The Minor's Position: Necessaries, Restitution and Ratification

What counts as a necessary

The Act does not define it, and the question is one of fact in every case. The settled approach asks two things: is the class of goods or services capable of being a necessary for a person in this minor's station, and did this minor already have an adequate supply of them at the time? A second overcoat is not a necessary to a boy who already owns four. Food, clothing, shelter, medical attendance, and education suited to the minor's station are the standard categories, and legal advice to protect the minor's property has been treated as within them.

A minor may be a transferee, a payee and a beneficiary

This is the qualification that turns the rule from a protection into a workable one, and it is regularly examined.

A.T. Raghava Chariar v. O.A. Srinivasa Raghava Chariar, (1916) ILR 40 Mad 308, Madras High Court, Full Bench.

Facts. A mortgage was executed in favour of a minor who had advanced the whole of the mortgage money. Nothing remained for the minor to do under the transaction. The question referred to the Full Bench was whether such a mortgage could be enforced by him or on his behalf.

Held. It could. Where the whole of the consideration has been paid by or on behalf of the minor and nothing remains for him to perform, a transfer of property in his favour is enforceable by him. Section 11 disables a minor from binding himself by a promise; it says nothing to disable him from being a transferee or a promisee under a completed transaction.

Why it matters here. It supplies the principle in one line: the incapacity is an incapacity to incur an obligation, not an incapacity to acquire a right. So a minor may be a mortgagee, a payee of a cheque, a purchaser who has paid, a beneficiary under a trust or a policy, and a partner admitted to the benefits of partnership under section 30 of the Indian Partnership Act 1932, which admits him to the benefits and not to the liabilities.

The same principle explains why a minor may hold a promissory note made in his favour and sue on it, and why he may be an agent: an agent binds the principal, not himself, so his own incapacity does not matter to the third party, although the principal cannot hold the minor agent responsible for his acts.

Ratification: the line the law holds

Ratification means confirming afterwards an act done earlier, so that it takes effect from the earlier date. A minor's agreement cannot be ratified on attaining majority, and the reason is short: ratification can validate a defective act, but there must be an act to validate, and a void agreement is a nullity.

There is a second and independent reason worth writing in an answer. Consideration for the original promise was given during minority, and past consideration furnished during minority cannot support a fresh promise made after majority. So a bare confirmation after eighteen has no consideration behind it either.

What the person can do is make a fresh contract after attaining majority, supported by fresh consideration. The distinction is real and it is the answer to the standard problem: a promise made at eighteen to pay a debt incurred at seventeen is unenforceable, but a new loan taken at eighteen on new terms is a good contract.

Restitution: how far the courts will go

This is the hardest part of the topic and it is where students lose marks, because the answer is not simply "no restitution".

The starting point: no money decree

Mohori Bibee v. Dharmodas Ghose, (1903) 30 IA 114, refused the lender repayment of the money advanced, holding that sections 64 and 65 apply to contracts and agreements between parties competent to contract and cannot be turned against a minor whose agreement was void from the outset.

Ajudhia Prasad v. Chandan Lal, AIR 1937 All 610, Allahabad High Court, Full Bench, made the reasoning explicit.

Facts. Minors executed a mortgage after fraudulently representing that they were of full age. The mortgagee sued to enforce the mortgage and, in the alternative, for the return of the money advanced.

Held. The mortgage was void, and no estoppel could be raised: no estoppel can be pleaded against a statute, so if the Act declares a minor's contract void nothing prevents him from pleading minority. Repayment was also refused. The Full Bench declined to follow the Lahore Full Bench in Khan Gul v. Lakkha Singh, reasoning that a money decree against the minor would be almost tantamount to enforcing the minor's pecuniary liability under the contract, which the law makes void, and that the distinction was too obvious to be ignored.

Why it matters here. It is the leading Indian authority for both propositions in one case: no estoppel and no money decree. Note also what the court said about Mohori Bibee: restitution was there refused partly because the lender knew of the minority, and the passage in the Privy Council's judgment on which the point turned concerned a claim by the minor under the Specific Relief Act, where the court has a discretion to impose terms.

Where restitution IS available

Three routes exist and they should be distinguished carefully.

(a) The doctrine of restitution in specie. Where the minor still has the identifiable property or money obtained under the void agreement, the court may order it to be restored, because that is restoring what is traceably the other party's and not enforcing a contractual liability. Once the money has been spent and cannot be traced, the route closes, which is exactly the distinction Ajudhia Prasad drew.

(b) Section 33 of the Specific Relief Act 1963. Where the minor comes to the court as plaintiff seeking cancellation of an instrument, the court may require him to restore the benefit he has received, so far as may be, as a condition of the relief. This is the "he who seeks equity must do equity" principle in statutory form, and it operates only when the minor is the one asking for relief.

(c) Necessaries under section 68, as above.

