National Law School of India UniversityBangalore
Transfer of Property Project
Project Topic:Law relating to apportionment in T.P. Act- a
critical study with reference to case laws
Submitted by:Lavanya PangteyID. No. 18922nd Year B.A.LLB
(Hons.)
Submitted on September 25, 2012.
Table of Contents
Table of Cases3Table of Statutes4Introduction5RESEARCH
METHODOLOGY6Section 367Section 3713Comparison to the English
law16CONCLUSION18Bibliography19
Table of Cases Decharms v. Hoewood ,10 Bing 562. Ahinsa v. Abdul
Kadir, 1902 25 ILR 26. Sk. Sattar Sk. Mohd. Choudhari v. Gundappa
AMabadas Bukate ,AIR 1997 SC 998. Durga Rani Devi v. Mohiu-ddin,
(1950) 86 Cal LJ 198. Sardarilal v. Narayanlal ,AIR 1980 MP 8.
Shyama Charan Das v. Jogesh Chandra Roy, 14Ind. Cas.29. Harapali
Sarkar and Ors. v. Syed Rajabali Mia and Anr. and Annapurna Dassya,
AIR 1919 Cal 998. Saddu v. Bihari, (1908) 30 AllWN 282. Sri Raja
Simhadri v. Prattipatti Badri Prasad v. Shyam Lal, AIR 1963 Pat.
85. Rajnarain v. Ekadasi, 27 Cal 479. Peary Lal v. Madhoji, 17 CLJ
372. Prem Chand v. Mokshoda Devi, 1187 14 Cal 201. C.P. Fernandez
v. Ramakrishna Marthoba Rao Kesbekar, AIR 1940 Mad 21. Y.S. David
v.Bangaru Rangaraju, AIR 1944 Mad 56. Shivaprasad Singh
v.Prayagkumari Debee, AIR 1935 Cal 39. Phirozshaw v. Bai Goolabi,
50 IA 276. Mamad Kunhi v. Ibrayani Haji, AIR 1959 KER 208, Mamad
Kunhi v. Ibrayani Haji, AIR 1959 KER 208, Byomkesh v. Madhabji, AIR
1940 Pat 60. W.N. Mammad Kunhi v. W.N. Ibrayani Haji and Ors, AIR
1959 Ker 208. E.D. Sassoon and Company Ltd. v. The Commissioner of
Income-tax, Bombay City, AIR 1954 SC In re United Club and Hotel
Co.,(1898) 67 LJQB 517 (518). S.K.G. Sugar Mills v. D.G. Mehta,
AIR1964Pat258. Poongavanam Pillai v. V. Subramanya Pillai,
AIR1951Mad601. Nand Kishore v. Ram Sarup, AIR1927All569. Jones v.
Ogle, (1882) 8 Ch App 192, 198. Smt. Satyabhamadevi Choubey
v.Ramkishore Pandey, AIR 1975 MP 115. Satyendra v. Nilkanta, 21 C
838. Co-operative Company, Ltd. v. Bhagwan Das and Co.,AIR 1930 All
615.
Table of Statutes Easement Act, 1882, Apportionment Act, 1870
Transfer of Property Act, 1882.
Introduction
Apportionment in the Transfer of Property Act, 1882 is explained
under sections 36 and 37. It is one of the principles in the
transfer of immovable and movable property which requires
consideration. Apportionment has dual meanings: 1) distribution of
a common property among many people and, 2) contribution made by
different people holding different rights to carry out a common
cause.[footnoteRef:1] The TOPA, 1882 is concerned with only the
first type of apportionment; it is divided into two types:
apportionment by time and apportionment by estate.[footnoteRef:2]
[1: Story, Equity Jurisprudence, 305.] [2: Shantilal Mohanlal Shah,
Principles Of The Law Of Transfer, 59, 5th edn (1982).]
An example of apportionment by time is suppose X has let his
house on rent of Rs. 200 which payable monthly on the last day. If
X sells his house to Z in the middle of the month, then at the end
of the month, X shall receive Rs. 100 as rent and so shall Z. Where
Xs rent will be from the beginning of the month till the middle and
Z will receive rent from the mid month till the end.In
apportionment by estate, X has rented his house for Rs. 200
monthly. If he sells half of the house to Z and gives the tenant
responsible notice of the sale, the tenant is obliged to pay Rs.
