Gift to himself

 Gift to himself

Can an immovable property be gifted by oneself to himself?

The Gujarat High Court held in Suleman Isubji Dadabhai v. Narabhai Dahyabhai Patel, AIR 1980 Guj. 165, that --

“8. Now, on a close and meticulous analysis of the definition of "gift" given in Section 122, we find that in order that a transaction becomes gift there must firstly be a transfer of an immovable property voluntarily and without consideration.

Therefore, (i) there must be a transferor, (ii) there must be a transferee and (iii) the transfer must be accepted by or on behalf of the donee.

No difficulty arises when the owner of an immovable property gifts it to another person. But, can we say that the owner of an immovable property can gift the property to himself?

We are unable to conceive of a case where there can be a transfer of an immovable property by a person to himself, except indeed in case of a trust, to which we are adverting shortly.

As for example, there cannot be a sale of a property by its owner to himself; similarly there cannot be mortgage of an immovable property by owner or the mortgagor to himself. Similarly, there cannot be the lease of a property 'from its owner to himself’.

Next, an owner of an immovable property cannot exchange one property of his with another.

Lastly, except in cases of trust there cannot be a gift of an immovable property by an owner to himself. We have said so because transfers, connotes transfer of an immovable property by an owner to someone else. There cannot be a transfer to oneself because such a transfer is meaningless.

A sale in one's own favour, a mortgage in one's own favour, a lease in one's own favour, an exchange in one's own favour and a gift in one's own favour do not bring about any change in the character or ownership of the property and therefore they are not transfers.

Therefore, there is no transfer at all in the properties so dealt with and all rights therein remain where they are and do not undergo any transfer or transformation whatsoever even after a transaction of sale,' mortgage, lease, gift or exchange has been executed by the owner in favour of himself.

It is, therefore, clear that, in order that a transaction may amount to a gift, there must be a donor under the deed and there must be a donee. One person cannot be the donor and the donee. He cannot in his capacity as the donor gift an immovable property to himself and accepts it as the donee. We say so because there is no transfer whatsoever in this case.

We are mindful of the definition of "transfer" given in Section 5 of the Transfer of Property Act. We are dealing with it shortly. We are, however, clear in our minds that in order that a transaction may amount to a gift, there must be a transfer from one legal person to another legal person of an immovable property and that there must be two legal persons - one of whom is the donor, another of whom is the donee and that the donee has accepted the gift or that it has been accepted on his behalf.

Ex facie, therefore, when the appellant appointed himself as the sole trustee of the lands in question after settling them in trust for public benefit, he did not gift those properties firstly because there was no transfer of lands in question amounting to gift and also because there was no donee as he himself could not become the donor and- the donee and could not accept the gift on his own behalf.”

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Stridhan property ayautuka and yautuka

 Stridhan property ayautuka and yautuka

For the purposes of inheritance Jimutavahana divides stridhan property into two broad classes, viz. ayautuka or property given to a female at a time other than that of marriage, and yautuka or property given to a female at the time of marriage.

Vriddha Katayana says immovable property which has been given by parents to their daughter, goes always to her brother, if she dies without issue. The brother’s right to succession is founded simple on her leaving no issue.

Viswarupa says property of a childless woman married by any form of nuptials from that of Brahma to that of Pissachas goes to her brother.

Devala says a woman’s property is common to her sons and unmarried daughters, when she is dead. But if she leaves no issue, her mother would be entitled to succeed in preference to her husband, in the case of ayutuka stridhana.

Yuatuka stridhan property given by the father is inherited as other yautuka, and ayautuka stridhan property given by the father is inherited as other ayautuka. 

Anwa dheya – For anything received by a daughter subsequently to her nuptials is under the denomination of ‘anwa dheya’ (gift subsequent).

Katyayana describses anwa dheya (a gift subsequent) what has been received by a woman from the family of her husband and at a time of posterior to her marriage, is called a gift subsequent.

Pitridatta ayautuka is the property given by the father at any other time but the wedding, a maiden daughter succeeds in the first instance, next a son, then a daughter who has male issue, after them the daughter’s son, the son’s son, the great-grandson in the male line, the son of a contemporary wife, and her grandson and great-grandson in the male line, next to these, the barren and widowed daughters inherit together.

Under the Bengal School of Hindu Law, the mother is entitled to succeed to the pitridatta ayautuka stridhan property of a woman in preference to her husband.

