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Rule of Restitution relating to Minor’s Contract


Act 1872 on the Indian Contract Persons not contractually competent 1. Juveniles 2. Unhealthy people 3. Persons under Minor Lawdisqualified. Sec 3 of the Indians Majority Act 1875 explains the word Minor “a minor is a person who is not 18 years old.” No stuff to a minor If the minor has led the other party to conclude a contract with him by misrepresenting his age, he cannot be held accountable to this contract. No stopping of a minor can take place. It suggests that he is not reluctant to plead his childhood to escape a contract. No performance specific Unless in some circumstances as the contract of a minor is void, the precise fulfillment of such a contract may no longer be considered. A minor guardian cannot bind a minor by a contract to buy an immovable property; hence the minor cannot request the particular execution of the contract, which the minor had no authority to conclude. However, if (a) the contract is in the competence of the guardian or manager on behalf of a child, a contract may be explicitly enforced. (b) it is to the minor’s advantage.

Restitution Doctrine The term restitution may be defined as the act of returning what has been removed or lost back to the legal owner. The theory means that a person may have to refund property or commodities to the person from whom it was acquired when he receives property or things by deception. The theory extends to the children, as long as it can be traceable, who can be required to restore the property or the products.

What is restitution?

Under section 2(h) of the Act 1872[1], an agreement is lawfully applicable and is backed by a consideration that might be in cash or kind. This agreement is a contract that is valid under the law. The principal goal of concluding a contract is to legally bind the parties to fulfil the deal.

Removal in a usual meaning involves restoring the advantage a person has earned and is primarily intended to reestablish the victim’s standing. i.e. ‘Claimant’ to prevent the defendant from making any improper profits that he is not permitted by law in respect of the initial position that he possessed before concluding the contract and secondly to prohibit the defendant from unfair enhancement. For example:

A purchase of 10 tons of rice was concluded by Mr Rishabh with M/S XYZ Pvt Ltd. Hyderabad. Deepak paid a Rs 60,000 advance that was 20 percent of the contract’s total value. Later on, owing to financial loss, XYZ Pvt Ltd was declared insolvent and chose to end its operations. In addition, the contract was terminated. Now, the contract is invalid in this situation, and XYZ ltd should repay Mr Sharma with Rs. 60,000.

The doctrine of restitution in The Indian Constitution

The theory of restitution, chiefly devoted to the obliging person to gain a benefit by way of a null agreement or contract, is covered in Section 65 of the Indian Act 1872. The principle behind this provision is that an agreement or a contract exists and that, if there is no agreement or contract, the restitution doctrine cannot enter into effect. This philosophy is founded on a fairly prevalent rule of thought, which indicates that a person only pays attention if something returns.

Section 65 provisions only apply if a subsequently reached agreement is found null or if one person or the other later makes a contract invalid. However, Section 65 will never come into play if the contract was invalid from the outset. In the matter of Kuiu Collieries limited vs Jharkhand mines ltd.[2], the Supreme Court of India declared that a later-stage agreement that is null and invalid would invite the party in section 65.

Few key points of the Doctrine of Restitution are as follows: –

¾    One party has concluded an agreement for consideration with another party.

¾    The aforementioned contract entailed considerable consideration.

¾    Both parties had jurisdiction to conclude a deal

¾    Then, owing to some unforeseeable event, a party failed to fulfil its portion of a contract or the deal was invalidated.

¾    The party that has paid the advance any account has the right to the other party’s and the other party’s right to recover from the advance does not obtain an unfair advantage over it.

How is Section 65 of The Indian Contract Act, 1872 applicable?

Section 65 applies only if a contract was lawful, and only on a future date, was concluded and invalid. If in the case at issue, the agreement has been concluded between the plaintiff of the main person and the lesser defendant, the theory of the restitution will not apply. In Mohiri Bibi v/s Dharmodass Ghosh[3], this was concluded, but the scenario will alter if the minor has falsified his age, and the court can then impose the benefit.

It was decided that an agreement or contract which was nil and unlawful from the beginning can never apply the rules of this concept, in another case Bank of Rajasthan Ltd v/s Sh Pala Ram Gupta.[4]

Exceptions To The Rule/Doctrine Of Restitution[i]

¾    If a deal is known as void: – This theory will not apply to an agreement known as invalid, for example, where a deal is an unlawful or impossible conduct, such as a deal, whereby R will pay S Rs 50,000 when B chooses stars from the sky. R pays Rs 5000 for the safety of S; R cannot recoup even his Rs 5000 now is an impossible task to execute.


¾    Where a deal between incompetent individuals has been signed: – Contract between incompetent individuals, like a folly, poisoning, or minor, will not welcome such a doctrine to play.


¾    Where the party has to provide security with serious money and later defaults: – This clause addresses a circumstance like paying residential application money. Now if a person does not get future allocation money, then his application money will be likewise lost and he cannot claim his previous income through the revocation of the restitution theory.


Who is a Minor?

