Mohori Bibee v. Dharmodas Ghose
(1903) 30 Cal. 539
Agent of defendant advanced money to plaintiff, an infant, fully knowing his incompetency to contract, against mortgage of property belonging to latter. Plaintiff commenced this action to get the mortgage declared as void u/s 2, 10 and 11 of ICA and repossession of property thereunder conveyed to defendant.
- Whether the mortgage was void u/s 2, 10, 11 of ICA?
- Whether plaintiff to return the money received by him under such mortgage?
Laying emphasis on true literal construction of Indian Contract Act, notwithstanding the rules as to enforceability of contracts entered into by minors, Supreme Court held that unless the parties are competent to contract as u/s 11, no agreement is contract as u/s 10 and hence, is not enforceable by law u/s 2(h) and is void u/s 2(g). Since minor is not competent to contract u/s 11, hence every such agreement entered into by a minor is void ab initio (void from the very inception). Even u/s 68, a minor is deemed as incompetent to contract and is not to be personally liable for any necessaries supplied to him, albeit a statutory claim is created against his property.
Author’s Comment: Quite controversially, Supreme Court observed, “S.65 like S.64, starts from the basis of there being an agreement or contract between the competent parties and has no application to a case in which there never was and never could have been any contract.”
Author: Vishrut Kansal (National University of Juridical Sciences, Kolkata)