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TEAM CODE-2A

BALLB (Ist SEMESTER)

2019-

BEFORE THE DISTRICT COURT OF DELHI

AT DELHI

{UNDER SECTION 9 OF CODE OF CIVIL

PROCEDURE, 1908}

SUIT NO. ___/

IN THE MATTER OF

MR.SREENIVAS (PLAINTIFF)

V.

ARPITA (DEFENDENT)

IN THE MEMORIAL OF THE PLAINTIF

LIST OF ABBREVIATION

Abbreviations Full Form & And ₹ Rupees Rupees ¶ Paragraph AIR All India Reporter All Allahabad Anr Another Bom Bombay Cal Calcutta CJ Chief Justice Exch Exchequer Reports (England) Hon’ble Honourable i.e. That is ILR Indian Law Reporter J Justice KB King’s Bench Kant Karnataka Ker Kerala LR Law reporter

Abbreviations Full Form Lah Lahore MP Madhya Pradesh Mad Madras Mr. Mister Ms. Miss Nag Nagpur No. Number Ors Others PC Privy Council Pg Page QB Queen’s Bench QBD Queen’s Bench Division SCC Supreme Court Cases Sr. Serial v. Versus Viz. Namely Vol Volume

TABLE OF CONTENT

LIST OF SOURCES

S.NO. SOURCES

1. INDIAN CONTRACT ACT,

2. INDIAN MAJORITY ACT,

3. SPECIFIC RELIEF ACT,

4. CIVIL PROCEDURE CODE,

WEBSITES:

S.NO. WEBSITE NAMES

1. indiankanoon.org

2. www.legalcrystal.com

3. www.researchgate.net

4. legislative.gov.in

BOOK REFERENCES:

S.NO. BOOK NAMES

1. Pollock & Mulla; “The Indian Contract and Specific Relief Acts,

Vol I 14th^ Edition, 2013

2. Mulla; the Indian contract act ;

th (^) edition by sir Dinshaw Fardunji Mulla

3. Indian Contract Act by R.K. BANGIA;

th (^) edition; reprint 2017

4. Law of contract-1 by Dr. Jyoti Ratan; 1

st (^) edition, 2015 CASE LAWS

S.NO. CASE CITATION PG NO.

1. Lakhwinder singh v.

Paramjit kaur AIR 2004 P H 6, (2003)

2. kartar singh v. Harbans

singh

(1997) 4 S.C.C 730 12

3. Vaikuntarama pillai v.

Authimoolam chettiar I.L.R (1915) 38 mad.

4. Monohar Koyal v.^ ILR (1887-88) 15^13

Thakur das naskar Cal 319

5. Narendra kumar malik v.

Surendra kumar malik

2009 (12) SCR 479 13

6. Morris v. Baron & Co.^ 1918 A.I.R ACC^14

7. Robinson V. Davison^ 1954 AIR 44, 1954

SCR 310

8. Satyabrata Ghose v.

Mugnieeram Bangur & Co. 1954 AIR 44, 1954 SCR 310

9. Khan Gul^ v. Lakha Singh^ ILR (1928) 9 Lah

701, 715-

10. Nivarti Govind Ingale and

Ors v. Revanagouda Bhimanagouda Patil AIR 1975 Mad 374, (1975)

11. Abdul Majid Said and

Ors v. Ramiza Bivi Sahiba and Ors AIR2005Bom98; (^21)

12. Mt. Hamidan Bibi v.

Nanhe Mal and Anr

AIR 1933 All 371 22

13. Varghese v. Iype

Kuriakose and Ors AIR 1973 Ker 267 (^22)

14. Pearce v. Brain^ (1929) 2 KB 310^22

15. Amalgamated Investment

& Property Co ltd v John walker & sons Ltd

1976 A.I.R 23

16. Kuwarlal v. Surajmal^ AIR 1963 MP 58^24

17. Jagon Ram Marwari^ v.

Mahadeo Prasad Sahu

(1909) ILR 36 CAL 768 26

18. Chapple^ v. Copper^ (1844) 13 M&W 252^26

19. Anagha Prassad^ v. M.C

Abu

ILR 2014(4)Kerala175 27

20. Meenakshi sendaram v 1999 (3) CTC 309,^27

Rang ayyangar STATEMENT OF JURISDICTION The Counsel on the behalf of the Plaintiff most humbly and respectfully submits to the jurisdiction of the District Court of Delhi under Section 9^1 of the Civil Procedure Code, 1908. (^1) Sec 9 of Civil Procedure Code, 1908: Courts to try all civil suits unless barred – The Courts shall (subject to the provisions herein contained) have jurisdiction to try all Suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

