Introduction

Nemo dat quod non habet, literally meaning "no one gives what they do not have", is a legal rule, sometimes called the nemo
dat rule, that states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser
any ownership title. The rule usually stays valid even if the purchaser does not know that the seller has no right to claim ownership of
the object of the transaction (a bona fide purchaser); however, in many cases, more than one innocent party is involved, making
judgment difficult for courts and leading to numerous exceptions to the general rule that aim to give a degree of protection to bona
fide purchasers and original owners. The possession of the good of title will be with the original owner.

Latin maxims form a significant part of the legal system of the world. Eminent philosophers, after years of
observations and developments of theories, developed certain universal principles which are incorporated in
both, municipal and international laws. The rule of nemo dat quod non habet is a crucial role in ascertaining
the rights with regard to ownership, possession, property and commercial goods that are covered under the
contract law with respect to the transfer of title.

This article is concerned with the application of the nemo dat rule in prevalent laws and the exceptions to this
rule. For clarity, the jurisprudential aspect of the rule has also been discussed to familiarise the readers with
the necessity of the rule in contemporary enforceable laws.

Meaning of the Nemo dat rule

The legal rule ‘Nemo dat quod non habet’ literally means ‘no one gives what he doesn’t have’. It is equivalent
to the civil rule Nemo plus iuris ad alium transferre potest quam ipse habet which translates to ‘one cannot
transfer to another more rights than he has’. The rule is associated with the transfer of possession of a
property in law. The Sale of Goods Act, 1930 (hereinafter SOGA) and the Indian Contract Act, 1872 are
associated with underlying provisions of this rule. 

It also has a jurisprudential aspect to it with regard to ownership and possession. For instance, if A owns a car
and he has a driver, the driver would only have the possession of the car during the course of business, but he
would not have the authority to transfer the title of the car because he only has the title to possess the car
during work hours. The title to transfer the ownership is a greater title than he has and could only be
performed by the owner because his title is authoritative.

In Greenwood v. Bennett (2003), the defendant was the original owner of a car and he entrusted a man named
Searle with the car so that he could carry out the repairs. Searle used the car for personal purposes,
consequently crashing the car and causing tremendous damage. Thereafter, he sold the jaguar to a garage
owner named Harper for £75. Harper was unaware that Searle was not the owner of the car. Harper spent
£226 to repair the car and sold it to a finance company. The Court held that the plaintiff was the owner of the
car and since Searle did not have a title over the car, he could not transfer the title to Harper. For the same
reason, Harper could not transfer the title of the car to the insurance company because he was not the rightful
owner. The plaintiff got his car back, but he had to reimburse Harper for the money he spent on repairs.

Role of jurisprudence
It is necessary to understand why a person cannot transfer a greater title to someone than the one he
himself/herself has. The nemo dat rule has its roots in jurisprudential concepts of possession and ownership. It
casts clarity on the capabilities to possess a certain title and the extent of powers a person would have over a
property. The same would determine whether a person could transfer the rights with respect to the property
and if so, to which extent.

Possession
Possession is the state of having something in one’s control. Possession is fulfilled when animus
possidendi and corpus possessionis is achieved.

Animus possidendi refers to the intention or claim to have exclusive possession over something. The claim shall
be exclusive in a manner that expressly excludes others. Such possession does not necessarily require to be
absolute. Further, the desire or a claim to possess something does not signify that the person wishes to use
the property as an owner. The animus could be legal or illegal. The test of exclusion of others from the
establishes whether the animus is legal or not. For instance, a tailor having a cloth in his possession to stitch a
dress does not intend to exclude the owner of the cloth from using it or taking it back.

Corpus possessionis refers to the physical control over a property. This is the objective element of possession.
It states that the intent to exclude others from interfering with the property shall be accompanied by a physical
exercise over the property. Without an act, the establishment of intent would be difficult.

