BEFORE THE HIGH COURT OF CALCUTTA -...

BEFORE THE HIGH COURT OF

CALCUTTA

Mohori Bibee …Plaintiff

vs.

Dharmodas Ghose …Defendant

Appeal filed under

Sec.106 of Civil procedural code by Plaintiff

The Defendant humbly submits a reply to their case.

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENDANT

Most Respectfully Submitted

Vishnu Tandi

12LLB084

Mohiri Bibee vs. Dharmodas Ghos

ON BEHALF OF THE DEFENDANT 2

TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………………………………..3

LIST OF ABBREVIATIONS………………………………………………………4

STATEMENT OF JURISDICTION………………………………………………..5

STATEMENT OF FACTS………………………………………………………….6

STATEMENT OF ISSUES……………………………………………………….....7

SUMMARY OF ARGUMENTS…………………………………………………….8

WRITTEN PLEADINGS…………………………………………………………….9

PRAYER……………………………………………………………………………..13



INDEX OF AUTHORITIES

PRIMARY SOURCES

1. The Indian Contract Act 1872.

2. Code of Civil Procedure 1973.

3. The Indian Majority Act 1875.

4. Prasad Das vs. Binaykrishna Datta, AIR 1931 Cal 39.

5. Ajudhia Prasad vs. Chandan Lal, AIR 1937 All 610.

6. Srikakulam Subrahmanyam vs.Kurra Subha Rao. AIR 1944 Mad 337.

7. Leslie Ltd. v. Sheill. (1914) 3 K.B.607.

8. Khan Gul v Lakha Singh. ILR (1928) 9 Lah 701.

9. Sadik Ali Khan vs. Jai Kishore. (1928) 30 BOMLR 1346

SECONDARY SOURCES 1. Contract act and specific relief, by Avtar singh, 10

th edition.

OTHER SOURCES

1. www.indiankanoon.com

2. www.manupatra.com

3. www.advocatekhoj.com



LIST OF ABBREVIATIONS

AIR All India Reporter Anr. Another Art. Article Hon’ble Honourable i.e. That is

ILR Indian Law Review

J. Justice Pg. Page Sec. Section SC Supreme Court V. Versus Vol. Volume



STATEMENT OF JURISDICTION

The counsel approaches the Hon’ble Court under Section 1061 of the Civil Procedural

Code, 1860.

1 Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the

decree in the suit in which such order was made, or where such order is made by a Court (not being a High

Court) in the exercise of appellate jurisdiction, then to the High Court.



STATEMENT OF FACTS Brahmo Dutt was a money-lender and carrying his business in Calcutta and elsewhere.

Dharmo Dass, a minor entered into a contract with Brahmo Dutt.

At that time his mother Jogendra Nandini Dasi was guardian of his person and property

under an order of Court.

On 20th

July 1895, He borrowed Rs20, 000 from the Brahmo Dutt and mortgaged a house

belonging to him to secure the repayment of money.

Brahmo Dutt was not in Calcutta at the time of contract.

Whole transaction was performed for Brahmo Dutt through Kedar Nath Mitter, Attorney

of Brahmo Dutt.

During the course of investigation of the plaintiff's title there came into Kedar Nath

Mitter's hands a decree in a partition suit and an order for possession in which Dharmo

Dass was described as a minor.

Bhupender Nath Bose, An attorney, also informed Kedar Nath on 15th

July 1895 that

Dharmo Dass is still a minor and anyone lending money to him will do so at his own risk.

Deeraj was a local manager of Brahrmo Dutt and that Rs 20,000 advance was given by

him.

Dharmodas paid only Rs.8000 and refused to return rest of the money.

On September 10th

1895, Dharmo Dass by his mother and guardian as next friend,

commenced this action against Brahmo Dutt, stating that at the time of contract he was

minor, so the contract is void and he is not bound to return that money.

Hon’ble Court granted relief to the plaintiff.

Appeal was filed but same was dismissed by the appellate court.

After this appeal, Bharmo Dutt was died.

Appeal was filled in the Calcutta H.C. by his Executors.



STATEMENT OF ISSUES

1. THAT THE CONTRACT IS VOID.

2. THAT DHARMODAS IS NOT LEGALLY BOUND TO RETURN THE MONEY,

RECEIVED BY HIM UNDER VOID CONTRACT.



SUMMARY OF ARGUMENTS

1. THE CONTRACT IS VOID.

Party was not competent to contract.

Dharmodas was minor at the time of the contract.

2. DHARMODAS IS NOT LEGALLY BOUND TO RETURN MONEY,

RECEIVED BY HIM UNDER VOID CONTRACT.

Contract is void.

Void contract cannot be enforceable.



