DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE: SECTIONS 34-37 OF THE TRANSFER OF

PROPERTY ACT

SUBJECT: PROPERTY LAW

NAME OF THE FACULTY: Prof. P. Jogi Naidu

NAME OF THE CANDIDATE: Vishal Jain

ROLL NO. : 2015137

SEMESTER: 5th Semester

 ACNOWLEDGEMENT
This Project work has been carried out to meet the academic requirements of Damodaram
Sanjivayya National Law University. I would like to put on record, my appreciation and
gratitude to all who have rendered their support and input. Without them, it would not have
been possible for me to shape this study. Foremost, I would like to express my sincere gratitude
to my coordinator and mentor Prof. P. Jogi Naidu for the continuous support at the time of
my research, for his patience, motivation, enthusiasm, and immense knowledge. His guidance
helped us in all the time of research and writing of this research project. The blessing, help and
guidance given by him time to time shall carry me a long way in the journey of life on which I
am about to embark.

I would also like to thank our Institution and our faculty members without whom this project
would have been a distant reality. I take this opportunity to thank and pay respect and love to
my parents and all other family members and friends for their love and encouragement
throughout.
 CONDITIONAL TRANSFER

Conditional Transfers

Conditional Transfers of the Transfer of the Property Act explains under the Section 25 to 34.

Every Person competent to contract can transfer a property either absolutely or conditionally.
Such conditions may be either "Conditions Precedent or Condition Subsequent".

In Condition Precedent, conditions must be fulfilled before a person can acquire an interest in
a property.

In Condition Subsequent, conditions must be performed after the transfer has taken place.

Eg:-

"A" transfers a house to "B" on the condition that "B" shall marry "C". This is a Condition
Precedent. But "A" transfers the house to "B" with a condition that "B" shall marry "C" within
two years from the transfer. This is a Condition Subsequent.

Condition Precedent:

According to the Section 25 and 26 defines the "Condition Precedent" in the Transfer of the
Property. The Condition Precedent must not be impossible of performance. It must be lawful
and not forbidden by law. The condition Precedent must obey the provisions of all laws. It
should not fraudulent and or cause injury to the person or property of another person and or
should not be immoral or opposed to public policy.

Condition Subsequent:

According to the Section 27 to 34 of the Transfer of the Property Act defines the "Condition
Subsequent". Condition Subsequent has different types of Transfers.

They are:-

1. Subsequent Transfers

2. Conditional Limitation

3. Fulfilment of Condition Subsequent

4. Prior disposition not affected by invalidity of ulterior disposition

5. Condition that transfer to effect in specified uncertain events

6. Condition invalid and

7. Conditional on Performance.

Time for Performance Specified:

Section 34 of the Act, deals with the "Time for Performance Specified". This section lays down
that if the performance of a condition whether subsequent or precedent is prevented by a person
interested in its non-fulfillment, the delay is execused and the condition is discharged. This
section is based on the principle that no man is allowed to take advantage of his wrong.

Eg:-

"A" transfers property to "B" with a condition that if he does not go to England within a year,
it will pass on to "C". If "C", by playing a fraud, prevents "B" from performing the condition,
the delay in such performance is excused.

Section 34 in The Transfer of Property Act, 1882

Transfer conditional on performance of act, time being specified.—Where an act is to be
performed by a person either as a condition to be fulfilled before an interest created on a transfer
of property is enjoyed by him, or as a condition on the non-fulfilment of which the interest is
to pass from him to another person, and a time is specified for the performance of the act, if
such performance within the specified time is prevented by the fraud of a person who would
be directly benefited by non-fulfilment of the condition, such further time shall as against him
be allowed for performing the act as shall be requisite to make up for the delay caused by such
fraud. But if no time is specified for the performance of the act, then, if its performance is by
the fraud of a person interested in the non-fulfilment of the condition rendered impossible or
indefinitely postponed, the condition shall as against him be deemed to have been fulfilled.

Analogous Law
This section corresponds to Section 137 of the Indian Succession Act, 1925, which is as under:

Performance of condition, precedent or subsequent, within specified time. Further time in case
of fraud.—Where the Will requires an act to be performed by the legatee within a specified
time, either as a condition to be fulfilled before the legacy is enjoyed, or as a condition upon
the non-fulfilment of which the subject-matter of the bequest is to go over to another person or
the bequest is to cease to have effect, the act must be performed within the time specified,
unless the performance of it be prevented by fraud, in which case such further time shall be
allowed as shall be requisite to make up for the delay caused by such fraud.
Principle
The section is based on the principle that no party can take advantage of his own fraud or other
wrongful act. If the performance of a condition, subsequent or precedent, is prevented by a
person interested in its non-fulfilment, the delay is excused and the condition is discharged.

