentator Bangia in his book writes that a minor's agreement being a nullity
and void ab-initio has no existence in the eye of law.
The
doctrine of ratification would be further understandable if the different
leading cases cited here with.
The
consideration furnished in respect of a transaction during minority cannot be
considered to be a valid consideration for a subsequent promise made by a
person during his minority and it was held by Madras High Court in the case of
Arumugan v. Duraisinga.[18]
Since a contract by a minor is void.
In
a similar vein, in the case of Bhola Ram v. Bhagat Ram, it was held at the
hands of Lahore High Court that it cannot be ratified by the minor on attaining
the age of majority, for, an agreement void ab-initio cannot be made valid by
subsequent ratification[19].
In
yet another similar gesture, Lahore High Court in the case of Nazir Ahmed vs
Jiwan Dass held that the consideration which passed under the earlier contract
cannot be implied into the contract into which the minor enters on attaining
majority[20].
Similarly,
in a landmark ruling by the honorable Allahabad High Court in the year of 1928,
with clear majority of 2:1, in the case of Suraj Narain vs Sukhu Ahir[21]
that where a minor borrowed a sum of money by executing a promissory note, and
after attaining majority, executed a second bond in respect of the original
loan, the court majority executed a second bond in respect of the original
loan, the court held that a suit upon the second bond was not maintainable as
that bond was without consideration. The court further clarified that
consideration received by a person during his minority could not be called
consideration in its strict term within the meaning of section 2 (d), and there
was no question of that consideration being considered valid for a fresh
promise. The promisor therefore could not be made liable in respect of such
promises.
Since
ratification relates back to the date when the contract was originally made, it
is necessary for a valid ratification that the person who purports to ratify
must be competent to contract at the time of the contract.
Furthermore,
nevertheless if services are rendered or an advance is made to a minor during
his minority and the services are continued or a further advance is made after
he attains majority a promise to pay for such services or amount as a whole
would be valid and enforceable, in a similar gesture Bombay High Court held it
in the case of Sindha vs Abrahim[22].
The rule of estoppels does not apply
to a minor:
It
is believed that the rule of estoppels does not apply against minor. When a
minor misrepresents his age at the time of contract that he has attained the
age of majority, the question which arises does the rule of estoppels apply
against minor? The different cases would try to seek the answer of it.
On
a separate context, section 115 of the Indian Evidence Act explains that "Where
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 upon 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."
According
to the rule contained in the above mentioned section, if one makes a statement
today which misleads another person, he is not allowed to deny the statement
tomorrow when the question of his liability arises tomorrow.
The
question of estoppels came before the court in numerous cases. In Mohri Bibi v.
Dharmodas Ghose (1903), Calcutta High Court has held that the minor was not
liable to compensate as per the demand of the money-lender as though the minor
misrepresented his age while taking
loan, but the fact that the person was taking loan is a minor was known to the
money-lender. The privy council did not consider it necessary to decide whether
section 115 of Indian Evidence Act was applicable to the present case, because
the money-lender was not mislead by the false statement about his infancy.
Moreover,
in Vaikuntarama Pillai v. Authimoolam Chettiar[23],
the Madras High Court had held that as there is clear statutory provision that
a minor being incompetent to contract is incapable of incurring any liability
for any debt, the laws of estoppels cannot overrule this provision to make him
liable.
Similarly,
in yet another similar tune, the Patna High Court has held that the rule of
estoppels which is a rule of evidence, is subject to the provisions of Indian
Contract Act, which makes an agreement by minor is void; held in the case of
Ganganand Singh v. Rameshwar Singh[24].
Contracts of apprenticeship and service by a minor:
“A
contract of apprenticeship stands on a different footing than an agreement of
service by a minor. A contract of apprenticeship is valid and binding upon a minor
because such a contract is protected by the Apprentices Act, 1961, provided the
case falls within the terms of that Act. The Act, inter alia, provides that the
minor must not be less than fourteen years of age and the contract must be
entered into on behalf of the minor by his guardian.[25]”
The
Act was passed with a view to enabling children to learn trades, crafts and
employments, by which, when they come to full age, they may gain a livelihood.
It was observed that the contract of service entered into by father on behalf
of his minor daughter was void for another reason also, that is the same was
without any consideration because consideration moving from a third party , who
is minor, is no consideration, was held in the case of Raj Rani v. Prem Adib[26].
Contract of marriage:
Contract
of marriage is supposed to be beneficial to minors, and, therefore, a minor is
entitled to enforce them.
