Section 41 of Transfer of

Property Act, 1882

Table of Contents
 Introduction
 What is Section 41 of Transfer of Property Act
 Necessary conditions for the application of Section 41 of Transfer of Property Act
 Can the property be transferred to an ostensible owner
 Benami transactions
 Requirements of transfer by an ostensible owner
 Rule of estoppel under Section 41 of Transfer of Property Act
 Burden of proof
 Non-applicability of the provision under Section 41 of Transfer of Property Act
 Landmark case laws concerning Section 41 of Transfer of Property Act
o 1. Ramcoomar Koondoo v. John and Maria McQueen (1872)
 Facts
 Issues
 Judgement
o 2. Md. Shafiqullah Khan v. Md. Samiullah Khan (1929)
 Facts
 Issues
 Judgement
o 3. Niras Purbe And Anr. v. Musammat Tetri Pasin And Ors. (1915)
 Facts
 Issue
 Judgement
 Conclusion
 References

Introduction
‘Property’ acts as one of the most indispensable needs of human life. In
India, the right to property was provided as a fundamental right under Article
31, but it was abrogated by the 44th Constitutional Amendment Act,
1978 and subsequently replaced by Article 300A, which made it a
constitutional right instead.

Possession, contract, title documents, and other methods can be used to

transfer properties from one person to another for consideration. Various
laws have been created to guarantee the seamless transfer of property,
whether it be movable or immovable. The Transfer of Property Act (‘the Act’)
was enacted in 1882 to codify and harmonise all of the existing customary
rules regarding the transfer of property. It solely deals with the transfer of
property inter-vivos, that is, between living persons.
The transfer of property by way of gifts, succession, inheritance, or
testamentary is not covered by this statute. The Act establishes clear
legislative regulations that govern the rights of the real owner, ostensible
owner, and third party concerning the transfer. The goal of the Act was to
make the transfer of land and property convenient and hassle-free for the
general public. This Act establishes certain broad guidelines for the transfer
of property that must be observed.

The principle of an ostensible owner performing the transfer of property was

established to defend the rights of innocent third parties against actual
property owners, it is codified under Section 41 of the Act. Innocent third
parties’ rights are protected by this principle. It also discusses the different
components and requirements that must be met in order for the plaintiff to
profit from this concept, as well as its implementation in several case laws
both before and after India’s independence.

What is Section 41 of Transfer of Property Act

The transfer of property to an ostensible owner is dealt with under Section
41 of the Transfer of Property Act, 1882. According to it, when a person acts
on the express or implied consent of a person who is vested in a certain
immovable property, that person is deemed the ‘ostensible owner’ of that
property.

Necessary conditions for the application of

Section 41 of Transfer of Property Act
To make use of this Section, one must meet specific prerequisites. They’re as
follows:

1. The most fundamental criterion is that the individual transferring the

property must be the ostensible owner.
2. The actual owner’s consent, which might be implied or expressed, is
necessary.
3. In exchange for the property, the ostensible owner must be
compensated.
4. The transferee must use reasonable caution over the transferor’s power
over the property, and whether the transferee acted with bona
fide intention.
5. This section, needless to say, does not apply not to the transfer of
movable property, and only to that of immovable.
An exception to the ‘Nemo Dat Quod Non Habet’ rule
The rule enunciated in Section 41 acts as an exception to the general
principle that a person cannot transfer a superior title to property than what
he holds i.e. ‘Nemo Dat Quod Non Habet‘. Section 41 is a well-accepted
exception to this general principle. If the real owner, for example, entrusts a
particular person with the title papers in any reasonable manner and makes
him an ostensible owner, then a third party who (after appropriate
investigation) trades with such an ostensible owner in a bona fide manner
might obtain a valid title to the property as against the real owner.

Can the property be transferred to an ostensible

owner
The term ‘ostensible’ refers to what seems to be real. Therefore, the
ostensible owner of a property is not the real owner. To third parties, he just
portrays himself as the legitimate owner. Without really owning the property,
an ostensible owner has all of the rights to it. By the explicit or implied
consent of such an owner, he obtains these rights from the real owner. The
real owner is the qualified owner of the property, whereas the ostensible
owner is the full yet unqualified owner.

