Subba Rao, C.J..:-

(1) This is a defendants' appeal against the decree and judgment of the court of the subordinate judge, nellore, in o. S. No. 154 of 1948 a suit filed by the respondent for recovery of a sum of rs. 6,200 - 13 - 0 with interest at 6 per cent, per annum.

(2) The undisputed facts may be briefly stated. One venkataramanayya was the proprietor of jammavaram village. He executed a usufructuary mortgage of the said village in favour of the plaintiff and the 2nd defendant. On 15th march, 1943, the 2nd defendant, sold his half interest in the mortgage to the plaintiff for consideration. Thereafter, the plaintiff leased the village to the defendants for a period of 6 years, from fasli 1352 to fasli 1357 at a rent of rs. 850 payable at the end of every fasli. The 1st defendant is the father - in - law of the 2nd defendant. The defendants surrendered possession of the suit property to the plaintiff in 1948. The said village had been taken over by the government under madras estates (abolition and conversion into ryotwari) act by notification dated 7th september, 1950. Alleging that the defendants did not pay the rents stipulated in the lease deed, the aforesaid suit was filed for recovery of the rent due to him.

(3) The defendants, inter alia, pleaded that the rent for fasli 1359 was received by the plaintiff in advance on the date of the transfer deed by adjusting rs. 850, out of the consideration payable to the plaintiff. They also alleged that the plaintiff did not pay rs. 3,000 under the transfer deed but stood havaltha to third parties to whom the first defendant was indebted. They further averred that, with the permission and approval of the proprietor of the village, a sum of rs. 150 was spent in 1943 for constructing anas and channels to divert water, that in 1945 - 46 another sum of rs. 2,347 - 6 - 0 was spent by them for repairs to the tank and that, under the terms of the lease deed, the said amounts should be given credit to by the plaintiff towards the rents due under the lease. It was further pleaded that because of the madras estates (abolition and conversion into ryotwari) act, it became impossible to perform the terms of the lease deed, and therefore, the suit was not maintainable.

(4) The learned subordinate judge held, on the evidence, that the entire consideration of rs. 3,000 was paid under the transfer deed, and that it has not been established that the rent of rs. 850, due for fasli 1352 was given credit to at the time of the transfer deed. He found that the defendants had only made repairs to the tank to the extent of rs. 500. He also found that, under the terms of the lease deed, the payment of rent was not made to depend upon the collections made by the defendants from the ryots, and therefore, the said fact had no relevancy and could not affect the rights of the plaintiff to recover the rent due to him under the lease deed. In the result, the suit claim less rs. 500 was decreed with interest at 61/4 per cent, per annum till 29th july, 1947 and 5 per cent, subsequently. The defendants have preferred the above appeal against the said decree. The plaintiff preferred a cross - appeal questioning the decree of the lower court in so far as it went against him. Learned counsel for the appellants raised before us the following points : - (1) the contract of lease, on account of supervening circumstances, viz. , the reduction of the rents under the madras estates land (reduction of rent) act, the taking over of the estate by the government under the madras estates (abolition and conversion into ryotwari) act and the consequent prohibition imposed on them to collect rents, had become impossible of performance within the meaning of section 56 of the contract act and, therefore, it had become void and unenforceable ; (2) the evidence adduced in the case establishes that the defendants effected repairs at the cost of rs. 150 in 1943 and at the cost of rs. 2,347 - 6 - 0 in 1945 - 46 and the said amounts should have been set off against the suit claim ; and (3) the court should not have granted interest from the end of each fasli as there was no stipulation to that effect in the lease deed and, therefore, the plaintiff would be entitled only to interest in equity from the date of the demand which was made on 6th august, 1948.