In
the case of Khimji Kuverji v. Lalji Karamsi[27],
the question before the Bombay High Court was, whether the contract of marriage
of a minor girl entered into by her mother on her behalf with a major boy could
be enforced and she could be sued for the breach of contract. The question was
answered in the affirmative and her action was allowed.
In
a similar gesture, in the case of Abdul Razak v. Mohammad Hussein[28],
the Bombay High Court allowed an action against a Muslim father, who promised
to give his minor daughter in marriage to the plaintiff, but subsequently there
was breach of the contract. In this case, after the defendant agreed to give
his minor daughter in marriage to the plaintiff, the plaintiff spent some
amount by presenting ornaments and clothes’ to the defendant’s daughter and
incurred certain other expenses in connection with the agreement for marriage.
On the breach of contract of marriage, it was held that the plaintiff was
entitled to recover the amount from the defendant under section 65 and 73 of
the contract act.
Position of minor in Partnership:
Partnership
arises out of a contract. It is therefore necessary that the parties to the
contract of partnership should be competent to the contract. A minor being
incompetent to the contract cannot become a partner in any partnership
collaboration for business or others.
In
the case of Dharam Vir v. Jagan Nath[29],
the Punjab High Court had held that is a minor is made full-fledged partner
along with other major persons, the agreement would be void and the deed
containing their contract would be unenforceable even as between the other
major partners.
However,
section 183 of the Indian Contract Act better defines that any person who is of
the age of majority, and who is of sound mind, can employ an agent. So, how
come a minor be a party to the partnership activities if the law is prevailing
before the Indian society.
In
a contrary gesture, the Indian Partnership Act, section 30 asserts that a minor
may not be a partner in a firm, but, with the consent of all partners for the
time being, he may be admitted to the benefits of the partnerships. However, if
any contrary thing, which is inconsistent to the existing provisions, comes
across for any act of the firm, his share would be liable for such act, not
necessarily he himself—as envisaged under section 30 (3) of the Indian
Partnership Act.
Meanwhile,
the position is minor in a contract of agency is also similar to that of
partnership. A minor is incapable of entering into a contract of agency because
any agreement by minor is of void nature. Moreover, a minor can’t be a party to
contract for an agency even through his agent. Therefore, a minor can’t even
appoint an agent, or in other words, a minor cannot become principal of the
agreement. Likewise, section 183 of the contract act provides that any person
who is of the age of majority, according to law to which he is a subject, and
who is of sound mind, may employ an agent.
So,
from above discussions, one thing becomes clear that a minor cannot become a
party to reach an agreement of either partnership or agency. However, there is
a small window open for a minor to become a partner in any firm had the other
shareholders reached an understanding to bring him in the agreement for the
benefits of the partnership. Secondly, the legal action would not be made
against him rather his share would be liable for that. It means any contrary
things—declared inconsistent by the law—happen in the firm, certain portion
either wholly or partly would be deducted from his share as a remedy by the
court of law.
Contract of immovable property by a minor’s guardian:
In
Mir Sarwarjan v. Fakhruddinhe[30],
the guardian of a minor entered into a contract on behalf of the minor for the
purchase of land. The minor sued for the specific performance of the contract.
Even though the contract was to the advantage of minor, the minor’s suit was
dismissed.
In
a subsequent case, Srikakulam Subrahmanyam v. Kurra Subba Rao[31],
the Privy Council changed its’ decision. The respondent, a minor agreed to sell
through his guardian and mother, a certain land to the appellant. The minor
then filed a suit to recover back the possession of land. It was held that the
minor’s contract entered into through the mother for the purpose of discharging
minor’s father’s debt was valid and the minor was therefore, bound by
transaction. It was also observed that if the mother and guardian had taken no
part at all in the transaction, the respondent could not have entered into a
valid contract to sell the land in suit to the appellant.
In
Durga Thakurrani v. Swain[32],
the Orissa High Court referred to the above stated decisions of the Privy
Council and held that such a contract was enforceable. In this case, the
trustee of a deity entered into a contract for the sale of property of a deity
under a legal necessity. It was held that such a contract was specifically
enforceable.
So,
one thing becomes apparent here that the Privy Council made a slight change
from its’ earlier slated position. Earlier, in its’ strict interpretation, the
Council had held that any form of agreement reached with minor was held unenforceable;
while latter the decision was contrary.
