ပဋိညာဉ်ပျက်သုဉ်းခြင်း[ Part Five ]

 ဆရာကြီးဦးမြသင်ကြားပို့ချချက်များ

ပဋိညာဉ်ပျက်သုဉ်းခြင်း[ Part Five ]

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အိန္ဒိယနိုင်ငံတွင်ပဋိညာဉ်အက်ဥပဒေပုဒ်မ ၅၆ ပါဥပဒေသ[ ပဋိညာဉ်အတိုင်းဆောင်ရွက်ရန်မဖြစ်နိုင်တော့သည့်ကိစ္စ ]သည်ငှါးရမ်းခြင်းနှင့်သက်ဆိုင်ခြင်းရှိ၊မရှိနှင့်စပ်လျဉ်း၍စီရင်ထုံးများသဘောထားကွဲလွဲခဲ့သည်။

1957 BLR ( H C ) 266 ( 272 )

APPELLATE CIVIL.

Before U Po On, J.

MAUNG KYAW NYEIN AND TWO OTHERS (APPELLANTS)

                         V.

MAUNG KYAW KYAW AND ONE (RESPONDENTS).

Civil 2nd Appeal No. 73 of 1956, against the decree of the District Court of Henzada in Civil Appeal No. 7 of 1955,dated 28th May 1955  arising out of the Subdivisional  Court of Henzada in Civil Regular Suit No. 6 of 1954, dated 8th January 1955.

H. C. 1957 Oct. 16

အမှုစီရင်ထုံးစာမျက်နှာ ၂၇၀ တွင်ရည်ညွှန်းထားသော-

A. I. R. (37) 1950 Calcutta 441 [C. N. 170.]

R. P. MOOKERJEE J.

Kshitish Chandra Mondal-Defendant 1 Appellant

                   v. 

Shiba Rani Debi and others -Respondents.

A. F. A. D. No. 138 of 1949, D/- 10-5-1950, against decree of D. J., Zillah Nadia at Krishnagar, D/-9-12-1948.

အမှုသည်[ မောင်ကျော်ညိန်း ]အမှုနှင့်ဖြစ်ရပ်ချင်းတူသည်။

အေသည်မြေတကွက်တွင်သက်ငယ်တဲထိုး၍ဘီအားလအလိုက်အငှါးချထားသည်။

ထိုသို့ငှါးရမ်းထားဆဲတွင်တဲမီးလောင်သွားသည်။

ဘီသည်မြေမှထွက်ခွါသွားခြင်းမပြုဘဲ၊အေကကန့်ကွက်ပါလျက်မြေပေါ်တွင်တဲထိုးနေထိုင်သည်။

သို့ဖြစ်၍အေကဘီအပေါ်တဲကိုဖျက်ပြီးမြေကိုလက်ရောက်ပေးအပ်စေရန်တရားစွဲဆိုရာမီးလောင်ခြင်းကြောင့်အေနှင့်ဘီအကြားရှိပဋိညာဉ်ကိုဆောင်ရွက်၍မရနိုင်တော့ကြောင်း၊အငှါးပဋိညာဉ်သည်ပျက်သုဉ်းသွားကြောင်းစသည်ဖြင့်ဆုံးဖြတ်ရာ၌အောက်ပါအတိုင်းသုံးသပ်သည်-

[ [13] Whether the doctrine of frustration applies to leases has given rise to a sharp division of opinion in the English Courts. 

In Cricklewood Property and Investment Trust Ltd. v. Leighton's Investment Trust Ltd., 1945 A. C. 221 : (114 I. J. K. B. 110) the Judges were sharply divided.

[14] Asquith J. who had heard the case at the first instance Leighton's Investment Trust Ltd. v. Cricklewood Broperty and Investment Trust Ltd., (1943) K. B. 493,at at p. 495: (112 I. J.K. B. 438), thought that it could not be disputed that the doctrine of frustration had no application to an ordinary lease and relied upon Matthey v. Curling, (1922) 2 A. C. 180: (91 I. J.K. B. 593)) London and Northern States V. Schlesinger, (1916) 1 R. B. 20 : (85 L. J. R. B.369), Whitehall Court Ltd. v. Ettlinger, (1920) 1 K. B. 680 : (89 L. J. K. B. 126) and Swift v. Mactean, (1942) 1 K. B. 375: (111 L. J. K B. 185).

On appeal this view was affirmed by Mackinnon L. J. in the Court of appeal (1949) K. B. 496. 

