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Before

The Hon’ble trial Court

Application No. _____/2017

Mohori Bibee (on behalf of late Brahmo Dutt) …………Applicant

v.

Dharmodas Ghose.........................................................…………Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANT

Most Respectfully Submitted to the Hon’ble Trial Court of india

Memorial on Behalf of the Respondent


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Table of Index

1. Statement of Jurisdiction…………………………………………………………................3

2. List of Abbreviations………………………………………………………………………..4

3. List of Authorities Cited…………………………………………………………………….5

4. Table of Cases………………………………………………………………………………6

5. Statement of Facts………………………………………………………………………….7

6. Statement of Issues…………………………………………………………………………8

7. Summary of Arguments…………………………………………………………………….9

8. Detailed Arguments…………………………………………………………………...10-13

9. Prayer……………………………………………………………………………………...13

Memorial on Behalf of the Respondent


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Statement of Jurisdiction

The Respondents came to the door of the Hon’ble Court under contract u/s 11 of the contract
act. Hence any contract with a minor is void ab initio.

All the requirements u/s 11 of the Indian Contract Act,1872 has to be fulfilled in order to
constitute a valid contract.

Memorial on Behalf of the Respondent


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List of Abbreviations

1. $ Section

2. C.P.C. The Code of Civil Procedure 1908

3.& And

4. i.e. That is

5. O. Order

6. r. Rule

7. S.C. Supreme Court

8. H.c. High Court

9. Rs. Rupees

10. V. Versus

11. Ltd. Limited

12. KB Kings Bench

13. AIR All India Reporter

14. DLT Delhi Law Times

14. Hon’ble Honourable

15.Hon. J. Honourable Justice

16. ALLER All England Reporter

17. PunLR Punjab Law Reporter

18. Co. Company

19. RLR Rajasthan Law Reporter

Memorial on Behalf of the Respondent


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List of Authorities:

Primary Sources:

1. Indian majority Act

2. Law of Contract

Secondary Sources:

1. Tannan, M.L., Tannan’s Banking, Law and Practices in India, 23rd edition, Lexix Nexis

2. Takwani, C.K., Civil Procedure with Limitation Act,7thedition, Eastern Book Comapny

Online Sources:

1. www.indiankannon.com

2. www.mondaq.com

3. www.shareyourarticles.com

4. www.legalservicesindia.com

5. www.manupatra.com

6. www.singhassociatesblogspot.com

7. www.livelaw.com

8. www.legaleagles.com

9. www.lawfinderlive.com

10. www.wordpress.com

DICTIONARIES REFERRED :

1. Aiyar, P RamanathaIyer, The Law Lexicon, (2ndEd.,2006)

2. Garner, Black’s Law Dictionary, (9thEd.,Thomas & West, U.S.A 1990).

Memorial on Behalf of the Respondent


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Table of Cases

Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuery (1911-12)39 IA 1

Sirkakulam Subramanyam v. Kurra Subba Ra (1947-48) 75 IA 115.

Sirkakulam Subramanyam v. Kurra Subba Ra (1947-48) 75 IA 115.

Memorial on Behalf of the Respondent


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Statement of Facts

1. That the Applicant Mohori Bibee (on behalf of late Brahmo Dutt) and Dharmodas Ghose
were, appellant and respondent, respectively.