Possession could be of two types:

1. Possession in fact, or de facto possession.

2. Possession in law, or de jure possession.

A person could possess a property in three ways:

1. Possession in law but not in fact; or

2. Possession in fact but not in law; or
3. Possession in both, fact and law.

The difference between de facto possession and de jure possession could be explained through an example of a
landlord and a tenant. The tenant is the resident of the property but the property legally belongs to the
landlord. In such a case, de facto possession resides with the tenant and the de jure possession is with the
landlord. Mere physical possession of a property does not suffice for de jure possession.

De facto possession is not recognised by law but de jure possession is. It is so because the general assumption
signifies that a person who has the de jure possession of a property is the owner of the same and can exercise
the ownership rights on the same, which includes the transfer of property. A person who has the de
jure possession of a property would not be entitled to transfer the ownership or the property to someone else
unless he/she is the owner or empowered to act on behalf of the owner while doing so. It simply means that
their title is merely to possess the thing, nothing more. To transfer the ownership, they would require a greater
right. For instance, if an owner of a house living abroad hires a broker to sell the house in his home country,
the broker would have physical possession of the house and will be empowered to find prospective buyers and
could even seal the deal but the final decision would always be on the owner because he possesses the
required title.

Ownership
Except under exceptional terms, only the owner of an object or a property has the right to transfer the title of
the same to someone else. Such ownership could be corporeal or incorporeal. Corporeal ownership is exercised
over tangible things and incorporeal ownership is exercised over intangible things. Generally, mere possession,
as stated previously, is not sufficient for transfer of title. This gives rise to the query- what constitutes
ownership? The following are the essentials of ownership:

1. Ownership is indefinite on the user’s part. The owner has a right to possess and use the thing.
While an owner does not have a duty to use the thing, others have a duty to not use or interfere
with the use of such a thing unless the owner permits the same. Example: bailment or mortgage. It
can be observed that this is in accordance with animus possidendi wherein the intent to possess
something is coupled with the exclusion of interference by others. 
2. Ownership is unrestricted in point of disposition. The owner could dispose of or alienate the
property during his lifetime or after his death by a will. A person who possesses the thing but is not
the owner cannot transfer the right of ownership. This is based on the maxim, “he who has not can
give not”.
3. The owner has the right to possess the thing he owns. It is immaterial if he has the actual
possession of the thing or not. For instance, if you lend your car to someone, you have merely
transferred the possession of the car. The right to possess the car, however, still remains with you.
4. The owner has the right to exhaust the thing in the event of using it if such is the nature of the
thing.
5. Ownership has a residuary character. The owner may part with certain rights associated with the
thing, but the residuary rights are enough to continue to regard him as the owner. For instance,
giving out the property on rent or on lease.
6. The owner has the right to destroy or alienate the thing.

A person who fulfils these essentials would be regarded as the owner of the property. Fulfilment of these
conditions would also establish the presence of de jure possession of the property since the owner has legal
title over the possession of the thing. Fulfilment of de facto possession would remain subjective if the owner
could not also be in physical possession of the thing.

Adverse possession
Adverse Possession is a legal doctrine that allows a person to acquire the ownership of an immovable property
that belongs to someone else. The person who possesses the property is called the squatter. To claim the legal
title of the property, the use of the property by the squatter shall be continuous and shall be without the
knowledge and shall have the intent to acquire the property. In India, Section 65 of the Limitation Act provides
that a person could claim their title over a property for up to 12 years from the period when the possession
becomes adverse. For example, if A is the owner of cultivating land and gives his property to B for
maintenance and comes back after a span of more than 12 years to reclaim his title, his claim will not hold
good.

The doctrine of Adverse Possession is an exception to the Nemo dat rule because here the title greater than
one has can be transferred by the concerned person to himself. However, for the doctrine to be regarded as an
exception, it is of prime importance to establish the existence of adverse possession. The essentials of adverse
possession are:

 There shall be a movable or immovable property;

  The possession of the property shall be visible, hostile and continuous. It should be free from any
interference in the possession;
 It cannot be claimed until the conditions specified under Section 65 of the Limitation Act are fulfilled.
 Lastly, the intention to possess the property shall be accompanied with the intention to exercise the
right of ownership on the same;
 There should be dispossession of ownership by the original owner since adverse possession can only
be claimed when the title is taken away from the owner and is bestowed upon the squatter.