 

Finding on facts should no be disturbed in Appeal

 Finding on facts should no be disturbed in Appeal 

Though it is trite, that the conclusions arrived at on factual aspects are not to be interfered with in an appeal under Section 100 of the Code, where the lower Courts have acted on presumptions or have arrived at conclusions which are not available to be drawn on the materials on record, or are perverse, the High Court can interfere under Section 100 of the Code. A finding of fact can be set aside in second appeal (a) where it is not based on any evidence or on legal evidence or on a judicial consideration of evidence adduced; (b) where the evidence is disbelived for no reason, (c) where it is based on a misconception of the real point in controversy in the case; (d) where the conclusion of fact is not warranted by the facts on which it is based or is inconsistent with other findings in the case or is opposed to the case set up by the party in whose favour it is drawn or is contrary to pleadings and evidence in the case; (e) where it is contrary, to the facts found or is inconsistent with the statement of reasons therefor in the judgment or is based on quaint reasoning, or is vague or indefinite or ambiguous: (f) where it is arbitrary or vitiated by prejudices or is based on a distorted view of the evidence or is based on surmises or extraneous considerations, or where no reasons have been given for the finding; (g) where material facts or evidence have been ignored in arriving at the conclusions of fact and (h) where finding is perverse in the sense that no normal person could have arrived at that finding. Additionally wrong interpretation of a document makes out of case for interference.

Counsel answers the charge

 Counsel answers the charge

Prosecution counsel argued that the court below had gone wrong in permitting the counsel for the accused to answer the charge and to plead for the accused as the Magistrate had no discretion to permit the counsel to answer the charge in a warrant case even though such discretion can be exercised in summons case.

Counsel for the accused argued that the court has the discretion to record the plea of the accused through his counsel even in warrant cases.

Sec.205 CrPC authorizes the Magistrate to dispense with the personal attendance of accused.

Sec.205: Magistrate may dispense with personal attendance of accused.

Sec.205(1) – Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.

Sec.205(2) – But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.

Even at the time of the issue of summons the Court can dispense with the personal appearance of the accused in view of Sec. 205 CrPC.

In Raman Nair vs State of Kerala, (1999) 3 Ker LT 714 it was held that the exemption from personal appearance can be granted even after the issue of summons to the accused on an application by the accused.

Sec.317 CrPC – It deals with the enquires and trials being held in the absence of the accused. 

Sec.317 (1) authorizes the Court to proceed with the trial of the case even in the absence of the accused if he is represented by a pleader and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. 

Therefore, the Counsel for the accused argued that the personal attendance of the accused is not at all essential at the time of taking the plea of the accused and the law does not insist such personal attendance of the accused, but permits the counsel to make the plea for an don behalf of the accused.

Section 228 and Sec.241 of CrPC deal with the framing of charge in sessions cases and warrant cases respectively.

Sec.228(2) and Sec.241(2) stipulate that the charge shall be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claimed to be tried.

Sec.229 and Sec.241 deal with the conviction of the accused on his plea of guilty in sessions case and warrant cases respectively.

Sec.229 – Conviction on plea of guilty – If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.

Sec.241 – Conviction on plea of guilty – If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon.

Sec.251 CrPC says that in summons cases where the accused appears or brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make. 

Sec.252 stipulates that where the accused pleads guilty, the plea of the accused shall be recorded and the Court mya, in his discretion, convict him thereon.

Sec.253 deals with the conviction on the plea of guilty in the absence of the accused in petty cases.

Sec.253(1) says that where a summons had been issued under Sec.206 and the accused desires to plead guilty to the charge without appearing before the Court, shall transmit the Court by post or by messenger a letter containing his plea and also the amount of fine specified in the summons.

Sec.253(2) stipulates that the Magistrate in his discretion can convict the accused in his absence on his plea of guilty and sentence him to pay the fine specified in the summons and the amount transmitted by the accused shall be adjusted towards fine or where a pleader authorized by the accused in this behalf pleads guilty on behalf of the accused, the plea of the pleader shall be recorded and the accused shall be convicted on such plea and sentence him.

Sec.254 stipulate the procedure when the accused is not convicted on such plea made under Sections 252 and 253. If the accused is not convicted, the Magistrate has to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produced in his defence. 

The above provisions would make it clear that even if the accused makes a plea of guilty, the Court is not obliged to accept the plea of the accused and to convict him thereon but the Court has the discretion to direct the prosecution to produce evidence and to try the case without convicting the accused.

Sections 229, 241, 252 and 253(2) prescribe the procedure where the accused makes a plea of guilty. The above provisions confer a discretion on the Court either to convict the accused on the plea of ‘guilty’ or to direct the prosecution to let in evidence to prove the guilt of the accused before he is convicted. But if the plea is one of ‘not guilty’, it becomes imperative on the part of the prosecution to let in evidence and to prove the accusation against the accused and the Court has only to direct the prosecution to let in evidence. 

A construction of the above provisions would reveal that the Court has to meet the following situations while taking the plea of the accused:

(1)where the accused makes a plea of ‘not guilty’, 

(2) where the accused makes a plea of ‘guilty’ but the Court, instead of convicting the accused, proceeds to take evidence,

(3) where the accused makes a plea of ‘guilty’ and the Court proceeds to convict him on the plea of ‘guilty’.