The organising idea, and the sentence to write: the law will not give the other party a contractual remedy against the minor, but it will not let the minor keep an identifiable benefit while asking the court for help.

A worked example

Sana, aged seventeen, borrows two lakh rupees from Prakash on a written promise to repay with interest, telling him she is twenty. She spends one lakh on college fees and hostel charges, and keeps the other lakh in a separate bank account. On turning eighteen she signs a letter confirming the loan. She then refuses to pay, and Prakash sues.

• Is the loan agreement enforceable? No. She was a minor when it was made, so it is void under section 11 read with section 10.
• Does her lie about her age help Prakash? No. On Ajudhia Prasad there is no estoppel against the statute.
• Does the confirmation letter revive it? No. A void agreement cannot be ratified, and there is no fresh consideration for the letter.
• The one lakh spent on college fees and hostel charges. These are capable of being necessaries suited to her condition in life. Under section 68 Prakash may claim reimbursement of that amount from her property, and not from her personally. Whether they are necessaries on the facts is a question of fact, and the answer would differ if she had a guardian already paying her fees.
• The one lakh still lying in the separate account. It is identifiable and traceable, so restitution in specie is available and the court may order it restored.
• If she had spent the whole two lakh on a holiday. Nothing would be recoverable: not on the contract, not by a money decree on Ajudhia Prasad, and not as necessaries, because a holiday is not one.
• If Sana had instead sued Prakash to cancel the loan document, section 33 of the Specific Relief Act would let the court order her to restore the benefit as a condition of granting her that relief.

What it does NOT mean

"A minor is liable to pay for necessaries." He is not personally liable. His property is, and only to the extent of reimbursing the supplier.

"Anything a minor buys is a necessary if he needed it." The test is necessaries suited to his condition in life, judged also against what he already has.

"A minor can never enforce anything." He can enforce a transaction in which he is the transferee or promisee and has performed, on Raghava Chariar, and he may sue to cancel a void instrument and recover his property.

"Ratification works if the minor confirms in writing." Writing changes nothing. A nullity cannot be confirmed, and a fresh contract with fresh consideration is required.

"Restitution is never available against a minor." Too wide. It is refused as a money decree enforcing the bargain, but it is available where the property or money is identifiable, and under section 33 of the Specific Relief Act where the minor is the one seeking relief.

Quick revision

• s.68: necessaries suited to his condition in life, supplied to the incapable person or to those he is legally bound to support, are reimbursed from his property. Quasi contractual, never personal.
• Raghava Chariar, (1916) ILR 40 Mad 308 (FB): a minor may be a transferee, mortgagee, payee or beneficiary. The bar is on binding himself, not on acquiring rights. Partnership: benefits only, s.30 of the Partnership Act 1932.
• No ratification. A void agreement is a nullity, and past consideration given during minority supports nothing. A fresh contract after majority is required.
• No estoppel and no money decree: Ajudhia Prasad, AIR 1937 All 610 (FB), following Mohori Bibee, because a money decree would enforce the void liability.
• Restitution IS available for identifiable property or money, and under s.33 of the Specific Relief Act 1963 when the minor is the plaintiff seeking cancellation.
• A minor may be an agent, because an agent binds the principal and not himself.

Test yourself

1. Is a minor liable for necessaries supplied to him? Not personally. Section 68 entitles the supplier of necessaries suited to the minor's condition in life to be reimbursed from the minor's property, and the obligation is quasi contractual rather than contractual, so if the minor has no property nothing is recoverable.

2. Can a minor be a mortgagee? Yes. In A.T. Raghava Chariar v. O.A. Srinivasa Raghava Chariar, (1916) ILR 40 Mad 308, the Madras Full Bench held that where a minor has advanced the whole of the mortgage money and nothing remains for him to do, the mortgage is enforceable by him, because section 11 bars a minor from binding himself and not from being a transferee.

3. A person confirms, after turning eighteen, a loan taken at seventeen. Is the confirmation binding? No. The original agreement was void and a nullity cannot be ratified, and the consideration was furnished during minority so it cannot support the later promise. Only a fresh contract made after majority, with fresh consideration, would bind.

4. When will a court order a minor to restore a benefit? Where the property or money received is still identifiable, restitution in specie may be ordered, because that restores what is traceably the other party's rather than enforcing a contractual liability. And under section 33 of the Specific Relief Act 1963 the court may require restoration as a condition of granting cancellation where the minor is the plaintiff. A money decree that in substance enforces the void bargain is refused, on Ajudhia Prasad v. Chandan Lal.

5. Why does the law refuse a money decree but allow restitution in specie? Because the two do different things. A money decree makes the minor answerable in damages for the bargain, which is precisely the liability sections 10 and 11 deny, and Ajudhia Prasad called it almost tantamount to enforcing the contract. Restoring identifiable property takes back what never lawfully became the minor's, and leaves the void agreement unenforced.