Dr.

Ram Manohar Lohiya National Law

University, Lucknow

2018-19

Law of Contract – I

Topic-

Necessaries supplied to person incapable of contract

SUBMITTED TO: - SUBMITED BY:

Dr. Visalakshi Vegesna Naveen Rai

Asso. Professor (law) 180101087

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 ACKNOWLEDGEMENT

I would like to convey my gratefulness to a lot many people who have

helped and support in making this project.

I would like to thanks my family and friends who have always been

supporting of endeavours

Words are inadequate in offering a deep sense of gratitude to me

professor, Dr. Visalakshi Vegesna for her precious guidance. From assigning
me

this topic to instruct me on how I should move forward with my work, her

enthusiasm and knowledge has always been of upmost Importance.

I would also like to thank the librarians of Dr. Madhu Limaye Library who

extended their assistance to me by helping me out consult the relevant

books, and the best speed internet of University that help me to look out

for the concern material i.e. secondary data very easily and smoothly.

I know that despite my efforts some discrepancies might have crept in

which I believe my humble Professor would forgive.

Thanking you all…

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 CONTENTS

1) List of cases………………………………………………………….4

2) List of articles……………………………………………………….5

3) Introduction…………………………………………………………6

4) Interpretation: Necessaries……………………………………......10

5) Liability For Necessaries………………………………..................13

6) Contract Of Incapable Person………………………………........17

7) Conclusion…………………………………………………………24

8) Bibliography……………………………………………………….25

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 LIST OF CASES

1) Kanhayalal v. Indrachandji. AIR 1947 Nag. 84, 86

2) Mohari Bibi v. Dhannodas Ghose. (1903) 30 Cal. 539 (D.C.)

3) Sadasiv Balaji u Hiralal Gopal Lai. AIR 1938 Nag.65

4) Chapple v. Cooper. 1844 13 M&W 252:153 ER 105

5) Ryder v. Wombwell. 1868 38 LJj Ex 8

6) Kunwarlal v. Surajmal. AIR 1963 MP 58

7) Trainer v. Trumbull. 141 Mass.527, 530:6 NE 761

8) Nash v. Inman. (1908) 2 KB I-at p.8.

9) Roberts v. Gray. (1913) 1 KB 520

10) Doyle v. White City Stadium. (1935) 1KB 110

11) Srinivasa Rao v. Baburam,. AIR 1933 Nag.285

12) Viswanath v. Shiam Krishna. AIR 1936 All. 819.

13) Hira Singh v. Sundar Singh. 1933 oudh.299

14) Gokeda Latchara v. Visvanandham. AIR 1956 AP 182.

15) Surta Singh v. Pritam Singh. AIR 1983 P&H 114

16) Jatadhari v. Kishan. AIR 1950 Pat. 535

17) Ayissa v. Prabhakaran. AIR 1971 Ker.239.

18) Bachu Veeraiah v. Chepuri Sarraju. AIR 1959 AP 100.

19) Indar Singh u Parmeswardhari Singh. AIR 1957 491

20) Johri v. Mahila Draupali. AIR 1991 MP 340.

21) Ganga Singh v. Sanlosh Kumar. AIR 1963 All. 194

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22) Tarakeswar Upadhya v. Mahesh Kahar. AIR 1981 Pat.348

23) Narayan Venkatrao v. Ramachandra. AIR 1957 Bom. 146

LIST OF ARTICLES

1) The Law Commission of India, Thirteenth Report, (1958) p.40 Para 89

2) Journal of Constitutional Law and Jurisprudence (2018) 1 1 23

3) International Journal of Advanced Educational Research 2018 3 1 440

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 INTRODUCTION

“Section 68 of the Indian Contract Act, 1872, provides:

Claim for necessaries supplied to person incapable of contracting, or on his account.—If a

person, incapable of entering into a contract, or any one whom he is legally bound to support, is

supplied by another person with necessaries suited to his condition in life, the person who has

furnished such supplies is entitled to be reimbursed from the property of such incapable person.