(5) We shall now proceed to consider the said contentions seriatim. To appreciate the first contention, it is necessary to state some more relevant facts. Exhibit a - 5, dated 16th march, 1943, is the lease deed executed by the defendants in favour of the plaintiff. Under the lease deed, the defendants were to pay the government peishcush, land cess, etc. , and to pay the plaintiff a sum of rs. 850 at the end of every fasli year. The defendants were authorised to collect the cist and all other incomes due in respect of the said village during the term of the lease, i. E. , from fasli 1352 to the end of fasli 1357. For the purpose of collection, they were given all the rights which the proprietor had and also all the powers to take steps according to the estates land act. The defendants filed a number of suits against the ryots for recovery of rents for faslis 1352 to 1356. In 1947 - 48, the defendants filed another batch of suits for recovery of the subsequent arrears. The madras estates land (reduction of rent) act (xxx of 1947) came into operation on 6th january, 1948. Under the provisions of that act, rents obtaining in estates were reduced. Presumably, the rents payable in respect of the suit village were also reduced in conformity with the provisions of the act but no evidence has been adduced in this case with respect the rents reduced thereunder. Subsequently the madras estates (abolition and conversion into ryotwari) act became law and the government notified the suit village under the provisions of that act on 7th september, 1950. Thereafter, by reason of the said two acts, the rents payable by ryots were reduced to the level of the rents payable in respect of ryotwari lands ; the government alone was empowered to collect the rents from fasli 1357 until the estate was taken over by the government which they did on 7th september, 1950, and if the rents due for faslis 1356 and 1357 were paid, the entire arrears would be wiped out. There is no evidence in this case that the ryots took advantage of the provisions of the acts and paid rents for faslis 1356 and 1357. The effect of the impact of the acts on the suit property may be stated thus : the rents payable at the time the lease was executed were statutorily reduced after 6th january, 1948. It is said - though there is no clear evidence to that effect - that the rents payable by ryots to the land - holder on 16th march, 1943, i. E. , the date of the execution of the lease deed were rs. 1,900 whereas the reduced rent was rs. 1,700. The acts came into force only after the expiry of the term of the lease and nothing prevented the defendants from collecting the rents at the prevailing rates obtaining at the time of the execution of the lease deed during the subsistence of the lease. Even after act xxx of 1947 came into operation, the government was in the position of a statutory agent to the defendants and they were bound to collect the rents and pay the defendants the net realizations. Therefore, by reason of the said act, the only change that occurred in the implementation of the terms of the lease was that as the defendants did not collect the rents before the act came into force, the rate of rent was statutorily reduced and the government took over their responsibility to collect with an obligation to pay the net realizations to the defendants. On those facts, the question for consideration is whether the defendants are relieved of their obligations under the lease deed by reason of the provisions of section 56 of the indian contract act.

(6) The relevant provision of section 56 reads :

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

. The supreme court of india in satyabrata ghosh v. Messrs. Mugneeram bangur and co. , (1954) s. C. J. 1 : (1954) 1 m. L. J. 41 considered the scope of the doctrine of frustration in its application to india and summarised their view at page 47 thus :

"in deciding cases in india the only doctrine that we have to go by is that of supervening impossibility or illegality as laid down in section 56 of the contract act, taking the word ' impossible' in its practical and not literal sense. It must be borne in mind, however, that section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intentions of the parties"

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(7) The basis of the relief on the ground of subsequent impossibility was stated by their lordship thus: -

"the relief is given by the court on the ground of subsequent impossibility when it finds that the whole purpose or basis of a contract was frustrated by the intrusion or occurrence of an unexpected event or change of circumstances which was beyond what was contemplated by the parties at the time when they entered into the agreement"

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(8) They elucidated the point further by stating that, when such an event or change of circumstances occurs, which is so fundamental as to be regarded by law as striking at the root of the contract as a whole,it is the court which can pronounce the contract to be frustrated and at an end. It is, therefore, clear from the aforesaid observations that the doctrine of frustration, as embodied in section 56 of the contract act could be invoked only if the whole purpose or basis of the contract was frustrated by supervening events. An illustration of this doctrine somewhat relevant to the enquiry before us is found in the decision of the privy council in hangkam kwingtong woo v. Liu lan fong, (1951) 2 all e. R. 567. There, the appellant, a resident of hongkong was the owner of a house, which was subject to a mortgage for sums amounting to $1,03,000 in hongkong currency. From 1942 it was in the occupation of the japanese and, on 10th may, 1943, the japanese made the military yen the only permissible currency in hongkong. ' on 21st august, 1943, on behalf of the appellant, his agent entered into an agreement to sell the appellant's house which was stated to be free of mortgages or any other encumbrances for a sum of 6,80,000 military yen. In september, 1943, the mortgages on the property were paid off in military yen. The japanese occupation came to end in september, 1945 and, in february, 1946 the appellant returned to hongkong. By reason of an ordinance made in 1948, the appellant, while not becoming entitled to receive from the purchaser any sum beyond the military yen already received, became liable to pay the mortgagees a large sum in hongkong dollars beyond the military yen already paid in purported full discharge of the mortgage debts. The purchaser filed an action for specific performance of the agreement of sale. It was contended that the contract had become unenforceable on the basis of the doctrine of frustration. The judicial committee rejected the plea and gave a decree for specific performance of the agreement to sell. At page 573, the argument of the learned counsel for the vendor was summarised thus :

"this is put somewhat graphically by saying that, whereas it was contemplated that the mortgages would be fully discharged out of the purchase money and there would be a balance left over for the appellant, not only is there no balance left for him but he will lose his property and may still remain liable in substantial sums to the mortgagees"

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(9) That argument was met by their lordships in the following manner.

