Question

Solve.
D, a minor, borrowed a sum from M by executing a mortgage of his property in favour of M. Subsequently, D sued for setting aside the mortgage. Is mortgage valid? Can M recover the sum advanced to D?

Answer 1

• Under section 10 of the Indian Contract Act. 1872, all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not expressly declared to be void. Also, under section 11, 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.
  
• In Mohiribibi vs Dharmados Ghose, with similar facts of the given case, it was held that the section 10 and 11 of Contract Act make the minors agreement void and therefore the mortgage was not valid. M pleaded for the refund of the amount from the minor. It was held that the money advanced to minor can't be recovered because minor's agreement was void.
  
• In the given case, D is a minor who borrowed a sum from M by mortgaging his property. But as per the provisions, D is not competent to contract and any contract entered will be void and hence, the mortgage here is not valid. Also, due to the void contract M will not succeed in recovering the amount from M.