Conclusion:
As
discussed in the various sections, ranging from introduction to the rest, one
thing becomes apparent that all agreements are contracts if they are made by
the free consent of parties competent to contract, for a lawful consideration
and with a lawful object, and are not hereby expressly declared to be void. An
agreement becomes a contract when the parties intend to give rise to legal
obligations. The scholars believe that if an agreement is incapable of creating
duty enforceable by law, it is not a contract.
An
agreement is a wider term than a contract. All contracts are agreements but all
agreements are not contract. Agreements of moral, religious or social nature
like promise to attend marriage, birth day party etc are not treated in the
line with contracts because they are not intended to create legal duty
enforceable by law as the parties to such agreements never intended to create
legal consequences for breach thereof. The notion gets momentum if cited here
yet another example. If Ram promised Rupa, his beloved, that he would pick all
the stars from sky in a fresh bid to gift her by the next month. Such a promise
is though an agreement, not enforceable in any court of law—so not falls under
contract anymore. So, in yet another interpretation, the impossible things to
happen if becomes subject to the contract then it also falls under void
agreement or simply not enforceable by law.
The
veteran jurist Salmond opines that the law of contracts is not the whole law of
agreement nor it’s the whole law of obligations. It is the law of those
agreements which create obligation and those obligations which have their
source in agreements.
While
discussing about the capacity of contract, section 11 of the act rolls out the
competent parties to the contract. According to the section, a minor, an
unsound mind, those disqualified from contracting by some law are not competent
to reach any form of contract. However, the in the former sections, different
leading cases have posed serious concern before the court of law. In one way,
the minor’s could take advantage and could flee from court of law despite one
is in the receiving side. On the other
hand, the minors always find themselves in a safe zone though they are morally
in wrong side.
Coming
down heavily against the defendant, in the case of Mohri Bibi v. Dharmodas
Ghose, the plaintiff Brahmodutta moved the court in apparent bid to seek
compensation from the hands of Dharmodas. However, showing a reluctant gesture,
the Calcutta High Court held that any agreement reached with a minor was void.
So, the money-lender Brahmodutta remained empty-handed.
In
a similar vein, a full-bench judgment of the Lahore High Court in the year of
1928 in the case of Khangul v. Lakkha Singh, the then Chief Justice Shadi Lal
advanced that an agreement reached with minor should be strictly determined as
void. The Chief Justice heralded that such cases should be interpreted within
the strict meaning envisaged under section 2(d) of the Indian Contract act. The
Lahore High Court also sang the similar tune.
While
the matter of agency and other contracting agencies are concerned, the Indian
contract act strictly maintains that any agreement reached with minor is not
enforceable by any court of law. However, there are some of the second side
views as well.
The
doctrine of ratification provisions that a minor, who had earlier reached an
agreement, cannot go for another fresh agreement whenever he attains the age of
majority and the law forbids to enforce the earlier agreement reached during
age of infancy. It was held in the case of Suraj Narayan v. Suku Ahir by the
Allahabad High Court.
Furthermore,
the doctrine of restitution rolls out a different notion, maintaining that under
the doctrine, one is asked to restore back the exact things taken by him.
However, it is only applicable to goods or property received by minor so long
as they can be traced, and are still in his possession. However, there lives
always a difficulty to identify the money and to prove whether it was the same
money or the different one, the doctrine does not apply in the case of money.
Even as regarding goods or property, if the same have been consumed or
transferred and are no more traceable, the doctrine of restitution does not
apply here.
Meanwhile,
contract of marriage is supposed to be beneficial to minors, and, therefore, a
minor is entitled to enforce them. In the case of Khimji Kuverji v. Lalji
Karamsi, the question before the Bombay High Court was, whether the contract of
marriage of a minor girl entered into by her mother on her behalf with a major
boy could be enforced and she could be sued for the breach of contract. The
question was answered in the affirmative and her action was allowed. Apart from
this, the court of laws have laid down the law of beneficiary rule was always
there for the minor.
At
a time when even the minors are educated with the different provisions with the
advancement of text books and recent technologies, the infancies are also
finding easier and low-virtue roots aimed at deceiving others. With the
advancement of time in the midst of globalization, the court of law should vent
ire against those who reached agreement during the age of minority. The court
of law should take a strong initiative to quash the existing provisions which
allow a minor to take a safe middle path. There should be provisions which
could allow the aggrieved party to sue a minor whenever he attains the age of
majority. Secondly, the doctrine of ratification should also be applicable in
the case of money. Though, the contract act falls under civil law, there should
be provisions to punish the people harder whoever involved in any forms of
fraudulent activities.
