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AN ANALYSIS ON DOCTRINE OF RESTITUTION AND MINORS

~by
Rajiv Ranjan
Sem-II,Sec-B
Roll-455
What is doctrine of restitution?
The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of
compensation, which is the law of loss-based recovery. Obligations to make restitution and
obligations to pay compensation are each a type of legal response to events in the real world.
When a court orders restitution it orders the defendant to give up his/her gains to the claimant.
When a court orders compensation it orders the defendant to pay the claimant for his or her loss.
Who is a Minor (in context to making a contract)?
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
minors property is under supervision of Courts of wards, the age of majority of such a person is
21 years and not 18 years as held in the case of Keshiba vs. Sripat1. 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.
What happens if a minor makes an agreement? Is the contract void or voidable? Are
minors incompetent to make any contract?
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 or minority is incompetent to contract cannot make a contract
1 ILR (1895) 19 Bom 697
2 30 IA 114: 30 Cal 539(1903)

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 minors 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
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.
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?
The point was raised but not decided in Mohoribibi vs. Dharmodas Ghose4 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.
3 AIR 1948 PC 95: (1949) 75 IA 115: ILR 1949 Mad 141 PC
4 30 IA 114: 30 Cal 539(1903)
5 (1928) 30 BOMLR 1346

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.
Is there any liability or ratification?
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. A minors agreement
being void ab initio, there can be no ratification of the agreement on his reaching the age of
majority.
Is there any limitation on doctrine of restitution?
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.
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.
One of the land mark case was Khan Gul vs. Lakha Singh6 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.

6 ILR (1928) 9 Lah 701: AIR 1928 LAh 609