Harries, J.This is a plaintiff second appeal from a decree of the learned District Judge of Gaya. The case came in the first instance before Dhavle J., who referred it to a Divisional Bench. That Bench by an order dated 12th February 1940, directed that the case should be laid before the Chief Justice with a view to its being referred to a Pull Bench. The matter has in consequence been heard by this Bench.

The suit giving rise to the appeal was brought by the plaintiffs to recover from defendants a proportion of sums spent by the former in repairing a pyne which served both the plaintiffs and the defendants in the suit.

2. The plaintiffs based their claim on Section 70, Contract Act. Defendant 4 in the suit was a minor, whereas defendant 7 was an adult. The defendants pleaded that they could not be made liable to pay anything towards the cost of the repairs because they had not been consulted before such repairs were executed and had never had an opportunity of rejecting the benefit proposed to be conferred upon them by the plaintiffs. Defendant 4 also pleaded minority. The learned Subordinate Judge, who heard the case at first instance, decreed the plaintiffs claim against all the defendants whereupon defendants 4 and 7 appealed to the Court of the District Judge.

3. The learned District Judge held that there was nothing in Section 70, Contract Act, which required the plaintiffs to give the defendants an opportunity of rejecting the proposed benefit before they could succeed in the suit. He further held that Section 70 did not apply to the case of a minor and consequently allowed the appeal of defendant 4 and dismissed the suit against him in its entirety.

Though he held that defendant 7 was liable he found that the claim was excessive and reduced the amount decreed. Defendant 7 has not appealed, but the plaintiffs have appealed, contending that they were entitled to the amount originally claimed against both defendants 4 and 7.

4. The plaintiffs were cosharers in a village called Rampur Uber. Respondent 1, who was the minor defendant 4 in the suit, is a co-sharer with the plaintiffs in that village. Respondent 2, who was defendant 7 in the suit, is the proprietor of a village called Khaskhori. The pyne in question runs through both these villages and serves not only the plaintiff-appellants, but also both the respondents. The plaintiffs in their plaint alleged that in agreement with all the co-sharers they undertook and carried out the repairs to this pyne in the years 1334 to 1339 F. They alleged that the defendants had received the benefit of this work and consequently that they were bound to pay a proportionate share of the costs of repairs by reason of the provisions of Section 70, Contract Act. The defendants denied that they entered into any such agreement with the plaintiffs for repairing the pyne, and both the Courts below came to the conclusion that no such agreement had been entered into.

The finding is that the plaintiffs themselves without consulting the defendants repaired the pyne, but that they did not intend to confer a benefit gratuitously upon the defendants. Further, it is clear that the defendants obtained considerable benefit from these repairs, and the question arises whether the respondents can be made liable.

. The Bench which heard this case was of opinion that two points were involved: (1) whether a cosharer who undertakes repairs which the cosharers are under no legal obligation to do and have not agreed to his doing for them, is entitled to claim contribution from them; and, in the event of that question being answered in the affirmative, (2) whether a cosharer is entitled to contribution against a minor cosharer. It will be convenient to deal, in the first place, with the question of minority. Section 70, Contract Act, is in these terms:

Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.

6. It will be seen that the Section is in general terms and no exception is made on the face of it in favour of a minor. It has consequently been argued on behalf of the appellants that on the plain terms of the Section it applies to a minor. It is clear, however, that a minor is incompetent to contract. Section 11, Contract Act, provides that:

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.

7. There appears at first to have been some doubt as to the meaning of this Section with regard to minors, but all such doubt has been removed by a decision of their Lordships of the Privy Council in Mohori Bibee v. Dhurmodas Ghose (1903) 30 Cal 539. That case laid down that the Contract Act makes it essential that all contracting parties should be competent to contract and expressly provides that a person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of the Act. It follows that if a minor enters into a contract, such a contract is void ab initio and cannot be sued upon. Section 70, Contract Act, is in Chap. 5 of the Act, and that chapter is entitled "Of certain relations resembling those created by contract." In my view Section 70 sets out the circumstances in which a person receiving a benefit must be deemed to have impliedly agreed to pay compensation or to return the thing done or delivered to him. In the circumstances set out in that Section the law implies a promise to pay. If Section 70 is an instance of an implied contract, then clearly a minor cannot be made liable on such a contract. If a minor cannot be sued on an express promise, it appears to me clear that he cannot be sued under an implied promise. An implied promise is nothing more than a promise which is inferred from certain circumstances. The basis of a suit u/s 70 is, in my view, a contractual one, and consequently a minor cannot be sued under this Section.