On appeal before tbe House of Lords, the case was disposed of on a different point. 

As to the application of the doctrine of frustration to a lease, their Lordships expressed the view that the circumstances of that particular case did not justify such application. 

Lord Simon L. C. and Lord Wright opined that the doctrine of frustration could be applied to a lease and at any rate Matthey v. Curling, (1922) 2 A. C. 180: (91 LaJ. R. B. 693) was no authority to the contrary. 

Lord Rugsel of Killowen and Lord Goddard took the contrary view. 

Lord Porter expressed no view on this point.

[15] This question came up for further consideration in Denman v. Brise, (1949) 1 K. B.22. In view of the divergent opinion, as ex pressed by the House of Lords in the case above mentioned, the Court preferred to follow their own earlier decisions and left it for the House of Lords at the appropriate time to resolve this problem.

[16] In Denman v. Brise, ( 1949 ) 1 K. B. 22 (Supra) we have an instance where the tenant declines to withdraw but the landlord refuses the tenant’s claim; the facts are to some extent, similar to those now before me but there is at the same time a difference on a very material point.

A house in the occupation of the tenant was bombed out.

The tenant accordingly ceased to occupy the premises but there was no evidence of abandonment or surrender of the tenancy.

The landlord erected a new structure on the site and when it became fit for occupation, the tenant approached the landlord with a view to occupy it.

The tenant was, however, unable to gain possession because the landlord withheld the key.

The landlord thereupon purported to determine the contactual tenancy by a notice to quit.

The tenant sued for possession.

As there was no evidence of abandonment or surrender of the lease before the new premises had been made fit, the tenant on such completion was entitled as such to occupy it.

[17] In this state of law in England it is a matter for consideration whether the doctrine of frustration can be applied to a lease in India.

[18] In Inder Pershad Singh v. Campbell, 7 Cal 474; ( 8 C. L. R. 501 ), a contract had been entered into between the plaintiff and the defendant under which the plaintiff agreed to cultivate indigo for the defendant for a specified number of year in certain specific lands, with respect to the portion of which the plaintiff was a subtenant only.

During the continuance of the contract, the plaintiff lost possession of those lands as his immediate landlord had failed to pay the rent due from him and had in consequences been ejected by the owner.

A Division Bench of this Court held that the prayer of the plaintiff to cancel the contract so far as it related to those lands which had been taken possession of by the owner be terminated (sic ?) on the ground that it had become impossible of performance through no negligence on his part.

[19] Mookerjee A. C. J. affirming the decision of Rankin J., in Ezekiel Abraham v. Ramjus roy : 33 C. L. J. 151 : ( A. I. R. (8) 1921 cal. 305 ) has explained the circumstances and conditions under which the doctrine of frustration of adventure has become a gloss on the older theory of impossibility of performance, which has been greatly developed under the guise of reading “implied terms “ into contact.

The rigidity of the rule that an express unconditional contact is not generally dissolved by its performance being or becoming quite impossible in fact, by reason of particular circumstances, has been relaxed, an exception had been engrafted thereon. 

Whether frustration occurs or not, depends on the nature of the contract in question and on the events which have occurred in a particular case. 

Tentsche Overseas Trading Co. Ltd. v. Uganda Sugar Factory Ltd., A.I.R. (32) 1945 P. C. 144: (1945) 1 M. I. J. 417.

[20] Inder Pershad Singh v. Campbell, (7 Cal. 474: 8 C. I. R. 501) (Supra) is a direct bench decision of this Court in support of the proposition that the doctrine of frustration may be applied to leases.

[21] On the finding arrived at by the Courts below that it was only the room which had been let out and that the structures had been completely destroyed the subject-matter of lease is now non existent. 

Ibe contract which had been entered into between the lessor and the lessee has now become impossible of performance through no negligence on the part of the lessor.

The landlord is entitled to claim that the lease of the room had come to an end by its destruction by fire.

[22] There is one other special aspect in this case. Under the lease the tenant was entitled to occupy the shed as such. 

On its total destruction ven if it had been held that the tenant was entitled to continue to occupy the land, if he agreed to pay the rent, no right existed under the arrangement between the parties to authorise the tenant to raise a structure of his own, thus change altogether the character and nature of the tenancy. 

It was the use of the room only which had been permitted on payment of rent but the tenant had no right to use it as a lease of the land only on which he may have his own structures. 