100 to X and Rs. 100 to Z from the date of the sale.In this
project, the write has seeks to gain a better understanding of
sections 36 and 37 and their application in the property law in
India. The project has been divided into sections and begins with
Section 36 and its analysis by way of case laws and then goes on to
do the same in the next section regarding Section 37. The last
section is a comparison between apportionment laws in India and
England.
RESEARCH METHODOLOGY
Aims and objectivesThe aim of this paper is to study the concept
of apportionment, as provided in Section 36 and 37 of the Transfer
of Property Act, 1882. The objective is to provide a critique and
compare it under Indian and English law.Scope and limitationsThe
scope of the paper is confined to the discussion of the concept,
the relevant statutes, and case-law. The main limitation of the
paper is that the researcher was only able to compare the concept
under Indian law with respect to English law, and thus could not
analyse the meaning of the concept under other jurisprudences.
Research questionsThe researcher has explored the following
questions in the course of this paper - Q. How has the concept of
apportionment evolved under common law?Q. How have Section 36 and
37 of the Transfer of Property Act, 1882 impacted the evolution of
the law related to apportionment in India?Q. How is the idea of
apportionment under India law distinct from English Law?
ChapterisationThe researcher has divided the research paper into
sections. The first section deals with a critical analysis of
Section 36 of the Transfer of Property Act, 1882. The second
section deals with a critique of Section 37 of the Transfer of
Property Act, 1882. The third section studies the case-law which
deals with the concept of apportionment. The fourth section
compares the law of apportionment under Indian and English
law.Sources of data The researcher has relied on both primary and
secondary sources of data. Primary sources include the bare texts
of various cases and secondary sources include books, magazines,
journals and web resources.Mode of writingThe mode of writing is
descriptive and analytical.
Mode of citationA uniform mode of citation has been followed
Section 36
Section 36 of the Transfer of Property Act, 1882 states
thatApportionment of periodical payments determination of interest
of person entitled.- In the absence of a contract or local usage to
the contrary, all rents, annuities, pensions, dividends and other
periodical payments in the nature of income shall, upon the
transfer of the interest of the person entitled to receive such
payments, be deemed, as between the transferor and the transferee,
to accrue due from day to day, and to be apportionable accordingly,
but to be payable on the days appointed for the payment
thereof.
Section 36 is based on the principle of apportionment by
time.[footnoteRef:3] For example, a property whose rent is payable
on the last date of the month is sold off in the middle of the
month. In such a case, in the absence of any contract which states
the contrary, the seller of the property will be entitled to rent
payable for the first half of the month before the sale was made
and the buyer will receive the rent for the half of the month after
the sale was made. As for the tenant, he will continue the pay the
rent on the last date of the month. [3: G.C.V. Subbarao, Commentary
on the Transfer of Property Act, 1882, 96, (5th edn, 1963.)]
Principle of apportionment by time is derived from the English
Apportionment Act, 1870. In the old English Common law system,
apportionment by time was only recognised on the condition that
there should be an express stipulation for the same. It was based
on the rule that the whole contract could not be subjected to
apportionment but was only applicable to periodical payments which
became due on fixed intervals and not payments like interests which
the creditor could collect when he desires.[footnoteRef:4]
Apportionment by time was not recognised except for in the case of
interest lent money. Hence, there was no apportionment of
periodical payments like rent as each part of the rent agreement
was considered as a separate contract. This disallowed any
apportionment of the rent in case the lesser transferred his rights
to receive such rent between the two days which were allotted to
collect such rent.[footnoteRef:5] However, since the principle of
equity applies to apportionment exceptions were made to this common
law rule in case of certain annuities as would be deemed fit for
the concertinaed situation. Consequently, in 1870, the
Apportionment Act, section 2 was introduced in Britain in order to
make proper provisions for such situations. [footnoteRef:6] [4:
Manohar & Chitaley, Commentary on Transfer of Property Act,
1882, Vol. 1, 637, (7th edn, 2010).] [5: Supra note 2.] [6: Supra
note 4.]
