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TMI Blog1953 (2) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... not a good consideration for the document of ₹ 6000/ -. The Defendant raised several other defences but these are not now material. It was admitted at the trial that no fresh consideration had been paid for the second document and that it was passed in renewal of the first. The trial Court upheld the Defendant's contentions, viz., that the Defendant was a minor at the date of the earlier Khata and that his estate was under the management of the Western India States Agency at the time, that consequently the contract evidenced by the said Khata was a void transaction, which could not be revived by the Defendant on attaining majority, and that the second document was without consideration and the Plaintiff was not entitled to recover anything on the strength thereof. In this view the learned Judge dismissed the suit with costs and this decree was upheld in appeal on substantially the same grounds. The lower appellate Court also rejected the contention urged on behalf of the Appellant, viz., that he could recover by virtue of Sections 65 and 68 of the Indian Contract Act. 2. There is a concurrent finding of both the lower Courts that the Respondent was a minor at the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder is dated 05-02-1948 and if it was construed literally, it would mean that the Defendant had completed 18 years on or before the 05-02-1948, and the Khata of ₹ 5000/- Ex. 7, having been executed by the Defendant on 7-2-1948, viz., two days after the completed 18 years, must be treated as one having been executed after the Defendant become a major, reckoning the age of majority at 18 years. However such a literal construction need not be put on Ex. 6 and as contents themselves indicate, the application must have been made after the Defendant had completed 18 years, which means that he must have completed 18 years some time prior to 5-2-1948. This is consistent with his own admission regarding his birth date, which according to him falls in August. It is therefore safe to conclude that he had completed 18 years in August 1946 and was a major at the date of the Khata Ex. 7. In any event even if Ex. 6 were construed literally he was still a major at the date of Ex. 7 and the lower Courts were not right in holding otherwise. 3. It was suggested for the Respondent that he should be taken as having attained majority on completion of 21 years. However no material has been prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect, in supersession of the old Kathiawar Agency Notification No. 20 of 1896 and the old Palanpur Agency Vernacular Circular of 9-2-1866, that when an estate is taken under Agency management, the owner of such estate or any member of his family shall remain incompetent, so long as such management lasts, to enter into any contract involving him or his estate in any pecuniary liability and that if such contract is made it shall be void, and no Agency Officer or Civil Court shall entertain any claim in respect of such contract. This Notification had the force of law and as the Defendant's estate was under Agency management at the time of the Khata Ex. 7, the Defendant was incompetent to enter into a contract which would involve him and his estate in a pecuniary liability and the contract was void. It is not disputed that this contract was made during the time his estate was under Agency management, and therefore under the terms of the Notification the contract contained in Ex. 7 was altogether void; and if the contract was void, then it could not be ratified or renewed by Anr. contract after attaining majority. In the view I take, Ex. 12 was executed by the Defendant after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot execute a fresh bond ratifying an old bond executed during his minority. The same considerations would apply to a contract entered into while the Defendant's estate was under management. It is clear therefore that the consideration of Ex. 7 cannot form the consideration of Ex. 12 which means that Ex. 12 was without consideration; end it is also clear that Ex. 7 cannot be ratified by the Defendant after attaining majority, it being a void contract altogether. 5. Mr. Mehta for the Appellant agreed to this legal position, but he relied on Section 25(2) of the Indian Contract Act and urged that Ex. 12 is a promise to compensate the Plaintiff for what he had already voluntarily done for the Defendant, viz., that he had given the loan for the expenses of Defendant's marriage and therefore the agreement Ex. 12 was not without consideration and not void for that reason. He referred to Section 2 Clause (d) of the Contract Act and argued that the loan of ₹ 5000/- was given at the desire of the promisor Defendant and that this act of giving the loan was consideration for the promise made by the Defendant. Mr. Mehta cited-Sindha Shri Ganpatsingji v. Abraham 20 Bom 756 (E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that where one of the parties is a minor and is thus incapable of contracting so that there never is and can never be a contract, Section 65 can have no application to such a case, because that Section starts from the basis of there being an agreement of contract between competent parties. In such a case therefore there will be no case of ordering him to restore the advantage which he has received or to make compensation for what he has received. With respect, I agree with this view and would hold that Section 65 has no application to the case of a minor's contract. 7. Apart from this legal position, the question again is whether as a fact the Defendant has received any advantage under the contract Ex. 7. That is a question of fact which should have been pleaded by the Plaintiff so that the Defendant would have had an opportunity of meeting the plea and of representing his own version in reply. The facts here are that a sum of ₹ 14,000/- had been sanctioned for expenses of the Defendant's marriage by the committee appointed for the management of his estate, and there is no plea that this additional sum of ₹ 5000/- was necessary for the expenses of marria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involving him or his estate in a pecuniary liability and making such contract void, contained in Notification No. 85 of the Western India States Agency dated 23-06-1937, is repugnant to Article 14 of the Constitution and is void, the argument being that it denies to the creditor equality before the law and the equal protection of the law within the territory of India. This contention too has not been made in the lower Courts, and the Defendant has thus been denied an opportunity of showing that the classification envisaged in the Notification was founded on an intelligible differentia which distinguishes the persons grouped together, viz., persons whose estates were under management from other and that the differentia had a rational relation to the object sought to be achieved by it. The Defendant could have shown that it was necessary in the interests of such persons and their estates to give them a special protection from the rapacity of money lenders. This ground has also not been taken in the memo of this appeal and the Respondent has no opportunity of meeting it, and to allow it at this stage will be distinctly unfair to him. But apart from it, and on the merits too the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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