Allowing the tenant to raise his own structures in such circumstances will lead to various complications in future. 

It would further lead to an anomalous position that the defen. dant tenant who is paying rent for the structures on the land will pay such rent for the structures which belongs to him.

[23] This appeal is accordingly dismissed with costs.

Appeal dismissed. ]

အထက်ပါအမြင်ကို-

Sm. Sakhisona Dasi

           vs 

Gour Hari Jana 

on 7 June, 1951

Equivalent citations: AIR1952CAL567, 56CWN174, AIR 1952 CALCUTTA 567

JUDGMENT

S.N. Guha Ray, J. အမှု၌လက်မခံချေ။

အမှုတွင်အေသည်ဘီထံမှမြေသုံးကွက်ကိုစိုက်ပျိုးရေးအတွက်ငါးနှစ်ကြာငှါးသည်။

အငှါးကာလအတွင်းအဆိုပါမြေကွက်များကိုအစိုးရကတပ်မတော်ကိုယ်စားသိမ်းယူလိုက်သည်။

အငှါးကာလကုန်ဆုံးသော်လည်းတပ်မတော်ကမြေကိုဆက်လက်အသုံးပြုသည်။

အငှါးကာလကုန်ဆုံးပြီးနောက်မြေငှါးအေသည်အစိုးရထံမှရရန်ရှိသည့်လျော်ကြေးငွေကိုထုတ်ယူသဖြင့်မြေရှင်ဘီကအေအပေါ်အငှါးကာလကုန်ဆုံးသွားပြီဖြစ်၍လျော်ကြေးငွေကိုမိမိသာရထိုက်သည်ဟုဆိုကာတရားပြိုင်အေ၏ရှေ့နေထုတ်ယူထားသောငွေကိုမိမိရထိုက်ကြောင်းကြေညာပေးရန်နှင့်အခြားသက်သာခွင့်ရလိုကြောင်းစွဲဆိုရာအငှါးချထားသည့်မြေကိုတပ်မတော်ကသိမ်းယူလိုက်ခြင်းကြောင့်မြေများငှါးရမ်းခြင်းပျက်သုဉ်းခြင်းရှိ၊မရှိပြဿနာပေါ်ပေါက်သည်။

ဘီသည်အေအားမြေကွက်များကိုအငှါးချထား၍လက်ရောက်ပေးအပ်လိုက်သောအခါမိမိဆောင်ရွက်ရန်တာဝန်များကိုအပြည့်အဝဆောင်ရွက်ပြီးစီးသည်ဖြစ်၍အငှါးပဋိညာဉ်ပျက်သုဉ်းရန်အကြောင်းမရှိကြောင်းဆုံးဖြတ်ရာ၌အောက်ပါအတိုင်းအကြောင်းပြသည်-

[ The second contention is that the contract was frustrated by the fact that the military authorities took over the land. In this case the contract had already been executed and the tenant put in possession of the land in question when the military authorities took it oyer and the question arises whether the doctrine of frustration of the contract can apply to a case of this nature. 

For the contention that to such a case the doctrine of frustration is applicable, reliance has been placed on the case of 'KHITISH CHANDRA v. SHIBA RANI DEBI', decided by a single Judge of this Court.

The facts in that case were that A constructed a thatched shed on a plot and let the shed to B as a monthly tenant and during the tenancy the shed was burnt by fire. 

Thereafter B raised another structure on the land inspite of A's protest. 

It was held in that case that section 108(e) of the Transfer of Property Act did not in terms, apply as B neither elected to walk out even after total destruction of the shed nor was willing to suspend payment of rent and give up possession but that the doctrine of frustration applied to leases and that the contract between A and B became impossible of performance through no negligence on the part of A and he was entitled to claim that the lease had come to an end by destruction by fire. 

It was further held in this case that under the tenancy, B had no right to raise structures of his own treating the lease as the lease of the land only.

This case undoubtedly at least by implication, seems to lay down the proposition that the doctrine applies to a contract, substantial parts of which have been already performed and the tenant actually put in possession. 

If that is so, I think I must respectfully disagree. As laid down by Lord Maugham " The doctrine of frustration is only a special case of the discharge of contract by impossibility of performance arising after the contract was made and it has an extensive meaning and it is still not possible to say how extensive." 

As pointed out in Chitty's Treatise on the Law of Contract, the law on the subject is not free from doubt, but the principles applicable are now somewhat clearer as the result of a number of cases arising out of the First World War and one can only note the classes and varieties of cases to which it has already been judicially applied. 

