ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me
during the writing of this assignment.

My deepest thanks to our mentor Professor Shibram Tripathi, for guiding and
motivating me in making this assignment.

I would also thank my Institution and my faculty members without whom this
assignment would have been a distant reality. I also extend my heartfelt thanks to
my family and friends.

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 TABLE OF CONTENTS

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 TABLE OF CASES

1. A.T. Raghava Chariar v O.M. Srinivasa Raghava Chariar, ……………………………

ILR (1916) 40 Mad 308.
2. Chappel vs. Cooper, …………………………………………………………………
(1844) 13 M. & w, 252.
3. Jagar Nath Singh v. Lalta Prasad, …………………………………………………...
ILR (1908-10) 21,
4. Johnson v Pye,………………………………………………………………………………...
(1665) 1 Sid 258: 82 ER 1091.
5. Khan Gul vs. Lakha Singh,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
ILR (1928) 9 LAH 701: AIR 1928 Lah 609
6. Lakhwinder singh v. Paramjit Kaur,………………………………………………………
AIR 2004 P&H 6: (2004) 1 ICC 151.
7. Mohiribibi v. Dharmodas Ghose,………………………………………………………….
(1902-03) 30 1A 114: ILR(1903) 30 Cal 539 (PC).
8. Nash vs. Inman,……………………………………………………………………………...
(1908) 2 k.b. 1.
9 .Nazir Ahmad v jiwan Das,………………………………………………………….
AIR 1938 Lah 159.
10. Padma Vithoba Chakkya v Mohd Multani, ……………………………………………
AIR 1963 SC 70,74: (1963) 3 SCR 229.
11 .Raj Rani vs. Prem Adib, ………………………………………………………….
(1949) 51 BOMLR 256.
12. Sadik Ali Khan vs. Jai Kishore, …………………………………………………..
(1928) 30 BOMLR 1346.
13. Srikakulam Subrahmanyam vs. Kurra Subha Rao, …………………………………..
(1947-48) 75 IA 115: ILR 1949 Mad 141 PC.
14. Tukaram Ramji Shendre v Madharao Manaji Bhange,………………

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Children constitute nearly 38 percent of the country’s population and have been
declared as national assets by the apex courts. They are innocent and helpless and
thus need proper care and nourishment during the growing years so that they
become useful members of the society.

This is the reason why the Indian Contract Act has incorporated a special
provision for minors. It has provided to minor’s and persons of unsound mind a
special protection from the consequences of their own agreement because it is
felt that such people would not be able to safeguard their interest themselves
while making deals with others. Protection of these persons has been uppermost
in the minds of law authorities while determining the consequences of the
agreement made by these persons with other.

It is done in order to safeguard the rights of children because it is assumed that a

child may show poor judgement in making a particular contract, and thus it is the
duty of the court to protect his rights.

The following assignment will discuss in detail the law relating to minors under
the Indian Contract Act and will critically analyse the same.

MEANING OF MINOR

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The term “minor/minors” is nowhere defined in the Contract Act. But taking into
consideration the wordings of Section 11, a minor is a person who has not
attained the age of 18 years. The age of majority of a person is regulated
by Section 3 of the Indian Majority Act, 1857. But where a guardian has been
appointed to the person or property of the minor by a Court or when the minor’s
property is under supervision of Courts of wards, the age of majority of such a
person is 21 years and not 18 years.1

Section 11 of the Act expressly forbids a minor from entering into a Contract.
The effect of this express prohibition is that any contract entered into by a minor
is void ab initio regardless of whether the other party was aware of his minority
or not.

Case – Mohoribibi vs. Dharmodas Ghose2 –

The Privy Council ruled that – the Act makes it essential that all contracting
parties should be competent to contract, and especially provides that a person who
by reason of infancy is incompetent to contract cannot make a contract within the
meaning of this Act. It was accordingly held that a mortgage made by a minor
was void, and a money-lender who has advanced money to a minor on the security
of the mortgage is not entitled to repayment.

The law dealing with minor’s agreement is based on two principles –

a) That the law must protect the minor against his own inexperience, which may
enable an adult to take unfair advantage of him, or to induce him to enter into a
contract which, though in itself is fair, is simply imprudent (e.g. – if the minor for
a fair price buys something which he cannot afford); and

1
The Indian Majority Act,1875. S.3.
2
(1902-03) 30 1A 114:ILR(1903) 30 Cal 539 (PC),Lakhwinder singh v. Paramjit Kaur AIR 2004 P&H 6: (2004) 1
ICC 151

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b) That the law should not cause unnecessary hardship to adults who deal fairly
with minors.