In Tincouri v. Krishna,1 the testator directed that if any of the female members of his family
lived for more than three months at any place other than a holy place, they would forfeit their
interest under his will. The female members were so prevented by a person who has to be
directly benefited by the non-fulfilment of the condition. It was held that the forfeiture was not
incurred.

Scope
The section is applicable both to conditions precedent and to conditions subsequent. It applies
when the time for performance of a condition is fixed.

The section is clear. In the case of the requirement of an act to be performed by the transferee
within a specified time, either as a condition precedent for the vesting of the property
transferred, or as a condition subsequent upon the non-fulfilment of which the property is to
go over to another person or the transfer ceases to have effect, the act must be performed within
the time specified. But the time is to be extended, when the performance of the act is prevented
by fraud of a person who would be directly benefited by the non-fulfilment of the condition, in
which case, such further time has, as against him, to be allowed for performing the act, as shall
be requisite to make up for the delay caused by such fraud.

In Brook v. Garrod,2 a right of pre-emption was given, but on condition that the option was
notified within one month and the purchase money paid within two months of the testator’s
death. The donee of the right of pre-emption notified his intention within one month, and called
for an abstract of title, but failed to pay the purchase money within the prescribed time. It was
held, that the right of pre-emption was lost, but it was observed that, if there had been such
fraud or laches on the part of the trustees as could be considered to be the sole cause of the
donee not complying with in the condition imposed by the will, he might’ve been entitled to
relief.

1
ILR 20 C 15.
2
2 De G & J 62.
It is clear that, even when time is fixed, the act can be performed, in certain cases, beyond the
time on the principle of its having been substantially performed.3

The section requires that the time appointed for performing the condition should be so material
to be observed, as for ever to prevent the transferees, upon their permitting the period to elapse,
from subsequently performing it. So, where an act is to be performed within a certain time, the
performing of the act within that time is essential to the transferee’s title, and if he omits to
perform it then, although he may shortly afterwards perform it, the defect in the literal
performance of the condition cannot be remedied because the time allowed for performance is
not a mere secondary consideration, but it seems to have been in the contemplation of the
transferor at the date of transfer, and intended by him to be punctually observed. A Court,
therefore, cannot enlarge the period for the performance of the act, which the transferor himself
thought proper to determine.

In Burgess v. Robinson,4 the testator bequeathed £ 200 charged upon his immovable property
to each of his three nephews, to be paid to them as soon as they arrived in England or claimed
the same, provided the claim was made within the first three years next after his death. The
testator further directed, that if only two of his nephews so arrived or made the claims within
the above period, each of them was to be paid £ 250; but if only one arrived and claimed, he
was to receive £ 400 and the residue was to be considered part of the testator’s residuary estate;
so also was to be considered the entire sum, if neither nephew arrived in England nor made
claim within the time before mentioned. The testator then gave directions for the disposal of
the residuary estate. None of the nephews literally complied with the condition. One of them
came to England at the end of four years subsequent to the testator’s death, and being informed
for the first time of the will, he claimed the benefit intended for him by the testator. The claim
was thrown out on the ground that the testator having imposed on the legatee a condition, which
he had not complied with, although the non-compliance was due to his ignorance of the
provision, yet the consequence must be that he was not entitled to the legacy.

In Tulk v. Houlditch,5 the testator gave his son J, a specified legacy stating, that the probability
was that he was then dead, upon condition that J should not be entitled to it unless he returned
to England and personally claimed it. He directed that if J did not return and make such claim
within 7 years after his death, he should be presumed to be dead, and the legacy considered to
be lapsed, and fall into the residue. J was living at the date of the will. He did not return to
England, but died within 7 years from the date of death of the testator. He was regularly
informed of the bequest, and intended to comply with its terms but was prevented by the illness
which occasioned his death. It was held, that the legacy did not fall due under the

3
Simpson v. Vickers, 14 Ves 341; Taylor v. Popham, 1 Bro CC 168.
4
3 Mer 7.
5
1 V & B 248.
circumstances, as the language of the will plainly showed that the testator did not mean the
legacy to be taken, unless the fact, that J was living, was pointed out by the means by which
the testator required that demonstration.

Computation of time for performance.

The computation of the time for performance should be made in accordance with the following
rules:-

(1) If the transferor has specified a day for the performance of the act, then from that day,
that is, the act must be performed within the specified time; the question whether the
day specified is inclusive or exclusive should be decided in the manner which will best
answer the intention of the transferor; but the act and the day are co-extensive and the
performance cannot be said not to have been done until the day is passed;

(2) If the performance within the specified time is prevented by the fraud of a person who
would directly be benefited by the non-fulfilment of the condition, such further time
should be allowed against him for performing the act shall be requisite to make up for
the delay caused by such fraud;

(3) If no time is specified for the performance of the act, then the act must be performed
within a reasonable time, having regard to the intention of the transferor.