No English authority was cited before me to show that the doctrine was applicable to such a case. 

On the other hand in WHITEHALL COURT, LTD. v. ETTLINGER', (1920) 1 K B 680, relied on in the Bombay case already cited it was held that when the military authorities acting under the Defence of the Realm Regulations requisitioned the flats let out to a tenant for three years, the military authorities being still in possession in 1918 when the lease expired, the tenant-defendant had not been evicted by title paramount so as to suspend the tenancy, and further that the tenancy had not been determined by the requisitioning of the flats because the doctrine of the termination of a contract by reason of the frustration of the adventure did not apply to the case of a contract which created an estate by demise and that therefore the landlords were entitled to recover the rent from the tenant. 

Lord Reading C.J. quoted the following extract from the judgment of Lush J.:

"It is not correct to speak of this tenancy agreement as a contract and nothing more.

A term of years was created by it and vested in the appellant, and I can see no reason for saying that because this Order disqualified him from personally residing in the flat it affected the chattel interest which was vested in him by virtue of the agreement."

The other English decision relied on in the Bombay case is 'MATTHEY v. CURLING', (1922) 2 AC 180 in which during the currency of a lease of a house and land, the military authorities, acting under the Defence of the Realm Regulations, took possession of the demised premises and continued in occupation thereof until after the expiry of the term. In this case also, the contention that the taking of possession by the military authorities, amounted either to an eviction by title paramount or operated as what is known as frustration of adventure, was negatived and it was held that the doctrine of frustration could not apply to a case of this nature where there was a lease.

9. Thus the English authorities on which reliance was placed by Coyajee J. in the Bombay case referred to above are decidedly against the view taken in 'KHITISH CHANDRA V. SHIBA RANI DEBI',. The Indian law on the subject is embodied in section 56 of the Contract Act which is in the following terms:

"A contract to do an act which after the contract is made becomes impossible or, by reason of some events which the promisor could not prevent, unlawfully becomes void when the act becomes impossible or unlawful."

In this particular case the tenant, as I have already said, was put in possession and that was all that the landlord undertook to do. 

His duties therefore under the contract had been fully performed.

How then does the contract become impossible of performance? 

All that had happened after the military authorities took over is that in place of the tenant being in actual physical possession of the land the military authorities are there and that the compensation payable by the military authorities is payable to the tenant and the landlord receives from the tenant the rent which under the contract is payable to him. 

Thus the obligations of the tenant under the contract are still capable of performance. 

The only thing which may be said to be incapable of performance is that the landlord could not re-enter on the expiry of the term of the lease but the reason for that is that he did not choose to institute a suit for ejectment and to obtain a decree therein. 

For, as I have already stated, it cannot be said that such a suit is not maintainable against the tenant when he is not in actual physical possession. 

To my mind, therefore, if I may say so with respect, the doctrine of frustration, even if it may be applicable to a contract for a lease does not apply to a case of this nature and for this view, I rely on the English decisions referred to in the Bombay case. ]

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Sm. Sakhisona Dasi

           vs 

Gour Hari Jana 

on 7 June, 1951

Equivalent citations: AIR1952CAL567, 56CWN174, AIR 1952 CALCUTTA 567

JUDGMENT

S.N. Guha Ray, J. 

အမှုတွင်ရည်ညွှန်းသော-

Tarabai Jivanlal Parekh 

              vs 

Lala Padamchand 

on 27 January, 1949

Equivalent citations: AIR1950BOM89, AIR 1950 BOMBAY 89, 51 BOM LR 797

JUDGMENT

Coyajee, J.

အမှုတွင်တရားပြိုင်အိမ်ငှါးနေထိုင်သောတိုက်ခန်းကိုအစိုးရကသိမ်းယူလိုက်သောအခါအိမ်ရှင်အိမ်ငှါးဆက်သွယ်မှုရပ်စဲသွားခြင်းရှိ၊မရှိပြဿနာကိုဖြေကြားရာ၌ပစ္စည်းလွှဲပြောင်းခြင်းအက်ဥပဒေပုဒ်မ ၁၁၁( စ )အရငှါးယူထားသည့်ဥပစာကိုပြန်လည်ပေးအပ်ရာမရောက်ကြောင်းအောက်ပါအတိုင်းအကြောင်းပြသည်-

[ 9. In these circumstances, the next question is, how is the termination of a lease contemplated under the Transfer of Property Act, and that is provided foe under Section 111, which says that a lease of immovable property determines in the manner set out therein, and the only head under which the plaintiff's attempt to bring termination of this tenancy is under Sub-section (f) of Section 111, viz., implied surrender. 

