SRI DURGA THAKURANI BIJE NIJIGARH Vs. CHINTAMONI SWAIN

JUDGEMENT

(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:

(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).