(4) If no time is specified for the performance of the act, and if its performance is by the
fraud of a person interested in the non-fulfilment of the condition rendered impossible,
or indefinitely postponed, the condition must, as against the person guilty of the fraud,
be deemed to have been fulfilled;

(5) The fraud or duress practised by any other person would not relieve the transferee, and
the result of the failure to perform the act within a specified time or a reasonable time,
as the case may be, will be to pass the interest to another person.
In all cases, the intention of the transferor will prevail.
 ELECTION

In the light of Transfer of Property Act, 1882 the Doctrine of Election is one of the most
important areas of the law relating to transfer of property. Section 35 of the Transfer of Property
Act deals with this doctrine. The primary element in the doctrine of election is the presence of
choice. The foundation of Election is that a person taking the benefit of an instrument must
also bear the burden.6 Generally, Election means choosing between two inconsistent or
alternative rights. Under any instrument if two rights are conferred on a person in such a manner
that one right is lieu of the other, he is bound to elect only one of them.

In Beepathumma v/s Kadambolithaya SC7 held that a person cannot take under and against
the same instrument. Means he can approbate and reprobate at the same time.

Example- Abu Bakar offer 1,00,000 to Joy in lieu of transfer his house, So, Joy can elect only
one, either he can retain the money and transfer his house or deny the money, he cannot enjoy
the both. Section 35 of the Transfer of Property Act embodied the doctrine of election.

According to the section 35 where a person ---

i) Professes to transfer property which he has no right to transfer, and
ii) As part of the same transaction, confers any benefit on the owner of the property, such
owner must elect either to confirm the transfer or to dissent from it.8

If he dissents from it,

a) He must relinquish the benefit so conferred; and
b) The benefit so relinquished reverts to the transferor or his representative as if it had not been
disposed of.

INTRODUCTION

The doctrine of election is stated in Sec. 35 of the Transfer of Property Act alongside Section
180 to 190 of the Indian Succession Act.

It states that when a party transfers a property over which he does not hold any right of transfer
and entailed in that transaction is the benefit conferred upon the original owner of the property,
such title-holder must elect his option to either validate such transfer of property or reject it;
upon rejection, the benefit shall be relinquished back to the transferor subject nevertheless:

6
Codrington vs Lindsay 1873, 8 CH 578
7
A.I.R. (1965) S.C. 241
8
Mst. Dhanpatti vs. Devi Prasad and others, (1970) S.C.D 174
  “Where the transfer has been through gratuitous means and the transferor has become
incapable of making a new transfer.
 In all cases where the transfer is for consideration”.9

An illustration to further explain:

A owns a property that is worth Rs 800. B professes to transfer the same to C through the
Rs1000 instrument to A. But the A, the owner opts/elects to retain his property and thus, forfeits
the gift of Rs 1000.10

EXCEPTIONS

When the owner who is considering the election between retaining the property and accepting
a particular benefit, chooses the former, he is not bound to relinquish any extraneous benefit
that he gains through the transaction.

The acceptance of the benefit by the original owner shall be deemed to be as election by him
to validate the transfer, if he is aware of his responsibilities and the circumstances that might
influence a prudent man into making an election.

This knowledge of the circumstances can be assumed if the person who gains the benefit enjoys
it for a period of more than two years. Further discussion over this has been made under the
heading of “Modes of Election”.

If the original owner does not elect his option within a year of the transfer of property, the
transferor would require him to elect his choice. Even after the reasonable time, if he still does
not also still elect, the original owner shall be assumed to have elected the validation of the
property transfer as his choice.

In context of a minor, the period of election shall be stalled till the individual attains majority
unless he is represented by a guardian.

9
Section 35, The Transfer of Property Act, 1882
10
G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law Publishing 2010).
UNDERSTANDING THE PRINCIPLE

In simple words, a person utilizing the benefits of an instrument also has to carry the burden
attached. This doctrine is founded upon a model wherein a person persuades another to act in
a manner to his prejudice and derives any advantage from that, then he cannot turn around and
claim that he was not liable to perform his part as it was void.11 This doctrine is universal and
is applicable to Hindus, Muslims as well as Christians.

So, this doctrine contains the principle that the exercise of a choice by a person left to himself
of his own free will to do one thing or another binds him to the choice which he has voluntarily
made, and is founded on the equitable doctrine that he who accepts benefit under an instrument
or transaction of his choice must adopt the whole of it or renounce everything inconsistent with
it. Thus, it is a general rule that a person cannot approbate and reprobate.12 Also, the election
is confined to the case of a gift or Will13 and does not apply in case of a legal remedy.