The doctrine of adverse possession is often used in mala fide acts by people to deprive the owners of their
lawful properties. The Supreme Court in the case of P.T. Munichikanna Reddy & Ors v. Revamma and
Ors. (2007) observed that the plea of adverse possession is a hybrid of facts and law. A person who claims
adverse possession shall be required to show:

1. The date when he took possession of the property;

2. The nature of his possession;
3. Whether the owner was aware of underlying facts of the squatter’s possession;
4. The duration of the continuance of the possession;
5. He shall show that the possession was open and free from disturbances.

If the squatter fails to establish all the above-mentioned conditions, his claim of adverse possession would
cease to exist and the original owner will continue to exercise ownership rights on the property. The nemo
dat rule will uphold only when the squatter fails. If the squatter establishes de jure and de facto adverse
possession, it will serve as an exception to the Nemo dat rule. Proving adverse possession is arduous because
it requires defeating the rights of an owner who is vested with ownership rights over a property. The Nemo
dat rule exists to safeguard the interests of people who have authority over things and properties.

Transfer of rights under Sale of Goods Act, 1930

Sections 18 to 30, enshrined in Chapter III of the SOGA are concerned with the transfer of property between
buyer and seller. Lord Justice Denning, in the case of Bishopsgate Motor Finance Corpn Ltd v Transport Brakes
Ltd (1949), stated that two principles strive for mastery in law- first, protection of property where no one can
give a better title than he himself has. Second, protection of commercial transactions, where the who takes
something in value and in good faith without notice should be entitled to a good title.

Section 27 of the SOGA is concerned with the rule of transfer of possession. It states that the sale of goods by
a person who is not the owner, without the provision of authority and consent by the owner would leave the
buyer with equal rights as the seller. This means that since the seller was not the rightful authority to sell, the
concerned sale would not bestow the buyer with any better title over the goods than held by the seller. There
are two exceptions to this provision and they are discussed below in detail.

Exceptions under Sale of Goods Act

The provisions of the SOGA are in accordance with the nemo dat rule for normal transactions which are
conducted smoothly. However, there are transactions when either of the parties defrauds or fails to fulfil their
obligation, causing loss to the other party. In such situations, the rule would not be applicable to certain
specified nature of transactions that have been laid down under various provisions of the SOGA. They are:

Transfer of title by estoppel

Principle of Estoppel signifies the reliance of one person on the conduct of another in such a way that
influences him to believe and act on such reliance. Without the influence, the person who was influenced would
have acted differently. In the context of the rule, if the original owner of the goods by his act or omission leads
the buyer into believing that the seller is the owner of the goods and the buyer buys the goods from him by
relying on the same, thinking that the seller has the authority to sell, the owner cannot raise objection on the
seller’s authority to sell. Section 27 of the SOGA also legally enforces the same by stating that no one besides
the owner has the authority to transfer the title of goods except when the owner himself by his conduct fails to
deny to the seller’s incapability to sell the goods. 

For instance, in the case of Eastern Distributors Ltd v. Goldring (1957), the claimant, a van owner, wanted to
buy a car from a car dealer but he was unable to pay the amount. The car dealer and the claimant together
made a plan to deceive a finance company. They filled out forms which indicated that the car dealer was the
original owner of the van and the claimant wished to acquire the van on hire-purchase. The car dealer sold the
car to the finance company who gave it out to a customer on hire-purchase. The said customer sold the car to
another party. The finance company sought ownership of the car when it discovered the fraudulent act.

It was held that the original owner, by signing the agreement, represented that the car dealer was the owner
of the van. In doing so, he was estopped from asserting his ownership of the van. The title was transferred to
the finance company under the doctrine of estoppel. The ownership of the van cannot be passed back to the
original owner because the terms of a hire-purchase prohibit the transfer of ownership until all instalments
have been paid.

