Report No. 70
The first proposition in section 37 lays down that when in consequence of a transfer, a 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 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.
The second proposition makes the above rule subject to the proviso which requires that the duty must be a duty which can be severed and that the severance does not substantially increase the burden of the obligation. If the duty cannot be so 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.
This is yet another proviso, under which 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.
Finally, nothing in this section applies to leases for agricultural purposes unless and until the State Government by notification in the official Gazette so directs.
There are two illustrations to the section. In illustration (a), A sells to B, C and D a house situate 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. 71/2 to C, and Rs. 71/2 to D, and must deliver the sheep according to the joint direction of B, C and D.
This illustration illustrates the principal proposition laid down in the section as well as the first and the second provisos. There is a duty in E to render the obligation to the several persons by breaking up the amount, but, so far as the sheep is concerned, the burden cannot be increased and it is for the owners to jointly designate the person in whose favour the obligation is to be performed. The illustration provides for notice, thus complying with the second proviso.
Illustration (b) to section 37 takes the case where each house in the village being bound to provide 10 days' labour in 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 the ten days' work due on account of the house of each. E is not bound to do more than ten day's work in all, according to such directions as B, C and D may join in giving. This illustration lays emphasis on the fact that the burden is not to be increased by severance. It is not stated in the illustration, but it is assumed, that the ownership of the house of A was in consequence of a transfer, divided and came to be held in several shares by B, C and D.
This section is similar to section 30 of the Indian Easements Act, 1882 which refers to the effect of the partition of the dominant heritage upon an easement annexed to the dominant heritage. To take one of the illustrations to that section, A having in respect of a house an easement of light, divides the house into three distinct heritages. Each of these continues to have a right to have its windows unobstructed.
Although section 37 does not deal with succession on death, that is, succession to property by several co-sharers,.it may be of interest to mention the position briefly. In India, on the death of the creditor, his numerous heirs are only jointly entitled to enforce the right which the deceased creditor if alive, could have singly enforced.1
This also seems to be the English law, under which the debtor is not liable to as many claims as there are heirs of the promisee. The theory of English law is that the number of parceners constitute one heir and they are connected together by unity of interest and unity of title-unless of course, one of the heirs has received an authority from the other or others to enforce the share of the assigning heir also.
1. Kanahiya Lal v. Chander, ILR 7 All 313 (324) (FB) followed in Ahimsa Bibi v. Abdul Khadir, ILR 25 Mad 26.
33.10. English law.-
In England, certain special provisions seem to have been made in regard to leases where the reversion is severed.1 But the general rule is as above.
1. Section 140, Law of Property Act, 1925.
33.11. No change.- In this section also we have no changes to recommend.