"the question however is whether this change of fortune is to be regarded as so fundamental as to strike at the root of the agreement and render its performance in the manner contemplated by the parties impossible. In their lordships' opinion, it clearly is not. The purchaser has long since fulfilled his part of the agreement. The appellant as vendor can fulfil his part by the execution of a single document. It is, therefore, not a case where performance has become impossible. Nor, if, as the result of the ordinance, the appellant has not obtained the advantage from the agreement that he had expected, can this be deemed a change of circumstances so fundamental as to satisfy the test laid down by viscount simon, l. C. , in cricklewood property and investment trust ltd. V. Leighton's investment trust ltd. , (1945) 1 all e. R. 255, which test was, as their lordships think, correctly applied by the supreme court of hongkong"

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(10) Even though the effect of the ordinance was to introduce a drastic change in the circumstances under which the agreement was entered into, their lordships were not able to invoke the doctrine of frustration as, in their view, the change was not in the circumstances fundamental to the agreement. Can it be said in the present case that the whole basis of the contract of lease was frustrated by reason of the aforesaid enactments.

(11) The two enactments came into force only after the expiry of the term fixed under the lease deed. The defendants could have enforced the entire terms of the contract even before the acts came into force. Even after the acts came into force, the only result of those acts was that the ryots were liable to pay only the statutory rent which could only mean that the earlier rents were exhorbitant and the statutory rate was the just one. The change in the machinery of collection did not really affect any substantive rights of the defendants. The rents at the statutory rate would be collected and paid to them. The reduction of rent effected by the statute in this particular case was also not appreciable. In the circumstances, we cannot hold that the statutory changes introduced were so fundamental as to be regarded by law to strike at the root of the contract as a whole. We, therefore, reject this contention.

(12) Learned counsel for the respondent argued that the doctrine of frustration had no application to a lease. This question was discussed by the house of lords in cricklewood property and investment trust ltd. V. Leighton's investment trust ltd. Two of the law lords expressed the view that it can and two expressed a view to the contrary. Though the learned counsel contended that the supreme court in satyabrata ghosh v. Messrs. Mugneeram bangur and co. , (1954) 1 m. L. J 41 : (1954) s. C. J. 1, accepted the principle that the law of frustration cannot be applied to a lease we do not find any such clear acceptance of that principle in that decision. Their lordships were dealing in that case only with a contract and the question of the, applicability of the doctrine to a lease was neither raised nor decided in that case. It is not necessary to express our final opinion on that question in this matter as we. Have held that even if the doctrine applied, there is no scope for invoking the same. The next question is whether the defendants had made any repairs to the tank and if so, what were the amounts that they spent in that connection. The case of the defendants in the written statement was that, with the permission of the proprietor of the village, a sum of rs. 150 was spent in 1943 for constructing anas and channels to divert water and that in 1945 - 46 a sum of rs. 2,347 - 6 - 0 was spent for repairs. In support of their contention, exhibits b - 10 to b - 15 were filed. Exhibit b - 10 is the account showing the excavation work and their extents in connection with the repair of the jammavaram tank. It relates to fasli 1355 and purports to have been written by the 2nd defendant. The 2nd defendant as d. W. 4 does not speak to any details about this account. There is a pencil writing of the 1st defendant in exhibit b - 10 and if, that is not taken into consideration, the account does not show that relates to the year 1945. It purports to be a copy of the original account sent to the proprietor but the proprietor is not summoned to produce the original. In the circumstances this document cannot be relied upon. Exhibits b - 11 to b - 14 are also carbon copies and the proprietor has not been summoned to produce the originals.