Section 8 of the TOPA provides that day to day incomes like
interest shall be divided among the transferor and the transferee
however this section becomes void when income is not incurred on a
di die in diem basis. It also does not apply to cases partition of
property as it is not a transfer of property and the person to whom
the portion is allotted always maintains his right over the
portion.[footnoteRef:7] [7: D.F.Mulla, Mulla on the Transfer of
Property Act, 1882, 257, (Solil Paul, 9th edn., 1933). ]
Section 36 applies only to transfers between a transferor and
transferee and cannot be applicable in cases of landlord and
tenant. This was verified in the case Smt. Satyabhamadevi Choubey
v.Ramkishore Pandey[footnoteRef:8] [8: Smt. Satyabhamadevi Choubey
v.Ramkishore Pandey, AIR 1975 MP 115.]
What is, however, pertinent to note is that this section is
applicable only as between the transferor and the transferee. It
does not affect the liability of the tenant which must be
determined independent of it. Since the rent for the entire month
of June fell due on the 1st of July, the tenant was liable to pay
the rent for the whole month to the plaintiff even though the
vendor may be entitled to claim apportionment under Section 36 of
the Transfer of Property Act from the plaintiff.This section is
applicable to transfers in the interest of the beneficiary and not
to the interest of the one who is paying, the person who pays the
rent has no claim to apportion it between the assignee and the
landlord. This was clarified in the case Satyendra v.
Nilkanta.[footnoteRef:9] [9: Satyendra v. Nilkanta, 21 C 838.]
It also does not apply to transfers which are done by operation
of law since they are not included by section 2(d) of the Act. The
clause other periodical payments has been explained in the case
Jones v. Ogle where Lord Selbourne held that such payments must be
those that are periodic in nature and recurring at fixed time
intervals and not due through the discretion of one or multiple
persons but from some antecedent obligation and must be in the
nature of an income i.e. it should be in some form of
investment.[footnoteRef:10] It is understood ejusdem generis with
annuities, rents, dividends etc. Partnership is not included in
this clause as the profits are made only after the accounts of the
partners have been adjusted.[footnoteRef:11] [10: Jones v. Ogle,
(1882) 8 Ch App 192, 198.] [11: Supra note 7.]
In case of rents section 36 of the Transfer of Property works in
connection to section 8. Section 8 says that along with the
transfer of property, the transferee also gains all the interest
which comes with the property is and is in a position to be
transferred. This section comes into play for payments like rents
which are accrued after the transfer has been made and are
considered as a day to day payment. The transferee is entitled to
the rent that is accrued between the date of transfer and the day
the rent is paid. In Nand Kishore v. Ram Sarup[footnoteRef:12] a
piece of land the rent for which was payable in two instalments on
1st December (10 annas) and 1st May (6 annas) was transferred on
20th February. The court held that the transferee was entitled to
only the 6 annas instalments after the date of the transfer as it
was incurred on a de die in diem from December 1 to May
1.[footnoteRef:13] Apportionment in such an agricultural case is to
be done on the rent for the season in which the crop is grown and
not for the whole year.[footnoteRef:14] [12: Nand Kishore v. Ram
Sarup, AIR1927All569.] [13: Supra note 4.] [14: Supra note 7 at
259.]
Poongavanam Pillai v. V. Subramanya Pillai[footnoteRef:15] set
some clarifications regarding rent in section 36. It said that rent
in arrears are not legal parts of the transferred property and are
an actionable claim and ought to be assigned separately from the
property. However, if at the time of transfer of the property a
different intention is expressed then it would be heeded to and
section 36 would not be applicable. In cases where no such
intention is expressed but by the actions of the transfer or the
transferee such intention is implied, then again section 36 shall
be inapplicable and the implied intension shall be complied with.
If no such intensions exist, then the rent shall be appropriated
between the transferor and the transferee where the transferee
gains the rent after the date of the transfer and the transferor
will get the rents before the transfer of property.[footnoteRef:16]
[15: Poongavanam Pillai v. V. Subramanya Pillai, AIR1951Mad601.]
[16: Jasvath Singh, The Law of Transfer of Property, 110,
(2004).]
Section 36 is inapplicable in transfer of interest of a lesser.