Conditions precedent for equity of election14:

 A transfer of property by a person who has no right to transfer;

 As a part of the same transaction, he must confer some benefit on the owner of the
property and
 Such owner must elect either to confirm such transfer or to dissent from it.

OTHER IMPORTANT CONDITIONS

Proprietary Interest

Election over a property is not asked to be made by a person unless he holds a proprietary
interest which are disposed of in derogation of the person’s rights.15

So, election cannot take place if the property that is decided by the transferor to be disposed
does not happen to be owned by any individual to whom an interest is being provided through

11
Darashaw J. Vakil, The Transfer of Property Act (2nd Edn. Wadhwa Nagpur 2004) 334.
12
Beepathuma ( C ) v. VS Kadambolithiya [1964] 5SCR 836,850, AIR 1965 SC 241; Codrington v. Codrington
(1857) 7 HL 854, 861.
13
Nihar v. Anath Nath, AIR 1956 Pat 223 (226) (DB) : 1956 BLJR 177.
14
Dhanpatti v. Devi Prasad 1970 (3) SCC 776 (778)
15
Mohomed Ali v Nissar Ali (1927) 109 IC 835, AIR 1928 Oudh 67, 82
the transfer. Also, it cannot take place if the transferor does not provide any benefit on the
individual who is the original owner of the property.16

“As part of the same transaction”17

One cardinal condition for the doctrine of election to be executed is that the benefit conferred
upon the original owner should be as part of the same contract by which he transfers the
property over which he holds no right to transfer.

In the landmark case of Ramayyar v. Mahalaxmi,18 a widow had given a gift in excess of her
powers and had then provided a will which stated that “excluding the properties which I have
already given away, I will make the following dispositions”. The Court ordered that the
plaintiff under the will was not excluded from the election doctrine from contesting the
previous gift which wasn’t the issue of the will at all.

It is to be noted that different nature of two properties is not a bar to election by the owner like
in the case of Ammalu v. Ponnammal19 where a person who was managing the properties of
the daughter of his deceased brother, died leaving a will bequeathing a portion of it to B. It was
held that the doctrine of election did apply for the niece.

Donor’s Intention

In order to create a situation of election, it is important that the intention of the testator should
be clear with regard to disposing of the property which he does not own.20 Parol evidence is
not acceptable and thus the intention must be prima facie clear.21

Indirect Benefit

The benefit that the original owner is conferred with has to be direct in nature and if indirect,
he does not need to elect. This principle is explained in Section 184 of Indian Succession Act,
1925 and states that “when the devisee who claims derivatively through another does not take
under the deed, and is not bound by the equity attaching thereto.”

16
Salil Paul, Mulla the Transfer of Property Act ( 9th Edn. Butterworths 2005) 249.
17
B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 204
18
AIR 1922 Mad 357 (358) : 64 IC 481
19
36 MLJ 507; 49 IC 527
20
Rancliffe v. Parkins 6 Dow 179
21
Stratton v Best 1 Ves 185
Difference in Capacity

An individual can in one capacity utilize a benefit while can dissent or reject that benefit in
another capacity.22 It means to explain that it is possible to facilitate two roles of an individual
wherein he can for example, accept legacy for an estate while in his personal competence, he
could retain the property.

Modes of Election

The election by the owner can either be direct or indirect. In direct election, it is simply through
communication about the elected choice or option. Though, in case of an indirect election, “the
acceptance of the benefit by the original owner is subject to two conditions:

1. He has to be aware of his duty to elect, and

2. There must be proof of knowledge of circumstances which would influence the
judgment of a reasonable man in making an election:23

Enjoyment for two years of the benefit by the person on whom it is conferred with any
dissent.24”

The election shall be presumed when the donee acts in such a manner with the property gifted
to him that it becomes impossible to return it to the original owner in its original state.[xxvii]

Difference between English Law and the Indian Law Perspective

The English law depends upon the principle of compensation which means that if the original
owner does not choose to validate the transfer, he can keep the property and also the benefit
accrued, subject to compensation provided to the donee, to the extent of the property he had
suffered a loss for.

But in the Indian law context, this doctrine is influenced by the principle of forfeiture which
states that if the original owner does not choose to validate the transfer, the donee incurs a
forfeiture of the conferred benefit which goes back to the transferor.