STATEMENT OF FACTS

1. Arpita, a renowned film star of sixteen years, wanted a small party house and a swimming pool constructed in her back garden. By misrepresenting that she is a major, she put the task out to tender and accepted the offer of Mr. Sreenivas, a building contractor, who agreed to do the work for Rs.5,00,000/-. 2. Both Arpita and Sreenivas knew that this was an unrealistically low price contract and the amount will be paid in instalments in order of the completion of different phases of the assigned work. Sreenivas, having completed the small party house began construction of the swimming pool and ran out of money and materials for further construction. 3. Sreenivas told Arpita that he could not complete the construction unless further capital was made available to him... Arpita had arranged a poolside party to which she had invited top film directors from whom she hoped to win new leading roles and was desperate to have the pool completed as stipulated. She requested for the continuance of the construction work and further requested Mr. Sreenivas to spend the remaining amount of Rs. 3, 00,000/- on the work out of his own pocket and the money would be paid to him when she secures her next contract. 4. The pool was completed; the party was a success and Arpita was awarded the starring role in the new movie named “Tu Kaun Mein Khaamakhaan”. Arpita tells Mr. Sreenivas, “Darling, you have saved my career. Don’t worry about Rs. 3, 00,000/-.” Mr. Sreenivas started a new project; whereas Arpita’s new film was a complete flop. She then found herself unable to pay the amount of Rs.3, 00,000/- to Mr. Sreenivas.

5. Mr. Sreenivas compelled Arpita, a leading film actor, to render dance performance in his party which he organized to invite rich people, relatives and friends in order to secure contracts regarding building construction, etc. and in return he agreed to release Arpita from paying the debts of Rs.3,00,000/-. Arpita agreed on this point and was ready for the dance performance in the party. But before the party, she suffered from a sprain due to over repetition of rehearsals. Then she did not perform in Mr. Sreenivas’s party on the advice of the doctor. 6. On Arpita’s eighteenth birthday, both the parties, on the humanity ground, decided to alter the contract. Arpita acknowledged the debt taken from Mr. Sreenivas for rendering the past services and further both agreed on the same point that Arpita would pay the debt through easy monthly instalments (EMIs) of Rs.10,000/- per month till the repayment of the amount of Rs.3,00,000/-. 7. Arpita, later on, felt that some of the work done by Mr. Sreenivas was not performed as she had specified. She further pointed out that the material used for constructing the small party house and a swimming pool was not of the right kind. She estimated that this would cost her Rs.3, 50,000/- only. 8. Arpita then decided to dispose-off her property at the price of Rs.9, 00,000/- without giving a single penny to Sreenivas. When all this foul play came to the knowledge of Sreenivas, he tried to restrain Arpita by putting enormous pressure in order to recover his money amounting to Rs.3, 00,000/- which he spent on the construction of small party house and a swimming pool for Arpita.

9. Sreenivas could not recover the debt from Arpita even after a reasonably long time. He gave a notice to Arpita regarding payment of money within 15 days but no reply was given by her on this matter. 10. In this context, Sreenivas finally decided to go to the court for seeking remedy in this regard. The suit was then filed by Sreenivas on the ground that he had constructed the small party house and a swimming pool as per the terms of the contract and has taken all the diligent steps to recover the loan made available to Arpita for Rs. 3, 00,000/- but now she has refused to pay the said amount and hence the present suit.

STATEMENT OF ISSUES

ISSUE 1: WHETHER THERE WAS A VAILD CONTRACT BETWEEN THE

PLAINTIFF AND THE DEFENDANT?

ISSUE 2: WHETHER OR NOT THE BENEFITS ARE BOUND TO BE

RESTORED BY THE DEFEDANT TO THE PLAINTIFF?

ISSUE 3: WHETHER A VALID CONTRACT TOOK PLACE BETWEEN THE

PLAINTIFF AND THE DEFENDANT OUT OF NECESSITY?

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THERE WAS A VAILD CONTRACT BETWEEN THE

PLAINTIFF AND THE DEFENDANT?