In S.K.G. Sugar Mills v. D.G. Mehta[footnoteRef:17] there was a
lease for running the concerned sugar mill the rent for which was
to be paid in instalments. The mill was sold by the order of the
court and it was held that the lessee was liable to pay rent for
the mill till the date of the sale even though there was no
crushing of sugarcane done till the time of the sale. [17: S.K.G.
Sugar Mills v. D.G. Mehta, AIR1964Pat258.]
A co-owner cannot split up the tenancy in estate or in rent on
his own. He cannot ask the tenant to vacate his portion of the
rented property and neither can he sure the tenant for his share of
the rent. Such separation of property can only be done when all the
co-owners and co-lesser agree to do so. In such a case, the
property is split severally and each co-owner becomes an individual
owner of the split property and can deal with their portion and the
tenant on an individual basis. The tenant does not have the
authority prevent the owners from splitting the property but he
does have the right to move the court to prove that the partition
was mala fide.[footnoteRef:18] [18: Sk. Sattar Sk. Mohd.
Choudhariv. Gundappa AMabadas Bukate, AIR 1997 SC 998.]
Apportionment also does not affect the date of the payment. If
the assignment of the property takes place in the middle of the
year and the lessee is supposed to pay the rent at the end of the
year then the date of his due payment still remains unchanged
though he will have to pay different amounts to the transferor and
the transferee.[footnoteRef:19] In re United Club and Hotel co.
case[footnoteRef:20] a company was occupying a property which was
under lease and was rented out to them the rent for which was
payable on the usual quarter days. At the time of winding up of
business, it was held that the lesser was not liable to the rent
which was not due yet. [19: Supra note 7.] [20: In re United Club
and Hotel Co.,(1898) 67 LJQB 517 (518).]
Apportionment by time can be set aside by the use a contract on
the contrary in the absence of which section 36 would apply. In
E.D. Sassoon and Company Ltd. v. The Commissioner of Income-tax,
Bombay City[footnoteRef:21] the appellant firm was the managing
agent of various companies and under an agreement transferred their
managing agencies to other companies. The income tax department
accused the appellant of escaping payment on tax. The tribunal
asked the question that under the given circumstances was the
appellants commission apportionable between the assessee company
and the assignee. The supreme court held that the commission was
not apportionable because 1) the managing agents are not co-shares
and hence do not have any share in the profits, 2) there is no
grounds by which the relationship between the company and the
managing agents was that of trusteeship therefore the managing
agents do not have any rights to earn commission unless the
accounts are balanced at the yearend and the commission due to the
agents is ascertained from the net profits, 3) The managing agency
commission had not been accrued to the plaintiff on the date of the
concerned transfers. [21: E.D. Sassoon and Company Ltd. v. The
Commissioner of Income-tax, Bombay City, AIR 1954 SC 470.]
In case of a partition of a joint family, the court held in W.N.
Mammad Kunhi v. W.N. Ibrayani Haji and Ors.[footnoteRef:22]that
section 36 is not applicable. If there is no contract to the
contrary or any contrary intentions it is presumed that any profit
or rent accrued to the joint family, even that accrued before
partition, and which has not been realised yet will be of the
co-sharers to whom the interest from which profit or rent arises
has been allotted.[footnoteRef:23] Same can be said when regard to
local customs and usage which can prohibit the application of
apportionment by time in the concerned area. [22: W.N. Mammad Kunhi
v. W.N. Ibrayani Haji and Ors, AIR 1959 Ker 208.] [23: Supra note
16 at 111.]
An annuity is a yearly payment secure by a personal agreement or
a prayer bond which may be granted for life or for some agreed
number of years.[footnoteRef:24] For a payment to be considered as
annuity, the annual payment should be in the form of income. For
instance, when one purchases income and the capital ceases to
exist, the principal is converted into annuity but not in the case
when the capital can be paid back in annual
instalments.[footnoteRef:25] [24: Halsburys Law of England, Vol.
24, 465, (1912 edn).] [25: Supra note 4.]
Dividends are payments which are made under that name or which
are given out of the revenue of a trading or public companies and
which can be divided among all and any member of that company.
