November 26, 2020

Apportionment of Property in India: Meaning, Types and Rules

Transfer Of Property Act

‘Apportionment’ means distribution in proper shares. Section 36 and 37 of the Transfer of Property Act deals with Apportionment of Property in India.

Introduction to Apportionment of Property

This article deals with Apportionment of Property in India. The legal term ‘apportionment’ means distribution or allotment in proper shares. The expression ‘apportionment’ means division of a common fund between several claimants.

In law this term is used in various senses even various statutes define it in various ways and as per the laws regulating these apportionment the process of determine the apportioned amount also changes.

Section 36 & 37 of the Transfer of Property Act lay down the rules regarding the principle of apportionment. It is classified into two types

Apportionment of Property by time

Section 36deals with the apportionment of time, which states- “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 transferee, to accrue due from day to day and apportionable accordingly but to be payable on the days appointed for the payment thereof”.[1]

This principle does not apply on tractions which take place by operation of law but to those transaction based on equity.

When a property generates certain kind of periodical income, apportionment of income between the transferor and transferee arises. The general rule in regards to the transfer of income between the transferor and transferee is dealt in section 8 of the Act and is inapplicable on transaction of periodical nature requiring apportionment.

Liability of the tenant – section 6 of the Act specifies that the section is applicable for transaction held between transferor and transferee and does not make tenant liable.

Concept of Transfer – The Transfer of Property Act, 1882 says that when a property is lent to several owners, any of those several owners on the basis of being the co-owner cannot ask for proportion of rent of evection in case of non-payment. The apportionment created by the Apportionment Act 1870 statute is “apportionment in respect of time.” The cases to which it applies are mainly cases of either:

  • apportionment of rent due under leases where at a time between the dates fixed for payment the lessor or lessee dies, or some other alteration in the position of parties occurs
  • apportionment of income between the representatives of a limited owner and the remainder-man when the limited interest determines at a time between the date when such income became due.

Apportionment of Property by Estate

Apportionment in respect of estate may result either from the act of the parties or from the operation of law.

Section 37 deals with this kind of apportionment stating that “ When, in consequence of a transfer, property is being divided and held in several shares, and thereupon the benefit of 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 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 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 of 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”.[2]

when the whole of a property is transferred to more than one person, any benefit arising out of obligation to the property is transferred to the several owners.

Apportionment by estate simply means transferring of property to several person whereby distribution of benefits and obligation arising out of property between those several owners takes place.

Section 37i.e. apportionment by estate highlights a situation where income arising out of the property is apportionment between owners on the basis of share in the property. How the payment is to be done whether separately to owner or to single has to be contemplated. This section basically deals with apportionment in case tenancy be liable only singly.

Apportionment by act of the parties

Where a lessee is evicted or he forfeits part possession of the leased property he becomes liable to pay the apportioned value of rent which he retains

Apportionment by Operation of Law

Apportionment by operation of law may be brought about where by due to some reasons like by the “act of God”, as, for instance, where part of an estate is submerged by the encroachments of the sea it becomes inoperative as regards to its subject matter.

Conclusion

In this Article the major discussion was on section 36 and 37 of the transfer of property Act, 1882 which deals with Apportionment of Property in India. And how it is read with section 8 of the transfer of property of property Act, 1882. Various exceptions to these sections to Apportionment of Property in India was discussed. Theses section are of immense important in the Act as it specifies the rule of apportionment and how apportionment of income has to be done in case of transfer or tenancy or lease.

[1] Transfer of property Act,1882, section 36
[2]Transfer of property Act 1882, section 37

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Author Details: Kajal Jain

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