Keeping in mind this fact the Privy Council changed its stand later into a more
equitable one –

Case – Srikakulam Subrahmanyam vs. Kurra Subha Rao3 –

In order to pay off the promissory note and the mortgage debt of his father, the
minor son and his mother sold a piece of land to the holders of the promissory
note in satisfaction of the note and he was also able to pay off the mortgage debt,
and regain possession of the land. Afterwards the minor brought an action to
recover back the land. Lord Morton held that Section 11 and Mohoribibi case
leave no doubt that a minor cannot contract and if the guardian had taken no part
in this transaction it would have been void. But the contract being for the benefit
of the minor and within the power of the guardian was held to be binding upon
him.

Effects of Minor’s agreement

 No estoppel against a minor:

If a minor enters into any agreement by representing that he is of full age, is he

estopped by Section 115 of the Indian Evidence Act, 1872 from setting up that
he was a minor when he executed the agreement. In other words he can be
precluded (prevented) from disclosing his true age in any subsequent litigation
resulting from the Contract4.

3
(1947-48) 75 IA 115:ILR 1949 Mad 141 PC.
4
Jagar Nath Singh v. Lalta Prasad, ILR (1908-10) 21

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The point was raised but not decided in Mohoribibi vs. Dharmodas Ghose case
but the point was settled in Sadik Ali Khan vs. Jai Kishore5 where privy council
observed that – a deed executed by a minor is a nullity and incapable of founding
a plea of estoppel. The principle underlying the decision being, there can be no
estoppel against a statue.

The position is – even if a minor has entered into a contract by misrepresenting

his age, he can at any later stage plead “minority” and avoid the contract.
Minority in India is a fact and not a privilege (as in England) and this fact can be
proved at any stage of the proceedings, regardless of the surrounding
circumstances.

 No liability in a contract for minor:

A minor is in law incapable of giving consent and, there being no consent. There
being no contract at all and hence no liability in an agreement entered by the
minor.

 No liability in tort arising out of contract:

A minor’s agreement is of course, in principle devoid of all legal effects. a minor

is in law incapable of giving assent and there being no consent, there could be no
change in the character” or status of the parties6.

In Johnson v Pye7, an infant who obtains a loan of money by falsely representing

his age cannot be made to repay the amount of loan in the form of damages. The
court held that “a minor cannot be held responsible for anything which would be
an indirect way of enforcing his agreement”.

5
(1928) 30 BOMLR 1346
6
Padma Vithoba Chakkya v Mohd Multani, AIR 1963 SC 70,74: (1963) 3 SCR 229.
7
(1665) 1 Sid 258: 82 ER 1091

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 No ratification:

A minor’s agreement being void ab initio, there can be no ratification of the

agreement on his reaching the age of majority8. Ratification relates back to the
date of the making of the contract and therefore, a contract which was then void
cannot be made valid by subsequent [Link] can only be of acts
which are “valid in law” at the time of commission and also at the time of
ratification. Since an agreement entered into by the minor, during his minority is
not valid in law, he cannot on his reaching the age of majority ratify it – as in the
eyes of law the agreement does not exist at all.

 Limited application of “Restitution” in case of minor’s agreement:

If a minor obtains property or goods by misrepresenting his age he can be

compelled to restore it, but only so long as the same is traceable in his possession.
This is known as the equitable doctrine of restitution.

Where the minor has sold the goods or converted them, he cannot be made to
repay the value of the goods, because that would amount to enforcing a void
agreement. So also, the doctrine will not apply where the minor has obtained cash
instead of goods.10

The Specific Relief Act authorized the Courts to order any compensation that
justice required to be paid by the party at whose instance a contract was cancelled.

The first land mark case decision on this issue was Mohoribibi’s case where it
was held that – justice did not require ordering the return by the minor of the
money advanced as the same was advanced with the full knowledge of infancy.

8
Nazir Ahmad v jiwan Das, AIR 1938 Lah 159
9
Tukaram Ramji Shendre v Madharao Manaji Bhange AIR 1948 Nag 293
10
Avtar singh, Contract and specific Relief.p.152

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Second land mark case was – Khan Gul vs. Lakha Singh11 –where the defendant
while still a minor, fraudulently concealing his age, contracted to sell a plot of
land to plaintiff. He received the consideration of Rs. 17,500/- and then refused
to perform his part of bargain. The plaintiff prayed for recovery of possession or
refund of consideration. There could be no question of specific enforcement, the
contract being void ab initio.

There is no real difference between restoring the property and refunding the
money, except that the property can be identified but cash cannot be traced.

As per Section 33(1) of the Specific Relief Act, 1963 if a minor comes to the
Court as a plaintiff, he can be compelled to disgorge (to surrender) his gains under
the agreement.

As per Section 33(2) if the minor is brought before the court as a defendant, he
can be compelled to account for such portion of money or other benefits received
by him has gone to benefit him personally, such as education or training or has
resulted as accretion to the estate.

It must be remembered that while in India all contracts made by infants are void
and scope of application of the equitable doctrine of restitution is
comprehensive.

