Ashraf Ali. . . Petitioner V Etim Ali and Others . . .

Opposite parties
11 DLR 185 1959
Judgment: August 27, 1956
Abed Ali the predeceasor of the defendants had a raiyati holding comprising of disputed land where he had
homestead. The plaintiff purchased the raiyati holding in Mortgage Execution Case no. 209 of 1919 of the
Sixth Court of the Munsif Commilla and obtained the delivery of possession of the holding and got it in his
khash possession.

Abed Ali took settlement of his homestead portion the suit land on an annual jama of rs. 3/2 by executing a
registered kabuliyat dated 25th of Posh 1326 BS which corresponds to the year 1919 to 1920 in favour of
the plaintiff. At the time the kabuliyat was executed the plaintiff was a minor. The plaintiff has filed the
present suit for arrears of rent for the years 1357 to 1360 BS against the defendants on this basis of these
kabuliyat.

The defendants in their defence of want of relationship of landlord and tenant not only denied the
execution of kabuliyat by their predeceasor Abed Ali but also assailed it as void being a contract with a
minor and for want of reciprocity and mutuality.

The Trial court dismissed the suit holding that there existed no relationship of landlord and tenant between
the parties on the basis of an illegal and invalid kabuliyat which had never been acted upon.

The plaintiff moved the Court of learned District judge by filing a revisional application. The learned
District Judge in revision set aside the judgment and decree of the trial court and decreed the suit holding
that the plaintiff had acquired title by the court- sale purchase and got possession of the suit land and that
lease created by the registered kabuliyat executed by the defendant’s predecessor was valid and binding on
the defendants. Hence this rule is at the instance of the defendants

Dhaka High Court upheld the judgment of the learned District Court and assigned following reasons.

There is difference between executory contract and executed contract. If in executed contract the minor’s
part has been performed and nothing is left to be executed by the minor, i.e., no obligation left to be
discharged by the minor and to be enforced against him, such is a contract is enforceable by the minor as it
is a contract for the benefit of the minor, such as completed by sale of mortgage in favor of the minor and is
enforceable in law. There may be some difficulty in case of a transfer by way of lease to a minor. It is
because of the obligation to pay rent by the minor or other covenants in the lease creating obligations yet
to be discharged by the minor. Sections 10 and 11 of the Contract Act enacted for the benefit and
protection of the minor cannot be made to operate against the minor. It is true the contract in which the
minor is a party cannot be enforced against the minor, but that does not mean that the major party who
with his eyes wide open to the fact of the minority of the other side entered into a contract with him, and,
after taking advantage of such a contract, cannot be allowed to go back from his part of the contract and
repudiate it. This is a well recognized principle, and was unanimously recognized by the full Bench of the
Madras High Court consisting of judges like Sir John Wallis, Kt., Chief Justice, Mr. Justice Abdur Rahim
and Mr. Justice Srinivasa Ayyanger in the case of A.T. Raghare Chariar V. O.M. Srinivasa Raghava
Chariar (ILR 40 Mad. 308 (F.B>.) where Their Lordships explained and distinguished the decision of the
Privy Council in the case of Mohoribibee V.Dharmodas Ghose relied on by the learned advocate for the
petitioner.