It is contended on behalf of the plaintiff that there was an implied surrender on the date on which the order for requisition was made, because the Government took over on behalf of the plaintiff from the defendant, and the defendant handed over possession to the Government on behalf of the plaintiff. 

The point bad to be put in that manner, viz., that the relinquishment of possession operates as an implied surrender. 

This is so only where there has been an yielding up by the lessee plus an acceptance of possession by the lessor. 

To my mind, this is a mutual act between the landlord and the tenant. 

In my opinion there is in fact no mutuality in the present instance, because the Government did not merely serve the order of requisition on the tenant, but served an order of requisition on the landlord, so that they took possession of the premises both from the tenant and from the landlord. 

Moreover, this position to my mind is further forcibly brought out by the fact that the requisition order under the Defence of India Act is, in all circumstances, a temporary order, and must come to an end within six months after the termination of the war, unless extended by Government under a special Ordinance or under a Specific Act of Legislature.

Moreover, this position is emphasised by the fact that between the date of the order of requisition and 5th May 1945, the defendant remained in possession of the flat, and continued to pay the rent to the plaintiff. 

It is true as argued by Mr. Purshottam on behalf of the plaintiff that on requisition there is no accretion of the period of tenancy from month to month, but that does not mean that the substratum of the tenancy is gone. The tenancy which was vested in the tenant is, in my opinion, not divested on a temporary order of requisition being served on him by the Government. 

The question, therefore, is, the estate which vests in the tenant, and which in certain cases is a heritable interest, is, or is not destroyed ?

10. For the purpose of arguing this point, Mr. Purshottam on behalf of the plaintiff argued very forcibly that inasmuch as the performance between the landlord and the tenant became impossible, the substratum of the transaction disappeared, and that the contract or the monthly lease came to an end on the requisitioning of the premises, and that therefore, there was frustration of the adventure between the parties. 

For that purpose the plaintiff does not only rely on the order for requisition, but indicates in the plaint that there was requisition by Government, and Government took-over possession as well. 

It is clear to my mind that surrender consists, as set out in Halsbury's Laws of England, vol. XX, para, 301, in the yielding up of the term by tenant to landlord, viz., to him who has the immediate estate in reversion in order that the term may, by mutual agreement, merge in the reversion. 

Thereafter, it is set out that hence the parties to the surrender must be the owner of the term and the owner of the immediate reversion expectant on the term. 

There must be, therefore, a delivery of the possession by the tenant to the landlord and the acceptance by the landlord of possession to effect a surrender by operation of law. In my opinion, it is clear that there was no surrender by the tenant to the plaintiff at any stage. ]

အငှါးပဋိညာဉ်ပျက်သုဉ်းခြင်းမရှိကြောင်းအောက်ပါအတိုင်းဆက်လက်သုံးသပ်သည်-

[ 11. The question, however, remains whether the term came to an end by what is called frustration.

Mr. Vakil on behalf of the defendant referred me to two cases on this point. The first is Whitehall Court, Ltd, v. Ettlinger, (1920) 1 K. B. 680 : (89 L. J. K B 126). 

In that case two flats in a certain block of buildings were let to a tenant under two leases for a term of three years from 1915, the tenant covenanting to pay the rent reserved by the leases. 

In 1917, the military authorities acting under the Defence of the Realm Regulations requisitioned the flats and took immediate possession.

The military authorities were still in possession of the flats when the two leases expired in 1918, and the landlord brought an action for rent due against the tenant after the military authorities had taken possession. 

It was held that the defendant had not been evicted by title paramount so as to suspend the tenancy, and further that the tenancy had not been determined by the requisitioning of the flats, because the doctrine of the termination of a contract by reason of the frustration of the adventure did not apply to the case of a contract which created an estate by demise, and that therefore the landlords were entitled to recover the rent from the tenant. 

I may make it clear that Mr. Purshottam has said that the plaintiff does not contend that the defendant in this case was evicted by title paramount so as to suspend tenancy, but contends that the second proposition as regards the termination by frustration as set out in this judgment does not hold good. 

