APPORTIONMENT

The Transfer of Property Act, 1882

TANMOY MUKHERJEE INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherjee

[Advocate]

APPORTIONMENT [Sections: 36 & 37 the Transfer of Property Act, 1882]-

Tanmoy Mukherjee

[Advocate]

Apportionment – Meaning-

The word 'apportionment' literally means "division in proportion" or to distribute/share proportionately. 'Apportionment' Wharton's Law Lexicon (14th Edition, 1938, p-70) describes, 'is a division of whole into parts proportionate to the rights of more claimants than one'. Apportionment frequently denotes not division but distribution and in its ordinary technical sense the distribution of one subject in proportion to another previously distributed.

-Sections 36 and 37 of the Transfer of Property Act, 1882 lay down the provisions relating to apportionment. Under the Act, it is of two kinds, namely-

1. Apportionment by time (Section 36); and

2. Apportionment by estate, (Section 37).

1. APPORTIONMENT BY TIME [Section 36]-

The principle of apportionment by time is based on the English Apportionment Act, 1870. Prior to this enactment, the Common Law of England did not recognize apportionment by time except in the case of interest on money but which accrued from day to day. In case of periodical payments, such as rent, the contract for each portion of rent was regarded at Common Law as distinct and entire. Consequently, this rule of common law led to anomalous results and was, therefore, altered by the Apportionment Act, 1870, Section 2 of which provides-

-'From and after passing of this Act, all rents, annuities, dividends and periodical payments in the nature of income shall, like interest on money but, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly.'

-The necessity for similar rule in Indian law arose out of the fact that under Section 8 of the Act transferee of a property acquired all interest in the property and income accruing from it only from the date of the transfer.

-Section 36 deals with apportionment of periodical payments on determination of interest of person entitled. It runs as follows-

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.

-Where any property, yielding periodical income is transferred, the question of division of that income between the transferor and the transferee arises. Section 8 of this Act provides that a transfer of property passes forthwith to the transferee all the interest, which the transferor is then capable of passing in the property and the legal incidents thereof. But this rule has no application to periodical incomes. Section 36 contains provision to that effect and provides that in the absence of a contract or local usage to the contrary, all rents, annuities, dividends and other periodical payments in the nature of the income shall, be deemed, as between the transferor and the transferee to accrue due from day to day, and to be apportionable accordingly, but shall be payable on the days appointed for the purpose.

-This section applies between the transferor and the transferee only. It has no application between one of the parties to the transfer and a third party, and is limited where property has been transferred inter vivos.

-The rule of apportionment enacted in this section is application only where there is no contract or local usage to the contrary. The contract to the contrary must be between the transferor and the transferee.

2. APPORTIONMENT BY ESTATE [Section 37]-

Section 37 deals with apportionment by estate. It pertains to apportionment of benefit or obligation on severance. It runs as follows:

When, in consequence of a transfer, property is divided and held in several shares, and thereupon the benefit or any obligation relating to the property as a whole passes from one to several owners of the property, the corresponding duty shall, in the absence of a contract, to the contrary amongst the owners, be performed in favor of each owners in proportion to the value of his share in the property, provided that the duty can be served and that the severance does not substantially increase the burden of the obligation; but if the duty cannot be served, or if the severance would substantially increase the burden of the obligation the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose.

-Provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in manner provided by this, section, unless and until he has had reasonable notice for the severance.

-Nothing in this section applies to leases for agricultural purposes unless and until the State Government by notification in the official Gazette so directs.

Illustrations-

1. A sells, to B, C and D a house situated in a village and leased to E at an annual rent of Rs.30 and delivery of one fat sheep, B having provided half the purchase money and C and D one quarter each. E, having notice of this, must pay Rs.15 to B, Rs.7 1/2 to D, and must deliver the sheep according to the joint direction to B, C and D.

2.In the same case, each house in the village being bound to provide ten days' labour each year on a dyke to prevent inundation. E had agreed as a term of his lease to perform this work for A, B, C and D. D severally requires. E to perform the ten days' work due on account of the house of each. E is not bound to do more than ten days' work in all, according to such directions as B, C and D may join in giving.

Section 37 refers to apportionment by estate. Where the whole property or a share in the property is transferred to two or more persons, the benefit of an obligation relating to the property passes to the several owners of the property. In such a case, the obligation must be performed in favor of each of such several owners in proportion to the value of each share in the property.

This rule is subject to the following conditions:

(a) The person on whom the burden of the obligation lies must have notice of the severance;

(b) The obligation must be such which can be severed; and

(c) Severance should not increase the burden of the obligation.

-Thus, when, land subject to an entire money rent is held under a lease and the landlord sells half to A and half to B, the two moieties being of equal value, the tenant may be required to divide the rent equally between the two. The duty to deliver a sheep mentioned in the first illustration is not susceptible of severance. The other illustration exemplifies the second condition, noted above, that the burden of the obligation must not be increased.