These payments are assumed to be made on a day to day basis and do
not include those payment which are reimbursement of capital or are
in the nature of returns.[footnoteRef:26] Profits from a private
venture and those arising from the sale of new shares of a company
(even if they divisible among the shareholders) are not considered
dividends and in the first case are not
apportionable.[footnoteRef:27] It was held in Co-operative Company,
Ltd. v. Bhagwan Das and Co.[footnoteRef:28] that when there is a
transfer of shares which no explicit concern to dividends (since a
sale of shares need not always include sale of dividend), the
transferors shall be entitled to dividends before the time of
transfer of shares. It was also held that dividend that is declared
after the transfer of shares does not have any effect on the rights
of the transferor. [26: Sec. 5, Apportionment Act, 1870.] [27:
Supra note 4 at 643.] [28: Co-operative Company, Ltd. v. Bhagwan
Das and Co.,AIR 1930 All 615.]
A royalty is a sum paid to a patentee for the use of a patent or
to an author or composer for each copy of a book sold or for each
public performance of a work.[footnoteRef:29] Royalty is not
considered to be given at the end of a particular time period and
is not treated the same as rent. This is because the amount which
is to be paid depends upon external factors and not
fixed.[footnoteRef:30] This was held in Byomkesh v.
Madhabji[footnoteRef:31] where royalty at a given rate was to be
paid on coal but there was no specification as to when it shall be
payable. The court said that the royal shall be paid within a
reasonable period of time and in the given case three months were
considered an adequate period of time [29: Oxford Dictionaries,
available at
http://oxforddictionaries.com/definition/english/royalty (Last
visited on September 20, 2012).] [30: B.B. Mitra, On the Transfer
of Property Act, 151, (S.K. Ray, 15th edn, 1988).] [31: Byomkesh v.
Madhabji, AIR 1940 Pat 60.]
Since the Indian law is very limited in its view of
apportionment, cases which stand outside of the preview of this law
shall be judged on the basis of equity, justice and good conscience
and the application of the English common law. Based on this, the
principle has been applied to cases relating to devolution of
interest by succession: in Mamad Kunhi v. Ibrayani
Haji[footnoteRef:32], it was held that section 36 does not apply to
cases of partition and voluntary transfers, devolution of interest
by succession and execution sales are to be treated
alike.[footnoteRef:33] For instance, in Phirozshaw v. Bai
Goolabi[footnoteRef:34] in accordance with a settlement deed,
successive estates were created and the income from the investments
and other settled property in the form of rents and shares was
allotted to the these successive estates. The conflict was whether
the income was apportionalbe de die in diem between the deceased
settlers estate who had life interest and the person who was
entitled under the settlement.[footnoteRef:35] The Privy Council
held that in the absence of any law in India which dealt with such
a situation, the English common law would apply according to which
there would be no apportionment of discontinuous payments. [32:
Mamad Kunhi v. Ibrayani Haji, AIR 1959 KER 208,] [33: Supra note 2,
639. ] [34: Phirozshaw v. Bai Goolabi, 50 IA 276.] [35: Supra note
3 at 95.]
Another instance of the application of section 36 to cases out
of its defined boundaries is in Shivaprasad Singh v.Prayagkumari
Debee[footnoteRef:36] where the issue was regarding the inheritance
of an impartibly estate between the said heirs and the son who
intervened as executor de son tort. The court held that on the
basis of the principle of equity the son was not the rightful heir
to the estate and that the plaintiff is entitled to rents and
royalties only up to the death of the original property
holder.[footnoteRef:37] [36: Shivaprasad Singh v.Prayagkumari
Debee, AIR 1935 Cal 39.] [37: Supra note 16.]