Similarly,
the time has gone to measure a person on age of majority, even the minors are
found involved in outraging the modesty of women. Even in rape cases, the court
apply a soft-gloved tactics against minor. Whenever, one performs any
activities that are inconsistent to the existing provisions which harm the
society at large and the very person intentionally does that, then he should be
punished. Secondly, the age of majority should be maintained 16 against the
existing 18. During yesteryears, the school going children were not educated
enough with modern trends. However, the present globalized world makes a child
matured even before the actual age of majority. May be due that they find
enjoyment in low virtue things.
References:
Bangia, RK. Contract I. (2013). Faridabad: Allahabad
Law Agency, p. 100.
Mir Sarwarjan v. Fakhruddin (1911) ILR 39Cal. 232;
39 IA 16
Srikakulam Subrahmanyam
v. Kurra Subba Rao, AIR 1948 PC 95: (1949) ILR Mad
Durga Thakurrani v. Swain, AIR 1982 Orissa 158.
Dharam Vir v. Jagan Nath, AIR 1968 Punj. 84
http://www.preservearticles.com/2012012621640/short-essay-on-minors-agreements.html
(Retrieved on 25th October 2014, time 4:05)
Raj Rani v. Prem Adib ,
AIR 1949 Bom. 315
Khimji Kuverji v. Lalji
Karamsi AIR 1949, Bom. 315
Abdul Razak v. Mohammad Hussein, AIR 1971, Bom. 61
Vaikuntarama Pillai v.
Authimoolam Chettiar. ILR (1915) 38 Mad. 1071
Ganganand Singh v. Rameshwar Singh, AIR 1927, Pat. 271
Arumumnga v.
Duraisinga, ILR (1914) 37 Mad. 38.
Bhola Ram v. Bhagat
Ram, AIR 1927 Lahore 24, 26.
Nazir Ahmed v. Jeevan
Das, AIR 1938. Lahore. 159.
Suraj Narayan v. Suku
Ahir, AIR 1928, All. 440
Sindha v. Abrahim, ILR
(1895). 20 Bombay. 755.
Khangul v. Lakha Singh
(AIR 1928). Lahore 609.
Abdul Gaffar v. Piare Lal (AIR 1934). Lahore 480.
Mohri Bibi v. Dharmodas Ghose (1903) 30 I.A. 114
(P.C.)
[1] (1903) 30 I.A. 114 (P.C.)
[2] Bangia, RK. Contract I. (2013).
Faridabad: Allahabad Law Agency, p. 100.
[3] Ibid.
[4] (1903) 30 I.A. 114 (P.C.)
[5] Section 64 of the Indian
Contract act-1872.
[6] Section 65, Indian Contract Act.
[7] In Bangia, RK (2013). Contract I
about Law Commission’s 13th Report, p. 20.
[8] Khangul v. Lakha Singh (AIR
1928). Lahore 609.
[9] Abdul Gaffar v. Piare Lal (AIR
1934). Lahore 480.
[10] Bangia, RK. (2013). Contract-I.
[12] Ibid
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] Ibid.
[18] Arumumnga v. Duraisinga, ILR
(1914) 37 Mad. 38.
[19] Bhola Ram v. Bhagat Ram, AIR
1927 Lahore 24, 26.
[20] Nazir Ahmed v. Jeevan Das, AIR
1938. Lahore. 159.
[21] Suraj Narayan v. Suku Ahir, AIR
1928, All. 440
[22] Sindha v. Abrahim, ILR (1895).
20 Bombay. 755.
[23] Vaikuntarama Pillai v.
Authimoolam Chettiar. ILR (1915) 38 Mad. 1071
[26] Raj Rani v. Prem Adib , AIR 1949
Bom. 315
[27] Khimji Kuverji v. Lalji Karamsi
AIR 1949, Bom. 315
[28] Abdul Razak v. Mohammad Hussein,
AIR 1971, Bom. 61
[29] Dharam Vir v. Jagan Nath, AIR
1968 Punj. 84
[30] Mir Sarwarjan v. Fakhruddin
(1911) ILR 39Cal. 232; 39 IA 16
[31] Srikakulam Subrahmanyam v. Kurra
Subba Rao, AIR 1948 PC 95: (1949) ILR Mad
[32] Durga Thakurrani v. Swain, AIR
1982 Orissa 158.