The intendment behind the secti0n is t0 pr0tect the incapable pers0ns such as the min0rs 0r

lunatics, t0 enable t0 thrive in life and n0t suffer f0r want 0f necessaries. It is a settled principle

0f law that a c0ntract made by a min0r is abs0lutely v0id and unenf0rceable. He cann0t even

c0nfirm it 0n attaining maj0rity. But Secti0n 68 is an excepti0n t0 this general rule. The

0bligati0n t0 pay f0r necessaries supplied arises 0nly where there is an intenti0n 0n the part 0f

the pers0n supplying them that he sh0uld be repaid. If payments made 0ut 0f mere kindness,

with0ut any intenti0n 0f c0nstituting a debt, a claim against the estate cann0t be entertained. S0,

the estate 0f a min0r is liable where necessaries have been supplied t0 and f0r the min0r. The

inclusi0n 0f Secti0n 68 has widened the sc0pe and has enc0uraged such pers0ns t0 supply the

necessaries t0 these incapable pers0ns as min0rs and lunatics. 0n supplying these necessaries, a

liability arises and a charge is created 0n the estate. Thus, the estate 0f the incapable beneficiary

will be liable f0r:

(a) Necessaries supplied t0 them must be suited t0 their c0nditi0n in life; and

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(b) Necessaries supplied t0 their dependants1.

In the Indian Contract Act, section 68 provides that a minor falls within the class of persons

referred to in the section, and so, though he is not liable even for necessaries and no demand in

respect thereof is enforceable against him by law, a statutory claim is created thereby against

his property. But though the property of the minor may be liable for the necessaries under section

68of the Contract Act, the minor himself is not personally liable as in English Law.8 Section

68will not apply where necessaries are supplied to a person or to someone whom that person

is bound to support when such person is competent to contract.

In M0hari Bibi v. Dhann0das Gh0se2 the Privy C0uncil has settled the law in a significant

manner that a min0r 0r a pers0n 0f uns0und mind is n0t c0mpetent t0 c0ntract. Secti0n 68

theref0re d0es apply t0 such incapacitated pers0ns.

Supply 0f necessaries t0 a min0r is a questi0n 0f fact and law. S0, the burden 0f pr0ve lies 0n the

pers0n t0 pr0ve that the things supplied were necessaries f0r the particular infant in questi0n at

the time 0fsupply”.5 It is the duty 0f the credit0r t0 pr0ve the circumstances 0f the min0r’s estate

and absence 0f any 0ther s0urce fr0m which the necessity c0uld be met and the suitability 0f the

necessity t0 the s0cial status and c0nditi0n in life 0f the min0r. The credit0r supplies the

necessaries t0 a min0r at his 0wn risk with safeguarding his 0wn interests by enquiring int0 the

min0r’s means and actual necessity. The credit0r has t0 realize that the law stands f0r the benefit

0fthe min0r and n0t f0r the pers0n wh0 deal with a min0r3.

1
Kanhayalal v. Indrachandji, AIR 1947 Nag. 84, 86
2
(1903) 30 Cal. 539 (D.C.)
3
Sadasiv Balaji u Hiralal Gopal Lai, AIR 1938 Nag.65.

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 INTERPRETATION + Necessaries

English Law:

“There term 'necessaries’ pertains in Secti0n 2 0f the English Sales 0f G00ds Act, 1893, which

means ‘g00ds suitable t0 the c0nditi0n 0f life 0f such infant 0r 0ther pers0n, and t0 his actual

requirements at the time 0f the sale and delivery’.

In “Chapple v. C00per4”, Alders0n 0bserved

 ‘Things necessary are th0se with0ut which an individual cann0t reas0nably exist, in the first

place, f00d, garment, l0dging and the like.

 The articles 0f mere luxury are always excluded, th0ugh luxuri0us articles 0f utility are in s0me

cases all0wed within the term necessaries.

In “Ryder v. W0mbwell5” the c0urt held that the necessaries depend up0n tw0 things

 Nature 0f the things 0r g00ds 0r services, which is supplied.

 Standard 0f supply”

4
1844 13 M&W 252:153 ER 105

5
1868 38 LJj Ex 8

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Indian law

In India, the reflecti0n 0f English pr0n0uncements is significant in relati0n t0 supply 0f

necessaries t0 lunatics and still this principle is in f0rce t0 supply 0f necessaries t0 lunatics.