Estoppel by an act or an omission

An owner can perform estoppel by either acting in a way which he was not supposed to or by omitting to
perform a legal obligation. Estoppel could arise in several ways. Some of them are as under:

1. If the owner is standing by when he should have acted to effect the sale; or
2. If he is assisting in the sale; or
3. If he permits the transfer of possession of the goods to the buyer; or
4. If he acts in the way that induces the buyer to alter his position to the prejudice of the owner.

In the case of Mercantile Bank v. Central Bank (1935), the respondent had advanced money to a merchant
firm. The merchant firm left railway receipts as a pledge for the money advanced to it. The respondent bank
returned the railway receipts to the merchants for the purpose of clearing the goods and storing them in the
respondent’s godown. However, the merchants repledged the receipts with the appellant instead of doing what
they were required to do. The merchant firm defaulted in its payment to both the banks. The issue was which
of the banks should be prioritised with respect to the railway receipts. It was argued by the appellant that the
failure of the respondent to impress their stamp on the receipts before returning them to the merchant firm
enabled the merchants to repledge them. Therefore, the respondent is in no position to question the validity of
the second pledge. 
It was held that the failure of the respondent to impress their stamp on the railway receipts did not create legal
estoppel since it was not the duty of the respondent to do so. Therefore, the appellant’s title would not be
prioritised over that of the respondent.

In another case, K. M. Mohambaram v. Ram Narayan Brahmin (1935), a bus owner appointed A as his agent to
ply the bus for hire. He left a signed letter addressed to the District Magistrate with the request to grant G
permit to A. A defrauded the bus owner by altering the letter and addressing it to the DSP, requesting him to
transfer the registration in A’s name. The same was done and A sold the bus to a third party who was unaware
of A’s authority to sell. The original bus owner challenged the buyer’s title. It was held that A could not have
foreseen the possibility of such fraud by A. He was not precluded under Section 27 of SOGA from challenging
the title acquired by the buyer.

Estoppel by negligence

Estoppel arises due to the negligence of the owner when he negligently persuades the buyer into believing that
the seller is the owner of the goods and has the authority to transfer the title of the goods. The owner has a
duty to fulfil his legal obligation that is to not give false ideas to the buyer.

In the case of Heap v. Motorists Advisory Agency Ltd (1923), Lush J opined that to establish negligence by the
owner of the goods, mere carelessness by a person on the conduct of his own affairs would not suffice. It shall
involve a disregard of his legal obligations towards the buyer or the person he is up against. The plaintiff
permitted A to take his car to show it to a prospective buyer. A used the car for a few weeks before selling it to
the defendant’s agency. The plaintiff claimed the car from the defendant but the defendant claimed estoppel
against him. The court held that the plaintiff was entitled to receive his car back as he did not act negligently
and did not breach any legal duty. He was just careless.

Sale by the mercantile agent

Section 27 of SOGA states that when a mercantile agent is in the possession of goods or documents of title to
the goods with the consent of the owner of such goods, any sale of the concerned goods made by him whilst
acting in the course of his mercantile agency would have equal enforceability as if it were expressly authorized
by the owner himself.

However, this will only hold ground if the buyer of the goods acts in good faith and was not unaware that the
seller was not authorised to sell the goods to him. The bona fide buyer is protected by law because he was not
a party to the mala fide act conducted by the seller.

In the case of Folkes v. King (1923), the plaintiff delivered his car to a mercantile agent for sale with the
minimum sale amount being 575 pounds. However, the mercantile agent sold the car to the defendant for 140
pounds and misappropriated the amount. The Court held that the buyer had a good title over the car because
the plaintiff had authorized the mercantile agent to act on his behalf whilst conducting the sale.