It is now to consider whether a uniform procedure need be followed by the Court in all the above situations and direct the personal attendance of the accused or the counsel can be permitted to make the plea of the accused in all or any of such situations. That too, when Secs.305 and 317 permit the Court to dispense with the personal attendance of the accused, and Sec.253 specifically permitting the counsel to make a plea of ‘guilty’ in petty cases.

A consideration of Sec.253 would reveal that the Court can accept the plea and convict and impose a sentence on the accused where the pleader is authorized by the accused in this behalf makes the plea of guilty. The above provision would indicate that whenever the accused wants to make a plea through the counsel, the counsel has to specifically authorized by the accused in that behalf. If a counsel has to be specifically authorized in that behalf, such authorization should disclose whether the accused intends to plead ‘guilty’ or ‘not guilty’. 

The Bombay High Court in Dorabshah Bomanji Dubash vs Emperor, AIR 1926 Bombay 218, while considering the question whether the estate manager of the accused can be treated as a pleader authorized by the accused to represent him, held that whenever there is a deviation from the general law, and it is allowed, there should be something on record to show that the person who represents the accused has been duly appointed by him for that purpose. There it was further held that where the Court dispenses with the personal attendance of an accused under Sec.205 CrPC, the Court should not upon the record that permission under Sec.205 had been granted and also that the Court can act upon the plea of the counsel in cases falling under Sections 242 and 243 CrPC (summons cases).

The Calcutta High Court in SR Jhunjhunwalla vs BN Poddar, 1988 Cri LJ 51, held that Sec.205 is a general provision from the scope of which Sec.251 has not been excepted. Therefore, when in a summons case the accused has been exempted from personal attendance and permitted to appear by his pleader under Sec.205, the pleader can take the plea of guilty or not guilty in the examination under Sec.251. The presence of the accused is not an absolute necessity while being examined under Sec.251 and pleading guilty or not guilty. No doubt, the Magistrate has a discretion under Sec.205(2) to require the personal appearance of the accused but that discretion must be exercised judicially. When the Magistrate has exempted the accused from appearing before him during the trial, he must indicate reasons why such exemption was being withheld. Where the discretion of the Magistrate requiring the personal attendance of the accused for being examined under Sec.251 was founded on a wrong view of law that the presence of the accused was an absolute necessity while being examined under Sec.251, the order of the Magistrate requiring the presence of the accused is bad. Under Sec.313(1)(b) proviso also the Court can dispense with the examination of any person whose personal attendance has been dispensed with by it. This also indicates that in taking the plea of guilty or not guilty under Sec.251 an accused can be examined in his absence through his pleader who is representing him under Sec.205.

The same view was taken by the Delhi High Court in S. Nihal Singh vs Arjan Das, 1985 Cri LJ 467. There it was held that it cannot be said that if Sec.251 is read in conjunction with Sec.252 the plea to the substance of accusation has only to be recorded on the personal attendance of the accused. Sec.252 simply lays down that if the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon. Evidently this section has no bearing on the question whether the personal appearance of the accused is imperative when substance of accusation is to be read under Sec.251. It would in other words mean that the word ‘accused’ in Sections 251 and 252 is not limited to the person of the accused but may include a pleader where he is permitted by the Court to appear through him.

The above decisions taken by the Calcutta High Court and Delhi High Court would make it clear that in summons’ cases when the personal attendance of the accused is exempted under Sec.205 CrPC, the plea of the counsel can be taken for and on behalf of the accused even if the plea is one of guilty.

The question would be different when the accused in a warrant case seeks permission to allow the counsel to plead ‘guilty’ or ‘not guilty’ for and on behalf of him when he appeared and was exempted from personal appearance under Sec.317 CrPC. So far as the plea is one of ‘not guilty’, the Court has no further discretion to be exercised as the discretion already exercised in granting exemption would take in granting permission to the accused to have his plea of not guilty made through the counsel, as a plea of ‘not guilty’ in such cases is only procedural in nature. If the plea is one of ‘guilty’, the nature and consequences are different. There also some distinction has been drawn where the Court is not inclined to convict the accused on the basis of the plea of guilty and where the Court is inclined to convict and impose sentence on the accused. In the case of accepting the plea of the accused and convicting the accused also, a distinction has to be drawn between the cases where a sentence of fine alone need be imposed on the accused and where imprisonment has to be imposed on the accused. 

The law says that the Court has the discretion to accept the plea of the accused and convict the accused thereon. Sec.228(1) and Sec.240(1) says that a charge has to be framed after considering the nature of the allegations made against the accused, the nature of evidence that is collected and produced before Court and hearing the prosecution and the accused. So, when the charge is framed against the accused, the Court is expected to be fully aware of the nature of the allegations, the gravity of the offence and also aware of the consequences as to whether the Court has to accept the plea of guilty made by the accused and convict him thereon or to direct the prosecution to let in evidence. 