In Y.S. David v.Bangaru Rangaraju[footnoteRef:38] section 36 was
applied to sales in execution though the section is not applicable
to such sales. This was done on the basis of equity, justice and
good conscience. The court held that when a property which is
pending a mortgage suit is allotted to a receiver who leases out
the property, and on the day of the execution of the suit the
property is in the possession of the lessee, then on the instance
of the auction- purchase the rent subsequent to the date of the
sale can be apportioned between the receiver and the
purchaser.[footnoteRef:39] [38: Y.S. David v.Bangaru Rangaraju, AIR
1944 Mad 56.] [39: Supra note 16.]
In James C.P. Fernandez v. Ramakrishna Marthoba Rao
Kesbekar[footnoteRef:40] the court stated that the defendant was in
possession of the concerned property only up to the date of
partition and till that date he would be liable to pay rent however
after the date of partition, the property shall be enjoyed
severally.Section 36 is applicable in cases where an assignee of a
lessee seeks apportionment of rent. If the assignment is the same
size as that in the lease then the rent should not be more that in
this assignment. However, if it is a question of tenancy over a
long period of time then the assignee can ask for apportionment of
rent.[footnoteRef:41] [40: C.P. Fernandez v. Ramakrishna Marthoba
Rao Kesbekar, AIR 1940 Mad 21. ] [41: Supra note 16.]
Section 37This section applies the principle of apportion by
estate. Before the TOPA was enacted, when a property was sold among
many people jointly, the tenement was supposed to pay the rent
jointly unless the property holders decided to appropriate the
rent.[footnoteRef:42] The for need for this principle arises when a
property is divided into multiple shares and the benefit arising
from the property also requires to be divided among the many
shareholders in accordance to the amount of share held by each
person. [footnoteRef:43] [42: Supra note 3.] [43: Supra note
2.]
It is presumed that while applying this section there was some
obligation relating to the property before the transfer took place.
Upon the break up of the property among the various owners, the
benefits from the obligation is also distributed among themThere
are three conditions to this rule:1. The person upon whom the
burden of carrying out the obligations falls must be provided with
a reasonable notice of severance of the property and such a notice
be given at an earlier time by the assignor or the assignees. If no
such notice is given, the executor of the obligation cannot be held
liable for the failure to discharge the obligation severally.
Further, if he has already discharged the obligation towards the
transferor, the new owners cannot ask him to do it a second
time.[footnoteRef:44] [44: Supra note 2 at 61.]
2. The obligation itself must be of a nature that can be severed
and be performed in favour of each shareholder. If the obligation
cannot be severed, it shall be done towards one owner which all the
joint owners choose.[footnoteRef:45] [45: Supra note 2.]
3. The severance of the property must also not result in the
increase in the burden of the obligation which needs to be carried
out by the person in charge of the act. If the severance provides
an additional burden on the whole of the property then it should be
performed as if the obligation cannot be severed.[footnoteRef:46]
[46: Supra note 2.]
This section goes along with section 30 of the Easement Act,
1882 which states similarly to section 37Partition of dominant
heritage.-Where a dominant heritage is divided between two or more
persons, the easement becomes annexed to each of the shares, but
not so as to increase substantially the burden on the servient
heritage:Provided thatsuch annexation is consistent with the terms
of the instrument, decree or revenue proceeding (if any) under
which the division was made, and, in the case of prescriptive
rights, with the user during the prescriptive period.Notice- Any
person who holds the burden of obligation is not liable under
section 37 for improper discharge of obligation unless he has been
given a reasonable notice of severance.[footnoteRef:47] This is
section as well as section 30 of Easements Act, 1882 are applicable
to section 50 and section 109.[footnoteRef:48] In Peary Lal v.
Madhoji[footnoteRef:49] the court held that it is immaterial who
sends out the notice, either the assignee or the assignor. What is
relevant is that the payment pleaded by the tenant to the assignor
is bona fide. It was submitted by the court in Prem Chand v.
Mokshoda Devi[footnoteRef:50] that just a notice is enough to
convert a persons obligation towards a singular person to
performing obligations for all of the several shareholders.
However, in case of a suit all the co-sharers will be required to
form parties and only then can apportionment of rent take place
which shall include future rent as well as arrears.[footnoteRef:51]
[47: Avtar Singh, Textbook on the Transfer of Property Act, 1882,
114, (Harpreet Kaur, 2nd edn., 2009).] [48: Supra note 30.] [49:
Peary Lal v. Madhoji, 17 CLJ 372.] [50: Prem Chand v. Mokshoda
Devi, 1187 14 Cal 201.] [51: Rajnarain v. Ekadasi, 27 Cal 479.]
Benefit of any obligation- The obligations in this sections are
limted to an active nature which require some action to perform.
