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Report No. 83

4.6. Section 4(1)-'Minor'.-

The definition of 'minor' in section 4(1) adopts by reference that in the Indian Majority Act, 1875. However, that Act is confined to person domiciled in India. As regards persons not so domiciled, the matter would presumably be governed by rules of private international law as applied n India. In this connection, we may refer to the position as to capacity to contract. The Indian Contract Act1 provides as follows:-

"Every person is competent to contract, who is of the age of majority according to the law to which he is subject and who is of sound mind and is not disqualified from contracting by any law to which he is subject."

The words "law to which he is subject" leave the field open for applying a rule of foreign law, if our court so decides as a matter of private international law. In other words, the age of majority would be determined by resort to that system of law which the Indian rules of private international law recognise as relevant in the particular field of law in regard to which the controversy arises.

The matter is (as regards some fields of law) regulated by statute,2 but in other fields not so regulated. It is unnecessary to go into this vexed question. For example, contractual capacity in regard to persons not domiciled in India is governed by the law of domicile according to one view,3 but by lex loci contractus according to another view.4

1. Section 11, Indian Contract Act, 1872.

2. E.g. as to negotiable instruments, see Law Commission of India, 11th Report (Negotiable Instruments), paras. 27 and 29.

3. (a) Kashiba v. Sripat, ILR 19 Born 697 (Law of domicile); (b) Rohilkhand and Kumaun Bank Ltd. v. Row, (1885) ILR 7 All 490.

4. (a) T.N.S. Firm v. Mohammad Hussain, AIR 1933 Mad 756; (b) Baindail v. Baindail, (1946) 1 All ER 342 (346).

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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