(13) It is said that they were compared by d. W. 7 but they do not contain the initials of d. W. 7. For the reasons we gave in the case of exhibit b - io, these documents also cannot be relied upon. Reliance is placed upon the correspondence that passed between the proprietor and the defendants in respect of certain repairs to the tank. Exhibits b - 5, b - 6, b - 7, b - 8, b - 9 and b - 16 are the letters. They only show that the permission of the zamindar was asked for repairing the tank and that the zamindar gave the permission. The covers in which the letters were received have not been filed and the proprietor himself has not been examined. Exhibit b - 16 purports to be a copy of the letter written by the proprietor to the plaintiff and the 2nd defendant informing them that 1st defendant spent a sum of rs. 2,347 - 6 - 0 for repairs and asking the 2nd defendant and the plaintiff to pay the izara amount to the ist defendant. But p. W. 1 in his evidence denied that he received any such letter and stated that the proprietor was adjudicated insolvent and that he was an intimate friend of mallayya. If the defendants intended to rely upon this document, they should have summoned the proprietor or somebody who had written that letter on behalf of the proprietor. In the circumstances, we must hold that the letters written by the proprietor and the accounts purported to have been sent by the defendants were not proved.

(14) As regards the sum of rs. 150, it is admitted that there were no accounts to support the expenditure incurred in regard to the said repairs. If the documentary evidence is excluded, the question falls to be decided on the oral evidence adduced on behalf of the defendants. D. W. 1 is the 1st defendant. He supports his case. D. W. 4 is the 2nd defendant. Both are interested witnesses and their evidence cannot be accepted unless corroborated by other acceptable evidence. D. W. 5 is the karnam of jammavaram and he says that in 1945 there were breaches and that mallayya repaired them at a cost of rs. 150 and rs. 1,200. But, in cross - examination he says that his estimate is only a rough one. D. W. 6 is a cooly. He says that he repaired the vagu when the tank in jammavaram had breached and that mallayya engaged 100 coolies and got 100 or 120 units of earthwork done. There was litigation original suit no. 69 of 1946 in which the voddars represented that they had a right to take water from the jammavarm tank to their lands and the 1st defendant supported them in that suit. It is very easy to get witnesses of the status of this man to support the defendant's case. D. W. 7 is a clerk of the proprietor. He says that in 1945 the value of the work done was rs. 1,100 and rs. 1,200 in 1946 and that he gave measurements to the proprietor. But, in cross - examination, he. Admits that the proprietor maintains account books, and that the books would not contain the expenses incurred by him for going to jammavaram on bahalf of the proprietor. There are also discrepancies between the version given by this witness and d. W. 1. The learned judge, who had seen the witnesses, rejected their evidence. We cannot accept the oral evidence when no attempt was made to prove the relevant documentary evidence.

(15) On the other hand, p. Ws. 2, 3 and 5 admit to some extent that some repairs were made by mallayya, though they denied the expenditure alleged to have been incurred by the defendants in connection with the repairs. It is also suggested in the evidence of the p. Ws. , that some repairs were done by collecting subscriptions. It is, therefore, clear that mallayya made some repairs to the tank, that that fact is also admitted by the plaintiff. The only question is what is the amount spent by them. In exhibit a - 13, the deposition given by the 1st defendant in o. S. No. 779 of 1947, it is admitted by him that the proprietor paid him the amount spent by him towards repairs. The learned counsel says that there must have been a mistake. But we are not satisfied that itis a mistake. It may be that he made some repairs at the instance of the proprietor and the proprietor paid him amounts. No attempt has been made in the present case to have a commissioner appointed for ascertaining the extent of the breaches and the work done in connection therewith. The defendants have not even examined the commissioner who was appointed in o. S. No. 779 of 1947 who estimated the expenditure incurred in connection with the breaches. In this state of affairs we do not think we are justified in holding that the defendants have made out their case.

(16) Learned counsel for the respondent contends that the sum of rs. 500 awarded by the learned judge is based on pure guess - work. The learned judge obviously accepted the estimate given by the commissioner in the previous suit. The plaintiff admitted the repairs but he did not help the court in fixing the amount spent in connection with the said repairs. The defendants are entitled to some amount and when the learned judge fixed it at rs. 500, we do not think we are justified in taking a different view.

(17) The last question relates to interest. The learned counsel contends that interest should have been awarded only from the date of demand on the ground that the lease deed did not provide for any interest from the expiry of the fasli. But no such contention was raised either in the written statement or in the arguments before the learned judge. We cannot, therefore, allow the appellant to raise this plea for the first time before us. Both the appeal and the memorandum of objections are dismissed with costs. Appeal and cross - objections dismissed.