NATIONAL LAW SCHOOL OF INDIA UNIVERSITY BANGALORE
TRANSFER OF PROPERTY PROJECT PROJECT TOPIC: L aw relatin g to apporti apporti onment onment i n T.P. Act- a cr iti cal study with with reference reference to cas case e laws
Submitted by: LAVANYA PANGTEY ID. N ID. NO. 1892 2 ND YEAR B.A.LLB (HONS.)
Submitted on September 25, 2012.
TABLE OF CONTENTS TABLE OF CASES............................................................................................................................... 3 TABLE OF STATUTES ........................................................................................................................ 4 I NTRODUCTION ................................................................................................................................. 5 RESEARCH METHODOLOGY ..................................................................................................... 6 SECTION 36 ....................................................................................................................................... 7 SECTION 37 ..................................................................................................................................... 13 COMPARISON TO THE E NGLISH LAW .............................................................................................. 16 CONCLUSION ..............................................................................................................................18 BIBLIOGRAPHY ............................................................................................................................... 19
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.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.2 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 X‟s 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.
1
Story, Equity Jurisprudence, 305. Shantilal Mohanlal Shah, P RINCIPLES OF THE LAW OF TRANSFER , 59, 5th edn (1982).
2
RESEARCH METHODOLOGY Aims and objectives
The 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 limitations
The 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 questions
The 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?
Chapterisation
The 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 t he 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 writing
The mode of writing is descriptive and analytical.
Mode of citation
A uniform mode of citation has been followed
SECTION 36 Section 36 of the Transfer of Property Act, 1882 states that “ Apportionment 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. 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. 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.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 3
G.C.V. Subbarao, C OMMENTARY ON THE TRANSFER OF PROPERTY ACT, 1882, 96, (5 th edn, 1963.) Manohar & Chitaley, C OMMENTARY ON TRANSFER OF PROPERTY ACT, 1882, Vol. 1, 637, (7 th edn, 2010).
4
rent.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. 6 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.7 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
8
“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. 9
Nilkanta.
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.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.11
5
Supra note 2. Supra note 4. 7 D.F.Mulla, MULLA ON THE TRANSFER OF PROPERTY ACT, 1882, 257, (Solil Paul, 9th edn., 1933). 8 Smt. Satyabhamadevi Choubey v. Ramkishore Pandey, AIR 1975 MP 115. 9 Satyendra v. Nilkanta, 21 C 838. 10 Jones v. Ogle, (1882) 8 Ch App 192, 198. 11 Supra note 7. 6
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 t hat is accrued between the date of transfer and the day 12
the rent is paid. In Nand Kishore v. Ram Sarup a piece of land the rent for which was payable in two instalments on 1st December (10 annas) and 1 st 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. 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.14 15
Poongavanam Pillai v. V. Subramanya Pillai 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.16 Section 36 is inapplicable in transfer of interest of a lesser. In S.K.G. Sugar Mills v. D.G. Mehta17 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. 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
12
Nand Kishore v. Ram Sarup, AIR1927All569. Supra note 4. 14 Supra note 7 at 259. 15 Poongavanam Pillai v. V. Subramanya Pillai, AIR1951Mad601. 16 Jasvath Singh, T HE LAW OF TRANSFER OF PROPERTY , 110, (2004). 17 S.K.G. Sugar Mills v. D.G. Mehta, AIR1964Pat258. 13
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.18 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. 19 In re United Club and Hotel co. case
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. 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 Incometax, Bombay City21 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 appellant‟s 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. In case of a partition of a joint family, the court held in W.N. Mammad Kunhi v. W.N. Ibrayani 22
Haji and Ors. 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.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.
18
Sk. Sattar Sk. Mohd. Choudhari v. Gundappa AMabadas Bukate, AIR 1997 SC 998. Supra note 7. 20 In re United Club and Hotel Co.,(1898) 67 LJQB 517 (518). 21 E.D. Sassoon and Company Ltd. v. The Commissioner of Income-tax, Bombay City, AIR 1954 SC 470. 22 W.N. Mammad Kunhi v. W.N. Ibrayani Haji and Ors, AIR 1959 Ker 208. 23 Supra note 16 at 111. 19
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.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.25 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.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. 27 It was held in Co-operative Company, Ltd. v. Bhagwan Das and Co.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. 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 ”.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.30 This was held in Byomkesh 31
v. Madhabji 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
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 32
to devolution of interest by succession: in Mamad Kunhi v. Ibrayani Haji , it was held that section 36
24
Halsbury‟s Law of England, Vol. 24, 465, (1912 edn). Supra note 4. 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. 29 Oxford Dictionaries, available at http://oxforddictionaries.com/definition/english/royalty (Last visited on September 20, 2012). 30 B.B. Mitra, O N THE TRANSFER OF PROPERTY ACT, 151, (S.K. Ray, 15 th edn, 1988). 31 Byomkesh v. Madhabji, AIR 1940 Pat 60. 32 Mamad Kunhi v. Ibrayani Haji, AIR 1959 KER 208, 25