In another case, Coventry Shepherd & co. v. Great Eastern Railway and Co. (1883), the defendant had
carelessly issued two different orders for a consignment of goods for delivery. The plaintiff company had issued
an advance to A for the delivery of the order. A pledged the goods and sold them off. The Court held that the
defendant was estopped against A since the documents had a mercantile meaning and the merchants had a
duty to scrutinise the documents carefully.
Sale by Joint Owners
Section 28 of the SOGA states that when there are several joint owners of goods and the goods are in
possession of one of them with the consent of co-owners; if he sells the goods to someone, the title of
ownership will be transferred to the buyer if he buys them from the joint owner in good faith and at the time of
purchase, he was unaware that the seller was not under the authority to sell the same to him. For instance,
there are three owners of poultry and two of them are sleeping partners who have trusted the other partner
with possession and management of the chicks. If the active partner sells the chicks to someone else by
assuring the buyer that he is the sole owner of the chicks, the buyer will be protected by the law and he would
not suffer any loss because his act was bona fide.

Sale by a person under voidable contract

Sections 19 and 19A of the Indian Contract Act state that a contract entered into by the use of coercion, fraud,
misrepresentation or undue influence would be regarded as voidable at the option of the innocent party, whose
consent was not granted. Section 29 of the SOGA states that if a contract belongs to any of the categories highlighted
under those two sections of ICA and the goods were delivered to the buyer before the aggrieved party interrupted the
contract, then the title of the buyer over the goods would remain. However, it will only continue to exist if the buyer
acts in good faith, without the knowledge of the defect of the seller’s title.

In Phillips v. Brooks  (1919),  a person committed fraud by buying a valuable ring via a worthless cheque whilst
representing himself to be a respectable person. He then pledged the ring to someone else. Thereafter, the fraud was
discovered and the issue arose whether the pawnee is entitled to retain the ring or not. The Court held that the
pawnee had a good title over the ring since he was unaware of the seller’s defective title and acted in good faith.

In the appellant case of Lewis v. Averay (1972), the plaintiff was a postgraduate who wanted to sell his car. He met a
potential buyer who was impersonating a famous actor, Richard Greene. The plaintiff agreed to sell the car to him
for £450 by cheque. The plaintiff asked the buyer for recognition before accepting the cheque but the rogue showed
him a pass for Pinewood studios with his name and photograph. The rogue then sold the car to the defendant for £200
and the cheque received by the plaintiff bounced. The Court held that if a person parts with his goods without clearing
the cheque, then he shall bear the loss.

Sale by the seller in possession

Once a seller sells the goods to a customer/buyer, he transfers the ownership rights of such goods to the buyer. He
cannot thereafter sell the same goods to another person because he transfers his own authority to the buyer.
However, Section 30(1) of the SOGA is an exception to this rule. This will only apply when the requisites of this section
are met with. It states that if a seller, who has already sold the goods to a buyer, continues to be in possession of the
goods or the documents of the title of the goods and transfers the title of the goods or delivers them selling them
either himself or by appointing a mercantile agent, the recipient of such title or delivery under any sale, pledge or
other disposition, who receives the same in good faith and without the knowledge of the previous sale of goods would
be conferred with the same rights as if the seller was the authorized owner of the goods and was capable of making
such sale. The exception does not require the seller to be in de facto possession of the goods. De jure possession is of
importance here.

In the case of Staffs Motor Guarantee Ltd v. British Wagon Co Ltd (1934), A, the lorry owner sold his lorry to the
defendant. Later, he took the lorry from the defendant on hire-purchase and resold it to the plaintiff. The Court held
that the plaintiff did not have a good title over the lorry because A had already sold it to the defendant and when he
sold it to the plaintiff, he did it at the capacity of a bailee, not as a seller, so the exception cannot be enforced. If the
defendant had sold it to the plaintiff, then the plaintiff would have enjoyed a good title over the lorry.
In the case of City Fur Manufacturing Co. v. Fureebond London Ltd (1937), H had purchased many skins from a broker
but he had not paid for the same. For this reason, the goods were still at the broker’s godown. H sold the skins to the
plaintiff by bill of exchange to pay for brokerage and to arrange the delivery to them. H, instead of making
arrangements for the sale to the plaintiff, sold the goods to the defendants. The Court held that the defendants have
acquired a good title.

