P L D 1969 Supreme Court 71 (PLP)

Learned counsel appearing in support of this appeal, however, contends that since the purpose of the notice under section 30 of the Act is to give intimation to the person in possession of the evacuee premises of the transfer thereof and to call upon him to pay tent to the landlord, it is clear that the notice creates a liability, for, the failure to comply with the notice will, under section 30 (3) of the Act, take such a person out of the protection of proviso (b) to sub-section (1) of the said section, In other words, it is contended, since subsection (1) of section 30 makes a person, in possession of an evacuee house or shop, a statutory tenant of the transferee thereof it creates by operation of law the contractual relationship of landlord and tenant between the transferee and the person in possession. Such a contractual relationship may enure for the benefit of a minor but it cannot saddle him with the obligations arising out of such a contract, such as, payment of rent during his minority. It is well settled that a minor cannot be sued for rent or even for compensation for use and occupation of a premises. Therefore, the service of a notice on a minor is futile if it cannot create any liability in the minor, for, unless such a liability is created a default cannot be established, and, therefore, the minor cannot be deprived of the protection given by Proviso (b) to subsection (1) of section 30 of the Act, merely on the ground of non‑payment of rent during his minority. In support of this contention reliance is placed on the observations of the Federal Court in the case of Muhammad Hayat v. Bati and others (P L D 1952 F C 138) where it was observed that the essential characteristics of the status of a tenant are (a) sub ordination to a landlord and (b) liability to pay rent, and it is contended on the basis thereof that since no such liability could in law arise during the minority of the appellant, one of the essential characteristics of a tenancy was missing. Reference has also been made in this connection to a passage from Sir John Trevelyan's Law Relating to Minors, 4th Edn., p. 139, to show that "notices which must be served to affect the minor's property, as, for instance, notices of foreclosure, should be served on the guardian of the minor's estate, if there be one. If there be no legal guardian, it is generally best to effect service upon the minor, and also upon the person in whose custody he is". It is, therefore, contended that if in accordance with the general principles designed to safeguard the interests of a minor doubts, if any, must always be resolved in favour of the minor, then also a notice served on a minor cannot be legally valid. As against this it is urged on behalf of the respondent that the settlement law is a special over‑riding law, because, by reason of section 36 of the Act, the provisions thereof and any rule or scheme or order made there under are to have effect "notwithstanding anything inconsistent herewith contained in any other law for the time being in force." In the circum stances the statutory protection given to a person in possession of an evacuee house or shop by section 30 of the Act has to be construed strictly and if the person claiming the benefit of that section does not comply with the conditions laid down therein, he cannot invoke in aid any other law to avoid his liability there under. The provisions of section 30 of the Act, therefore, have to be construed independently of the provision of the Contract Act or the Guardians and Wards Act. In any event, even under the general law contracts with a minor relating to immovable property are only void-able and not void, in so far as a minor can always hold property, enjoy the benefits thereof and ratify the contract on attaining majority. He cannot, on any principle, therefore, be allowed to enjoy the benefit of the property without meeting the obligations arising in respect thereof as to payments of rent, taxes and other dues. It was, it is thus urged, incumbent upon the minor to repudiate the contract immediately on attaining majority. If he did not do so, he must be deemed to have ratified the contract on attaining majority and to have accepted the liability arising there under. It is furthermore clear that in the present case he had defaulted in the payment of rent even after attaining majority and yet continued to remain in occupation of the premises from 1963 to 1965 when the proceeding for his ejectment was initiated. During this period he was, even under section 3 of the Majority Act, a major. The English rule, as stated by Pollock in his book on Contracts, 13th Edn., p. 55, is that "even in the case of a lease which is disadvantageous to him the infant cannot protect himself, if he has taken possession, and has not disclaimed, at all events unless he still be a minor". Simpson in his book on the Law of Infants, 4th Edn., p. 21, states the law as follows: -- "Before the Act of 1874 (Infants Relief Act) a lease to an infant was void-able by him, and if he continued to occupy after attaining twenty‑one he was held liable for all arrears of rent, but the covenant to pay rent, even though the lease were ratified after majority, could not now be sued on, nor can an action for use and occupation be maintained against an infant, except in so far as