Case: Raja Dhruv Dev Chand Vs. Harmohinder Singh &amp; Anr

the land under his tenancy at the disposal of the Land Acquisition Collector, and the Collector took possession of the premises let out to him, it was held that even though the occurrence was unforeseen and was not contemplated by the parties when the lease was created, the occurrence was not so fundamental as to be regarded in law to strike at the root and destroy the basis of the relationship of landlord and tenant. 14. In Tarabai Jivanlal v. Padamchand, AIR 1950 Bom 89 it was held that monthly tenants of residential premises from whose occupation the premises were requisitioned continued to remain the monthly tenants of the landlord as before and that by reason of the requisition there was no eviction by title paramount or a frustration of adventure. The Court in that case observed that the doctrine of frustration did not apply where there is a lease whether the term is one for a fixed period or one which can be terminated by notice to quit, as the estate vested in the lessee by a lease is not extinguished by the order of requisition which is of a temporary nature. 15. In Alanduraiappar Koil Chithakkadu v. T. S. A. Hamid, AIR l968 Mad 194 a lessee of a shandy tope agreeing to pay an annual rent for a period of five years was held not to be entitled to remission merely for the reason that the shandy was hit by two cyclones during the period of lease and that for, some period on account of the cyclone, "the shandy did not form properly or regularly and the lessee did not get any income". The Court held in that case that in the absence of any provision for remission on account of losses, no such remission can be granted by the Courts. 16. In Sri Amurui Perumal Devasthanam v. Sahapathi Pillai, AIR 1962 Mad 132 the plaintiff Devasthanam granted a lease of lands in open auction to the defendant on the terms and conditions set out in the auction notices and a deed of lease was executed by the Devasthanam and the defendants. The Government of Madras thereafter promulgated Ordinance IV of 1952 which restricted the quantum of rent payable by the tenants to the landlords. The defendants remained in possession till after the expiry of the period of the lease, but neglected to pay rent and failed to comply with the terms of the lease. It was held that the plaintiff was held entitled to recover the stipulated rent from the defendants. 17. Our attention was, however, invited to certain cases in which counsel claimed that the doctrine of frustration had been applied to leases. In Inder Pershad Singh v. Campbell, (1881) ILR 7 Cal 474 the plaintiff agreed to cultivate indigo for the defendant for a specified number of years in certain lands with respect to a portion of which lands the plaintiff was a sub-tenant only. During the continuance of the contract the plaintiff lost possession of those lands through his immediate landlord having failed to pay the rent, and having been in consequence ejected therefrom by the owner. In a suit by the plaintiff to have so much of the contract as related to those lands cancelled, on the ground that it had become impossible of performance through no neglect on his part, it was held that the case fell within Cl. 2 of S. 56 of the Contract Act. But between the parties to the litigation there was no relation of landlord and tenant. The plaintiff was enable to raise indigo and supply to the defendants because the plaintiffs landlord failed to pay the rent due, and the plaintiff was on that account ejected from the land. That case does not in our view, support the contention that the doctrine of frustration applies to the case of a lease. 18. The case strongly relied upon by counsel for the appellant was Gurdarshan Singh v. Bishen Singh, ILR (1962) 2 Punj .5 = (AIR l963 Punj 49) (FB). In that case a lease was executed on January 8, 1947 in respect of agricultural land situated in an area which on partition of India fell within West Pakistan. The Court found that possession of the demised land was not given to the lessee, and the landlord was on account of riots unable to deliver possession. Obviously on that finding the tenant was entitled to claim refund of the rent paid. But the Court proceeded to consider the question "whether the doctrine of frustration applies to a contract of lease of agricultural lands" and recorded an answer that the doctrine of frustration applies to leases. The Court observed at p. 13-"that the doctrine of frustration does apply to leases, but even if it does not apply in terms to contract of lease of agricultural land the broad principle of frustration of contract applies to leases". We are unable to agree with that observation, and the observation at p. 11 that "According to Indian law, sales of land as also leases are contracts" -Under a lease of land there is a transfer of right to enjoy that land. If any material part of the property be wholly destroyed or renderd substantially and permanently unfit for the purpose for which it was let out, because of Fire, tempest, flood, violence of an army or a mob, or other irresistible force the lease may at the option of the lessee, be avoided. This rule is incorporated in S. 108 (e) of the Transfer of Property Act and applies to leases of land, to which the Transfer of Property Act applies, and the principle thereof to agricultural leases and to leases in areas where the Transfer of Property Act is not extended. Where the property leased is not destroyed or substantially and permanently unfit, the lessee cannot avoid the lease because he does not or is unable to use the land for purposes for which it is let to him.