It is humbly submitted before this Court that there exists a valid contract between the Plaintiff and the Defendant which arose due to alteration of contract after she became a major. ISSUE 2: WHETHER OR NOT THE BENEFITS ARE BOUND TO BE RESTORED BY THE DEFEDANT TO THE PLAINTIFF? It is humbly submitted before this court that the Defendant is liable to restore the benefits gained by him from the agreement under-

1. Section 33(2) (b) of the Specific Relief Act, 1963; and
2. Section 65 of the Indian Contract Act, 1872
3. Recommadation of law commission of India.
4. Section 29 and 39 of Specific Relief Act,1963. ISSUE 3: WHETHER A VALID CONTRACT TOOK PLACE BETWEEN THE PLAINTIFF AND THE DEFENDANT OUT OF NECESSITY? It is humbly submitted before this Court that there is a contract between the Plaintiff and the Defendant, as it was a contract of necessity and a minor is entitled to the contract for the necessaries supplied to him under Section 68 of the Indian Contract Act, 1872.
5. Restoration of benefits according to Section 65 of Indian Contract Act,
6. Construction done was a necessity to the defendant.
7. Recommadation of law commission of India

4.Section 68 of Indian contract act,1872. ARGUMENTS ADVANCED ISSUE 1: WHETHER THERE WAS A VAILD CONTRACT BETWEEN THE PLAINTIFF AND THE DEFENDANT? 1.1. The first contract which took place between the plaintiff and defendant is a void agreement 2 According to our study, we have come to the conclusion that the first agreement which took place between the plaintiff and defendant was a void agreement. In Lakhwinder singh v. Paramjit kaur^3 the plaintiff-respondent, the daughter of one avtar singh, now deceased, inherited a part of his property constituting land. When minor, she executed general power of attorney in favour of her mother Smt.Rattan Kaur, who executed a sale deed of land belonging to her daughter in favour of defendant-appellant. In Kartar singh v. Harbans singh^4 held that the contention that the transferee was bonafide purchaser would not be available since he did not make all reasonable and diligent enquired regarding the capacity of the transferor and the necessity to alienate the estate of the minor (^2) Section 2(g) of Indian contract act, (^3) AIR 2004 P H 6, (2003) (^4) (1997) 4 S.C.C 730

In Vaikuntarama pillai v. Authimoolam chettiar^5 , the Madras high court has held that there is a statutory provision that the minor being incompetent to contract is incapable of incurring any liability for any debt. The law of estoppels cannot overrule his provision to make him liable. 1.2. According to Section 62, novation, rescission, and alteration of contract leads to cancellation of the initial contract According to this section- “ Effect of novation, rescission, and alteration of contract. —if the parties to a contract agree to substitute a new contract for it’s or to rescind or alter it, the original contract need not be performed” A minor's agreement is a contract entered with an individual of minority age. This means that the contract is void ab initio (from the beginning). ... A minor cannot bind his or her parents to a contract with a third party unless the minor is acting as an agent in which case the parents become liable for the contract. She being a minor, the contract is void ab initio so when the alteration of contract took place after her becoming a major, consideration flew from both the parties it became a valid contract Case law:- In Monohar Koyal v. Thakur Das Naskar^6 , the plaintiff sued to recover the sum of rupees 1173 due on a bond. After the due date of the bond, the plaintiff agreed to accept Rs 400 in cash and a new bond of Rs 700 payable by instalments subsequently the defendant neither gave neither Rs400 nor the bond. The plaintiff thereupon sued him on the original bond. The Calcutta High court held the original contract was entitled to sue for the breach of the original contract. (^5) I.L.R (1915) 38 mad. (^6) ILR (1887-88) 15 Cal 319