2. That, there was a minor called Dharmodas Ghose(herein referred as Respondent), whose
mother was appointed his guardian by the Calcutta High Court. The respondent executed a
mortgage deed of Rs. 20,000 with interest at 12% p.a., in favour of Brahmo Dutt on 20 th July
1895 when he was minor.
3. That, Brahmo Dutt carried on a business of money lending, but it was managed by an
appointed manager, named, Kedar Nath and at the time of execution of the above-mentioned
mortgage deed, Kedar Nath was Brahmo Dutt’s attorney.
4. That Before the execution of the mortgage deed, the mother-cum-guardian of the
respondent gave a notice in writing to Brahmo Dutt through his counsel Kedar Nath who was
acting in the matter of Brahmo Dutt, which was dispatched by her attorney Mr. Bhupendra
Nath Bose, explicitly informing Brahmo Dutt about the status of minority of the respondent
while executing the mortgage deed in his favour.
5. On the same, Kedar Nath took the infants declaration and took his signature on the same,
providing a reasonable explanation showing his majority. The argument that was put forward
to nullify the effect of minority was that, the respondent heard from his mother and various
relatives that he was born on 4 th day of Asarh savant 1281, B.S., corresponding to the date as
per the Gregorian calendar as 17th June 1874, which shows that he was 21 years, 1month, 3
days old on the date of the execution of the mortgage.
6. That While executing the deed, Brahmo Dutt transferred a sum of Rs. 8,000 in favour of
the respondent.
7. That On 10th September 1895, the respondent through his mother-cum-guardian instituted a
suit against Brahmo Dutt for cancellation of the mortgage deed that was executed between
them..
As the case continued for years, during the pendency of the same, Brahmo Dutt died, and on
his behalf Mohori Bibee contested the case for further proceedings.

Memorial on Behalf of the Respondent


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Statement of issue

-I

Whether contract by a minor is void?


--II-

If it is void, whether the respondent is bound to refund the money that


was advanced to him by the appellant in lieu of the mortgage deed?

Memorial on Behalf of the Respondent


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Summary of Arguments

1. Whether contract by a minor is void?


That the respondent humbly submit that the contract made by the respondent is the void. the
plaintiff had fraudulently misrepresented his age and therefore no relief should be given to
him, and that, if mortgage is cancelled as requested by the plaintiff, the plaintiff should be
asked to repay the sum of Rs. 10,500 advanced to him.

2. If it is void, whether the respondent is bound to refund the money that

was advanced to him by the appellant in lieu of the mortgage deed?


.The respondent humbly submit that Dharmodas Ghose and his mother raised the arguments
on their behalf, that as per section 10 and 11 of the Indian Contract Act 1872, a minor is not
entitled to be a party in a contract.

Memorial on Behalf of the Respondent


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Arguments in Details

1. Whether contract by a minor is void?


That the respondent humbly submit that the contract made by the respondent is the void.
Dharmodas Ghose and his mother raised the arguments on their behalf, that as per section 10
and 11 of the Indian Contract Act 1872, a minor is not entitled to be a party in a contract.

The Defendant, amongst other points, contended that the plaintiff had fraudulently
misrepresented his age and therefore no relief should be given to him, and that, if mortgage is
cancelled as requested by the plaintiff, the plaintiff should be asked to repay the sum of Rs.
10,500 advanced to him. According to the fact Before the execution of the mortgage deed, the
mother-cum-guardian of the respondent gave a notice in writing to Brahmo Dutt through his
counsel Kedar Nath who was acting in the matter of Brahmo Dutt, which was dispatched by
her attorney Mr. Bhupendra Nath Bose, explicitly informing Brahmo Dutt about the status of
minority of the respondent while executing the mortgage deed in his favour. On the same,
Kedar Nath took the infants declaration and took his signature on the same, providing a
reasonable explanation showing his majority. The argument that was put forward to nullify
the effect of minority was that, the respondent heard from his mother and various relatives
that he was born on 4th day of Asarh savant 1281, B.S., corresponding to the date as per the
Gregorian calendar as 17th June 1874, which shows that he was 21 years, 1month, 3 days old
on the date of the execution of the mortgage.
On July 20, 1895, the respondent, Dharmodas Ghose, executed a mortgage in favour of
Brahmo Dutt, a money-lender carrying on business at Calcutta and elsewhere, to secure the
repayment of Rs. 20,000 at 12 per cent, interest on some houses belonging to the respondent.
The amount actually advanced is in dispute. At that time the respondent was an infant; and he
did not attain twenty-one until the month of September following. Throughout the transaction
Brahmo Dutt was absent from Calcutta, and the whole business was carried through for him
by his attorney, Kedar Nath Mitter, the money being found by Dedraj, the local manager of
Brahmo Dutt. While considering the proposed advance, Kedar Nath received information that
the respondent was still a minor; and on July 15, 1895, the following letter was written and
sent to him by Bhupendra Nath Bose, an attorney:

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Another decision of the Privy Council in line is Mir Sarwarjan v. Fakhruddin Mahomed
Chowdhuery1. “A contract to purchase certain immovable property had been made by a
guardian on behalf of a minor, and the minor sued the other party for a decree of specific
performance to recover possession. His action was rejected.”