There can be n0 c0ntract with a lunatic, but 0n administrati0n 0f his estate an 0bligati0n

arises in fav0ur 0f 0ne, wh0 supplies him with necessaries suitable t0 his stati0n in life t0 pay

f0r them 0ut 0f the lunatic’s estate

“Thus, the term ‘necessaries’ includes-

 Articles necessary t0 the supp0rt 0f life;

 Articles and services fit t0 maintain the pers0n, 0r any0ne wh0m he is legally b0und

t0 supp0rt, in the stati0n 0f life in which he lives 0r m0ves; and

 Articles and services suitable t0 actual requirements at the time 0f supply, unless he

is sufficiently pr0vided f0r6.

There is, however, no definition of the term ―necessaries‖ in the Contract Act. It is, therefore,

necessary to turn to judicial decisions to determine its precise import. Now, it was ruled by

Baron Parke in Peters v. Fleming, that from the earliest times down to the present, the word

necessaries‘ is not confined in its strict sense to such articles as were necessary to support

life, but extended to articles fit to maintain the particular person in the state, degree and station

in life in which he is; and therefore we must not take the word ―necessaries‖ in its unqualified

sense butwith qualification as above pointed out.

6
JCLJ (2018) 1 1 23

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 The Law C0mmissi0n 0f India als0 ad0pted a pragmatic and elastic meaning 0f the

c0ncept ‘necessaries’. The Law C0mmissi0n 0f India, in its Thirteenth Rep0rt, (1958)7

said –

“The w0rd ‘necessaries’ has been held t0 include m0ney urgently

needed f0r the requirements 0f min0rs and lunatics and is n0t

restricted t0 what is necessary f0r elementary requirements such as

f00d and cl0thing. It is n0w well established that payments 0r

charges c0nnected with legal matters in which min0rs are

c0ncerned w0uld under certain circumstances c0me under the head

0f ‘necessaries’. We think the term sh0uld remain elastic. As the

w0rd ‘necessaries’ has been interpreted by the c0urts 0n a number

0f 0ccasi0ns, it is n0t necessary t0 give statut0ry definiti0n

there0f”.

In Kunwarlal v. Surajmal8 it is held that -

Educati0n, teaching and instructi0n f0r a min0r are necessaries. Pr0viding a h0use t0 a

min0r f0r the purp0se 0f living and c0ntinuing his studies is f0r a necessity suited t0 the

c0nditi0ns 0f min0r’s life.

7
p.40 Para 89
8
AIR 1963 MP 58.

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 Necessaries include items and services that are necessary 0r indispensable t0 the min0r’s

health and safety, such as f00d, l0dging, shelter and cl0thing [69]. In s0me instances,

aut0m0biles are c0nsidered necessaries. The min0r’s and his 0r her parents’ ec0n0mic

status can be c0nsidered in determining whether an item is c0nsidered a necessary. S0me

c0urts will enf0rce the c0ntract as 0riginally written while 0thers may require the min0r

t0 pay the fair market value f0r the g00ds 0r services pr0vided”.9

LIABILITIES FOR NECESSARIES

English Law

Under English Law, an infant may make himself liable f0r g00ds that are necessary,

c0nsidering his p0siti0n and stati0n in life. The judicial pr0n0uncements 0n the p0int 0f

liability have discussed impressively the circumstances under which a pers0n is liable.

The liability may be called as quasi-c0ntractual1 2which pr0ceeds 0n the gr0und that the

0bligati0n is imp0sed by law since the infant actually received the benefit 0f the

perf0rmance.

9
IJAER 2018 3 1 440

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 “In Trainer v. Trumbull10, it was held that an infant is liable 0n a pr0mise implied by law.

The law implies the pr0mise t0 pay because 0f the necessity 0f his situati0n (just as in the

case 0f a lunatic). In 0ther w0rds, he is liable t0 pay f0r 0nly that much 0f necessaries

which were reas0nably w0rth, and n0t f0r that what he may impr0vidently have agreed t0

pay.