In fact, in all cases where the Court is not inclined to convict the accused on the basis of the plea of guilty made by the accused, the personal attendance of the accused may not be essential and his personal appearance can be dispensed with and the counsel can be allowed to make a plea for and on behalf of the accused.

Likewise, where the Court is inclined to accept the plea of the accused and to convict him and to impose a sentence of fine alone, the personal appearance of the accused can be dispensed with in view of Sec.353(6) CrPC which says that the personal appearance of the accused can be dispensed with at time of the judgment if the sentence is only of fine and in such cases also the Court can dispense with the personal appearance of the accused and the plea of the counsel can be recorded.

But if the Court is inclined to impose a sentence of imprisonment on the basis of the plea of guilty of the accused, then the Court has to consider whether the personal attendance of the accused is to be insisted or not. A consideration of the above provisions would reveal that in all cases where exemption from the personal attendance is granted and where the plea is one of ‘not guilty’ the Court has only to allow the counsel to plead ‘not guilty’ for the accused, as such a plea is only of a procedural nature. In cases where the personal attendance of the accused is exempted under Sec.205 CrPC and it is a summons case, the Court has to record the plea of the counsel for and no behalf of the accused even if the plea is one of ‘guilty’. But in warrant cases the Court has to exercise its discretion in a judicial manner considering the nature and gravity of offences and the consequence of accepting the plea. 

Thus the Court has the discretionary power to exempt the personal appearance of the accused even in warrant cases and to have the plea of the counsel recorded for and on behalf of the accused, when he is specifically authorized for the purpose and in appropriate cases. 

If after considering all the aspects of the case, the Court holds that the personal attendance of the accused is not essential, the Court can dispense with the personal attendance of the accused and the plea of the counsel can be recorded and on the basis of such plea, the Court can either convict the accused or proceed to have the trial.

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Aranyakas ஆரண்யகா

 Aranyakas 

The term ‘Aranyakas’ has been explained on page 17, in the ‘Dictionary of Hinduism’ and the relevant extract is as under:

Aranyaka (Forest texts). These are essentially sacred esoteric writings which form the core of the Upanisads. They were considered to be ‘of a secret uncanny character, and spelt danger to the uninitiated’, being intended only for those brahmanas and ksatriyas who had renounced the world and retired to forest solitudes.

 

 

 

Vedanta வேதாந்தம்

 Vedanta

Vedanta means ‘the end of Veda’ i.e. the complete knowledge of Veda.

It is explained on page 329 to 330 in the ‘Dictionary of Hinduism’ as under:

The Vedanta, the complete knowledge of Veda, is not an appendage to any particular portion of the Veda as were the Brahmanas, but a re-interpretation of its basic truths in the light of aupanisadic (not Upanishad) revelation. The Vedanta is thus associated with the Uttara-Mimamsa ‘upper or later examination’, regarded as one of the six Hindu darsanas which represented the ‘views’ of particular religious groups, and is distinguished from the Purva-Mimamsa, the conservative and fundamentalist appraisal of the original parts of the Veda.

The Vedanta views, unlike those of the other darsanas, were not initiated by a particular teacher, but were derived from the teaching of the Upanishads. As these presented both a doctrine of pure monism (Advaita) and that of a modified dualism (Dvaita), the expositions differ. 

It was not until Badarayana produced his Brahma-sutras (between A.D. 200 and 450) that particular Vedanta views were systematically presented. Despite the lack of indisputable evidence, it is probable that the a-Upanisadic notion of the atman was current in the sixth century B.C., as is suggested by the Buddisht anatta (Skt. Anatman) non-atman doctrine, which by the second century A.D. had become the sunyavada of the Mahayana Buddhists.

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Living Will and Euthanasia

 Living Will

 

A “Living Will” is a legal document which detailed the medical care needed by the person, who wrote that Will. Because he may be unable to make conscious decisions or communication when medical attention needed.

 

In India - Living Will have legal since March 2018, when the Supreme Court created a process to allow terminally ill patients, with no hope of cure, to withhold or withdraw medical treatment and to die with dignity.

 

Living Will can be made by writing and attested by two witnesses and further attested by a Notary Public Lawyer or a Gazetted officer.

 

Voluntary euthanasia 

Euthanasia is a Greek word, and it means good-death or dying well.

 

Voluntary euthanasia is the ending of a person’s life at their request in order to relieve them of suffering. In some of the countries, this voluntary euthanasia is legal.

 

In India, since March 2018 passive euthanasia is legal under strict guidelines. Patients must consent through a ‘living will’, and must be either terminally ill, or in a vegetative state.

