SUSHILA DEVI AND ANR. versus HARI SINGH AND ORS.

Citation: [1971] SUPP. 1 S.C.R. 671 · Decided: 05-05-1971 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Dismissed

Judgment (excerpt)

s11 
SUSHILA DEVI AND ANR. 
' 
A 
v. 
HARi SINGH AND ORS. 
May 5, 1971. 
I K. S. HEGDE & A. N. GROVER, JJ.] 
B 
Contract Act (9 of 1872), s. 56-Frustration-App/icabi/ity to leases. 
The appellants were legal representatives of the owner of a village. 
In January, .1947, the previous owner called for tenders for taking the 
property on lease for a period of three years. 
The respondents• tender 
wail accepted and they deposited along with the tender earnest money 
C 
and security for the payment of rent. The terms of the tender required that 
the lease deed should be got registered by the lessee and that the lessee 
alone would be personally responsible for taking possession of the lands. 
As a result of the partition of India the village became a part of 
Pakistan. Even before actual partition, because ~f serious communal trou· 
hies, it was not possible for the respondents to 10 to the village either to 
cultivate the lands or to collect the rent from those who were culti~atins-
D 
No Ielise deed was executed or relistered. 
Under those circumstances the respondents filed a suit claiming a 
decree for the refund of the amounts deposited and damages. The lower 
courts held that the contract had become impossible of performance and 
decreed the suit in part. 
In appeal to this Court, 
HELD: (1) The law of frustration as embodied ins. 56 of the Contract 
Act applies only to a contract that is, an agreement ~o lease, and does not 
apply to leases. 
[674A ; 675A-B) 
Ra; Dhruv Dev Chand. v. Harmohinder Singh, [1968] 3 S.C.R. 33•, 
referred to. 
(2) But in this ·-case there was no .lease. Since lease was to be for a 
period of three years it could have been validly made only under a regis-
tered instrumen\, and therefore, there was only an aarecment to lease and 
not a lease. Such an agreement comes within the scope . of s. 56 of the 
Contract' Act. (6750-B) 
E 
F 
(3) The impossibility contemplated by s. 56 is not confined to some-
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thing which is not humanly_ .possible. _H the performance _.[Jf a contract be-
comes irnpra<;ticahle or use:less having regard tO the ob1ect and purpose 
of the p>\rtieli then it must be held that' the performance of the contract 
becan1e 'Jmpossible. 
But the supervening events -should , take away the 
very bast£ of the contract and it .should be of such a 'character that it 
striker. at :he root of the contract. [676C:Dl 
Jn tr.e pte~nt case, the respondents sought to take on lease the proper-
H 
ties with a view to enjoy the properties either by personally cultivating 
them ·tr by &Ub-leasill8··them. to others. · That abject became impossible 
because of supervening even!S. 
Under the terms of the agreement the 
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B 
SUPREME COURT U:PORTS 
(1971] SUPP. s.c.&. 
lessor was not expected to deliver the actual possession of the properties 
but because of the prevailing circumstances it was impossible for the res-
pondents to either take possession of the properties or even to collect rent 
from the cultivators. Therefore. the contract had become impossible of 
performance. [676D-F] 
Satyabrata Ghose v. Mugneeram Bangur and Co., [1954] S.C.R. 310. 
referred to. 
OVIL APPELLATE JURISDICTION : Civil Appeal No. 1225 of 
1966. 
Appeal by special leave from the judgment and decree dated 
December 14, 1964 of the Jammu & Kashmir High Court in Civil 
First Appeal No. I of 1960. 
S. T. Desai and P. C. Bhartari, for the appellants. 
Hardev Singh and Hirai Lal Kapoor, for respondents Nos. 
12A to 12C. 
The Judgment of the Court was delivered by 
Begde, J.-The appellants are the legal representatives of 
Dewnani Vidya Wati. 
The said Vidya Wati was the owner of 
the village known as Kotli Delbagh Rai in Tehsil Gujranwalla. 
It appears that she used to give the lands in that village on lease 
for a term of years by calling for tenders and accepting the 
highest tender. 
In about January 1947, she published a notice 
inviting tenders from interested persons for taking those lands 
on lease for a period of three years beginning from kharif 1947 
to Rabi 1950. 
The tenders had to be submitted before Janu-
ary 1, 1947. 
Clause (3) of the tender notice stated that "the 
terms of lease can be perused in the Dewan estates office Jammu 
before filing of the tenders. 
No excuse of ignorance as to the 
time will be entertained after the acceptance of the lease." 
A note containing the terms on which the lands would be 
leased was exhibited for the information of the tenderers in the 
office o

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