Lord Reading C. J., delivered a very illuminating judgment and, after referring to the question of title paramount which is not necessary to be considered here dealt with the other question, namely, whether there had been a termination of the whole tenancy by reason of the requisition of the flats. 

It was argued in that case that looking at all the circumstances and treating the case as one would, of ordinary contract, it ought to be held that the tenancy did come to an end. But the learned Chief Justice thereafter quoted the judgment of Lush J. as follows (p. 686) :

"It is not correct to speak of this tenancy agreement as a contract and nothing more.

A term of years was created by it and vested in the appellant, and I can see no reason for saying that because this Order disqualified him from personally residing in the flat it affected the chattel interest which was vested in him by virtue of the agreement."

The learned Chief Justice thereupon remarked that he saw no reason why the chattel interest which was vested in the tenant by virtue of the two leases was affected merely because he was personally prevented from residing in the flats. 

The agreements contained in the leases are not only contracts, they also create an estate by demise for a term of years. 

This judgment is further supported by the decision in Matthey v. Curling, (1922) 2 A. C. 180 : (91 L. J. K. B. 593). 

In that case, during the currency of a lease of a house and land, the military authorities, acting under the Defence of the Realm Regulations, took possession of the demised premises and continued in occupation, thereof until after the expiry of the term. 

In that case also, it was held that the lessee had not been evicted by title paramount, and was liable for the rent; and that the temporary occupation by the military authorities did not excuse him from performance of the repairing covenants. 

Here also it was argued as the foremost ground, namely, that the defendant contended that the action of the military authorities in taking possession of the premises operated to put an end to the lease altogether, and it was argued again that taking of such possession amounted either to an eviction by title paramount, or operated as, what is known as frustration of adventure. 

In the trial Court Bailhache J. relied upon the judgment in Whitehall Court, Ltd. v. Ettlinger (1920) 1 K. B. 680: (89 L. J. K. B. 126) and followed that. After dealing with the question of eviction by title paramount, Bankes L. J. at p. 185 referred to the argument based upon the doctrine of frustration. 

He held there were several reasons for not holding that doctrine applicable. The learned Law Lord held that in the circumstances considered by him, the doctrine of frustration cannot apply where there is a lease. 

Mr. Purshottam has argued that these two cases are distinguishable, because in both these cases there was a lease for a fixed term, whereas in the present instance it is a monthly tenancy. 

In my view, there is no basic distinction, because, whether it is a term for a fixed period, or whether the term is a term which can be determined by notice to quit, the estate vests in the lessee, and therefore the question must always remain whether the order for requisition which is a temporary order, extinguishes such an estate, and in my opinion, the proposition is merely to be stated to see the result that such a temporary order cannot affect the estate vested in the lessee.

Mr. Purshottam has also referred me to the decision of the House of Lords in the case of Cricklewood Property and Investment Trust Ltd. v. Leighton's Investment Trust Ltd., (1945) A. c. 221: (1945-1 ALL E. R. 252) and he has relied upon the judgment of Viscount Simon L. C. as casting a doubt upon the validity of the decisions I have already referred to above. 

It was held in that case that the doctrine of frustration may in certain circumstances apply to a lease. 

This was the opinion given by two Law Lords, Viscount Simon and Lord Wright, while Lord Russell and Lord Goddard both opined that the doctrine of frustration can never apply to put an end to a lease, and they discussed the case of Matthey v. Curling, (1922) 2 A. c .180: (91 L. J. K. B. 593) referred to above.

Perusing the judgment, the Lord Chancellor, at p. 228, defined what was meant by frustration, and held that where it did arise, frustration operates to bring the agreement to an end as regards both parties forthwith and quite apart from their volition. 

Then the Lord Chancellor went on to discuss instances, and held that even where the lease is of the site, it seems to be not inconceivable that the site might cease to exist. 

He comes to the conclusion that there might be instances where the abstract proposition that a lease can never be determined by events equivalent to frustration, is not an absolute one because events may be contemplated, for instance, earthquake or similar instances where there may be frustration. 

For that purpose he relied upon the observations of Lord Atkin in his dissenting judgment in the case of Matthey v Curling, (1922-2 A. C. 180: 91 L. J. K. B. 593).

Thereafter, considering the circumstances of the case, they held the circumstances were not sufficient to strike at the root of the arrangement between the parties, and did not in any event amount to frustration. 

Lord Russell of Killowen, on the other hand, held that on the broader-question the doctrine of frustration can never apply so as to put an end to a lease and the respective liabilities of landlord and tenant thereunder. 