 

Euthanasia brings many ethical issues. Some believe that the terminally ill patient should have the right to choose death or refuse life-saving treatment. Some physicians state that it is in violation of Hippocratic oath.

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Will or Settlement Notes

 Will or Settlement

How should you leave your assets behind?

A person can leave his assets to his/her blood relative or anyone either by a deed of Will or by a deed of Settlement or by forming family trust.

Deed of Will is a Testamentary document i.e. it will take effect only after the lifetime of the maker of that Will, called Testator.

Whereas a Deed of Settlement (to the family members) is instant document to take effect immediately on the execution of that deed. 

Whereas a Deed of Settlement (outside the family members), which is otherwise called a ‘Gift deed’ and it is also a kind of settlement.

Deed of Will

Will is a testamentary document (i.e. it will take effect only after the lifetime of the maker of that Will).

Privileged Will is a kind of Will, applicable to members of the Army, Airforce, and Naval forces, while they are in the warfare.

Unprivileged Will is a kind of Will, applicable to all others, i.e. the general public.

Only a Hindu, or a Christian can make his Will and bequeath (dispose) his properties (either movable or immovable or any other transferable assets).

A Muslim cannot make a Will and bequeath his entire property, but only his 1/3^rd share, that too, with the consent of all the other sharers, as per the Shariat law (Muslim law).

Will with Executor:

A Hindu, or a Christian can make his/her Will and thereby bequeathing his/ her properties to the legatees (beneficiaries) through his/her named Executor. The said Executor, after the death of the Testator (maker of that Will), would disburse / distribute the properties as per the terms of the said Will.

If there is no Executor appointed in the Will, the legatees (beneficiaries of the said Will) can themselves disburse the properties as per the terms of the said Will.

Will Executed in Madras City:

The Indian Succession Act 1925 is applicable to the Indian Christians regarding succession of the property of a Christian, who died intestate (i.e. died without any Will).

The Indian Succession Act 1925 provides certain provisions in case of an Indian Christian or a Hindu who had executed his Will within the City of Madras (i.e. if the Will related property situate within the original jurisdiction of the Madras High Court. That is, the old 100 divisions of the Chennai Corporation area).

Probate of a Will:

If an Indian Christian or a Hindu executed his/her Will and thereby appointed an Executor or many Executors, and such property situate within the old Madras City, then such Will should be produced before the Madras High Court and get it proved and to get a Probate order of that Will. Probate means to prove the execution of the Will and to prove the competency of the maker of that Will (called Testator).

If the Will does not contain any Executor, but that property situate within the old Madras City, then any one of the Beneficiaries of that Will, shall make an application before the Madras High Court, to get a “Letters of Administration of the Will”. It is also the same as in probate, by proving the said Will before the Court.

Mufassil Will:

If the property situate outside the old Madras City area, such Will need not be produced before any Court for any probate or letters of administration. But if any dispute arises, then such Will is to be produced before the concerned District Court and get it proved, through the witnesses of that Will.

Settlement deed:

Sec.126 of the Transfer of Property Act 1882 provides Gift of any property to anyone. 

This section applicable only to Hindus, and Christians. It will not apply to Mohammadens. Mohammadan gifts are called Hiba. Hiba is a Urdu word, and it means gift. As per Mohammedan law, i.e. Shariat law, the gift of property should be immediate one, i.e. the title of the property should transferred in the deed itself and possession also should be handed over on the day of gift itself. 

But in the case of Gift/ Settlement by a Hindu, or a Christian, handing over possession may be postponed to a later date or even after the lifetime of the Settlor/donor.

Settlement and Gift difference:

If the gift of property to the family members, it is called Settlement or Family Settlement. If the gift of property to any other third parties (apart from family members), it is a Gift. Therefore, gift and settlement are synonymous. 

Who are all Family members?

As per the Indian Stamp Act, 1899, the following persons are considered as ‘family members’ to the Settlor, viz, father, mother, husband, wife, son, daughter, grandchildren, brother, and sister. But all the other blood relations are not considered as family members.

Settlement in-presenti

The Settlement called as “in-presenti settlement” which means the Settlor (or the owner of the property) settled and passed on the title of the property to the Settlee on that Settlement deed itself. It is like that of a sale deed, in which the title passes to the buyer immediately.

Conditional Settlement:

Per contra, some Settlement deeds, though the title of the property (ownership of the property) is transferred to the Settlee in that Settlement deed itself, the possession of the settled property is retained by the Settlor himself for his lifetime or for the lifetime of his/her spouse. Here, the title alone is passed on the day of Settlement, but the delivery of possession is postponed to a future event.

Muslim Settlement or Hiba:

Whereas in a Muslim settlement, it is called a Hiba, both title of the property and the delivery of the possession of the property shall take effect in the settlement deed itself. It cannot be spitted as in the case of Hindu settlement. 