Persons who are not ostensible owners include:

1. A self-proclaimed manager or agent

2. A mortgagor is someone who has a small stake in a property and works
as a servant.
3. A co-sharer in occupation in a jointly shared family property of
residence.
4. The trustee or manager of the idol, because the idol is neither
conscious nor capable of providing consent.
The ostensible owner is not the real owner, but he might pretend to be the
real owner in such transactions. He obtained that right as a result of the real
owner’s intentional neglect or acquiescence, making him an ostensible
owner. The concept of assigning an ostensible owner is a universally
applicable rule of natural equity, that if one man lets another hold himself
out as the owner of a property, and a third person acquires it for value from
that ostensible owner under the impression that he is the real owner, the
person who thus allows the other to hold himself out must not be authorized
to reclaim his ‘secret title’, unless he can overturn the purchaser’s arguments
by proving that the third party had a direct notice, or constructive notice, of
the genuine title, or that there should’ve been proper circumstances to
prompt him to conduct an investigation which could have led to the discovery
of true ownership.
‘Indicia’ of ownership

The facts of each case determine what an indicia of ownership is. Possession,
for one, acts as a form of ownership evidence. Possession is ostensibly an act
of ownership, but it is not necessary, because the real owner may not be
capable of handling his own property. He could hire a manager to look after
his estate. Although management implies possession, the manager may be
hired to conduct additional management tasks such as leasing, collecting
rentals, and overseeing the estate assigned to his care.

Involuntary transfer and partial transfer

Transfer of property ownership might be involuntary or voluntary. It is a

voluntary transfer when the owner of the property transfers it willingly. It
might be accomplished in the following ways:

1. In exchange for consideration, such as a mortgage, sale, lease, or

exchange,
2. As a gift, and
3. By will
When a court seizes a person’s property, it is known as involuntary transfer
or involuntary alienation. This approach may also alienate the joint family’s
assets or a co-undivided partner’s participation in the estate. The provision
under Section 41 of the Act only pertains to voluntary transfers. It is not
applicable upon coercive, involuntary, or legally compelled transfers, such as
judge-ordered auction sales.

Benami transactions
The Benami Transaction (Prohibition) Act of 1988 states that when the
transfer of a property is done benami (that is, under the name of some other
person), the person who holds the property becomes the real owner. The
benamidar is only a trustee for the real owner and merely acts as a
representative. If a property is acquired in the guise of a benamidar and the
indicia of ownership are entrusted to him, the real owner can only overcome
the impact of alienation by demonstrating that it was done without his
consent and that the buyer was aware of it. No litigation, actions, or claims
to enforce any right concerning the property held benami against the person
in whose name the property is held, or any other person claiming to be the
real owner of the property, is allowed under the Act.

In other words, following the implementation of the Act, the real owner is no
longer able to reclaim the property from the benamidar by instituting any
legal suit. The argument of being the real owner is likewise unsustainable.
However, the Act offers certain exemptions when the provision of Section 41
do not apply:

1. When the person in whose name the property is held acts as a

coparcener and that property is being held for the benefit of all
coparceners in the Hindu Undivided Family, or
2. Where the person in whose name the property is held is a trustee or
some other person acting in a fiduciary position, and the property is
held for the benefit of another person towards whom he acts as a
trustee or in a similar capacity. Excluding the cases where he is a
coparcener in a Hindu Undivided Family or a trustee acting in a
fiduciary capacity, an ostensible owner or benamidar will become the
real owner. Therefore, except if benamidar is a coparcener or a trustee
acting in a fiduciary position, the provision established by Section 41 of
the Act stands to be modified.
The Supreme Court noted in Jayadayal Poddar v. Bibi Hazara (1974) that
whether a person is an ostensible owner is a subjective matter that depends
on specific facts and circumstances. When determining whether a person is
an ostensible owner or not, the following factors must be considered:

1. Who paid the price, or who paid the purchasing money?

2. Who held possession following the purchase, i.e. who owned the
property?
3. The motive for acquiring the property in a benami fashion i.e. why was
the property acquired in the name of someone else?
4. Relationship between the parties, i.e., whether the real and ostensible
owners were familiar with each other or not?
5. The parties’ conduct in managing the property, i.e. who used to look
after, oversee and manage the property?
6. Who had custody of the title deeds?

Requirements of transfer by an ostensible

owner
The following are the main requirements for a lawful transfer by an
ostensible owner:

 The individual must be the ostensible owner of the property.