WRITTEN PLEADINGS

1. THE CONTRACT IS VOID.

Contract was made between Brahmo Dutta and Dharmodas. At the time of

contract Dharmodas was minor and Kedar Nath, who performed contract for

Brahmo Dutta was fully aware about it. He got a letter from an Attorney on

15th July that Dharmodas is still minor under the age of twenty one and anyone

lending money to him will do so at his own risk. Sec 102 of ICA says that

contract is valid only, if it is made by a party, who is competent to contract and

Sec113 of IPC says only that party is competent to contract who has attended

the age majority according to the law to which he is subject. Minor cannot

enter into the contract but if transaction is for the benefit of minor then

guardian had the capacity to contract on behalf of the minor. Here contract is

made by minor himself so the contract made by him is void ab-initio4. A minor

is not capable of entering into a contract except for the supply of necessaries of

life to a minor as per Indian Contract Act, 1972.

According to the sec.3 of Indian majority act “where the superintendence of

minor’s property is assumed by a court of wards and guardian appointed under

the guardians and Wards act,1890 then the age of majority will be consider 21

year. Here defendant is minor because he did not attend the age of 21 so the

contract is void. Sec 11 of ICA 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.

2 Sec10 of ICA- 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.

3 Sec11 of ICA-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.

4 From the beginning



Same issue was raised in the matter of Sardar Prasad Das vs. Binaykrishna

Datta5 that the mortgage was void in that case which was made by a minor.

In that case it was held that the plaintiff will be entitled to a declaration that

the mortgage made by him is null and void, and that the decree passed upon

that mortgage is not binding upon him. The plaintiff is also entitled to the

costs of the suit.

There is another case Ajudhia Prasad vs. Chandan Lal6, Where money has

been borrowed by two minors under a mortgage deed at a time when they

were minors, more than 18 years but less than 21 years of age, under a

fraudulent concealment of the fact. But in fact the executors were minors

because a guardian had been appointed for them under the Guardians and

Wards Act and they had not attained the age of majority. Here court stated

that Sec 657 itself deals with void contract and here money was not traceable

so appeal is not maintainable.

If any contract made by a minor and guardian did not play any role in that

transaction but fully aware about the contract then also contract made by that

minor is considered as a void contract, this was decided in Srikakulam

Subrahmanyam vs.Kurra Subha Rao8.

5 AIR 1931 Cal 393.

6 AIR1937 All 610.

7 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 compensation for it, to the

person from whom he received it.

8 AIR 1944 Mad 337.



2. NOT LEGALLY BOUND TO RETURN THE MONEY, RECEIVED BY HIM UNDER SUCH MORTGAGE.

Dharmodas is not legally bound to return the money because contract was made with

free consent by knowing that he is minor and if a minor has received any benefit

under a void contract, he cannot be asked to refund the same. According to sec 2(g) of

ICA clearly says that void contract cannot be enforceable by law. If minor

fraudulently misrepresent his age and enter into any contract then also he is not bound

to return the benefit arise by such contract.

In the matter of Leslie Ltd. v. Sheill9 it was decided that If an infant obtains property

or goods by misrepresenting his age, he can be compelled to restore it so long as the

same is traceable in his possession. This is known as ‘equitable doctrine of

restitution’. In present case money has been spent by the defendant so there was

neither any possibility of tracing it nor any possibility of restoring the thing got by

fraud. Here if court will ask defendant to pay the equivalent sum as that of loan

received, it would amount to enforcing a void contract and according to sec 2(g) of

ICA 1872 void contract cannot be enforceable by law.

Contract with minor is void so if any minor enter into a contract there will not be any

Estoppel against him and it will be same even if the contract is made by

misrepresenting his/her age. The policy of the law of contract is to protect person

below age from contractual liability and naturally the doctrine of estoppel cannot be

used to defeat that policy.

There is a land mark case Khan Gul v Lakha Singh10

. In this case when defendant was

minor, fraudulently concealing his age, contracted to sell a plot of land to the plaintiff.

He received the consideration of Rs 17,500 and then refused to perform his part of the

bargain. Here Hon’ble court held that contract is void and plaintiff cannot demand

money back, paid by him.

9 (1914) 3 K.B.607

10 ILR(1928) 9 Lah 701



If the contract is void then neither party is bound to perform the contract so

Dharmodas is also not legally bound to return the money.

In the matter of Sadik Ali Khan vs. Jai Kishore11

it was decided that if any minor

entered into contract by misrepresenting his age, he can at any later stage plead

minority and avoid the contract, contract made by him is considered as a null and

void.

So the Dharmodas was minor in present case and he is not bound to return any money

to Mohori bibee and no estoppels can be made against Dharmodass.

11

(1928) 30 BOMLR 1346



PRAYER

Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities

cited, it is most humbly prayed and implored before the Hon’ble Court, that it may be

graciously pleased:

That the contract is void.

Dharmodas not bound to return the money

The Court may also be pleased to pass any other order, which this it may deem fit in light

of justice, equity and good conscience.

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All of which is most humbly prayed

“Counsel for the "Defendant”

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