does not apply to cases of partition and voluntary transfers, devolution of interest by succession and 34
execution sales are to be treated alike. 33 For instance, in Phirozshaw v. Bai Goolabi 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 settler‟s estate who had life interest and the person who was entitled under the settlement.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. Another instance of the application of section 36 to cases out of its defined boundaries is in Shivaprasad Singh v.Prayagkumari Debee
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 t he death of the original property holder.37 38
In Y.S. David v. Bangaru Rangaraju 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.39 In James C.P. Fernandez v. Ramakrishna Marthoba Rao Kesbekar 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.41
33
Supra note 2, 639. Phirozshaw v. Bai Goolabi, 50 IA 276. 35 Supra note 3 at 95. 36 Shivaprasad Singh v.Prayagkumari Debee, AIR 1935 Cal 39. 37 Supra note 16. 38 Y.S. David v. Bangaru Rangaraju, AIR 1944 Mad 56. 39 Supra note 16. 40 C.P. Fernandez v. Ramakrishna Marthoba Rao Kesbekar, AIR 1940 Mad 21. 41 Supra note 16. 34
SECTION 37 This 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.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. 43
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 them There 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.44 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.45 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.46 This section goes along with section 30 of the Easement Act, 1882 which states similarly to section 37 Partition 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 that such annexation is consistent with the terms of the instrument, decree or revenue proceeding (if any) under which the
42
Supra note 3. Supra note 2. 44 Supra note 2 at 61. 45 Supra note 2. 46 Supra note 2. 43
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. 47 This is section as well as section 30 of Easements Act, 1882 are applicable to section 50 and section 109.48 In Peary Lal 49
v. Madhoji 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 t he assignor is bona fide. It was 50
submitted by the court in Prem Chand v. Mokshoda Devi that just a notice is enough to convert a person‟s 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 f uture rent as well as arrears.51 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, 1882.52 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.53 54
In Badri Prasad v. Shyam Lal Ramaswami C.J. held that in cases of partition when the property is in the possession of the lessee, the lessee‟s 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 56
TOPA.55 Same was also held in Sri Raja Simhadri v. Prattipatti . No substantial increase of burden- There should be no substantial burden on the person performing the obligation without his consent.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 59
when the shares of the dominant heritage are split. 58 In Saddu v. Bihari an agricultural holding was partitioned and the fields went to one sharer while the house of the tenant went to the other. The court
47
nd
Avtar Singh, T EXTBOOK ON THE TRANSFER OF PROPERTY ACT, 1882, 114, (Harpreet Kaur, 2 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. 52 Supra note 4 at 646. 53 Supra note 7 at 262. 54 Badri Prasad v. Shyam Lal, AIR 1963 Pat. 85. 55 Supra note 2. 56 Sri Raja Simhadri v. Prattipatti, (1908) 29 Mad 29. 57 Supra note 4 at 648. 58 Sec. 30, E ASEMENT ACT, 1882, 59 Saddu v. Bihari, (1908) 30 AllWN 282.
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. 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, 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. 61
Jogesh Chandra Roy 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.
62
”
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 64
agreement by all the parties.63 In Sardarilal v. Narayanlal 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. 65
Partition- In Durga Rani Devi v. Mohiu-ddin 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. 66
In Sk . Sattar Sk. Mohd. Choudhari v. Gundappa AMabadas Bukate 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 cosharers. 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. 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 60
Harapali Sarkar and Ors. v. Syed Rajabali Mia and Anr. and Annapurna Dassya , AIR 1919 Cal 998 Shyama Charan Das v. Jogesh Chandra Roy, 14Ind. Cas.29. 62 Id. 63 Supra note 16 at 112. 64 Sardarilal v. Narayanlal ,AIR 1980 MP 8. 65 Durga Rani Devi v. Mohiu-ddin, (1950) 86 Cal LJ 198. 66 Sk. Sattar Sk. Mohd. Choudhari v. Gundappa AMabadas Bukate ,AIR 1997 SC 998. 61
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.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 68
share of the money due on the bond."
69
This is the same in the English common law where in Decharms v. Hoewood 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.
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 t ransfers 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.70 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 t he liability of payment of rent and also when any other periodical payment is transferred. 71 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. Snell‟s 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
67
Supra note 2. Ahinsa v. Abdul Kadir, 1902 25 ILR 26. 69 Decharms v. Hoewood ,10 Bing 562. 70 Supra note 2 at 59. 71 Supra note 2 at 59. 68
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.72
72
Charles E. Rounds, L ORING 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.
BIBLIOGRAPHY
Charles E. Rounds, LORING A TRUSTEE'S HANDBOOK , 834, (2009).
D.F.Mulla, MULLA ON THE TRANSFER OF PROPERTY ACT, 1882, 257, (Solil Paul, 9th edn., 1933).
Manohar & Chitaley, COMMENTARY ON TRANSFER OF PROPERTY ACT, 1882, Vol. 1, 637, (7th edn, 2010).
G.C.V. Subbarao, COMMENTARY ON THE TRANSFER OF PROPERTY ACT, 1882, 96, (5th edn, 1963.)
Shantilal Mohanlal Shah, PRINCIPLES OF THE LAW OF TRANSFER , 59, 5th edn (1982).
Story, Equity Jurisprudence, 305.
Avtar Singh, TEXTBOOK ON THE TRANSFER OF PROPERTY ACT, 1882, 114, (Harpreet Kaur, 2nd edn., 2009).
B.B. Mitra, O N THE TRANSFER OF PROPERTY ACT, 151, (S.K. Ray, 15th edn, 1988).
Jasvath Singh, THE LAW OF TRANSFER OF PROPERTY, 110, (2004).
Miscellaneous
Oxford Dictionaries, available at http://oxforddictionaries.com/definition/english/royalty (Last visited on September 20, 2012).
Halsbury‟s Law of England, Vol. 24, 465, (1912 edn).