 He must hold the property with the express or implied consent of the
real owner.
 The transferee must acquire the property for consideration from such
an ostensible owner.
  The transferee must take reasonable precautions before accepting the
transfer to ensure that the transferor has the authority to make the
transfer, i.e., he must act with bona fide intentions.
The transferee would not be entitled to derive the benefits of this Section if
any of the foregoing requirements were not met. If all of the following
requirements are met, the actual owner’s stake will be taken away.

1. The transferor must be an ostensible owner

When it has already been proven that the transfer was performed with the
real owner’s permission, the real owner will be estopped from making a claim
on the property. It will be applicable even if the transferee had performed no
investigations to see if the transferor had the authority to make the transfer,
which is otherwise essential for this section to apply. Hence, the transfer
itself does not need to be done with the approval of the real owner for this
provision to apply. It is sufficient if the transferor is the ostensible owner
with the approval of the real owner at the moment of transfer.

2. The real owner’s consent is essential for ostensible ownership

Unless the ostensible ownership of the transferor has been formed, allowed,
or acquiesced in by him, the real owner will not be barred under this
provision. This can be done by:

 express words of consent, or

 acts or behaviour that indicate consent, so that the real owner
establishes or enables the impression of ownership or acquiesces in it.

1. Express Consent:
The consent is said to be express when:

1. the owner clearly says using words, spoken or written that:

(a) he has no interest in the property or

(b) that another person has an interest in the property; or

2. The owner performs any act that demonstrates that he has no interest
in the property, such as attesting a deed stating that he has no interest
in the property, or that a third party has an interest in the property,
such as getting the property mutated in the name of another and
disclaiming his interest. Unless there is a responsibility to speak, or the
inactivity or silence is comparable to speaking, mere inaction or silence
is not material.
3. Implied Consent:
Implied consent refers to consent that can be inferred from a person’s
actions or behaviour. If the real owner is aware that someone else is
handling his property and agrees to it, his silence or inaction might imply
consent.
However, prior to such a consent being inferred, it must be established that
the person delivering the consent was cognizant of his right, interest or title
to the property and that despite that knowledge, he provided the consent.
His act or conduct at a time when he was unaware of his own right does not
preclude him from pursuing his own claim against the transferee.

3. The transfer must be for consideration

A transferee can only profit from Section 41 of the Act if he can show that he
received the property in exchange for something. There should be a quid pro
quo in the transaction.

4. The transferee must take reasonable precautions

The clause states that a transfer made by an ostensible owner is not voidable
because the transferor was not allowed to perform it, as long as the
transferee was:

 Taking reasonable precautions to ensure that the transferor has the

necessary authority to effectuate the transfer, and
 Acting with bona fide intention.
If a transferee does not have constructive knowledge of the real owner’s title
and no means to investigate the real title-holder of the property, he may be
protected under this clause.

1. Degree of Care: In order to determine whether the transferee has the

authority to affect the transfer, the following requirements to ensure a
certain degree of care must be met:
2. Ordinary Prudence and Reasonability: Whether the transferee took
reasonable care to ensure that he had the authority to make the
transfer must be decided in light of the facts of each instance. The test
for the same is to see whether the transferee acted
(a) like a reasonable man, and

(b) with ordinary prudence.

2. Standard of diligence: The conventional standard of diligence for

determining whether the transferee has the power to affect the transfer
is requesting and examining the title under which he claims to be the
owner. If in the document itself, that is produced as the title deed for
the transferee’s examination, there is any indication to put the
transferee on enquiry with respect to the possibility of some other
document or improper ownership of title, then the matter needs to be
investigated further.

2. The transferor must demonstrate that he has conducted the usual

title search: The proviso states that the transferee must have taken
reasonable care to ascertain that the transferor possessed the power to
make the transfer, and this is an essential requirement for the provision to
apply. Therefore, the transferee must demonstrate that he conducted the
standard title investigation. He would not have been granted the benefit of
the clause if he had not done so.

3. If the title is obvious, no inquiry is necessary: In case the title is

obvious, no inquiry may be carried out. When a person appears to be in
possession of the property, is documented as the owner, retains the
property’s title deeds, and talks with a third party about it, there is nothing
to establish that the third party acted with mala fide intentions in dealing
with him about the property.

4. Impact of a lack of reasonable care: If this aspect of lack of due care

used to determine the true fact is missing the transferee cannot enjoy the
benefits of the Section.