In Narendra kumar malik v. Surendra kumar malik^7 , Mr. Ranjit Kumar, learned Senior Advocate contended that in view of the MOU signed by the parties the original contract stood substituted by the MOU and it is a fit case where Section 62 of the Indian Contract Act can be invoked. We have already said that there was no concluded settlement or novation. Even otherwise, there has been non-compliance with the terms and conditions of the MOU by the respondents and a party in breach can hardly seek to enforce a contract. Therefore, the MOU does not amount to novation of contract as envisaged under Section 62 of the Indian Contract Act. The contention of Mr. Ranjit Kumar is, therefore, legally untenable." In Morris v. Baron & Co. 8 , Morris entered into written contract (A) with Baron to supply him with certain no. of pieces of cloth. The dispute arose between the parties as Morris demanded payment of supplied pieces of cloth while Baron claimed damages for breach of contract out of delay in supplying rest of the pieces. Parties thereafter, by parole, made an arrangement (B) by which they both decided to withdraw legal proceedings, and Morris agreed to give 30 pounds as damages to Baron for not supplying in time. Further, three months were given to Baron to pay Morris due amount, and also an option to demand delivery of the remaining goods, if he pleases. The suit was filed by Morris when Baron consistently refused to pay the due amount while insisting on the delivery of the remaining goods. Issue was whether parties rescinded contract A and substituted wholly new contract B for it? It was held by Lord Dunedin that “whether there has been rescission or mere variation of terms must depend upon the intention of the parties and the nature of the new contract itself. while in case of novation /substitution, parties could sue on the second contract alone and the first contract is (^7) 2009 (12) SCR 479 (^8) 1918 A.I.R ACC

extinguished either by express words or because second dealing with the same subject matter or having the same legal effect as the first but in a materially different way. An attempted novation which fails to produce a new enforceable contract may also put an end to the original contract, if it was the intention of the parties to rescind it in any event .” In present case, both the parties mutually intended and agreed not merely to vary the original contract but to set it aside and substitute another for it. 1.3 According to section 56, impossibility to performance of the contract by the defendant led to the discharge duty on her part Where one person has promised to do something which he knew, or with reasonable diligence, might have known, and which the promise did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promise sustain through non performance of the contract. If performance is impossible, the duty is discharged. The categories here are death or incapacity of a personal services contractor, destruction of a thing necessary for performance, and performance prohibited by government order. Discharge of contract by impossibility^9 of performance usually occurs when the contractual duty cannot be performed because of death, illness, or a reason caused by the other party. Objective impossibility is when no one can provide the service due to frustration of its purpose, destruction of subject matter, or supervening impossibility. Subjective impossibility occurs when the promisor is unable to perform the service due to death or illness 10

. The promise is entitled for compensation, if the promisor knows about the (^9) Section 56 is based on the maxim “les non cogit ad impossibilia” which means law does not compel a man to do what he cannot possibly perform (^10) Section 56 (para 2)” A contract to do an act which after the contract is made, becomes impossible or, by reason of some event which the promisor could not prevent , unlawful , becomes void when the act becomes impossible or unlawful”

impossibility of the performance at the time of entering into the contract, (Sec. 56, para 3).The parties receving any benefit shall have to restore back or to make compensation to the other party in case the contract is declared void. In Robinson V. Davison 11 , the defendant`s wife, who was an eminent piano player, promised to play piano at a concert on a particular day. She was unable to give the performance due to illness.ir was held that the performance of the contract depended on the continued good health of the defendant wife and the contract was discharged due to her illness. The defendant could not be made liable to pay compensation for the non performance of the contract. In Supreme Court judgement on the case of Satyabrata Ghose v. Mugnieeram Bangur & Co^12. Observed “This much is clear that the word “ Impossible” has not been used here in the sense of physical or literal impossibility. the performance of act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the parties had in view; and if an untoward event or change of circumstance totally upsets the very foundation upon which the party is rested their bargain,it can be very well said that the promisor finds it impossible to do the act which he promises to do.” ISSUE 2: WHETHER OR NOT THE BENEFITS ARE BOUND TO BE RESTORED BY THE DEFEDANT TO THE PLAINTIFF? It is humbly and respectfully submitted before the Court that the defendant is bound to restore the benefits to the plaintiff in the matter. Section 11 13 of the (^11) ( 1871) L.R. Ex. 269 (^12) 1954 AIR 44, 1954 SCR 310 (^13) Who are competent to contract.—Every person is competent to contract who is of the age of majority according to the law to which he is subject,1 and who is of sound mind and is not disqualified from contracting by any law to which he is subject.

