Mohiri Bibee vs.

Dharma Das Gosh

Issue No.3: Whether the mortgage commenced by the defendant was

voidable or not?

Answer:

Legal Provisions Involved:

1. Section 2 (g) of Indian Contract Act, 1872: Void Contract

2. Section 2 (h) of Indian Contract Act, 1872: Valid Contract
3. Section 2 (i) of Indian Contract Act, 1872: Voidable Contract
4. Section 10 of Indian Contract Act, 1872: Essentials of Contract
5. Section 11 of Indian Contract Act, 1872: Competency to Contract
6. Section 3 of Indian Majority Act, 1875: Age of majority
7. Section 7 of Transfer of Property Act,1882: Competency to
transfer property
8. Section 58 of Transfer of Property Act,1882: Transfer property
by mortgage

Discussion:

1. In the instant case the plaintiff mortgaged his property to the

defendant.
Section 58 of Transfer of property Act, 1882 defines mortgage as a
transfer of an interest in specific immovable property for the
purpose of securing the payment of money advanced or to be advance
by way of a loan, an existing or future debt or the performance of
agreement which may give rise to a pecuniary liability.
Thus mortgage is a transfer of property. Then obviously a question
arises, who can transfer property? The answer to the question lies in
section 7 of the TP Act, 1872, which provides as follows
Every person competent to contract and entitled to transferable
property, or authorised to dispose of transferable property not his
own, is competent to transfer such property either wholly or in part,
and either absolutely or conditionally, in the circumstances, to the
extent and in the manner, allowed and prescribed by any law for the
time being in force.
Thus according to section 7 of TP Act a person who is competent
to contract alone can mortgage his property.

Sections 2(h) and 10 of the Act state about the essential elements of
a valid contract. Section 10 of the act mentions about what
agreements are contracts. It states that all the agreements are
contracts if they are made
  by a free consent of parties who are competent to contract,
 for a lawful consideration and
 for a lawful object, and
 are not expressly declared to be void.

If any one of those elements is not satisfied or is present in an agreement, it

will affect the validity and will not form a valid contract.

As regards the competency to contract the law applicable is

Section 11 of Indian Contract Act and Section 3 of Indian
Majority Act, 1872.

According to section 11 of the contract act the parties entering into a

contract would be considered competent if he

1. Has attained the age of majority,

2. Is of sound mind,
3. Is not disqualified to make a contract under a law to which he is
subject

Section 3 of Indian Majority Act, 1872 says that every person domiciled in
India shall be deemed to have attained his majority when he shall have
completed his age of eighteen years and not before subject to some
exceptions. Those exceptions are not relevant in the context of present case.

Decision:

In the instant case both the plaintiff and defendant are minors. They have
not attained the age of majority as per section 11 of Indian Contract Act,
1872. Thus the contract of transfer of property executed between them is
void ab initio due to the above mentioned reasons.