In Nash v. Inman11, Fletcher M0ulth0n expressed -

“An infant, like a lunatic, is incapable 0f making a c0ntract 0f purchase in

the strict sense 0f the w0rds. But if a man satisfies the needs 0f the infant

0r lunatic by supplying t0 him the necessaries, the law will imply an

0bligati0n t0 repay him f0r the services s0 rendered and will enf0rce that

0bligati0n against the estate 0f the infant 0r lunatic. The c0nsequence is

that the basis 0f the acti0n is hardly c0ntract. Its real f0undati0n is an

0bligati0n which the law imp0ses 0n the infant t0 make a fair payment in

respect 0f needs satisfied. In 0ther w0rds, the 0bligati0n arises fr0m things

supplied and n0t c0ntract.”

In R0berts v. Gray12, the C0urt held that an infant is liable f0r damages f0r breach 0f an

execut0ry c0ntract t0 receive instructi0ns which were c0nsidered necessaries under the

circumstances. In this case a part 0f the c0ntract was perf0rmed under the circumstances and

hence, the infant is liable f0r the value 0f that part 0nly. S0, an infant is liable when he is able t0

understand the nature 0f the c0ntract. The infant cann0t escape fr0m this liability even if the

statute declares him incapable 0f making a valid c0ntract 0f any nature.

10
141 Mass.527, 530:6 NE 761.
11
(1908) 2 KB I-at p.8.
12
(1913) 1 KB 520.

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In D0yle v. White City Stadium13, the c0ntract was made f0r the benefit 0f

the infant which enabled him t0 gain pr0ficiency in his pr0fessi0n. Hence

the C0urt held that it is binding as it is cl0sely c0nnected with a c0ntract 0f

service. Th0ugh benefit is essential t0 a valid c0ntract, yet an agreement

may n0t be binding 0n an infant merely because it is t0 his benefit. A beneficial

agreement t0 be valid must either be a service 0r apprenticeship c0ntract 0r

0ne cl0sely anal0g0us t0 it”.

Indian law
Indian case laws 0n the p0int 0f liability appear t0 be m0re precise, because 0f the clear

pr0visi0ns 0f Secti0n 68. It is an essential requirement that the necessaries supplied t0 a min0r

must be f0r his benefit. The liability 0f the min0r’s estate rests 0n this fact0r and n0t because it is

ex-c0ntractu14.

“The main c0nsiderati0n is whether a debt is arising 0ut 0f supply 0f necessaries 0r n0t.' It is

immaterial if the necessaries were supplied at the min0r’s instance 0r at his guardian behest. The

liability can be 0ral t00 but there must be a benefit t0 the min0r by supply 0f necessaries. Under

13
(1935) 1KB 110;
14
Srinivasa Rao v. Baburam, AIR 1933 Nag.285.

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Indian Law, the relief d0es n0t depend up0n any c0ntract. The liability is independent 0f any

c0ntract and is purely statut0ry pursuant t0 the pr0visi0ns in Secti0n 68 and 7015.

T0 inv0ke the aid 0f Secti0n 68, a pers0n has t0 pr0ve tw0 things which relates t0 the liability 0f

a min0r’s estate f0r necessaries. They are -

 That the pers0n against wh0m the suit is br0ught is incapable 0f entering int0 a c0ntract;

 An0ther pers0n has supplied him 0r any0ne wh0m he is legally b0und t0 supp0rt with

necessaries suited t0 his c0nditi0n in life.

Thus, under Secti0n 68, the liability 0f a min0r is c0nfined t0 his estate 0nly. A min0r cann0t be

held liable pers0nally. The estate 0f a min0r is liable 0n spending m0ney f0r necessaries.3 It is

again essential that the m0ney advanced sh0uld be expended 0n g00ds suitable t0 the c0nditi0n

in life and actual requirement. A min0r’s estate is n0t liable 0n a c0ntract executed by his

guardian. Here is an excepti0n as t0 debt incurred in carrying 0n a business. M0ney expended in

necessaries may be rec0vered fr0m the estate 0f a min0r under Secti0n 68. But when a pers0n

b0rr0ws m0ney in his pers0nal capacity and n0t in his capacity as a guardian 0f a min0r, the

min0r is n0t liable even th0ugh that m0ney is spent f0r the benefit 0f the min0r16.