For this reason easements are not included in this section as they
are not of an active nature. To make provision for this, a similar
clause as this section has been included in the Easement Act,
1882.[footnoteRef:52] When a property is sold by a lesser, the
obligations that are attached to the property are also transferred
and the lessee is obliged to perform them for all the
sharers.[footnoteRef:53] [52: Supra note 4 at 646.] [53: Supra note
7 at 262.]
In Badri Prasad v. Shyam Lal[footnoteRef:54] Ramaswami C.J. held
that in cases of partition when the property is in the possession
of the lessee, the lessees obligation to pay rent to one single
lesser gets converted to paying rent to all the new owners
individually. There lesser can also file individual suits against
the lessee on the failure of payment of the rent if he has received
the notice for partition or has been paying rent severally. Such
cases of partition will be ruled by section 37 and section 109 of
the TOPA.[footnoteRef:55] Same was also held in Sri Raja Simhadri
v. Prattipatti[footnoteRef:56]. [54: Badri Prasad v. Shyam Lal, AIR
1963 Pat. 85.] [55: Supra note 2.] [56: Sri Raja Simhadri v.
Prattipatti, (1908) 29 Mad 29.]
No substantial increase of burden- There should be no
substantial burden on the person performing the obligation without
his consent.[footnoteRef:57] The Easement Act, 1882 too has a
similar provision in section 30 which states that the there should
be no increase in the burden on the servient heritage when the
shares of the dominant heritage are split.[footnoteRef:58] In Saddu
v. Bihari[footnoteRef:59] an agricultural holding was partitioned
and the fields went to one sharer while the house of the tenant
went to the other. The court held that the tenant was entitled to
occupy the house free of rent as before the partition the tenant
was allowed to use the house rent free and the partition cannot
impose new obligations on the tenant and so the other co-sharer
could not earn rent from him. [57: Supra note 4 at 648.] [58: Sec.
30, Easement Act, 1882,] [59: Saddu v. Bihari, (1908) 30 AllWN
282.]
Property divided and held in shares- This section is not
applicable where there is no division of the property. Hence, in
case of when there is a transfer of shares in a tenure let out
wholly to a tenant has no effect on the severance of the tenure and
the first half of the section cannot be applied. In such cases,
[footnoteRef:60] the apportionment of rent is done by agreement
between all parties and if there is no such agreement then it is
done by a suit for apportionment like in the case of Shyama Charan
Das v. Jogesh Chandra Roy[footnoteRef:61] where the co sharer sued
the tenant for rent for his share of land. The court held that on
the absence of separate collection of rent, a co-sharer can, of
course, maintain a suit for the entire rent due to all the
co-sharers making them parties to the suit, and there is such a
prayer in the plaint.[footnoteRef:62] [60: Harapali Sarkar and Ors.
v. Syed Rajabali Mia and Anr. and Annapurna Dassya, AIR 1919 Cal
998] [61: Shyama Charan Das v. Jogesh Chandra Roy, 14Ind. Cas.29.]
[62: Id.]
In cases where any part of a leased property is transferred
under application of section 109, the property cannot be held to be
divided into several shared among the co-sharers. This means that
the tenant is not liable to apportion his rent. Here too the
apportionment can only be done upon the agreement by all the
parties.[footnoteRef:63] In Sardarilal v.
Narayanlal[footnoteRef:64] when there is only a fractional share is
transferred, the transferee of the lease property will become a co-
owner with the lesser as he would gain the all the rights of a
lesser with regard to the shares. [63: Supra note 16 at 112.] [64:
Sardarilal v. Narayanlal ,AIR 1980 MP 8.]
Partition- In Durga Rani Devi v. Mohiu-ddin[footnoteRef:65] it
was held that section 37 and section 109 of the Transfer of
Property Act are not applicable when as a result of partition,
reversion of land is not possible anymore. Instead, they apply to
the cases of assignment or severance of the reversion of land which
may result as consequence of partition. [65: Durga Rani Devi v.
Mohiu-ddin, (1950) 86 Cal LJ 198.]
