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Report No. 70

Chapter 13

Persons Competent to Transfer

13.1. Persons competent to transfer.-

The subject of persons competent to transfer is thus dealt with in section 7

"7. 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."

13.2. Contract Act.-

Section 11 of the Indian Contract Act, 1872 defines persons who are competent to enter into contracts. It provides "Every person is competent to contract who if 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."

Thus, excepting persons who are of unsound mind, all adults may enter into any lawful contracts, unless they are disqualified from contracting by any law to which the contracting party may be subject. The disqualification need not be explicit, but may be implied from a reasonable construction of the law.1 One who is usually of unsound mind but occasionally of sound mind, may enter into a contract when he is of sound mind, but not when he is of unsound mind.2

1. Dhunput v. Shoobhudra, 1882 ILR 8 Cal 620.

2. Section 12, Indian Contract Act, 1872.

13.3. Majority Act.-

Under the Indian Majority Act,1 which applies to all persons domiciled in India, the period of minority lasts until the completion of the eighteenth year. This holds good for persons of either sex, and supersedes the personal and local laws by which the question was formerly decided.2

1. Indian Majority Act, 1975,

2. Reode v. Krishna, ILR 9 Mad 391; Sarat Chandra v. Foreman, ILR 12 All 213.

13.4. Majority Act.-

Under section 3 of the Indian Majority Act, 1875, first paragraph, every person domiciled in India shall be deemed to have attained his majority when he shall have completed the age of eighteen years and not before. We do not quote the second paragraph of the section relating to minors of whose person or property or both a guardian has been appointed by the court or of whose property the superintendence is assumed by a court of wards. So far as the question of capacity is concerned, it seems to be well-established that it is domicile which governs capacity to contract.1-2

1. Kashiba v. Siripat, 1895 ILR 19 Born 697.

2. Dhanraj Mull v. Shamji, AIR 1961 SC 1285.

13.5. Domicile.-

In cases where the matter is governed by private international law, special rules come into existence and domicile becomes important, for the purpose of determining the capacity to contract.

For the present purpose, we shall leave aside contracts of immovable property situated outside India as of no consequence for the purposes of the Transfer of Property Act. In relation to other contracts, domicile may assume great importance. This is by reason of the fact that according to at least one theory,1 the law of domicile governs the capacity to contract. In fact, it is this view that has been recognised in section 3 of the Indian Majority Act, 1875.

1. Cheshire Private International Law, (1970), p. 221.

The Transfer of Property Act, 1882 Back

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