the occupation can be considered a necessary . . . . the attornment of an infant in respect of land taken by descent was good, and the distress was therefore legal. And it is conceived that an infant lessee may still be liable so far as payment of rent is an obligation arising from tenure, though not liable by contract, and, therefore, that the landlord may pursue any remedy, e.g., that of distress, which can be enforced without an action." In the case of Valentini v. Canal (L R 24 Q B D 166), where an infant had, in pursuance of an agreement with the landlord to become a tenant of a house and to pay a certain sum for the furniture therein, actually entered into occupation of the premises, utilised the furniture and' made part payments during several months, but then sued to recover back the amount paid by him to the landlord under the Infants Relief Act, 1874, Lord Coleridge, C. J. held that in spite of the strong and general words used in the Infants Relief Act, 1874, a reasonable construction ought to be put upon them and the construction he put upon these words was to the following effect :‑ "The object of the statute would seem to have been to restore the law for the protection of infants upon which judicial decisions were considered to have imposed qualifica tions. The Legislature never intended in making provisions for this purpose to sanction a cruel injustice." Therefore, it was observed that "when an infant has paid for something and has consumed or used it, it is contrary to natural justice that he should recover back the money which he has paid." The infant's suit for the recovery of the money was, accordingly, dismissed. Again, in the case of Carter v. Sliber (L R 1892 11 Ch. 278), which was a case of an infant taking a benefit under a Marriage Settlement created in his favour by his father it was held by the Court of Appeal in England that the settlement being for the benefit of the infant was not void but voidable; that he was bound to repudiate the settlement if at all, within a reasonable time after his coming of age; and that his repudiation a year after his father's death and a little more than four years after attaining majority was too late. It was further observed that in order to establish the invalidity of an infant's repudiation of a contract after he comes of age, it is not necessary to show his knowledge of the facts and of his rights, as in a case of waiver, acquiescence or election. Even slight evidence is sufficient to spell out such repudiation. Similarly in the case of Davies and another v. Beynon Harris ((1931) 37 T L R 424), a suit by a landlord to recover rent from an infant tenant was allowed on the ground that in the case of contracts affecting immovable property the rule was that obligations attaching thereto must be discharged by the infant unless he disclaimed the contract on attaining his majority. In this case too it was argued that the minor was protected by the Infants Relief Act of 1874 and even his ratification would not make him liable. The infant tenant had, in that case, paid rent even after attaining majority on several occasions. In these circumstances, it was observed by Roche, J. that "as he understood the principles of equity, they would not allow a person who had the benefit of that statutory trust to affirm it at majority and afterwards to come and say that he was not liable on its obligations." These decisions would appear to indicate very clearly that the Courts in England have only extended this protection to an infant where the liability arose purely ex contract and even then they have, by invoking equitable principles, held that if a minor had not repudiated the contract on attaining majority or soon thereafter, he must be deemed to have ratified the contract and to have accepted the liability there under, for, as observed by Coleridge, C. J. in the passage quoted above, the Legislature cannot be imputed any intention of perpetrating a manifest injustice. These appear to me to be not only sound but also just principles and I see no reason for departing from them unless the Legislature has itself manifested a clear intention of doing so In the present case the Act has not done so. Applying these principles, therefore, I have no hesitation in coming to the conclusion that in the present case since the relationship was created not by any contract but by operation of a special law which applied, notwithstanding the provisions of the other laws, the protection given to a minor by section 11 of the Contract Act is not available to the appellant. In any event, since this is not a suit for the recovery of arrears of rent but merely a proceeding for eviction, I would be justified in applying the equitable principle that the minor should have repudiated the relationship on attaining majority or within a reasonable time thereafter. He could not continue to remain in possession even after attaining majority without discharging the obligations arising from such possession. If he wished to reap the benefits of the statutory tenancy after attaining majority it was incumbent upon him to also meet the obligations arising there from. In the circumstances, I am clearly of the opinion that the Courts below rightly decided that the appellant was liable to eviction and would, accordingly, dismiss this appeal with costs. K. B. A. Appeal dismissed.