Indian Contract Act, 1872 states that a person who has not attained the age of majority^14 is incompetent to contract and an agreement so formed is void ab initio. In the suit filed the defendant was of the age sixteen (16) years at the time of contract and so was a minor and thus making the agreement void. In a transaction between a major and a minor, where the minor seeks unfairly to retain the benefit under the transaction while setting up its invalidity (and particularly in the case of a minor fraudulently misrepresenting his age) the English courts have not allowed the minor to retain the unfair advantage under rule of equity 2.1. RECOMMENDATION OF THE LAW COMMISSION OF INDIA In the thirteenth report of Law Commission of India 15 the question was raised as to how far in the case of a minor’s agreement procured by the concealment of his age, the Court will relieve the other party to the agreement from the effects of the fraud. The landmark case of Khan Gul v****. Lakha Singh^16 was examined for this matter and two questions in the case were referred to for decision: Sir SHADI LAL CJ giving the majority judgment held in this case- “Where an infant has induced a person to contract with him by means of a false representation that he was of full age, he is not estopped from pleading his infancy in voidance of the contract and that Section 115 of the Evidence Act, 1872 should be read subject to Section 11of the Contract Act, 1872. A false representation by an infant that he was of full age, give rise to an equitable liability. The court while relieving him from the consequences of the contract, May in the exercise of its equitable jurisdiction, restore the parties to the position which they occupied before the date of the contract; and (^14) Section 3 of Indian majority act, (^15) The Law commission of India, Thirteenth Report, ¶ 35- (^16) ILR (1928) 9 Lah 701, 715-

The doctrine of restitution which finds expression in Section 41 of the Specific Relief Act, 1963 is not confined to the cases covered by that section and rests upon the principle that an infant cannot be allowed to take advantage of his own fraud. This doctrine is applicable whether the minor is the plaintiff or the defendant.” In arriving at the above conclusions, the learned Chief Justice emphasized that the Court in granting the above relief does so, not because there is a contract which should be enforced but because the transaction. This is not the performance of the contract but the negation of it. The Report thus expressed its opinion that- “Pollock and Mulla have expressed the view that the judgment of Shadi Lal CJ, in the Lahore case is correct and we share this view. Indeed, we have already expressed our preference in favour of the judgement of Shadi Lal CJ, in our report on the Specific Relief Act. We agree with the proposition that in ordering compensation, the Court is not giving effect to a contract but is doing its best to put the parties, so far as possible, in the position which they occupied before the void transaction took place and from which one of them was induced to depart by reason of the minor’s fraud. This view appears to be more in consonance with the principles of equity and justice. It appears to us incongruous that while sections 38 and 41 of the Specific Relief Act apply to cases of minors, the principles underlying those sections should not be applicable to cases under the Contract Act. We feel that the Judicial Committee had not correctly interpreted section 65 and we are of the opinion that an agreement is ‘void’ or ‘is discovered to be void’ even though the invalidity arises by reason of the incompetency of a party to a contract. We recommend that an Explanation be added to section 65 to indicate that the section should be applicable where a minor enters into an agreement on the false representation that he is a major.”

The Law commission of India thus observed that restoration of status quo ante would not amount to the enforcement of the void contract against the defendant. This recommendation was followed by the legislature and the new Specific Relief Act of 1963 replaced the previous one

1. Whether a minor who, falsely representing himself to be a major, has induced a person to enter into a contract, is estopped from pleading his minority to avoid the contract?
2. Whether a party who, when a minor has entered into a contract by means of a false representation as to his age, whether he is defendant or plaintiff, in a subsequent litigation, refuses to perform the contract and at the same time retain the benefit he may have derived there from? 2.2 SECTION 29 AND 30 OF SPECIFIC RELEIF ACT Section 29- Alternative prayer for rescission in suit for specific performance —A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly. Section 30- Court may require parties rescinding to do equity .—On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to restore, so far as may be, any benefit which he may have received from the other party and to make any compensation to him which justice may require. Case laws Khivraj Chordia and ors. Vs. Esso Standard Eastern Inc. 17 condition is an uncertain one within the meaning of section 29 of the indian contract act and as all (^17) AIR 1975 Mad 374, (1975)

