TMI Blog1971 (5) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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 January 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 of the lessor. For our present purpose the only terms that are relevant are those contained in Clauses 4 and 5 of the note. Clause 4 reads : According to the terms of the tender, the lessee shall be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible to find Out as to who was responsible for the non-execution of the lease. But that aspect is not material for our present purpose. The landlord has not sought to cancel the contract. The agreement to lease continued to be in force even after the period within which the lease deed had to be registered. Tehsil Gujiranwalla became a part of Pakistan as a result of partition of India on August 15, 1947. Even before the partition Vidya Wati as well as the respondents had migrated to India because of the communal disturbances. Considerable evidence was led in the case to establish that even before the actual partition of India took place, because of the serious communal troubles, it was not possible for the respondents to go to Gujranwall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract was frustrated because of the supervening circumstances mentioned earlier. The trial court rejecting the contention of the plaintiffs came to the conclusion that Vidya Wati was not expected to deliver physical possession of the properties intended to be leased. She had only to give such possession as she had. But at the same time it upheld the contention of the plaintiffs that the agreement to lease was frustrated. In appeal a Division Bench of the High Court of Jammu and Kashmir agreed with the trial court that the contract referred to in the plaint was frustrated because of the supervening circumstances. It opined that the doctrine of frustration applied to leases as well. It further held that under the contract Vidya Wati w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted conveyance under which the lessee gets an interest in the property. There is a clear distinction between a completed conveyance and an executory contract. Events which discharge a contract do not invalidate a concluded transfer see Raja Dhruv Dev Chand v. Harmohinder Singh and anr.([1968] 3 S. C. R. 339) In view of that decision the view taken by some of the High Courts that Section 56 of the Contract Act applies to leases cannot be accepted as correct. Further the English decisions bearing on the point can have no further relevance. But in this case there was no lease. There was only an agreement to lease. As seen earlier, the agreement between the parties was that the properties in question should be leased to the plaintiffs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ([1954] S. C. R. 310. ), the doctrine of frustration is really an aspect or part of the law of discharge of contract by reason of supervening unpossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian Contract Act. The view that Section 56 applies only to cases of physical impossibility and that where this section is not applicable recourse can be had to the principles of English law on the subject of frustration is not correct. Section 56 of the Indian Contract Act lays down a rule of positive law and does not leave the, matter to be determined according to the intention of the parties. The impossibility contemplated by Section 56 of the Contract Act is not confined to somethi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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