22
Grissel v. Swinoe (1869) 7 Eq. 291 = 17 W.R. 438
23
B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 206
24
Spread v. Webster, (1974) 2 Ves. 367 ; 30 ER 676
COMPENSATION

Estimated cost of the property which is attempted to be transferred towards the transferee is
the approximation of the compensation that he shall receive. However, in context of immovable
properties, there arises the issue of changing value of the property according to the lapse of
time. Thus, this valuation is to take place at the date of the instrument becoming operational
rather than at the time of election.25

CONCLUSION

Section 35 of the Transfer of Property Ac, 1882 explains the concept of the Doctrine of
Election. This project tries to deal with the various nuances involved in the doctrine through
the usage of various landmark judgments. Herein, special emphasis has been placed upon
providing a clear understanding of the conditions necessary for the election by the original
owner to take place. The differences between the Indian Law perspective as well as the English
Law perspective is brought out through critical analysis of the provisions i.e. Principle of
forfeiture and Principle of compensation. Various aspects such as Proprietary Interest,
Compensation estimated, indirect benefit, the intention of the donor etc have been dealt and
explained for the enhanced understanding over the model of Doctrine of Election.

25
Re Hancock. Hancock v. Pawson (1905) 1 Ch. 16
 APPORTIONMENT

36. Apportionment of periodical payments on 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 apportion-able accordingly, but to
be payable on the days appointed for the payment thereof.

1. Apportionment of Periodical Payments (Section 36)

“Apportionment” means division. “Apportionment” is a division of a whole into parts

proportionate to the rights of more claimants than one.”26 Story in his Equity Jurisprudence27
has explained that the term apportionment is used in two senses:

(1) To denote the distribution of a common fund among the several claimants, and

(2) To denote contribution made by several persons having distinct rights to discharge a
common burden.

According to the Transfer of Property Act, apportionment is of two kinds:-

i. Apportionment by time – section 36 deals with apportionment of periodical payments

as between the transferor as between the transferor and the transferee.

ii. Apportionment by estate – section 37 deals with apportionment of an obligation in event

of the division of property to which it relates.

When any property yielding periodical income is transferred the question arises how this
income is to be divided between the transferor and the transferee. In this respect, section 8
provides that the transferee is entitled to the interest or income accruing after the transfer takes
effect. The income which accrues from day-to-day, like interest, creates no problem in
distribution between transferor and transferee but the income which accrues only stated periods
section 8 becomes unable to divide that. To overcome this difficulty, section 36 provides that
all periodical payments in the nature of rent, annuities, dividends and pensions shall be deemed

26
Wharton’s Law Lexicon, 14th Edn., 1938, p. 70.
27
2nd Edn., p. 305.
to accrue from day-to-day and be apportioned between the transferor and the transferee on that
basis. Section 36 says that all rents, annuities pensions, dividends and other periodical
payments in the nature of income shall, upon the transfer of 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. For example, A sells that house to B on 15th June. On 30th June, A is
entitled to Rs. 50 of the rent from the 1st to 15th June and B is entitled to Rs. 50 of the rent from
15th to 30th June. This is apportionment by time.

2. Intervivos Transfers
This section is applicable to inter vivos transfers between transferor and transferee only. It has
no application where third parties are involved. It does apply to transfers by operation of law.

3. Local Usage or Contract

This rule can be excluded by a local usage or contract to the country. For example, in any
certain area there may be local usage or custom prevalent which may debar the operation of
this section in that area. In such areas, this rule will not apply. Similarly, A while selling his
tenanted house to B in the middle of the month may agree that B should have the whole rent
for that month which might be payable at the month end under a tenancy contract.

4. Other Periodical Payments

The expression “other periodical payments” occurring in this section are to be construed
according to the ‘ejusdem generis’ rule according to which same type of payments like rents,
annuities, pensions, dividends are to be included. Therefore, this expression does not include
the profits of partnership which accrue only after the adjustment of accounts28 and profits in
the share of a village.29

5. Payable
The apportionment does not affect the date when the payment is to be made by the person
liable. Therefore, if under a lease, rent is payable at the end of the year but the lessor
transfers or assigns his interest in the middle of the year, both the transferor and transferee
will become entitled to half of the rent but the lessee will remain liable to pay only at the
end of the year.30

28
Jones v. Ogle, (1872) 8 Ch App 192 (198)
29
Gobind Rao v. Bhagirathi, (1901) 14 CPLR 84
30
Lala Ganga Ram v. Mewa Ram, AIR 1922 All 275
 Now some case relating to apportionments:

i. Lakshmi Narayanappa v. Melothraman31 - In this case, the lessor had only a life
interest and died a month before the rent of the half year was payable. Here there
was no question of a transfer, yet the assignee of the lessor was held to be entitled
to an apportionment of rent for the period up to the death of the lessor.

