Law as to “Apportionment”: Section 36 of Transfer of Property Act, 1882

Section 36 of T.P. Act lays down as :-

“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.”

The appointment frequently denotes not but distribution and in its ordinary technical sense, the distribution of one subject in proportion to another previously distributed. Sections 36 and 38 of T.P. Act are based on. Sections 2, 3 and 7 of Apportionment Act 1870 of England. Some properties yield an income which is periodical, upon transfer of such property question as to apportionment of periodical income, arising from such property between transferor and transferee arises. Though Section 8 of the Act gives general rule that upon transfer of a property, all the interests which transferor is then capable of passing in the property passes through to transferee, but Section 8 has no application. Section 36 says that all periodical payments shall be deemed to accrue from day to day and be apportioned between transferor and the transferee on that basis.

In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, AIR 1997 SC 998 it was observed that provisions of Section 36 and 37 provides that even if the estate is in possession of a tenant, who is under an obligtion to pay rent, there can still be severance of such estate.

However it is important to point out that principles of Section 36 is not applicable to cases of partition of joint families and in the absence of a contract or other circumstances showing contrary intentions, the presumption in such case ought to be that rent or profit accrued to the joint family even before the date of the partition but not realised till then, would belong to that co-sharer to whom has been allotted, the interest of the family in property in respect of which such rent of profit has accrued.

Section 37 of the Act then provides :-

Section 37 of the Act provides about benefit of obligation on severance. It lays down as under :

When in consequence of a transfer property is divided and held in several shares and there upon the benefit of any obligation relating to the propety 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, he performed in favour of each of such owners in proportion to the value of his share in the property provided that the duty can be severed and that the severance does not substantially increase the burden of the obligation, but if the duty cannot be severed or if the severance would substantially increase the burden of the obligation, the duty shall be performed for the benefit of such one of 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 the State Government by notification in the official Gazette so directs.

(a) A sells to B, C, and D a House situated in a village and leased to E on 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. 7.50 to C; Rs. 7.50 to D and must deliver the sheep according to the joint direction to B, C and D.

(b) 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 severally require E to perform 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 direction as B, C and D may join in giving.