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. We are unable to agree with counsel for the appellant in the present case that the relation between the appellant and the respondents vested in a contract. It is true that the Court of Wards had accepted the tender of the appellant and had granted him lease on agreed terms of lands of Dada Siba Estate. But the rights of the parties did not after the lease was granted rest in contract.By S. 4 of the Transfer of Pro party Act the chapters and sections of the Transfer of Property Act which relate to contracts are to be taken as part ofthe Indian Contract Act, 1872. That section however does not enact and cannot be read as enacting that the provisions of the Contract Act are to be read into the Transfer of Property Act. There is a clear distinction between a completed conveyance and an executory contract, and events which discharge a contract do not invalidate a concluded transferits express terms S. 56 of the Contract Act does not apply to cases in which there is a completed transfer. The second paragraph of S 56 which is the only paragraph material to cases of this nature has a limited application to covenants under a lease. A covenant under a lease to do an act which after the contract is made becomes impossible or by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawfu1. But on that account the transfer of property resulting from the lease granted by the lessor to the lessee is not declared void12. By the agreement of lease the appellant undertook to pay rent for the year1947-48 and the Court of Wards agreed to give on lease the land in its management. It is not claimed that the agreement of lease was void or voidable. Nor is it the case of the appellant that the lease was determined in any manner known to law. The appellant obtained possession of the land. He was unable to continue in effective possession on account of circumstances beyond his control. Granting that the parties at the date of the lease did not contemplate that there may be riots in the area rendering it unsafe for the appellant to carry on cultivation, or that the crops grown by him may be looted, there was no covenant in the lease that in the event of the appellant being unable to remain in possession and to cultivate the land and to collect the crops, he will not be liable to pay the rent. Inability of the appellant to cultivate the land or to collect the crops because of widespread riots cannot in the events that transpired clothe him with the right to claim refund of the rent paidThe Court found that possession of the demised land was not given to the lessee, and the landlord was on account of riots unable to deliver possession. Obviously on that finding the tenant was entitled to claim refund of the rent paid. But the Court proceeded to consider the questionr the doctrine of frustration applies to a contract of lease of agricultural lands" and recorded an answer that the doctrine of frustration applies to leases.The Court observed at p.t the doctrine of frustration does apply to leases, but even if it does not apply in terms to contract of lease of agricultural land the broad principle of frustration of contract applies to leases".We are unable to agree with that observation, and the observation at p. 11 that "According to Indian law, sales of land as also leases are contracts" -Under a lease of land there is a transfer of right to enjoy that land. If any material part of the property be wholly destroyed or renderd substantially and permanently unfit for the purpose for which it was let out, because of Fire, tempest, flood, violence of an army or a mob, or other irresistible force the lease may at the option of the lessee, be avoided. This rule is incorporated in S. 108 (e) of the Transfer of Property Act and applies to leases of land, to which the Transfer of Property Act applies, and the principle thereof to agricultural leases and to leases in areas where the Transfer of Property Act is not extended. Where the property leased is not destroyed or substantially and permanently unfit, the lessee cannot avoid the lease because he does not or is unable to use the land for purposes for which it is let to him.