ii. Rangappa v. Shiva32 - This case deals with the Hindu widow’s right to
maintenance which accrues from day-to-day. On the death of a Hindu widow, her
heirs were held entitled to recover the maintenance allowance up to the day of her
death, although the allowance had been expressed to be payable on a fixed date for
the convenience of the parties.

iii. Subba Raju v. Seetharamaraju33 - The rule of apportionment applies only to inter-
vivos transfers; it is not applicable to execution sales. A mortgagee brought the
mortgaged property to sale and bought the property himself at the court sale in
November, 1922. The rent for the year was payable on 1st April, 1923. The
mortgagor claimed that the rent should be apportioned and that he should receive
the rent from 1st April, 1922 till November, 1922. But as it was an execution sale,
section 36 did not apply, the mortgagee was held entitled to the whole year’s rent
payable on 1st April, 1923.

31
(1903) 26 Mad. 540
32
(1933) 65 Mad. LJ 410
33
(1916) 39 Mad. 283: 28 IC 232
37. Apportionment on benefit of obligation on severance.
When, in consequence of a transfer, property is 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 absence of a contract, to the
contrary amongst the owners, be performed in favour of each 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 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 the 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.

Illustrations:

(a) A sells to B, C & D a house situated in a village and leased to E at an annual rent of R.
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,
and Rs. 7.50 to D and must deliver the sheep according to the joint direction of 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 duke to prevent inundation. E had agreed as a term of his leaseto perform this
work for A, B, C and D severally require 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.

1. Apportionment of Benefit (Section 37)

Where on a transfer a property is given to several persons by portions, each transferee is entitled
to all the advantages accruing from the property in proportion to his interest in it. This rule is
subject to two conditions:-

 The person on whom the burden of the obligation lies must have notice of the severance.
In simple words, the person who has to perform the corresponding duty must have
information that the original single owner has divided his property,

 The obligation must be such which can be severed, and

  The severance should not increase the burden of his obligation; the person with the
corresponding duty must perform the duty to several owners.

(i) Notice of Severance

This section says that the persons on whom the burden of obligation under apportionment lies
must have reasonable notice of severance. The person on whom the burden of obligation lies
shall not be answerable for failure to discharge it in the prescribed manner unless and until he
has had reasonable notice of the severance. Notice to the tenant is sufficient to convert the
single obligation to pay rent to all into a several obligation to pay rent to each co-sharer. On
receipt of the notice the tenant is under an obligation to pay each sharer his proportionate part
of the rent but if a suit is necessary it is still necessary to join all the sharers as parties. 34

(ii) Severable Obligation

The obligation must be such that it can be severed and can be performed in parts in favour of
each of the several owners. If the obligation cannot be severed, it must be performed for the
benefit of such one of the several owners as they shall jointly designate for the purpose.

(iii) No Additional Burden

It is necessary that the severance doesn’t increase the burden on the person who has to perform
the obligation. The section says that 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.

2. Agricultural Purpose
This section doesn’t apply to leases for agriculture purpose unless and until the State
Government directs the application of this section by notification in the Official Gazette.

34
Prem Chand v. Mokshoda Debi, (1887) 14 Cal. 201
 CASE ANALYSIS

Piara Singh & Ors

vs.
Charan Singh & Ors35

FACTS
The plaintiff/appellants brought a suit on the pleadings that Charan Singh, defendant No.1, was
owner in possession of land measuring 5 kanals along with other area. Charan Singh sold the
land measuring 5 kanals vide two separate sale deeds dated 6.6.1978 and 7.6.1978 along with
other area for consideration of Rs.15,000/- to the plaintiff/appellants. Since the date of purchase
the plaintiff/appellants were owners of the suit land.

It is further pleaded that subsequently, defendant No.1 fraudulently and illegally and in
connivance with defendant No.2 Gurdip Singh and his father Mohan Singh sold the land along
with other area to defendant No.2 i.e. Gurdip Singh vide sale deed dated 26.7.1978, even
though he had no right left in the suit land. Defendants No.2 to 11 were impleaded as party
being legal heirs of Mohan Singh since deceased. Mohan Singh in pursuance to the illegal sale
got possession of the suit land and also got mutation of sale in respect of the suit land sanctioned
illegally. Plaintiff/appellants further claimed that, in spite of their request, to the defendants to
surrender possession they refused to do so and thus, the suit for possession was filed.