The court said that it was not within the competence either of the manager of the minor’s
estate or of the guardian of the minor, to bind the minor or the minor’s estate by a contract for
the purchase of immovable property; that as the minor was not bound by the contract, there is
no mutuality; and that consequently the minor could not obtain specific performance of the
contract.

In its subsequent pronouncement in Sirkakulam Subramanyam v. Kurra Subba Ra2the Privy


Council overruled earlier decisions and entertained no doubt that it was within the powers of
the mother of a minor as guardian to enter into a contract of sale for purpose of discharging
his father’s debts. Following this decision the Orissa High Court held that endowment of
property for religious purposes by guardians on behalf of minors, being within their
competence, was specifically enforceable.3The other High Courts have also expressed the
view that the doctrine of mutuality should not have been imported into the matter where the
contract was within the competence of the guardian and that there is no scope for this
doctrine under Section 20 of the Specific Relief Act,1963.4 If the contract is within the
competence of the guardian and it is for the benefit of the minor it is especially enforceable.5

Srikakulam Subramanyam v. Kurra Subba Rao6 In order to pay off the debts of his father,
which were promissory notes owing to the appellants and a mortgage to another, a minor son
and his mother sold a piece of land to the appellants in satisfaction of the notes, requiring that
the appellants pay off the mortgage debt. The appellants, accordingly, paid off the mortgagee
and took possession. Afterwards the minor brought an action to recover back the land. It was
found as a fact that the transaction was for the benefit of the minor and the guardian had the
capacity to contract on his behalf. LORD MORTON said that section 11 and the Mohiri
Bibee case leave no doubt that a minor cannot contract that if the guardian and the mother

1 (1911-12)39 IA 1
2 (1947-48) 75 IA 115.
3 Durga Thakurani Bije Nijigarh v Chintamoni Swain, AIR 1982 Ori 158.

4 AIR 1971 SC 15
5 AIR 1956 Bom. 566.
6 (1947-48) 75 IA 115.

Memorial on Behalf of the Respondent


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had for the benefit of the minor and within the power of the guardian was held to be binding
upon him.

2. If it is void, whether the respondent is bound to refund the money that was advanced
to him by the appellant in lieu of the mortgage deed?
That the resopondent humbly submit that Dharmodas Ghose and his mother raised the
arguments on their behalf, that as per section 10 and 11 of the Indian Contract Act 1872, a
minor is not entitled to be a party in a contract.The arguments that were put-forward by the
respondent and taken following facts into consideration that, Kedar Nath was in full
charge of this transaction on behalf of Brahmo Dutt in the capacity of an agent and
principal.

The court held that section-115 of the Evidence Act does not apply in the present case
because both the parties were aware of the truth and the Appellant was not misled.
Relying on this, Privy Council held that, there was no contract between the parties as
attaining majority is essential to form a contract. Hence, this contract was void ab-initio
and in furtherance to it, as there was no contract in existence, so all the transactions that
took place during that course doesn’t exist in the eyes of law.

Therefore the respondent is not liable to give the proceeded money back.

Prayer

Memorial on Behalf of the Respondent


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Wherefore in the lights of facts stated, authorities and precedents cited the Respondent most
respectfully prays to this Hon’ble court to:

 That the Agreement is void


 Therefore the respondent is not liable to give the proceeded money back

Any other order as it deems fit in the interest of equity, justice and good
conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

DATE …………… Sd/-

PLACE………… .. (Counsel for Respondent )

Memorial on Behalf of the Respondent