Sale by the buyer in possession

Section 30(2) of the SOGA states that when a buyer has bought or has agreed to buy goods from the seller and has
obtained the possession of those goods or the documents of title to those goods with regards to the sale, pledge or
other forms of disposition after taking the consent of the seller, in the event of him selling the goods to another buyer,
the new buyer would be conferred with the same rights as if the goods were transferred to him by the original owner
of the goods without any regards to the existence of a lien if there existed any. The Nemo dat principle would not hold
good because the prospective buyer is not generally authorized to transfer the title of the good, similar to the situation
of the seller in sub-section one.

In the case of Marten v. Whale (1917), the plaintiff had agreed to buy a plot from T in exchange for a car, subject to
the condition that the deal will be confirmed only if his solicitor approves the title to the land. Before their transaction
could go ahead, the plaintiff gave the possession of his car to T who sold it to the defendant in this case. The
defendant acted in good faith and was not aware of T’s defective title. The Court held that the defendant had acquired
a good title because T had agreed to buy the car, so the title was transferred from the person who had agreed to buy
goods.

Resale by an unpaid seller

According to Section 54(3) of the SOGA, when a seller who has not been paid by the buyer, despite exercising his
right of lien and putting a halt on the sale of the goods, he acquires a good title against the buyer and becomes
entitled to re-sell the goods to another buyer. The new buyer would be protected by law and the old buyer would not
be entitled to possess the goods. The seller does not have a duty to inform the old buyer about the re-sell too.

Section 54(2) is concerned with the same issue in case of perishable goods. It states that when an unpaid seller has
exercised his right to lien by putting a halt in the transit and has issued notices to the buyer that he plans to resell
goods and the buyer still does not make payment within a reasonable time, the seller may resell the goods and
recover the amount of loss incurred from the original buyer. It is of prime importance to give notice to the buyer
before reselling them goods or the seller would not recover damages and the buyer will gain profits if any.

In the case of R.V. Ward Ltd. v. Bignall (1967), the parties entered into a contract for the sale of two cars for 850
pounds. The buyer deposited 25 pounds but failed to pay the entire price despite being sent a reasonable notice for
the same. The seller attempted to resell the cars but he could only find one buyer so he sold one of the cars for 369
pounds. Thereafter, he claimed damages worth 475 pounds from the previous buyer stating that the amount is worth
the loss caused to him and the advertising expense. The Court held that he could recover the shortfall of the amount
in the price of the car that was sold and the advertising expense. He could not recover the amount for the other car
because it was still in his possession.

Contract Law
The nemo dat quod non habet rule is applicable in Indian contract law as well, under the provisions of the Indian
Contract Act, 1872 (hereinafter ICA). They apply to the provisions of bailment and pledge. Contracts form a part of
our daily lives and they play an important role in almost every industry which is associated with law in India. The rule
applies to contractual relations in the following manner:
Bailor-bailee relationship
Bailment is defined under Section 148 of the ICA as the delivery of goods from one person to another for a certain
purpose. Once the purpose is achieved, the goods so delivered are returned to the owner of the goods or disposed of,
as directed by the owner. The person delivering the goods is the bailor and the one to whom the goods are delivered is
the bailee.

The transfer of goods in a bailment is temporary. The bailee cannot exercise permanent possession over the goods
delivered to him. The bailee can use the goods when they are in his possession but he cannot sell them because his
title over the goods prohibits him from doing so.

A bailee has the right to lien, which states that the bailee can retain the goods in his possession till he is not
remunerated for the use of his skills on the goods that were delivered to him. In this case, there is no transfer of title.
The bailee is supposed to return the goods once his claims against the work done are satisfied.