8. If a minor is liable in a suit u/s 70, Contract Act, an extremely curious result would follow. It is clear that if a minor agreed to buy a motor car and the same was delivered to him by a motor car dealer, the latter could not maintain an action for the price. If, however, the motor car was delivered by mistake or without any previous agreement to the minor without any intention of making a gift of the motor car and the minor used it for his own benefit, then he would be liable to make compensation to the extent of the value of the car or to return the car if Section 70 applied to minors. In short, the minor would be under no liability to pay the price if he had promised to do so, whereas ho would be under Such liability if he had never made any promise. Such, in my view, could never have been the intention of the Legislature.

9. Again if Section 70, Contract Act, applies to minors, then Section 11 could be wholly defeated in many cases. For example, a minor cannot be sued on a contract to pay for luxurious goods supplied, but it could always be alleged that goods had been delivered to a minor without any intention of making a gift and that the minor had enjoyed the benefit of such goods. Such a case would fall within Section 70, and the minor, though he could not be sued on the contract, could always be sued u/s 70 for compensation in respect of the goods or for restoration of the goods. It appears to me clear that if Section 70 is held to apply to minors, then the latter can be made liable in cases of contract though Section 11 in terms says that they are incompetent to contract. Lastly, if Section 70, Contract Act, applied to minors, then Section 68 of the Act appears to be wholly redundant. Section 68 deals with claim for necessaries and is in these terms:

If a person incapable of entering into a contract or anyone whom he is legally bound to support, is supplied, by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person.

10. There can be no doubt that a minor is a person incapable of entering into a contract and is, therefore, a person to whom Section 68 applies though, of course, Section 68 applies to persons other than minors such as lunatics. This Section makes it clear that if necessaries are supplied to a minor, the person who supplies them is entitled to recover the cost from the property of the minor. If Section 70 applied to minors, then Section 68 is wholly unnecessary as far as minors are concerned because the person who supplied the necessaries could recover u/s 70 on the ground that the plaintiffs had delivered the goods to the minor not intending to do so gratuitously and that the minor had enjoyed the benefit thereof. The fact that the Legislature has expressly dealt with "necessaries" in Section 68 of the Act shows that Section 70 was never intended to cover a case of the supply of such to minors. If Section 70 does not entitle a person who supplies necessaries to recover from the minor, then obviously it cannot possibly be intended to cover a case of a supply of luxuries or things which cannot possibly fall within the category of "necessaries." In 30 Cal 5391 Sir Ford North who delivered the opinion of the Board observed at p. 548 with regard to Section 68, Contract Act:

It is beyond question that an infant falls within the class of persons here referred to as incapable of entering into a contract; and it is clear from the Act that he is not to be liable even for necessaries, and that no demand in respect thereof is enforceable against him by law, though a statutory claim is created against his property.

It will be observed that the liability created in respect of the supply of necessaries is a liability which is limited to the property of the minor or other incapable person. The liability u/s 70 of the Act is not so limited. That latter Section simply states that the person who has received the benefit is bound to make compensation or to restore the thing done or delivered. It does not state that only the benefited persons property is liable for compensation. It follows, therefore, that if Section 70 is applicable to goods supplied to a minor, then the liability of the minor would depend upon whether he was sued u/s 68 or Section 70 of the Act.

