A contract for transfer of property entered into by a guardian is specifically enforceable against the minor if the same is by a guardian competent in law and the transfer is for legal necessity or for benefit of the minor.

PATNAIK, J.

( 1 ) THIS second appeal which has been referred to the Division Bench for disposal raises the question : "whether a contract for transfer of property entered into by a marfatdar is specifically enforceable against the deity. "

( 2 ) TO appreciate the point, the facts need be briefly stated : The plaintiff asserts that property in question is the nominal private debottar of defendant No. 1, a private deity of defendants 2 and 3. In partition, the deity and the disputed property fell to the share of defendants Nos. 1 and 2. For meeting the expenses of repairs, eviction of trespassers and undesirable persons and for completion of the construction of the temple, defendants Nos. 1 and 2 on 11-12-1961 entered into an agreement to sell the disputed property in respect of which the plaintiff was a tenant, for Rupees 843/ -. The property, having belonged to the Khasmahal, permission was sought from the Khasmahal authorities. Since defendants Nos. 1 and 2 did not honour the agreement by executing the sale deed in spite of repeated requests by the plaintiff but made a gift of the property in favour of defendant No. 4, Durga Thakurani represented by defendants Nos. 5 and 6, the suit for specific performance of contract has been filed. Contest has been made on behalf of the deity through defendant No. 5. Others have been set ex parte. It has been controverted that the property was nominal debottar and there was agreement as alleged. It is said that the plaintiff was guilty of breach of promise. The suit after having had a chequered course through different courts and remand is now before this Court in second appeal. The concluded findings of fact now are:

(a) the deity is a private deity; (b) the properties are real debottar; (c) there was legal necessity; and (d) there was a completed agreement for sale.

The courts below have concurrently decreed the suit.

( 3 ) IT is urged on behalf of the appellants (defendants Nos. 4, 5 and 6) that the deity being a perpetual minor, the law applicable to contract executed by guardian of minor for sale of property of the minor is applicable to contract entered into by Marfatdar or trustee for sale of the property of the deity. It is submitted that a contract for sale entered into by the guardian on behalf of minor not being specifically enforceable even though it may be for legal necessity or for benefit of the minor, on the same reasoning the contract in dispute is not enforceable. Reliance is placed on a decision of a Division Bench of this Court in the case of Suresh v. Ganesh, (AIR 1951 Orissa 351 ).

( 4 ) MR. Das submits that the decision in the case of Suresh v. Ganesh (supra) has no application as the law applicable to minor cannot by analogy be applied to a deity and relies upon a decision of the Division Bench of the Calcutta High Court reported in (1933) ILR 60 Cal 111: (AIR 1933 Cal 109) : Gopal Shreedhar Mahadeb v Shasheebhusan Sarkar. It was held therein :

"it has been argued that the deities are perpetual minors and so no contract made on their behalf should be specifically enforced- The analogy of minority of deities, in our judgment, is a pure fiction, for which no authority is to be found in Hindu law itself and we can conceive of no principle on which on such analogy a contract, otherwise good and valid, can be taken out of the class of contracts of which specific performance may be granted under the law. "

We are in agreement with the aforesaid exposition of law and that meets the objection raised by Mr. Rao for the appellants.

( 5 ) COMING to the principle decided by this Court in the case of Suresh v. Ganesh, (AIR 1951 Orissa 351) (supra), we find that the Division Bench placed reliance on a decision of the Privy Council in Mir Sarwarjan v. Fakhruddin, (1911) ILR 39 Cal 232 : (39 Ind App 16 ). In that case, the guardian entered into a contract on behalf of the minor for purchase of certain land. Though it was found that it was to the advantage of the minor and was inte