Conclusion
The Nemo dat principle is incorporated in the legal system of many countries. In India, it can be found in the
Indian Contract Act and the Sale of Goods Act. It is an established fact that one cannot transfer a greater title
than one possesses, for a very simple reason that such a person is not authorized to do so. However, the legal
provisions in India have illustrated such conditions when the nemo dat rule could not be applied. Transfer by
estoppel, sale by mercantile agent, sale by seller/buyer in possession of goods or resale by an unpaid seller are
a few provisions highlighted in the SOGA. Besides this, the rule is applicable on bailment under contract law.
The doctrine of adverse possession under the Limitation Act is not in accordance with the rule since it allows a
person to transfer a greater title to oneself. Pledge is an exception to the Nemo dat rule since a pawnee could
transfer the title of the goods if he/she is not reimbursed by the pawner. Lastly, jurisprudence plays a
significant role in shaping the meaning of titles of possession and ownership that are the crux of the Nemo
dat rule.

CASE LAW
Mohori Bibee V/S Dharmodas Ghose[1] is a case that covers the ambit of minors agreement. This case basically deals with a minor's contract
or a contract with a minor. In India, an agreement or a contract with a minor ( a person who is below the age of 18 yrs. or any person who has not
completed 18 yrs. of age legally) is void ab-initio (void from very beginning) such rules and regulations are made because, according to law such
people does not comes under the ambit of capacity of contract or agreement of doing so.

According to courts opinion, any person who is below 18 yrs of age or who has not completed the age of 18 yrs. of age i.e. a minor cannot intend
to create contract or make major decisions. This case has basically provided us with the knowledge that, since minors are legally incompetent to
give their assent so they need to deserve or be provide with the protection in their dealings with the other major persons. After this case , any
sought of contact or agreement with the minor was void from beginning. Such contracts are "void ab-initio[2]".

In this case, the Privy Council declared the law that any contact by minor or any minor's agreement is "absolutely void" and it has also been
strictly followed and is still growing also.Section 10[3]of Indian Contact Act, 1872 provides for what agreements are contracts? and Section 11[4]
provides that a person who are competent to contract.

Facts:-
The facts of this case were as follows:-
v Dharmodas Ghose, was the respondent in this case. He was a minor (i.e. has not completed the 18 years of age) and he was the sole owner of
his immovable property. The mother of Dharmodas Ghose was authorized as his legal custodian by Calcutta High Court.

v When he went for the mortgage of his own immovable property which was done in the favor of appellant i.e. Brahmo Dutta, he was a minor and
he secured this mortgage deed for Rs. 20,000 at 12% interest rate per year.

v Bhramo Dutta who was a money lender at that time and he secured a loan or amount of Rs. 20,000, and the management of his business was
in the control of Kedar Nath, and Kedar Nath acted as the attorney of Brahmo Dutta.
v Dharmodas Ghose's mother sent a notification to Brahmo Dutta informing him about the minority of Dharmodas Ghose on the date on which
such mortgage deed was commenced.

v but the proportion or sum of loan that was actually provided was less than Rs. 20,000.

v The negotiator or representative of the defendant, who actually acted instead of on behalf of money lender has given money or sum to the
plaintiff, who was a minor and he fully had knowledge about the incompetency of the plaintiff to perform or enter into contract and also that he was
incompetent legally to mortgage his property which belonged to him.

v After that, on 10thSept. 1895 Dharmodas Ghose along with his mother brought an legal suit or action against Brahmo Dutta by saying that the
mortgage that was executed by Dharmodas was commenced when he was a minor or infant and so such mortgage was void and disproportionate
or improper and as a result of which such contract should be revoked or rescinded.

v When this petition or claim was in process, Brahmo Dutta had died and then further the appeal or petition was litigated or indicted by his
executor's.

v The plaintiff argued or confronted that in such case no relaxation or any sought of aid should be provided to them because according
to him, defendant had deceitfully or dishonestly misinterpreted the fact about his age and because if mortgage is cancelled at the
request by defendant i.e. Dharmodas Ghose.

Issues Raised:-
Issues Raised in this case were:-
v Whether the deed was void under section 2, 10[5], 11[6], of Indian Contract Act, 1872 or not?
v Whether the defendant was liable to return the amount of loan which he had received by him under such deed or mortgage or not?
v Whether the mortgage commenced by the defendant was voidable or not?