A minor is an individual who, by law, has not yet completed the age of majority. For different legal jurisdictions, the age set by legislation might be varied. In India, according to the Indian Majority Act, the majority age of 18 years is 1875, except for a person who has been assigned as guardian by the Court; the fixed age is 21. It should nevertheless be emphasized that, regardless of whether that minor has been designated a guardian, the Indian Majority Act of 1875 is changed and the majority age is regarded to be 18 years.


Is an agreement with minor voidable or void altogether?

The competence of the parties is discussed in Section 10 of the Contract Act, while Section 11 deals with those not permitted to engage in a contract. But neither section is sure of what the effects of a minor entering into an agreement will be, whether it would be null or void. Thus, these clauses produced legal confusion regarding the nature of the agreement of a minor. In 1903, in a landmark case of Mohori Bibi vs. Dharmodas Ghose, mortgaged his house for Rs. 20,000 to a moneylender, the Privy Council eventually decided this matter. The lawyer acting on behalf of the moneylender was aware at the time of the contract that the party was a minor one. At the time of the contract, the kid filed a lawsuit against the moneylender, saying that he had been a juvenile. The defendant however died during the call to the Privy Council and his widow, Mohori Bibi, filed the appeal.

In clearing the air in the foregoing matter, the Privy Council declared that the agreement of the minor is void from start to finish, i.e. void. In the case of a minor, the common conviction that “every person is the best judge in his own interest” is omitted.

Doctrine of Restitution

If a minor has acquired an item by misrepresenting his age, he may be forced to repay it, but only if it is traceable. The courts can ask a child for his ill-gave earnings, based on equity, because he is not allowed to cheat under the watchdog of childhood freedom. Based on an invalid contract, if the minor sold the property or the products, he cannot be ordered to refund or return the value of the products. In situations that are impossible to locate the commodities or when a minor acquires cash instead of things, the idea of restitution cannot be applied.

A well-known Leslie (R) case v. Sheill,[5]where a youngster misrepresented his age by deceiving certain moneylenders and had them advance him the sum of 400 pounds for thinking he was an adult. As harm for deception, but not because the minor has no stopping, the plaintiff attempts to collect the principal amount and the interest. In addition, the money-lenders relied on the restitution theory, arguing that the minor was due to repay the money for just reasons. The rejection of this claim by Lord Sumner was that the money paid for its purposes to the defendant (minor).No method to trace the funds and no method to restore them is there, because they will cause an invalid contract to be enforced.[ii]

Where nevertheless the minor petitions the Court to terminate his contract, the Court may grant an exception on the condition, under Section 30 and Section 33 of the Specific Relief Act, 1963, that any advantages earned by the member be reinstated, or that the other Party shall get adequate compensation.

Will a minor be liable for a contract for necessaries?

For necessities, a minor is liable. In the judgement of Alderson B in Chapple v Cooper,[6]the phrase ‘requirement’ is not defined in the Act but is an illustrative explanation of the meaning. “Things are required without which a person cannot survive decently. Food, food, clothing, accommodation and so forth. Mere luxury items are always forbidden, while in rare circumstances luxury items are permitted. A minor is also responsible for the services he receives, such as training, medical facilities and legal guidance.Thus “necessaries,” which are relatively different from the conditions and facts in the case, can be decided accordingly.

According to Section 68[7]of the Contract Act, “If someone unable or legally liable to support a contract is provided with a condition in his or her life by another person, the person who has provided such supplies may be repaid for the property of such incapable person.” Consequently, two requirements are necessary to demonstrate a minor’s responsibility.

¾    The products needed to support it or its level of living shall be covered under the contract.

¾    The supply of such necessaries should not be sufficient already.

If a minor is given the essential supplies, the minor shall not be obligated to repay the provider and the price shall remain irrecoverable if he or she already has enough supply of the essential item. The responsibility of the minor in India does not depend on the permission of the minor. It derives from a quasi-contractual character that means that responsibility is exclusively the responsibility of the estate of the minor.


The position of minor is to be reached according to the Indian Contract Act of 1872 since a minor cannot engage in a contract and the same is void from the start. The minor cannot count on confirmation of his minority contracts to achieve a majority. The rationale is because when the individual was still a child, ratification was a legacy and consequently a contract that was void cannot be rendered lawful. A new contract can be concluded with a new consideration if necessary, after reaching the age of majority.Moreover, it is impossible to ask for a small agreement to achieve specified performance as it would lead to a void agreement. However, only the demand for necessaries is liable to a minor.


This blog is authored by Aeshita Marwah,

Student of University of Petroleum & Energy Studies.

[1]The Indian Contract Act, 1872

[2]1974 AIR 1892, 1975 SCR (1) 703

[3]ILR (1903) 30 Cal 539 (PC)

[4]AIR 2001 Delhi 58, 2000 (57) DRJ 863

[5](1914) K.B. 607

[6](1844) 153 ER 105

[7]Indian Contract Act, 1872

[i]The Indian Contract Act, 1872

[ii] Pollock & Mulla On Indian Contract and Specific Relief Acts; with a Commentary, Critical and Explanatory. Bombay :N. M. Tripathi, 1972.

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