ABDUL HASHEM Vs. BALAHARI MONDAL

JUDGEMENT

(1.) One Maraful Huq was the owner of 9 bighas 11 cottas odd land comprised within premises, which were formerly numbered as Nos. 125, 126, 127, 128 & 130 Tollygunge Circular Road & No. 1 Durgapore Lane. The said premises have now been re-numbered as Nos. 62 Alipore Road & 42 Raja Santosh Road. He died leaving the plff. & 'pro forma' defts. 7 to 18 as his heirs. As a result of a partition between the said heirs which came into effect on 4-3-1944 the said premises fell to the share of the plff. alone.

(2.) On 16-4-1916, one Ramdas Das executed a 'kabuliat' in respect of the said premises in favour of the said Maraful Huq. The lease was for a term of ten years commencing from Pous 1321. Ramdas was already on the greater portion of the lands so demised by virtue of an earlier lease, & had already built a rice mill there. After the expiry of the term of the lease he held over as a yearly tenant. This is accepted before us by both parties. By two successive court sales the tenancy & the rice mill passed, ultimately to one Kalipada Sardar on 12-3-1940, who by a conveyance (Ex. B) dated 24-4-1940, sold his interest in the tenancy & rice mill to Bolohari Mondal, deft. 1 in the suit. The learned Subordinate Judge has found that Bolohari became a yearly tenant under the plff. & the said 'pro forma defts. from the time of his purchase, & that finding also has not been challenged before us.

(3.) While deft. 1 continued to be a tenant a notice of requisition (Ex.D) issued under Rule 75-A, Defence of India Act was served on him on 30-10-1943. The said notice required him to place the land & structure (machinery being excepted) with in 62 Alipore Road, which comprised an area of about 4 bighas at the disposal of the Land Acquisition Collector, Alipore, from the 4th November following up to six months after the termination of the war, unless released earlier, and the said collector took possession on the 4th November as stated in the notice. The compensation payable under Section 19, Defence of India Act was settled at Rs. 675/- p. m. by agreement between him & Govt. (Ex. A). On a claim being made by the plff. to the Collector that he & not deft. 1 was entitled to the whole of the compensation, the Collector directed the money to be kept in revenue deposit & asked the plff. to get a declaration from the civil Court. This suit was accordingly filed by him in the 1st Ct. of Subordinate Judge, 24 Parganas, on 20-9-1945. Therein he prayed for a declaration that he & the pro forma' defts. 7 to 18 (the other heirs of Maraful Huq) were entitled to the whole of the compensation from the date of the requisition till 3-3-1944, and thereafter he alone was entitled to the same. This claim can be sustained, as it is sought to be, only if the requisition had the effect of extinguishing the tenancy, for the tenancy had not been terminated at the relevant time by a notice to quit, or in any other normal way by an act of the landlord. In other words, the plff. can succeed only if he can invoke to his aid the doctrine of "frustration of contracts". Accordingly two questions have been argued before us, one a general question, namely, whether that doctrine is at all applicable to a lease or to a case where a contract has already created an estate in land; and the other is a special one, namely, if it is applicable to such a case, whether the requisition as made in this case has the effect of putting an end to the tenancy. On the general question two views have been taken. Both the views have been examined in 'Cricklewood Property and Investment Trust Ltd. v. Leighton's Investment Trust', (1945) AC 221, where all the earlier cases have been reviewed . We would however have been inclined to take the view that the doctrine does not apply where as a result of a contract an estate is created, but as it is not necessary to decide the point in view of our decision on the second question we do not pursue the matter further.