This article argues that the Privy Council’s reading of the Act in Mohori Bibee is problematic, and its invention of the category of contracts void ab initio is unsupported by the Act.
Authors
Shivprasad Swaminathan, Professor, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.
Ragini Surana, Advocate, Delhi High Court, Delhi, India.
Summary
Section 10 of the Indian Contract Act, 1872 stipulates that all agreements made with the ‘free consent’ of parties who are ‘competent’ to contract are enforceable as contracts. Section 11 declares that minors are not competent to contract. While the Act goes on to specifically set out the consequences of vitiated ‘consent’ in sections 19, 19A, and 20, it omits spelling out the consequences of contracting with a minor.
Nevertheless, a decision of the Privy Council, Mohori Bibee v. Dharmodas Ghose (1903) read the Act as having given a definitive answer to this question and took the view that minors’ contracts were void ab initio (not voidable or void) which meant that neither party could enforce it, nor could they seek to be restituted to their original positions under provisions stipulating restitution in the case of either voidable (section 64) or void (section 65) contracts.
Indian courts have since invoked Mohori Bibee in bloodless abstraction, as if it were an unquestionable axiom of Indian contract law. This article argues that the Privy Council’s reading of the Act in Mohori Bibee is problematic, and its invention of the category of contracts void ab initio is unsupported by the Act.
Published in: Statute Law Review
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