That is only difference between a Muslim Settlement or a Hindu/Christian settlement.

Difference between Settlement and Will:

Generally, in Settlement, title and possession would pass on the deed itself. In some case, though title passes immediately, possession would take after some event (i.e. after the lifetime of the Settlor).

But in the case of a Will, both title of the property and the possession of the property would take effect, only after the death of the maker of the Will, called Testator.

Suppose, in a Settlement deed, the Settlor postponed the title as well as the possession to take effect after his/her lifetime, then it is called a Will, though the name given to the document is ‘as if a Settlement deed’. The nomenclature (the name) does not define the deed, but only the contents (recitals) decide it.

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Minor's contract Part 3

 Minor's contract Part 3

Sec.10 of the Contract Act provides that all agreements 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.

Sec.11 of the Contract Act which lays down that every person is competent to contract who is of the age of majority. It follows that a person who is not the age of majority is not a person competent to contract and make a lawful contract within the meaning of Sec.10 of the Contract Act.

Under the English law a minor’s contract was only voidable at his option. Even under the Indian Contract Act was also to be regarded as such.

Under the Common Law of England a minor’s contract is not generally void but voidable at this option and if it appeared to the English Court to be for his benefit it should even be binding specially if the contract was for necessaries.

But in 1903 the Privy Council in Mohori Bibee vs. Dharmodas Ghose emphasizes the difference between the Indian law and the English law and clearly lays down that the Indian Contract Act makes it essential that all contracting parties should be competent to make a contract and a person who by reason of infancy is incompetent to contract, cannot make a contract within the meaning of the Act. 

While minor could not enter into a contract, the natural guardian who was representing the minor, could do so and that there is nothing either in the Contract Act or in the Partnership Act which prevents a natural guardian to enter into a contract of partnership for and on behalf of the minor. 

A guardian’s capacity to act for and on behalf of the minor within the two limits expressed by the Privy Council that he must do so within the scope of his authority and for the benefit of the minor, is unquestioned.

But even a guardian while he can supply the deficiency suffered by the minor in age in law cannot supply the defects which the law prohibits. 

If the law, as Sec.30 of the Partnership Act prohibits a minor to become a partner in a firm, then no guardian acting on his behalf can over-reach that law and argue that as the guardian is a major, the minor becomes a partner of the firm which the law expressly prohibits because his guardian did it for him. Such a contract will be hit by Sec.23 of the Contract Act on the ground that it is forbidden by law. Therefore in such a case the guardian’s contract on behalf of minor resulting in making the minor a partner in a firm will be void ab initio and not voidable.

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Minor’s Contract Part 2

 Minor’s Contract Part 2

The promise of infants should never have been held to be promises in law or to constitute a consideration for another promise.

There is nothing in the Contract Act which prevents an infant from being the promisee. The Indian Law recognized the capacity of the minor to accept a promise.

Sec.7 of the Transfer of Property Act makes capacity to contract, the limit of the capacity to transfer. The Section applies to property in general.

This Section does not in terms declare that a transfer by a person incapable of contracting is wholly void; nor does it prohibit it. The persons who are incapable of contracting are capable of transferring.

A transfer by an incompetent person is wholly void,

The Transfer of Property Act 1882 when enacted came into force only in limited areas though now it has been extended to nearly the whole India.

Even a gift of money by an infant was held good in Taylor vs Johnson (1898) 171. In the case of money in which not merely possession but title passes by delivery, a payment or delivery of money, even by an infant should be held sufficient to pass property.

As regards transfers of immovable property in all cases where the transfer can only be made by an instrument in writing registered, a minor may not be able to make a transfer at all; for an instrument executed by a minor cannot be admitted to registration. Sec. 35 of the Registration Act.

Sec.26 of the Negotiable Instruments Act. In a vast majority of cases promissory notes are made in consideration of a loan of money and if a minor were incompetent to pass property in money and cannot therefore be a payee, it would have been so enacted in the Act. A minor can evidently draw a bill or issue a cheque on his banker (a cheque is only a species of bill). No doubt he cannot be made liable on the bill, but his banker evidently can honour his cheque.

Sec.22 of the English Bills of Exchange Act which is quite similar to Sec.26 of the Indian Negotiable Instruments Act.

If a minor can pay by a cheque, it would be absurd to hold that he cannot pay cash so as to pass title to it. 

A minor partner can apparently transact the business of a partnership and if the partnership was a money lending business, he can make loans. (Sec.253 Clause (3) of the Contract Act).

Sec.7 of the Transfer of Property Act is in consonance with the principles laid down in England and America in respect of transfers by persons of deficient or limited contractual capacity. 

In Sections 35 and 38 of the Specific Relief Act ‘contract’ is used in the sense of both executed contract and executory contract, i.e. transfers and promises.