contracts, which are uncertain or whose terms cannot be made certain, are void in the eye of law, the decree for specific performance asked for by esso ought not to be granted and the relief for eviction prayed by khivraj ought to have been given..... Intention of the parties by adopting the instrument and thus doing substantial justice between the parties. countering the above contentions, mr. Dulip singh stresses on the language of section 29 of the act and on the strength of decided cases, urges that the clause under consideration is one, which could be worked to certainty and thus made certain and even if the ..... be agreed upon' rendered the document vague and that the claim was unenforceable because of section 29 of the contract act. that was a case where the agreement did not provide for the working method by which the deductions could be agreed upon. Nilkanth Dhondiba Chavan (D) by L.Rs. V. Sou. Umabai and anr. 18 the question then that has to be considered is whether the plaintiffs are disentitled to relief of specific performance on account of what is set out in section 29 of the specific relief act. Section 29 sets out that in a case where plaintiff has sought specific performance of a contract in writing the plaintiff can pray in the alternative that if the contract cannot..... Be specifically enforced, it may be rescinded and delivered up to be cancelled. This therefore, is a right conferred..... by statute on the plaintiff in a suit for specific performance ..... Must show that each of such pleas is maintainable and that in so far as 2.3. THAT THE DEFENDANT IS LIABLE TO RESTORE THE BENEFITS UNDER SECTION 33 OF THE SPECIFIC RELIEF ACT, of the Specific Relief Act, 1963 gives the court power ‘to make any compensation which justice may require’ to the party to whom the relief is granted in the cases where cancellation of a void or voidable written instrument is ordered. The section embodies the principle that he who seeks equity must do equity. This provision is (^18) AIR2005Bom98;

applicable to cases where a transaction is held to be void, and compensation is to be made for the benefit derived under that transaction. Sub-section 2(b) of the aforesaid section applies where the defendant successfully resists any suit on the ground that the instrument is void because he was incompetent to contract at the time the contract was made, in which case he may be ordered to restore to the other party, as far as may be, any benefit received under the agreement, to the extent he or his estate has benefitted thereby. The interpretation of the above clause as given in Contract and Specific Relief by Dr. Avtar Singh is as follows: “Sub-section (2)(b), provides that, if a minor is brought before the court as a defendant, he can be compelled to account for such portion of money or anything else received by him as has gone to benefit him personally, such as education or training, or has resulted in an accretion to his estate.” In the case of Nivarti Govind Ingale and Ors v. Revanagouda Bhimanagouda Patil^19 , Radhabai, mother of the appellants was the owner of 4 acres 38 gunthas of land in Pascayapur Village of Karnataka. According to her, she, with a view to dig a well in the same land, had obtained a loan in the year 1961 from the father of the respondent, a sum of ₹ Rupees1,000. Since she was not in a position to complete the digging of the well, she approached again for a sum of ₹ Rupees2,000 to complete the well. The respondent’s father who was a constable had advanced the money on the condition that she would execute the sale deed in favour of his minor son i.e., the respondent. Accordingly, she executed the sale deed with an agreement of re- conveyance which was executed on August 31, 1961. She stated that she has paid from time to time a sum of ₹ Rupees7,000 and had asked the respondent to execute the re- conveyance but the respondent did not execute the deed of re-conveyance; consequently, she filed the suit for specific performance. (^19) AIR 1931 MAD 468

The High Court found that since the agreement of re-conveyance was not for the benefit of the minor, the decree for specific performance cannot be granted. The petitioner then filed a special leave petition in the Supreme Court. The Apex Court held that: “…we find no force in the contention. The appellants have been seeking the remedy in the civil suit; therefore, the subsequent purchaser is bound by this decree of specific performance and liable to re-convey the property to the appellants. The decree of the trial Judge is accordingly restored and that of the High Court and the Additional Civil Judge stand set aside. The remedy of recovery of the purchased money from the respondent may be sought in an appropriate action.” In the case of Abdul Majid Said and Ors v. Ramiza Bivi Sahiba and Ors 20 , it was held that: “ Where the minor’s estate is benefitted by the purchase money and if that deed was cancelled that the minor is liable to restore the benefits.” In the case of Mt. Hamidan Bibi v. Nanhe Mal and Anr 21 , Justice SEN, while cancelling the landdeed in the favour of the plaintiff, observed that the plaintiff “ should make good the benefit which she had received ”, and ordered the plaintiff to restore the benefits he had obtained from the agreement. In the case of Varghese v. Iype Kuriakose and Ors^22 , the plaintiff filed a suit to cancel a sale deed signed by him during the minority, the lower court cancelled the suit and issue no restoration but the High Court overruled the Lower Court’s judgment and held that the plaintiff is entitled to get the possession of the property but have to restore the benefits he received from the defendants. (^20) AIR 1931 MAD 468 (^21) AIR 1933 All 371 (^22) AIR 1973 Ker 267