On notice suit was contested wherein factum of sale deeds in favour of plaintiff/appellants for
consideration of Rs.15,000/- was admitted but it was pleaded that Khasra No.22//10/2 (5-0)
was not intended to be sold vide those sale deeds. It was further stated that it was by mistake
of defendant No.1 and plaintiffs No.1 and 2 that this area was included. On realization of
mistake defendant No.1 sold 8 kanals of land on 26.7.78 to Mohan Singh and Gurdip Singh for
a consideration of Rs.19,000/- in which disputed land falling in khasra No.22//10/2 (5-0) was
also included. The case further set up was that on 26.6.1978 defendant No.1 had received
Rs.6620 as earnest money and an agreement to sell was executed in their favour. It was also
the case of the defendant/respondents that the plaintiffs never came in possession of khasra
No.22//10/2 (5-0) which, in fact, was actually not intended to be included in the sale deeds of
the plaintiffs as the sale deed was qua khasra No.22//14/2/2 (3-18).

35
RSA No.917 of 1993
 ISSUES
1. Whether the learned courts below wrongly applied the provisions of Section 35 of the
Transfer of Property Act to non-suit the plaintiff/appellants, therefore, the judgment and decree
passed by the learned courts below is perverse?

2. Whether the judgment and decree passed by the learned courts below is the outcome of
misreading of documentary and oral evidence, therefore, perverse?

REASONING
Section 35 of the Transfer of Property Act reads as under:- "Election when necessary Where a
person professes to transfer property which he has no right to transfer, and as part of the same
transaction confers any benefit on the owner of the property, such owner must elect either to
confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit
so conferred, and the benefit so relinquished shall revert to the transferor or his representative
as if it had not been disposed of, subject nevertheless, where the transfer is gratuitous, and the
transferor has, before the election, died or otherwise become incapable of making a fresh
transfer, and in all cases where the transfer is for consideration, to the charge of making good
to the disappointed transferee the amount or value of the property attempted to be transferred
to him."

In order to attract the provisions of Section 35 of the Transfer of Property Act (for short the
Act) it was incumbent upon the defendant/respondents, to incorporate the right of election, in
the sale deed executed in their favour as under section 35 of the Act words used are "same
transaction".

In the absence of right of election having been offered in the sale deed. Subsequently conduct
of the plaintiff/appellant as alleged could not attract provisions of section 35 of the Transfer of
Property Act. Reading of sale deed in favour of defendant/respondent does not show any right
of election offered to the plaintiff/appellants. Findings recorded by the learned courts below
are perverse and outcome of misreading of provisions of section 35 of the Transfer of Property
Act.

Learned courts below also committed an error in holding that the plaintiff/appellants had
exchanged the land, without there being any proof of exchange. Merely because certain
mutations were sanctioned, and placed on record without making any reference to alleged
exchange it could not be said that the plaintiff/appellants had exchanged the land in lieu of the
disputed land, as held by the learned courts below.

As already observed, in the absence of proof of exchange, and the date thereof, the findings
recorded by the learned courts below are to be held to be based on no evidence, therefore,
outcome of misreading of entries in the revenue record and deserved to be reversed.
The contention of the learned senior counsel for the respondents that this court under section
100 of the Code cannot interfere with the concurrent findings, also cannot be sustained as it is
well settled that if the findings recorded by the learned courts below are based on wrong
application of law or are otherwise perverse, this court in exercise of power under section 100
of the Code can interfere with the concurrent findings recorded by the learned courts.

CONCLUSION
In the case in hand, learned courts below have ignored the admissible evidence i.e. sale deeds
which were documents of title, and gave preference to the mutation entries, which also did not
support the case of exchange as set up by the defendant/respondents. The findings being
outcome of misreading of evidence and being perverse can always be corrected under section
100 of the Code.

For the reasons stated, substantial questions of law are answered in favour of the
appellant/plaintiffs and against the respondents.

This appeal is accordingly allowed. The judgment and decree passed by the learned courts
below is set aside, and the suit filed by the plaintiff/appellants for possession of disputed land
is ordered to be decreed but with no order as to costs.

Sendattikalai Pandia Chinna

vs
Sangili Veerappa Pandian36

FACTS
In the present case we are concerned only with the partition of the income which the Rani was
entitled to on account of the land revenue and leases from tope and forests for fasli 1326. It
may be mentioned that a receiver was in possession of the property during the life time of the
Zamindarini. Fasli 1326 commenced from 1st July 1916, and as the Rani died on the 23rd
November 1916, we are concerned with five-twelfth of the income due to the Rani which
amounted to Rs. 21,079. Plaintiff claimed that the rents and profits of the estate for fasli 1326
including that part of them which remained unrealised at the death of the Rani should go with
the estate and should be paid to him. The respondents contended that the said rents and profits
should be divided, part going to the personal heirs of the Rani (of whom plaintiff is one) in
proportion to the period during which the Rani was in possession, namely from 1st July 1916
to 23rd November 1916. On one calculation the plaintiff gets the whole; on respondents'
calculation he gets as co-heir with defendants 2 to 6 only one sixth of the income which is

36
(1937) 1 MLJ 77
attributable to the aforesaid period. The Lower Court in drawing up its final decree decided in
respondents' favour holding that plaintiff had withdrawn his objections at the stage when the
Commissioner's report came up for consideration. It is now agreed that plaintiff never did this.
On plaintiff's appeal we have to decide the question as one of first instance.