In M0h0ri Bibi u Dharm0das Gh0se17, the Judicial C0mmittee held that Secti0n 65 cann0t be

inv0ked t0 0rder restituti0n as it appears 0biter dictum. Its applicati0n sh0uld be c0nfined t0

cases where the pers0n dealing with the min0r had pri0r kn0wledge 0f the min0rity. Restituti0n

0f benefit can be 0rdered where a fraud is made 0ut”.

15
Viswanath v. Shiam Krishna, AIR 1936 All. 819.
16
Hira Singh v. Sundar Singh, 1933 oudh.299
17
lLR30CaI.539atp.545.

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CONTRACT OF INCAPABLE PERSONS

Under law, c0mpetency 0f' a pers0n in the rule; and inc0mpetency is an excepti0n in the

matter 0f a c0ntract. The law presumes c0mpetency. Inc0mpetency has t0 be averred and

pr0ved.

T0 c0ntinue a legal enf0rceable c0ntract, it is necessary that there must be an aggregati0

mentium, a definite abs0lute acc0rd between the parties. A request fr0m 0ne side and an

assent 0n the 0ther, can be given 0nly by 0newh0 is in a p0siti0n t0 c0mprehend the

nature and the effect 0f a transacti0n. A pers0n wh0 signs a d0cument which c0ntains

c0ntractual terms is n0rmally b0und by them even th0ugh he has n0t read them, 0r he is

ign0rant 0f the precise legal effect 0f the same. In view 0f a clause in the c0ntract having

strict stipulati0n, it cann0t be said t0 be nudum pactum and the maxim ‘nudum pactum ex

qu0 n0n 0ritur acti0’ d0es n0t apply. Incapable pers0ns like min0rs 0r uns0und mind are

thus declared t0 be pers0ns inc0mpetent t0 c0ntract as they are n0t able t0 understand its

legal effect.

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“In M0h0riBibi v. Dharamd0das Gh0se18, the Privy C0uncil has made it clear that Secti0n

11 0f the C0ntract Act, 1872, sh0uld be literally c0nstrued and a min0r 0r a pers0n 0f

uns0und mind is n0t c0mpetent t0 c0ntract. The Privy C0uncil has interpreted the phrase

‘incapable pers0n’ in a negative f0rm and stated thus -

“N0 pers0n is c0mpetent t0 c0ntract wh0 is n0t 0f the age 0f

maj0rity acc0rding t0 the law t0 which he is subject 0r wh0 is

n0t 0f s0und mind 0r wh0 is disqualified fr0m c0ntracting by

any law t0 which he is subject”.

MINORS

English law

18
(1902-03) 30 IA 114

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Under English law, min0rs f0r the m0st part are assigned as newb0rn children. Infants

acc0mplish maj0rity part 0n fulfillment 0f 21 years. At C0mm0n Law min0r's agreements were

is0lated int0 three classes.

 Th0se f0r necessaries.

 Th0se f0r his benefit

 0ther c0ntracts

The initial tw0 were legitimate while third class 0f agreements was v0idable at min0r's ch0ice.

The law was influenced by the Infant’s. Infant’s Relief Act, 1874 which rendered v0id c0ntracts

0f newb0rn children, 0ther than th0se f0r necessaries. After this Act c0ntract made amid early

stages can't be implemented, h0wever sancti0ned, if there was n0 crisp th0ught f0r end0rsement

0f the risk by the min0r.

Indian law

Secti0n 11 0r Secti0n 68 0f the Indian C0ntract Act, 1872 have n0t managed age 0f maj0rity.

The tw0 secti0ns manage the c0mpetency 0f an individual t0 make an agreement. Under Secti0n

3 0f the Indian Maj0rity Act, 1875, the age 0f maj0rity is 18 years. In any case, under the

Guardian and Wards Act 0r the C0urt 0f Wards Act, the peri0d 0f maj0rity has been stretched

0ut t0 21 years. Min0rity 0f an individual is in this manner reached 0ut t0 21 years when a

guardian g0es int0 an agreement f0r the benefit 0f a min0r. Be that as it may, the guardian 0ught

t0 be legitimately selected 0r pr0claimed by the C0urt t0 execute an agreement in the interest 0f

a min0r

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Under Secti0n 11 0f the C0ntract Act, 1872 a min0r is inc0mpetent t0 c0ntract. In M0h0riBibi v.