12. If he was sued u/s 68, the liability would be limited to the property of the minor, whereas if he was sued u/s 70 there would be no such limitation. There is little direct authority upon this question. In Muthayya Chetti v. Narayan Chetti AIR (1928) Mad 317 Reilly J. expressed the view that Section 70 was applicable to minors. Phillip Ag. C.J., who was the other member of the Bench, expressed no opinion on the subject, and it is clear from the facts of the case that the point did not arise. Reilly J.s opinion is therefore purely obiter. A contrary view was taken by a Bench of the Lahore High Court in Shahbaz Khan v. Bhangi Khan AIR (1931) Lah 344 in which it was expressly held that Section 70 did not apply to minors. In my judgment the view of the Bench of the Lahore High Court is the true one and should be followed.

13. I therefore agree with the finding of the learned District Judge upon this point. As I hold that the minor could not in any event be sued for his proportion of the cost of the repairs to the pyne in question, the first question propounded by the Bench who heard this case does not arise. If by reason of minority respondent 1 is not liable, it matters not whether he had or had not an opportunity of refusing the proposed benefit. It is therefore unnecessary to express any opinion upon this point.

With regard to the appeal from the decree in so far as it affects the second respondent, little need be said. The learned District Judge reduced the amount which had been originally decreed by the learned Subordinate Judge. What the actual share of defendant 7 was is a pure question of fact and this Court cannot interfere with the findings of fact of the lower Appellate Court if there was material before that Court upon which such findings could be based. There was such material in the present case and accordingly the finding of the learned District Judge on the question of amount is final and cannot be challenged. For the reasons which I have given I hold that the learned District Judge was right and I would accordingly dismiss this appeal with costs.

Wort, J.

14. I agree and have very little to add. I propose to express briefly and in my own words the considerations which in my judgment apply to the determination of this case. The most formidable argument advanced to us is that by reason of Section 70, Contract Act, and quite apart from juridical and legal principles, a liability apart from contract, express or implied, is created. In my judgment that argument although attractive is one which cannot be accepted. As their Lordships of the Judicial Committee of the Privy Council have pointed out in the case which has already been referred to by my Lord reported in Mohori Bibee v. Dhurmodas Ghose (1903) 30 Cal 539 the Sections which we have to construe are a part of the Contract Act; and there appears to be no valid reason why it should be held that those Sections are to be construed on the footing of the principles underlying the Act.

15. If there were any doubt at any time with regard to the matter, it is now quite clear that a minor cannot, make a contract, indeed the Act itself so provides. Section 70 states the circumstances under which liability accrues to a person taking goods or accepting benefits which benefits have not been conferred gratuitously. As the Section states, in those circumstances there is an obligation to compensate the person conferring those benefits. It is impossible to contend in my judgment that the circumstances as set out in the Section do not impose what lawyers describe as a contract implied by law. Now as my Lord has pointed out, if Section 70 is to be construed in the manner suggested by the learned advocate appearing on behalf of the appellants, then not only was Section 68, Contract Act, unnecessary and redundant, but further in one sense Section 70 would be contradictory.

16. It is impossible to impute to the Legislature an intention to enact redundant or contradictory provisions. Sections 68, 69 and 70 as I have already stated must be governed by the general principles underlying the Act. Section 68 circumscribes the liability of a minor both as regards liability itself and the method of imposing that liability. If it is correct (and in my judgment it is correct) to say that Section 68 circumscribes the liability of the minor, Section 70, on the construction which is sought to be placed upon it, immediately extends it and extends it in a most remarkable and in my judgment contradictory manner. Section 68 limits liability to necessities, Section 70 imposes an unlimited liability.

17. The construction sought to be placed upon Section 70 is an impossible one being opposed to the their provisions of the Contract Act. I am clear that Section 70 indicates those circumstances in which there is an implied contract or obligation, implied by law, and it must be manifestly clear that a liability which cannot be imposed by an express contract cannot be imposed under an implied contract. In those circumstances I agree with my Lord that the appeal fails and that it must be dismissed with costs.

Manohar Lall, J.

18. I am also of the same opinion for the reasons given by my Lord the Chief Justice.