In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa AMabadas
Bukate[footnoteRef:66]it was held that tenancy cannot be split
either in estate, rent or any other obligation by a one sided act
of a one of the co-sharers. A single co-sharer also cannot evict a
tenant or sure him for rent. But if all the co- owners split the
property in a definite and identifiable manner by metes through
mutual agreement, they become individual owners of that part of the
property and can practice individual rights as given in section
109. The tenant in this matter cannot prevent the co- owners from
partitioning the property but can move the court to prove that the
partition was not bona fide. [66: Sk. Sattar Sk. Mohd. Choudhari v.
Gundappa AMabadas Bukate ,AIR 1997 SC 998.]
But the apportion be estate rule is not absolute and does not
exclude the authority of the joint property holders to not divide
the property or, if divided, perform the obligation as if the
property was not divided. It is also not applicable in case of
agricultural property when divided among several oweners. This is
done on so as to not create difficulties for the agriculturalists.
Here, the person has to pay rent to one person who is appointed by
the joint land holders. But the state governments can remove this
exception if notified by the Official Gazette.[footnoteRef:67] This
section is also not applicable in cases of involuntary transfers or
cases of succession where for instance, upon the death of a
creditor, all his separate heirs can only jointly enforce the right
which he could have enforced if he were alive: "that when, upon the
death of the obligee of a money bond, the right to realise the
money has devolved in specific shares upon his heirs, each of such
heirs cannot maintain a separate suit for recovery of his share of
the money due on the bond."[footnoteRef:68] [67: Supra note 2.]
[68: Ahinsa v. Abdul Kadir, 1902 25 ILR 26.]
This is the same in the English common law where in Decharms v.
Hoewood[footnoteRef:69] the court held that regardless the numbers
of shareholders of an indivisible property, it has one heir on the
basis of unity of interest and unity of title. Just a singular
person cannot lay claim on the property without all the others
joining in. [69: Decharms v. Hoewood ,10 Bing 562.]
Comparison to the English law
The Indian law on apportionment and its provisions are much
narrow compared to the English Apportionment Act, 1870. There are
two main points of distinction between the two:1. The Indian law is
limited to inter vivos transfers and cannot be applied in cases of
transfers by operation of law. The English law is not limited to
transfers only, instead it lays down provisions which can be
applied anywhere where they are necessity.[footnoteRef:70] [70:
Supra note 2 at 59.]
2. The Indian law is applicable only between the transferor and
the transferee of the property which yields some form of income. It
does not affect the date of payment or the liability of the tenant.
The English law on the other hand applies when the right to receive
payments is transferee, when there is a transfer of the liability
of payment of rent and also when any other periodical payment is
transferred. [footnoteRef:71] [71: Supra note 2 at 59.]
Apart from this within the whole Indian legal framework,
apportionment occupies only these two sections of the Transfer of
Property Act, 1882. The English law on the other hand has a whole
Act dedicated to the purpose of apportionment. This can be seen as
reflective of the poor Indian property laws which have always been
a source of great confusion and a large number of court
cases.Snells law of equity forms the basis of apportionment. While
in India it is limited to sections 36 and 37, in the USA
apportionment issued mostly in the sense of tax obligations of
takers under a will, trust beneficiaries, between a trust and a
probate estate and between trusts. In England, the law of equity is
applied in cases of state taking over the role of the trustee in a
discretionary trust.[footnoteRef:72] [72: Charles E. Rounds, Loring
A Trustee's Handbook, 834, (2009).]
CONCLUSION
Apportionment is a very fundamental concept under the law
relating to property. However, there are various problems that have
arisen as a result of this subject. The division of property can
have different meanings when taken in different senses, and even be
of various types.Through the course of this research paper, the
concept of apportionment has been explored under the two different
sections given in the Transfer of Property Act, 1882. Section 36
applies to apportionment when it entails periodical payments once
the person in whom the interest lies is determined. On the other
hand, Section 37 applies to those situations where a severance has
happened, and apportionment of benefit of obligation needs to be
done. The researcher has found that in these sections provide the
two types of apportionments, that is, by time and by estate. The
researcher has also concluded the different ways in which the law
related to apportionments is applicable to the Indian law of
property and how the sections and their provisios are flexible and
can be applied to different situations. Thus the researcher
concludes that the law related to apportionments is a chief
component of the law on property and yet, it is inadequate in India
when compared to the English law from which it has been
derived.
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