5. The transferee must act in Good Faith

It is essential for the transferee to act with a bona fide intent. It is possible
that there may be investigation without good faith as well as good faith
without investigation. The real owner will not be affected by the transactions
being entered into by the ostensible owner in either of these scenarios. This
provision requires honesty as “good faith.” A person may commit a mistake,
but he must do so in good faith. A transferee cannot claim protection under
this clause simply because he was unaware of the actual owner’s title. He
must not close his eyes and make a hasty purchase from an ostensible owner
without first determining whether the transferor has the authority to make
the transfer. The mere fact that the buyer’s name was registered in the
revenue papers at the required period is insufficient to establish that he was
a genuine buyer. He must conduct a reasonable investigation into both the
transferor’s title and his authority to sell.

Rule of estoppel under Section 41 of Transfer of

Property Act
The law of estoppel argues that when the real owner of property depicts
some other person as the owner to third parties, and the latter act on that
depiction, the real owner cannot rescind his representation. This provision
establishes an estoppel rule against the real owner. The rule of Section 41 of
the Act, 1988 is derived from Section 115 of the Indian Evidence Act, 1872,
which defines the law of estoppel. The House of Lords articulated this
concept in Cairncross v Lorimer (1860) as, a party, either by words or
conduct, representing to consensually perform or abstain from doing an act,
and the other party acts on that representation, the former will have to stick
to his representation.
Burden of proof
The burden of proof for the transferee seeking immunity under this provision
is on the transferee to show that he or she was an ostensible owner. He must
establish that the transferor is the property’s ostensible owner or that the
transaction is a Benami transaction. He must also show that he took
reasonable precautions to protect his interests. The burden of proof transfers
to the other side if the other party claims to have evidence leading to a
starting point of inquiry that, if pursued or studied, would have led to the
disclosure of truth. If a person claims ownership of property that has been
transferred to another person, he must prove it.

The essential legal principle is that unless the legitimate owner has done
something to fool innocent purchasers or pledges into assuming that the
immediate possessor is the actual owner, his rights should be
protected prima facie. He would have to show that the real owner has
forfeited his right to reclaim possession as a result of his actions or
omissions.

Non-applicability of the provision under Section

41 of Transfer of Property Act
If during the pleadings, it is not mentioned that the transferor was an
ostensible owner with the voluntary consent of the real original owner of the
property, the plaintiff’s claim for the title to the property as a result of a
transfer of land by an individual besides the owner to him would be
dismissed. The cancellation order can be appealed on the merits by
subsequent purchasers, but the sale in their favour is not protected by
Section 41 of the Act. The following vendor can only request compensation
or refund from his seller. Section 41 cannot be used to create a
transferee pendente lite since he wouldn’t be a bona fide transferee without
notice.

Landmark case laws concerning Section 41 of

Transfer of Property Act

1. Ramcoomar Koondoo v. John and Maria McQueen

(1872)
The notion of transferring property by an ‘ostensible owner’ was developed to
defend the rights of innocent third parties against property owners, which
was initially used by the Judicial Committee in the landmark case
of Ramcoomar Koondoo v. John and Maria McQueen, and then subsequently
reflected as Section 41 in the Act.

Facts
The land, which was perpetually leased at a set rate, was sold to Bunnoo
Bebee, mistress of Alexander Macdonald by deed of sale by the then
landlord. It could not be said with certainty that the father, Macdonald, had
possession of the property. In any case, the evidence does not indicate that
he ever lived on the land, yet there is sufficient evidence of Bebee’s
residence upon the land.

Subsequently, Bebee died and the plaintiff (Ramdhone, Ramcoomar

Koondoo’s father), inherited the property, discovered that Bebee had
previously acquired the property in her name, and then sold it to a third
party (John and Maria McQueen) by convincing them that he possessed
sufficient title to the land. The entire transaction was a benami transaction,
which meant that only the individual who sold the land knew about it. John
and Maria McQueen, who lived on the property but failed to pay rent, were
sued by the plaintiff for recovery of the possession of the land. The Calcutta
High Court ruled in Mcqueen’s favour, prompting Ramcoomar (who had filled
in for his father following his death) to file an appeal with the Privy Council.

Issues
1. Whether or not the property belonged to Macdonald?
2. Whether Maria McQueen received it by his will?
3. Whether the appellants acquired bond bonds without notice for a good
sum?