In the case of Pearce v. Brain^23 , the plaintiff, a minor, who was trading goods for others, was not permitted by the court of law to recover the goods back while retaining the benefit obtained by trading them. Similarly, in the present matter, the defendant takes a loan from the plaintiff and asks him to continue the construction of the swimming pool which the plaintiff does and completes the pool, where the defendant successfully hosts a party. But at the time of returning the money she does not fulfil her promise. Now the defendant has enjoyed the benefit while the plaintiff suffered a loss. So under the aforesaid section of the Specific Relief Act, 1963, the plaintiff is entitled tore cover the benefits procured by the defendant due to the agreement. ISSUE 3: WHETHER A VALID CONTRACT TOOK PLACE BETWEEN THE PLAINTIFF AND THE DEFENDANT OUT OF NECESSITY? In the current matter, the construction of swimming pool and party house was a necessity for the defendant. If a person is incapable of entering into a contract is supplied by another person with necessities of life, the person who has supplied is entitled to get reimbursement from the property of such incompetent person, including a minor as well.^24 3.1. The construction done of the swimming pool and the party house was a necessity for the defendant. Any person shall be entitled to reimbursement out of the minor’s estate for necessaries supplied towards him or his family. Necessities also consist of goods (^23) (1929) 2 KB 310 (^24) Section 68 of Indian Contract Act

and services. If a minor had acquired payment falsely by concealment of age, then he might be compelled to restore the payment. In the current matter, the construction of swimming pool and party house was a necessity for the defendant. In Jagon Ram Marwari v. Mahadeo Prasad Sahu 25 , Justice MOOKERJEE and Justice CARNDUFF stated that : “The term necessaries include everything necessary to maintain an incompetent person in the state, station, or degree of life in which he is, and what is necessary is a relative fact to determine with reference to the fortune and circumstances of a particular infant. There is no definition of the term "necessaries" in the Indian Contract Act, 1872.” In Chapple v. Copper 26 , a very illustrative statement of the meaning of the term “necessaries” was laid by ALDERSON B: “Things necessary are those without which an individual cannot reasonably exist. In the first place, food, raiment, lodging and the like about these there is no doubt. Again, as the proper cultivation of mind is as expedient as the support of the body, instruction in art or trade, or intellectual, moral and religious education may be necessary also…. ….Then the classes being established, the subject and the extent of the contract may vary according to the state and condition of the infant himself. His clothes may be fine or coarse according to his rank; his education may vary according to the station he is to fill; and the medicines will depend on the illness with which he is afflicted, and the extent of his probable means when of full age ….But in all these cases it must first be made out that the class itself is one in which the things furnished are essential to the existence and of reasonable advantage and comfort of the infant contractor. Thus articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed. ” (^25) (1909) ILR 36 CAL 768 (^26) (1844) 13 M&W 252

The term necessaries are also not confined to goods. It includes other things such as good teachings and instruction, and the money enabling an incompetent person to procure these 27 . 3.2. Recommendation of law commission of India : In the thirteenth report of Law Commission of India 28 , the commission was suggested to provide a statutory definition the term “necessaries”. The commission gave its opinion that- “The Director of Legal Studies, Madras, has suggested that the word ‘necessaries’ should be defined. But the word has been judicially interpreted on a number of occasions and it is not necessary to give a statuary definition thereof. The word ‘necessaries’ has been held to include money urgently needed for the requirements of minors and lunatics and is not restricted to what is necessary faor elementary requirements, such as, food and clothing. It is now well established that payments or charges connected with legal matters in which minors are concerned would, under certain circumstances, come under the head of ‘necessaries’. We think this term should remain elastic and we are unable to accept the suggestion.” Thus, there is no precise definition of the term necessity provided in the Indian Contract Act, and can be interpreted for the betterment of the parties in the light of equity and justice. 3.3. According to the section 68 of Indian contract act the defendant is liable to reimburse the plaintiff. According to section 68, Claim for necessaries supplied to person incapable of contracting, or on his account- (^27) Pollock and Mulla , Vol.II, Pg no.1047, ¶ 2, Sadasheo Balaji v. Firm Hiralal Ramgopal , AIR 1938 NAG 65 (^28) he Law commission of India, Thirteenth Report, ¶ 89