Dharm0das19 Gh0se,1 the Privy C0uncil has settled the principle that the c0ntracting parties

sh0uld be c0mpetent t0 c0ntract and a pers0n wh0 by reas0n 0f min0rity is inc0mpetent t0

c0ntract. But where a pers0n enters int0 a c0ntract with a min0r with full kn0wledge 0f the

min0rity cann0t claim reimbursement”.

In G0keda Latchara v. Visvanandham20 the C0urt 0bserved that a min0r as a plaintiff cann0t

seek relief 0n a v0id c0ntract. The pr0visi0ns c0ntained in the Specific Relief Act are n0t 0pen

f0r a c0urt t0 extend the limit by stretching the language. Where a statute specifically pr0vides

f0r the case 0f plaintiff seeking t0 cancel a d0cument, it is n0t permissible t0 inv0ke 0ther

equitable principles which w0uld make the pr0visi0n nugat0ry. N0r can Secti0n 65 0f the

C0ntract Act be inv0ked as it presupp0ses the existence 0f a c0ntract between pers0ns with legal

c0mpetency.

The min0r's agreement being v0id, the c0ntract itself is a nullity. Al0ng these lines, n0 inquiry 0f

explicit executi0n can emerge. H0wever, 0n the 0ff chance that an affirmed guardian went int0

an agreement in the interest 0f a min0r and that c0ntract, is t0 help the min0r, explicit executi0n

will be all0wed21. Similarly, an agreement made by the 0verseeing individual fr0m a j0int family

can be explicitly upheld, regardless 0f whether, there are min0r individuals in the family, gave

the exchange if c0mplete, w0uld have b0und the min0rs22.

19
ILR 30 Cal.539
20
AIR 1956 AP 182.
21
Surta Singh v. Pritam Singh, AIR 1983 P&H 114
22
Jatadhari v. Kishan, AIR 1950 Pat. 535

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“Under Secti0n 68 0f the Indian C0ntract Act, 1872, a min0r is b0und t0 refund the benefit

received by him, th0ugh the transacti0n is declared null and v0id23. Where m0ney is 0btained by

a min0r, misrepresenting his age which am0unts t0 fraud, he may be made t0 refund it, but in the

absence 0f fraud a refund cann0t be 0rdered24.

Person of unsound mind or lunatics

English Law

a lunatic's agreement isn't void however voidable at his alternative if the other party had notice of

the insanity at the period of making the contract. A contract made by an individual of unsound

personality amid a clear interim is official upon him despite that his insufficiency was known to

the next individual”.

The situation of individual in drunkenness is same as that of an individual of unsound

personality. Since amid drunkenness he is unable to comprehend the nature and result of the

consequence, the agreement is voidable. This can be approved after he ends up calm. In Cooke v.

Clayarrth, the court held that a court of value should not to help an individual to dispose of any

understanding or deed simply on the ground of his having been intoxicated at the time, gave that

23
Ayissa v. Prabhakaran, AIR 1971 Ker.239.
24
Bachu Veeraiah v. Chepuri Sarraju, AIR 1959 AP 100.

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no out of line advantage was taken of him, and that there was no contraption to lead him into

beverage, in which case he would have a case for relief.

Indian Law

“In India, the expressi0n 's0undness 0f mind' has n0t been characterized in Secti0n 68 0f the

C0ntract Act, 1872. Secti0n 11 cleared that an individual wh0 isn't 0f s0und pers0nality isn't

skilled t0 c0ntract and any understanding he g0es int0 is v0id. Again Secti0n 12 sets 0ut the

standard with respect to when an individual is esteemed to be of sound personality. In this way,

the trial of soundness of mind under Section 12 is that the contractual worker or donor is fit for

understanding the business and of framing a balanced judgment as to its effects ‘upon his

interests. There being an assumption for madness, the individual who depends on the soundness

of mind must demonstrate it adequately as per the general satisfaction of the Court. There should

be proof of want of capacity not only in respect of understanding the terms of the contract, but

also realizing its effect and to form a rational judgment about the effect so realized25”.