The rents and profits of the estate in the fasli in question consisted of money due by lessees of
topes and forests and money due as rent from occupancy riots in respect of their lands. It is
now agreed that the former became payable at the beginning of the fasli and are divisible in the
proportion stated by the respondents. Then remain the rents due by occupancy tenants which
became payable in instalments beginning in December, the month following the death of the
Rani. We may say at the outset that whatever rule may be applicable to rents payable on dates
certain in respect of ordinary leases, the rents payable by occupancy tenants stand on a different
footing. In theory landlord and tenant are co-owners. The rents payable by the latter represent
a share of the crop and there are still estates where the landlord takes his share by division of
the actual grain at the threshing floor. Where the landlord-properly called the landholder in the
case of such estates-receives his rent in money, the time when it is made payable is fixed by
custom with a view to the convenience of the occupancy tenant and not in pursuance of any
contractual agreement between the parties. In this view it might be said that the land holder
becomes entitled to his rent-considered as a sum paid in commutation of his share of the
produce-even while the crops are on the ground.

ISSUE

Whether reserved or made payable (under an instrument in writing or otherwise) shall, like
interest on money lent, be considered as accruing from day to day, and shall be apportionable
in respect of time accordingly?

REASONING
The law as to the apportionment of periodical payments on determination of the interest of the
person entitled is provided for in India in Section 36 of the Transfer of the Property Act, which
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.

The law enacted in Section 36 of the Transfer of Property Act is limited to transfers inter vivos
and does not, strictly speaking, apply to cases of devolution of interest on succession. It is
therefore argued that inasmuch as Section 36 does not apply in terms, the law of apportionment
applicable to the present case is the old English Common law under which there cannot be any
doubt that apportionment in the case before us is impossible. But in a series of cases of this
Court, though Section 36 was held inapplicable the principle underlying the Section has been
applied consistently on the ground of equity and good conscience. In Lakshmi Naranappa v.
Meloth Raman Nair (1920) I.L.R. 26 Mad. 540, a tenant-for-life leased immovable property to
tenants at a rent which was payable in half-yearly instalments. Four days before an instalment
was due, the tenant-for-life died, and the assignee of his interest sued the tenants for the rent.
It was held that the was entitled to recover. Subrahmania Aiyar, J., pointed out:

It seems to me, therefore, that in the absence of a specific rule applicable to cases like the
present in this country, we are entitled to follow the broad and just principle underlying the
English Statute Law culminating in the Apportionment Act of 1870 and hold that, as a matter
of equity and good conscience, the plaintiff in this case is entitled to the apportionment made
by the decree of the Lower Appellate Court.
The rule, however, while applicable to periodical payments becoming due at fixed intervals,
did not apply to sums accruing de die in diem. It did not, for example, apply to annuities or to
debts. The distinctions drawn were often fine. But it is not necessary for their Lordships to
discuss them, because it is plain that, however clear the principle which governed the character
of proprietary and contractual rights, it was always open to a testator or settlor, with full power
of disposition, to exclude its practical consequences.

CONCLUSION
Having regard to the special features of the case in the Privy Council we are not inclined to
hold that the previous decisions of this Court which have been uniform should be considered
to be overruled by that decision. Following those decisions and the decisions in Shivaprasad
Singh v. Prayagkumari Debee (1933) I.L.R. 61 Cal. 711 and Aparna Debi v. Sree Sree Shiba
Prashad Singh (1924) I.L.R. 3 Pat. 367, we hold that the principle of Section 36 of the Transfer
of Property Act will apply to the present case on grounds of justice, equity and good conscience
and that the decision of the lower Court is right. The appeal is dismissed with costs of
Respondents 1, 2, 5 and 6.
 CONCLUSION

By virtue of this project we have learnt that transfer of property can be conditional and we
have also learnt one of the conditions where conditional transfer is not valid per se. Again we
have observed that transfer of property act is so made as to look after most of situations that
may arise e.g. if someone else in good faith tries to sell the property then the original owner
may elect whether to sell the property or to retain it. This is by the virtue of doctrine of
“election” as envisaged in the section 35.

Also when the transfer of interest is not supported by any legal instrument then transfer of
property act provider provisions for apportionment in case the owner decides to transfer such
interest as may arise from the property in a similar non-instrumental manner. Section 36 and
37 of the act provides the same doctrines in a codified manner.