A promise by a minor may be void as it is not a contract, but a conveyance by a minor was not void.

Whether a minor can be a transferee of property?

The provisions of the Transfer of Property Act and the Trusts Act make it clear that an infant can be a grantee though he cannot ordinarily be a grantor.

Infants cannot make grants, they may accept them. (Palmer vs Low).

According to the Indian Contract Act, a minor is incompetent to make a contract. According to the Contract Act, a contract by a minor must be regarded as void and not merely voidable.

The contract should be for the benefit of the minor.

Even the Judges in England came to the conclusion that marriage was for the benefit of the minor. There is no question that in India it would be considered to be for the benefit of the minor.

Specific performance is merely a relief and not the cause of action; the cause of action is the breach of contract.

A contract of apprenticeship is held to be good because it is considered to be for the benefit if the minor. In the same way a contract of marriage is for the benefit of the minor.

Neither a contract of personal service nor a contract of marriage can be ordered to be specifically performed so that in either case the apprentice or the girl cannot be compelled to carry out his or her part of the contract against his or her wishes. However, if it is an enforceable contract, the other result, namely, the liability in damages of the party making the breach of the contract, would follow.

Doctrine of mutuality

The doctrine of mutuality in the matter of contracts entered into on behalf of the minor by the guardian can arise where the subject-matter is minor’s separate estate and all the cases which have refused performance of executory contracts relate to properties belonging separately to the minor.

A minor is not personally bound by any contract made on his behalf by his guardian.

A contract for sale of immovable property does not of itself create an interest in or charge on such property. (Sec.54 of the Transfer of Property Act).

If it is a contract of purely personal nature and no personal liability can be imposed on the minor, it must logically follow that the minor cannot be compelled to perform the contract; for the same reason he cannot take advantage of the contract and ask for specific performance. The purchaser therefore can only claim compensation against the guardian and not against the minor or his property, except in the case where the guardian uses the money obtained from the purchaser for the improvement of the minor’s estate, a case which stands on a separate footing.

Sec.24A of the Specific Relief Act debars the purchaser from claiming the relief of specific performance against the minor.

Under the Mohomedan law, a guardian has no authority to deal with the estate of a minor. As such, a contract to sell or purchase entered into by such guardian was held to be void and not binding on the minor. 

The position of a guardian of a Hindu minor is slightly different. The guardiain under the Hindu Law has the authority to charge the property of a minor or to sell it on grounds of necessity or benefit to the minor. Even so, it was not within the competence of the guardian of a minor to bind the minor’s estate by contract for purchase of immovable property. 

A distinction was also made between ‘executed contracts’ and ‘executory contracts’. In the case of executed contract, it was held even though it was for the benefit of the minor, it could not be specifically enforced.

Thus, upto 1948 it was firmly settled that a Hindu guardian could alienate infant’s property only in case of necessity and for the benefit of the estate and that he had no authority to enter into a contract to purchase property for the minor and that such contract could not be specifically enforced.

In the case of ‘executed contracts’, it was, however, held that the transaction could be set aside only on proof that the guardian had no authority to enter into a contract or that it was not for the benefit of the minor.

Whatever might be the case with regard to the position of minors belonging to other regions even with regard to contracts for sale of property which are governed by the provisions of the Guardians and Wards Act, so far as Hindu minors are concerned, there is no difficulty in holding that the guardian of a Hindu minor is competent to enter into a contract of sale of the minor’s property if it is for the necessity of the minor or the minor’s estate.

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Minor’s contracts Part 1

 Minor’s contracts Part 1

The Judicial Committee held that a guardian had no power to bind the minor and the minor was not entitled to specific performance of the contract. (Mir Sarwarajan vs Fakirudding Mahamed, 39 Cal. 232: 39 IA 1 PC).

A guardian’s contract for sale, though supported by necessity or benefit, cannot be specifically enforced against the minor. (Ramakrishna Reddiar* vs Chidambra Swamigal, 54 MLJ 412: AIR (15) 1928 Mad 407 & Raghunathan vs Ravuth Kanni, ILR (1938) Mad 928: AIR (25) 1938 Mad 765).

A minor, who had attained majority, could specifically enforce a contract of sale entered into by his guardian when the purchaser had entered into possession of the property under the contract, but had not paid the consideration. (Adinarayana vs Venkasubbiah, AIR (27) 1940 Mad 625).

But Courts in India enforced a guardian’s contract for sale of the ward’s property if the transaction was supported by necessity or was beneficial to the minor. (Innatunnissa Bibi vs Janakinath, 22 CWN 477: AIR (5) 1918 Cal 877).

The Judicial Committee held that a contract for sale of the ward’s property concluded by a guardian competent to act and being for the ward’s benefit is enforceable against the minor. (Subramaniam vs Subba Rao, ILE (1949) Mad 141: AIR (35) 1948 PC 95).