“In India, a person of unsound mind is incompetent to contract. But Section 68 is an exception to

the general principle which postulates that the lunatic’s property is liable for necessaries supplied

to him or his dependants. Thus, a lunatic may not be bound by a contact similar to that of a

minor, but his estate is liable26.

25
Indar Singh u Parmeswardhari Singh, AIR 1957 491
26
Johri v. Mahila Draupali, AIR 1991 MP 340.

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A person of unsound mind or a lunatic can be a transferee of interest in immovable property,

because his incompetency may prevent him from executing an agreement but would not prevent

a transfer by others in his favor as he is but a passive party27.

It is true, that any contract made with a person of unsound mind is void, but if it is for

necessaries suited to the condition of life, the contract is voidable and his estate is

liable28.Nonetheless, a de facto guardian of a person of unsound mind has no power to alienate

the property of such incapacitated person even in case of necessity29.

27
Ganga Singh v. Sanlosh Kumar, AIR 1963 All. 194
28
Tarakeswar Upadhya v. Mahesh Kahar, AIR 1981 Pat.348
29
Narayan Venkatrao v. Ramachandra, AIR 1957 Bom. 146

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 Conclusion
“Secti0n 68 appears t0 be an excepti0n t0 the general principle 0f law which relates t0 the

incapable pers0ns entering int0 a c0ntract. Secti0n 68 is a rule f0r the benefit t0 free himself

fr0m impr0vident c0ntracts. An infant can enf0rce a c0ntract against an adult, but he can escape

by pleading infancy. He is h0wever liable in quasi-c0ntracts f0r enrichment 0f necessaries

supplied t0 him. Thus, the liability f0r necessaries supplied t0 a min0r is n0t pers0nal in India as

it 0btains under English law. Under Secti0n 68, the liability is n0t attributed t0 an incapable

pers0n f0r his 0wn rather it is extended t0 his estate 0nly and is limited within his estate /

pr0perty.

The judicial interpretati0n t0 the w0rd ‘necessaries’ has widen the sc0pe. and its applicati0n,

which means supply 0f things f0r infant’s subsistence suitable t0 his stati0n in life, but it d0es

n0t extend t0 things with which the infant is well p0ssessed.

Principle 0f equity is n0rmally applicable t0 b0th the parties in a c0ntract. Acc0rdingly, when a

min0r enters int0 a c0ntract th0ugh the c0ntract is v0id, his estate is liable as he receives a

pecuniary benefit 0ut 0f such c0ntract. Secti0n 68 rec0gnizes a pr0prietary liability, th0ugh n0t a

pers0nal liability, t0 the party wh0 supplies necessary f0r all the necessaries supplied. Thr0ugh

judicial pr0n0uncements, it is settled that a c0ntract which is declared v0id due t0 incapacity 0f a

pers0n, any benefit received is required t0 be rest0red. In 0ther w0rds, an 0bligati0n t0 rest0re an

unjust benefit sh0uld n0t be c0nfined t0 the pr0perty; rather, it sh0uld als0 be extended t0

m0netary c0nsiderati0n 0btained under a c0ntract say f0r example, m0ney received by a min0r

thr0ugh a pr0miss0ry n0te, 0r thr0ugh any such instrument fr0m a private party, 0r a m0ney

lender 0r the G0vernment.

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The w0rd ‘necessaries’ includes m0ney urgently needed f0r the requirements and is n0t

restricted f0r elementary requirements such as f00d and cl0thing. Payments 0r charges c0nnected

with legal matters in which min0rs are c0ncerned may c0me under ‘necessaries’. Judicial

pr0n0uncements have interpreted the w0rd ‘necessaries’ quite largely and have widened the

sc0pe 0f its applicati0n where d0ing justice t0 b0th the min0r as well as the genuine suppliers 0f

necessaries”.

BIBLIOGRAPHY

1) Avtar Singh, Principles Conract and Specific Relief.

2) Pollock & Mulla, The Indian Contract Act, 1872

3) R C Srivastava, The Principles of Law of Contract

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