Judgement:-
v According to he verdict of Trial Court, such mortgage deed or contract that was commenced between the plaintiff and the defendant
was void as it was accomplished by the person who was an infant at the time of execution of mortgage.
v When Brahmo Dutta was not satisfied with the verdict of Trial Court he filled an appeal in the Calcutta High Court.
v According to the decision of Calcutta High Court, they agreed with the verdict that was given by Trial Court and it dismissed the
appeal of Brahmo Dutta.

Then he later went to Privy Council for the appeal and later the Privy Council also dismissed the appeal of Brahmo Dutta and held that there
cannot be any sought of contract between a minor and a major person.
v The final decision that was passed by the Council were :-
1.Any sought of contract with a minor or infant is void/ void ab-initio (void from beginning).
2.Since minor was incompetent to make such mortgage hence the contact such made or commenced shall also be void and id not valid in the
eyes of law.
3.The minor i.e. Dahrmodas Gosh cannot be forced to give back the amount of money that was advanced to him, because he was not bound by
the promise that was executed in a contract.

Principles of Law:-
The principles of law that were laid down in this case are:-
v Any contract with a minor or an infant is neither valid nor voidable but is void ab-initio(void from beginning)
v Section 64[7]of Indian Contract Act,1872 is only applicable in the case, where the parties entering in contact are competent to make such
contract and is not applied to cases where there is no contract made at all.
v The legal acts done by an representative or any knowledge of an agent means that such acts done or having knowledge of anything is of his
principal.

Majority Act, 1875:-

Majority Act, 1875 was enforced on 2ndMarch 1857. It is a law that was enacted to introduce various laws relating to the "law of majority". Prior to
the enactment of this act, there was no surety or certainty about the age limit of attaining majority. This act has basically fixed the age limit of
attaining majority and i.e. 18 years of age. It states that, every single person who is domiciled in India can only achieve the age of majority only
after the completion of age of 18 years, and not before that at any cost. There comes an exception in the case were any particular personal law
provides the age of attaining majority only and if not provided than, else any person domiciled by India shall only achieve majority after the
completion of 18 years of age.

In the case were the guardian or a custodian is appointed by any court of justice for a minor in case of a person or his property or for both before
the age of 18 years, then in such a case the age of majority would be after attaining the age of 21 years instead of attaining 18 years of age.

Critical Analysis:-
In the case of Mohori Bibee V/S Dharmodas Ghose, the Privy Council strictly defined that any sought of contract or agreement with a minor[8]or
with any infant shall be null and void. All contacts with the minors will be void ab-initio. Majority Act, 1875 outlined the definition of a minor,
according to such act, any person who is below the age of 18 years or has not completed the age of 18 years shall not be competent to create or
enter into any sought of contact or agreement.

According to me any sought of contract in which a minor is party to contract or whether he/she is involved in it shall be void. This perception is
correct because minor or infant comes in the category of such people who cannot give there free consent along with the reason that they are not
in a situation where they can think in a manner in which a prudent or an ordinary person could do it. An agreement is a deal where free an equal
consent of all parties are given but in case of a minor there consent can be dominated by major ones as a result of which , it leads to the violation
of one of the condition to form a contract, i.e. free consent[9](a consent is said to be free when it is not caused by Coercion[10], Undue
Influence[11], Fraud[12], Miss representation[13]and Mistake[14]).

The court also through its verdict has propounded that, a contact with an infant shall be declared null and void it means that it is neither valid nor
voidable. According to me, minors contract shall be avoided and stopped because it sometimes lead to the harmful social, economic and legal
effects on the lives and conditions of the minors. Any such person who commits such offence shall be strictly punished by court of law, either
through imprisonment or with a fine or with both according to the ambit of the offence committed by the major person.

In Mohori Bibee v/s Dharmodas Ghose, at the end it can be concluded that any agreement or deed in which minor is party to it or is included in
such agreement shall be declared null and void because such agreement is not agreement in the eyes of law. In cases minors parents or custodians
shall not be liable for the dealing done by the minor without their consent, and hence they will be not liable to return the amount back taken by
the minor out of the moral obligation.