He held that the lease creates and vests in the lessee an estate or interest in the land, a chattel interest, it is true, but a vested estate none the less. 

He referred to the observation of Lush J. in London and Northern Estates Co. v. Schlesinger, 1916-1 K.B. 20: (85 L.J.K.B. 369), to the effect that there was no reason for saying that because the order of requisition disqualified the tenant from personally residing in the flat, it affected the chattel interest which was vested in him by virtue of the agreement. 

Lush J. observed that even after an order of requisition such interest continues and observed. "In my opinion it continues to vest in him still". 

This doctrine was approved in Whitehall Court v Ettlinger, (1920) 1 K. B. 680: (89 L. J. k. B.126), Lord Russell observed as follows (p. 234):

"I know of no power in Court to declare a lease to be at an end except upon finding that some event has occurred on the happening of which the lease terminates by reason of some express provision contained in the document. In such a case the term ends not because the Court exercises a power to terminate it, because in the events which have happened the lease operated only as a demise for the shorter period. The lease must of necessity continue. Some of the obligations thereunder may from time to time, from various circumstances, become difficult, or Impossible of performance by one or other of the parties, but, in my opinion it cannot have applied to it the doctrine of frustration. The rent will continue to be payable in accordance with the terms of the document."

13. In this case cited by Mr. Purshottam, there is no indication that the House of Lords differed from the two English judgments I have referred to above. 

Out of the four, two Law Lords merely opined that there may be circumstances in which the doctrine of frustration may be resorted to for the purpose of holding that a lease or tenancy be terminated. 

That was an abstract proposition argued and considered by the House.

14. Mr Purshottam has cited one further judgment, and that is a very short judgment of Asquith J. in the case of Cramp v. Henry Hughes and Son, Ltd :(1944) W. N. 181 and relied upon the observation of the learned Judge to the effect (p. 182):

"The Air Ministry did have legal possession of the part of the works in question, as the terms of the requisition notice showed on and from 9th May 1940. It was difficult to see what legal consequences a requisition could have except the vesting of legal possession in the requisitioning authority forthwith."

The question in that case has no bearing on the question before me, because the action there was an action for damages for wrongfully, in collusion with the authorities, acquiring the premises, and the only question the learned Judge there was considering was whether in fact legal possession was taken by the Air Ministry, and if possession was taken, then, according to him, there was vesting of legal possession in the requisitioning authority from that time. That does not affect the question raised in this suit.

15. I may refer to one further judgment for the purpose of elucidating this point, and that is the judgment of Chief Justice Latham of Australia, in the case of The Minister of State for the Army v. Delziel 68 Com. L. R, 261. 

The question there was whether the authorities having taken up the property for an indefinite period into their exclusive possession, constituted an acquisition of the property so as to terminate the rights of the weekly tenant who had been holding as a tenant from the Bank of New South Wales, and whether the estate of Delziel as a weekly tenant came to an end.

The learned Chief Justice observed that in the circumstances the Commonwealth could not have acquired the land unless it had become the owner of the land or had some interest in the land. 

The fact that the Commonwealth was in possession of the land as a result of the action under the Regulations does not show that the Commonwealth had become owner of the land or of any estate in the land. 

The rights acquired by the Commonwealth were not, according to the learned Chief Justice, proprietary rights or that which can be owned in respect of the land, in other words, an estate, nor have the Ministers on behalf of the Commonwealth acquired any chattel interest in the land. 

The learned Chief Justice observed :

"The Bank of New South Wales is still the owner of the land and Delziel is still the tenant under the weekly tenancy. No other tenancy has been created, and there has been no assignment of Delziel's tenancy. The Commonwealth is in my opinion in the position of the licensee with rights as stated in the Regulations." This judgment forcibly illustrates the position of a party against whom a requisition order is made in the circumstances set out in this suit. His rights are unaffected, and a party continues to be in possession of those rights unless they are determined by the law of the land or by the term on which the tenancy is based. As observed by me above, this was a requisitioning order, which is essentially of a temporary nature, and the Government had no vested interest in the tenancy as such. In these circumstances, in my opinion, the only answer to the issue that can be made is in the negative, and I hold that the requisitioning of the flat in the occupation of the defendant did not affect the relationship of landlord and tenant, and that the defendant does continue to be a monthly tenant of the plaintiff.”

16. In these circumstances, I make the order that the suit do stand dismissed with cost. ]

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