Decided on May 31,1955

THOMMAN Respondents


- (1.) This appeal arises out of a suit for recovery of the rent due under the lease deed Ext. B executed by the defendants in favour of the Puthupalli Church at Kottayam to which the suit property belongs. Under the terms of Ext. B the defendants took the property for cultivation for three years, i.e., 1121, 1122 and 1123, the annual rent stipulated being 430 paras of paddy as per Kalloorkadan measure. The rent for the first year was admittedly paid and the claim in the plaint was confined to the rent due for the next 2 years. The 1st defendant deposited in court the rent for the year 1123 and contended that the defendants were not liable to pay the rent for the year 1122 because the crop that had been raised in the property had been completely destroyed by unexpected floods and it was not possible to raise a second crop during that year. This plea was accepted by the lower court and the plaint claim was negatived in respect of the rent for that year. Plaintiffs who instituted the suit on behalf of the Church have come up in appeal questioning the correctness of the lower courts decree exonerating the defendants from the liability to pay the rent for the year 1122.
(2.) In the plaint there was an alternative claim that the defendants are liable to pay the rent for the year 1123 at double the rate stipulated in Ext. B, in case no rent is payable for the year 1122 on account of failure of crops. The ground stated in support of such a special claim was that if no crop had been raised in the year 1122, the yield next year would have been almost double the normal yield. The lower court found that there was no evidence to support such a special claim and hence rent was allowed for the year 1123 also at the stipulated rate only. Even though this question also was raised in the appeal memorandum, it was not pressed at the time of hearing.
(3.) The position taken up by the appellants is that as per the agreement embodied in Ext. B, the defendants are liable to pay the rent for the year 1122 also irrespective of any question as to whether they cultivated the property or not during that year. It may be mentioned here that the correctness of the Trial Courts finding that the crops of the year 1122 were destroyed by floods is not challenged by the appellants. There is also clear evidence in support of that finding. Other properties in the neighbourhood of the plaint item had been cultivated by Dws. 1 and 2 and they swear that the unusual floods of the year 1122 had destroyed the crops in all the properties in that area and that it was impossible for anybody to raise the crops again during that year. That there was such a flood in that year is admitted by Pw. 1 also, the only witness examined on the plaintiffs side. It is clear from the evidence of these witnesses that the defendants as lessees of the property had done everything in their power to cultivate the property and to raise the crop even in the year 1122 and that the failure of the crops was due to circumstances over which they had no control. It is argued on behalf of the appellants that even in such a situation the defendants are not absolved from their liability to pay the rent for that year and that the doctrine of frustration cannot be made applicable to a lease transaction. No doubt the doctrine of frustration is generally applied to contracts. Frustration means the premature determination of a contract owing to the occurrence of an intervening event or change of circumstances so fundamental that the same may be regarded as striking at the root of the agreement and as wholly beyond the contemplation of the parties when they entered into the agreement. A lease is something more than a mere contract or agreement in so far as it results in the creation of an estate in favour of the lessee. This additional feature present in a lease cannot by itself rule out the applicability of the doctrine of frustration to a lease transaction. At any rate, the applicability of this doctrine to a lease at least to a limited extent has been given statutory recognition in India as is clear from Clause.(e) of S. 108 of the Transfer of Property Act. That clauses states that: If by fire, tempest or flood or violence of an army or of a mob or other irresistable force, any material part of the property is wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, the lease shall at the option of the lessee, be void: Provided that if the injury is occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision. In view of this provision, there is no force in the argument that the doctrine of frustration is wholly inapplicable to leases. It is unnecessary to pursue this matter any further because the defendants have no case that the plaint lease came to an end as a result of frustration caused by the unforeseen floods of the year 1122. On the other hand, it is admitted that the lease arrangement continued for the full term of three years up to the end of the year 1123. The only contention is that the stipulation to pay the rent for the year 1122 has become unenforceable on account of the supervening event of the floods which made it impossible for the lessees to collect the yield from the property by subjecting it to the normal agricultural operations.;

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