Therefore the decision in Ramakrishna Reddiar* (AIR (15) 1928 Mad 407) cannot be accepted as correct statement of law.

Under the Hindu law (Old Hindu law) a guardian has the power to sell or mortgage the estate of his minor ward for the necessities or benefit of the minor, is too well established to require any citation of authority.

A guardian cannot do indirectly what the minor cannot do directly by entering into a contract.

That except in the case of necessaries supplied to a minor within the meaning of Sec.68 of the Contract Act, the creditor cannot obtain the estate of a minor on the basis of a contract entered into by the guardian and could only avail himself of the right of subrogation. 

If the guardian’s contract is unsupported by necessity or benefit to the minor, it would be in excess of his powers as guardian and the contract would be unenforceable against the estate of the minor on that ground.

Both in British India and in England, many contracts for marriage are made while one of the parties is a minor. In England, the question arose that whether the minor could claim damages for breach of such a contract. The question was decided in Holt vs Ward (1732) 2 Stra. 937, and held that in England the contracts of minors at that date were held under common law to be voidable or void, that is to say, the minor could enforce performance of the contract as against the other adult party, but the adult party could not enforce it against the minor.

Therefore the Infants Relief Act of 1874 was passed which made certain contracts by minors mentioned therein void. That Act, however, left contracts of marriage untouched.

In India, upto the decision of the Privy Council in Mohori Bibee vs Dharmadas Ghose (1903) 30 Cal. 539, that the contracts of minors were voidable.

An infant is capable of acquiring property by gift which the law requires must be accepted. Sec.127 of the Transfer of Property Act shows that a donee who is not competent to contract, an infant is within the category, can accept a gift even of property burdened with an obligation though he will not be bound by the acceptance and can repudiate it when he becomes competent to contract. (Subramania Iyer vs Sitha Lakshmi, ILR (1903) AC 6).

An infant may be admitted to the benefits of a partnership though he cannot be made personally liable for any obligation of the firm. (Sec.247 of the Contract Act).

Similarly a minor may accept a trust and can be a trustee though he cannot execute a trust involving the exercise of discretion. (Sec.10 of the Indian Trust Act).

All these indicate that what is meant by the proposition that an infant is incompetent to contract or that his contract is void if that the law will not enforce any contractual obligation of an infant.

As for the infant’s legal position with reference to transfers of property, he is undoubtedly capable of holding property and can acquire property not only by inheritance or bequest but also by gift. 

Sec.7 of the Transfer of Property Act lays down generally that a person competent to contract may make a transfer but that Act nowhere says that a person cannot be a transferee of property unless he is competent to contract.

There is a substantial distinction between a ‘contract for a sale’ and ‘a sale’. A sale effects a transfer the property, while a mere contract for a sale does not.

The English law on the point as summarized in Halsbury’s Laws of England (Vol. XVII, pages 75 and 76. The acquisition of property being generally beneficial, an infant can take property, both real and personal in manner whatever, either by descent, intestacy or will, or by purchase or gift or other assurance inter vivos except where it is necessarily prejudicial to do so.

A purchase of property, or the acceptance of a gift of property, by an infant is voidable by him. But in the meantime the property is vested in him.

Among writers of textbooks Dr Rash Behari Ghosh, the learned author in India, states the law correctly when he say (page 195) that an infant being a person capable of holding property can well be a mortgagee and that the disabilities which attend the creation of a mortgage do not attach to the acceptance of a security.

In America also the law seems to be that an infant can take a mortgage (see Jones on Mortgages, Article 131).

A mortgage transaction according to the definition of the Transfer of Property Act imports the existence of a loan or debt or an engagement which may give rise to a pecuniary liability and a transfer of an interest in specific immovable property to secure the repayment of the debt or the performance of the engagement.

Unless there is a binding promise to pay money either personally or out of the property of the person bound, there cannot be any mortgage at all.

A debt has been defined as a sum of money due by certain and express agreement. (Bouvier’s Law Dictonary, Vol-I, page 786; Blackstone, page 154).

Different modes of enforcing the security are prescribed by the Transfer of Property Act and the only mode by which a simple mortgagee can enforce the security is by bringing the property to sale through Court.

It is settled law that an infant cannot bind himself by a promise. But whether the converse follows is the question. 

A promise in law or an enforceable promise is a contract as defined by the Contract Act. A contract should be supported by lawful consideration. If the promise is an enforceable promise, it becomes a contract.

Even in unilateral contracts, there must be two parties, and there must be an assent or agreement of the minds of both the parties. In unilateral contracts, only one of the parties is under a legal obligation. The contract is therefore one sided, though the consent of both the parties is essential. (Street’s Foundation of Liability, Vol. II, p.53).

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