Judgement
The appellants’ response is that their father acquired Bunnoo Bebee’s estate
without being aware of the benami title, and therefore they are entitled to
keep it, despite the fact that there was initially a resultant trust in favour of
Macdonald. In such a circumstance, they bear a disproportionate amount of
the burden of proof, and hence they must first prove that the purchase was
done on Macdonald’s behalf and with Macdonald’s money. The proof for this
was not produced by the respondent. Furthermore, Bunnoo Bebee treated
the land as part of Macdonald’s inheritance following his death. The
appellants proved their right to keep the property against the benami title,
according to their Lordships.
It’s unlikely that the buyer was aware that the title was not the same as or
similar to the one that appeared. There is no indication in any of the
paperwork that the transaction was not what it looked to be. All of the
documentation, on the other hand, point to Bunnoo Bebee making the
transaction herself or for her benefit. Even if Macdonald was the real owner
and Bunnoo Bebee was merely an ostensible owner, the Privy Council held
that because Macdonald had given implied consent to Bunnoo Bebee to hold
herself out as the real owner. Therefore, the plaintiff or his representatives
couldn’t recover the title unless they could prove that they were the real
owners. It was then decided that the plaintiff could not reclaim the property
from the third party and in the eyes of the law, the transfer was held to be
legally sustainable.

2. Md. Shafiqullah Khan v. Md. Samiullah Khan

(1929)

Facts
In this case, regardless of the fact that they were legally unqualified to
possess the land, the owner’s three illegitimate sons (Nuhullah, Hakimullah
and Halimullah) got it after his death. The genuine heir, the defendant
Muhammad Shafiqullah Khan who is admittedly his son, filed a lawsuit to
assert his inheritance rights. The possessors, on the other hand, kept control
of the property and sold it to a third party (Samiullah, the defendant) while
pretending to be the legitimate owners.

Issues
Whether the illegitimate sons were ostensible owners under Section 41 of the
Act?

Judgement
On the issue of the benefit of Section 41 of the Act, the lower court found
that Samiullah had no knowledge of Shafiqullah’s suit, that he acted in good
faith and took the property from Nuhullah and others believing they had the
title, and that this belief was induced in his mind by Shafiqullah Khan’s
previous conduct, which had allowed the names of Nuhullah and others to
remain in the revenue papers. Hence, he determined that the mortgagee
Samiullah was protected under Section 41 of the Act and that Shafiqullah
Khan was barred from establishing his own title.
The Allahabad High Court, however, stated that this legal situation would not
satisfy the requirement for Section 41 because ownership was not obtained
with the express or implied consent of the lawful owner. Hence, they were
not deemed to be the ostensible property owners.

3. Niras Purbe And Anr. v. Musammat Tetri Pasin

And Ors. (1915)

Facts
In the instant case, while on pilgrimage, a husband registered his land in the
revenue records under his wife’s name. He then permitted her to take out a
mortgage on the property. When the husband moved out, the wife sold the
property to a third party, who paid off the mortgage. He claimed to recover
the land from these defendants on the ground that his wife had no power to
sell it to them.

Issue
Whether the husband can reclaim the title of the property?

Judgement
The court ruled that the spouse could not reclaim or redeem the land from
the buyer if the buyer acted in good faith and took reasonable steps to verify
the land’s ownership, as had been done.

Conclusion
Section 41 of the Transfer of Property Act has done a decent job of
safeguarding the interests of the unsuspecting third party. Although the
section may appear to be prejudiced in favour of the third party, this is only
the case if the real owner is at fault. No one can simply claim that he now
owns the property and therefore cannot be evicted. The third party must use
extreme caution when acquiring the property, and these criteria were
imposed by law to prevent the ostensible owner and the third party from
abusing this provision. In a manner, this also protects the real owner’s
interests.

In a nutshell, Section 41 of the Act, specifies the powers of the ostensible

owner and discusses the nature of his transactions. The power provided by
the property owner to enter transactions on his behalf is the most noticeable
feature of the ostensible owner. The consent for this authority might be
expressed or implied, as defined by several landmark case laws. Additionally,
consent cannot be obtained by deception. Also, once done, a property
transfer is irreversible at the owner’s discretion. This includes partial
transfers such as mortgages and leases, as well as complete transfers of
rights such as sales and exchanges. Furthermore, the law sets the burden of
proof on the transferee to show that the transferor is the ostensible owner.
He must also act with bona fide intention and make appropriate
investigations about the progress of the transfer of property while being
sufficiently cautious.

Apportionment of Property in India

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

2. Apportionment of Property by time

3. Apportionment of Property by Estate

4. Apportionment by act of the parties

5. Apportionment by Operation of Law

6. Conclusion

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 37 i.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.