 Effects of contracts beneficial to minor:

Case – Raghavachariar vs. Srinivasa 12–

A minor is allowed to enforce a contract which is of some benefit to him and

under which he is required to bear no obligation. In the said case full bench of
Madras High Court unanimously decided, that a mortgage executed in

11
ILR(1928) 9 LAH 701: AIR 1928 Lah 609
12
36 Ind Cas 921,(1916) 31 MLJ

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favour of a minor, who has advanced the whole of mortgage money, is
enforceable by him or any other person on his behalf.

Again it is important to note that where the contract is still executory or the
consideration is still to be supplied, the principle of Mohoribibi’s case would
thwart (prevent) any action on the contract. For instance – Raj Rani vs. Prem
Adib 13– the plaintiff, a minor, was allotted by the defendant, a film producer, a
role in a film. The agreement was made with her father. The defendant ultimately
allotted that role to another artist and terminated the contract with the plaintiff’s
father. Held, that neither the plaintiff not her father could sue on the promise. If
it was a contract with the plaintiff, she being the minor, it was a nullity. If it was
a contract with her father it was void for being without consideration.

The Indian Apprentice Act provides for contracts in the nature of contracts for
service which are binding on minors. Section 9 of the Act requires such contracts
to be made by a guardian on behalf of the minor.

Another contract which is prima facie for the benefit of minor is a contract for
his/her marriage. It is customary amongst most of the communities in India for
parents to arrange marriages between their minor children and law has to adapt
itself to the habits and customs of the people. The contract of marriage could be
enforced against the other contracting party at the instance of the minor but it
cannot be enforced against the minor.

A minor has the option of retiring from a contract in beneficial nature on attaining
majority provided he exercises the option within a reasonable time.

 Liability of minors for necessaries:

13
(1949) 51 BOMLR 256

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According to Sec-68, the necessaries supplied to minor “should be suited to his
condition in life”. It does not mean bare necessities of life, but means such things
as may be necessary to maintain a person according to his condition in life. It
means that mere luxury are always excluded though articles of utility are in some
cases allowed.14

Case: Chappel vs. Cooper15 – It was held that an infant widow is bound by a
contract for the burial of her husband as the contract is for a necessary.

“What is necessary” is a relative fact to be determined with reference to the

fortune and circumstances of the particular minor. Hence a “Gold Watch” may
be an article of necessity in one case and an item of luxury in another depending
on the status of minor. The importance of making differentiation is the seller
would be able to recover the cost of the watch in first case and he will have to
suffer a loss in the second case.

A minor in India can never be made personally for any goods supplied to him. If
he does not property sufficient to satisfy the debts, the seller will have to suffer a
loss.

To render a minor’s estate liable for necessaries two conditions must be satisfied:

1. the contract must be for goods reasonably necessary for his support in his
station in life; and

2. he must not have already a sufficient supply of these necessaries.16

14
Dr. R.K. Bangia, Law of Contract,p. 102
15
(1844) 13 M. & w, 252
16
Avtar Singh, Contract and specific Relief, p.164

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Case – Nash vs. Inman17—the supplies has to prove not only that the goods
supplied were suitable to the condition in life of the infant, but that he was not
sufficiently supplied with the goods of that class.

17
(1908) 2 k.b. 1

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 CONCLUSION

Generally it is assumed that mental faculties of a minor are in developing state.

He is not mature enough to understand what is good and what its implications on
his interest are. In the light of it, law protects a minor, so that any person by
making an agreement with him cannot exploit him.

The Indian contract act 1872, has also granted privileged position to a minor with
regard to agreements made by him. In any agreement he does not incur personal
liability. He is allowed to get benefit in an agreement entered into by him. Not
only this, but entire judicial mechanism helps him, judges are their councellors,
jury are their servants and law is their guardian. But at the same time, it should
be ensured that while protecting interest of minor, unnecessary hardships should
not be created for the persons who deal with a minor. The law should be relaxed
a little bit so that the rights of both the minor and the persons dealing with the
minor can be protected.

There should be an estoppel for minor otherwise any minor with the knowledge
of his wrongful act can make an agreement by misrepresenting his age and will
claim for its nullity. Same goes with restitution. This should be taken in
consideration by the court in each case dealing with minors.

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 BIBLIOGRAPHY

 Bangia, R.K. (13th Ed.) (2007). Law of Contract. Allahabad Law Agency,
Faridabad.
 Singh, Avtar. (11th Ed.) (2013). Contract and Specific Relief, Eastern Book
Company, Lucknow.
 Dutt A.C., (11th Ed.) (2013). Indian Contract Act, Eastern Law House.
 Arora, Himanshu. (2015).Legal position of minor and minor’s Agreement,
International Journal of Management and Commerce Innovations, Vol. 2,
Issue 2, pp. (481-486), Month- October 2014-March 2015.
 Rudra, Alok. (2011). Minor/ Minority and capacity to contract-An analysis
[Internet].Available from< [Link] >.
 Minor’s Contract under Indian Contract Act, Available from <
[Link] >.

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