Madhavan Nair, J.
1. The plaintiff in O.S. No. 27 of 1914 on the file of the Court of the Subordinate Judge of Tuticorin (the petitioner in the lower Court) is the appellant. The appeal arises out of an application for passing a final decree in that suit. In O.S. No. 27 of 1914 the plaintiff as reversioner claimed for himself the Zamindari of Sivagiri on the death of the then Zamindar Ramalinga who died in the year 1914. The claim was made against the mother of the Zamindar who took possession of the Zamindari on his death. Along with this suit was tried another suit O.S. No. 48 of 1914, the plaintiff in which admitting the right of the Rani claimed that he was the next reversioner entitled to the Zamindari on her death. The Rani died on the 23rd November 1916, while the suits were in progress and the plaintiff in O.S. No. 48 of 1914 was then made the second defendant in O.S. No. 27 of 1914. The decrees passed in these two suits were appealed against, to the High Court and the judgments are reported in Gurusami Pandiyan v. Pandia Chinna Thambiar : (1920)39MLJ529 . For the purpose of this appeal it is enough to spy that the High Court held that the Rani succeeded to the Zamindari in preference to the plaintiff and that the income accruing from it during her lifetime was her property and that after her death the plaintiff, as one of her heirs, can claim only one sixth of what was left. The decree of the Lower Court was modified by the High Court giving to the plaintiff as one of her heirs only one sixth share in her estate, including the profits that accrued from the impartible estate up to her death, he of course being entitled to the whole of it thereafter. In the partible properties and in the outstandings and in the past profits that accrued during the Rani's life time there was a declaration that the plaintiff and defendants 2 and 6 are each entitled to one-sixth share and a final partition decree was ordered to be drawn up by the Subordinate Judge regarding them. It is not necessary to refer to the other portions of the decree. See Gurusami Pandiyan v. Pandia Chinna Thambiar : (1920)39MLJ529 .
2. 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 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.
3. 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 ryots 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.
4. The plaintiff contended in the lower Court and the same contention is urged before us-that he is entitled to the whole income, the ground being that in law the income for the fasli cannot be apportioned.
5. 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.
6. In England under the common law there was no apportionment in respect of time except in the case of interest which accrued from day to day. As to rent and other periodical payments, the contract being considered as distinct and entire, no apportionment was allowed; see the judgment of Lord Eldon in Ex parte Smyth (1818) 1 Swans. 337 : 36 E.R. 412, and the note appended to the report by Mr. Swanston. This rule in England was altered by the Apportionment Act of 1870, Section 2 of which says:
From and after the passing of this Act all rents, annuities, dividends and other periodical payments in the nature of income (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.
7. 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 I.L.R. (1920) 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...
8. Davies, J., without relying on the broad principle of equity referred to by Subrahmania Aiyar, J., held that the plaintiff was entitled to recover on the ground that half-yearly instalment had fallen due prior to the death of the tenant-for-life though the right to sue for it might not have accrued until four days after. In Kunhi Sou v. Mulloli Chathu : (1912)23MLJ695 , it was held that an assignee from a lessee is entitled to claim as against 4he lessor apportionment of rent accruing due after the date of assignment to him up to the time of a transfer (if any) of his interest as assignee to a third person. The learned Judges pointed out, after referring to the statutory law and the common law of England, that in India there is no reason for not applying to rent the principle adopted in England in the case of interest. In Vema Rangiah Chetty v. Vajravelu Mudaliar : AIR1918Mad557 , a decision of three judges, it was pointed out that though according to Section 2(d) of the Transfer of Property Act, the Act does not apply to sales in execution, yet the principle of Section 36 of the Act which embodies a rule of justice, equity arid good conscience can be applied and rent apportioned from day to day as between a lessor and the transferee of his right in execution in the course of a year of the lease. The decision ;in Aparna Debi v. Sree Sree Shiba Prashad Singh I.L.R.(1924) 3 Pat. 367, in which the law of apportionment was allowed by the Patna High Court was a case of devolution of interest on succession. So also was the case in Shivaprasad Singh v. Prayagkumari Debee I.L.R.(1933) 61 Cal. 711, where in ah elaborate judgment, after referring to the English and the Indian cases already cited, the learned Judges came to the conclusion that though Section 36 of the Act would not apply to the case before them, yet on grounds of equity apportionment might be allowed. In that case the question was 'whether the plaintiffs (the widows) were entitled to rents and royalties which fell due during the lifetime of Raja Durga Prasad'. The Raja died on the 7th March, 1916, before the year was out and rents and royalties had not then fallen due to him, and the decision turned upon the question whether such rents and royalties could be apportioned under the Act. The learned Judges held that the 'plaintiffs are entitled to such rents and royalties due up to the date of the death of Raja Durga Prasad', that is to say, till the 7th March, 1916, and no distinction was made between agricultural tenancies and colliery; leases both being treated on the same footing. In all these cases the principle underlying Section 36 of the Transfer of Property Act was applied on grounds of justice, equity and good conscience.
9. The Counsel for the appellant says that the above cases should now be held to have been wrongly decided in the light of the Privy Council decision in Phirozshaw Bomanjee v. Bai Goolbai (1923) 47 M.L.J. 79 : L.R. 50 IndAp 276 : I.L.R. 47 Bom. 790 . In that case after stating that the English Apportionment Act of 1870 does not apply to India, nor do any of the earlier English Apportionment Acts, and that it is common ground that the principle which applied in that case was that of the original English law as it stood apart from statute, their Lordships observed, as follows:
The older English Law on the subject was stated by Lord Eldon in Ex parte Smyth and is amplified in the learned note appended to the report of that case by Mr. Swanston. The latter traces it to the two propositions, that an entire contract cannot be apportioned, and that under such an instrument as, for instance, a lease with a reservation of periodically payable rent, the contract for each portion is distinct and entire. 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.
10. And then their Lordships began to consider
whether there is not in the trust deed language which, by implication, imports that apportionment was directed by the settlor to take place.
11. The learned Judges in Shivaprasad Singh v. Prayagkumari Debee I.L.R. (1933) 61 Cal. 711 distinguished the Privy Council case on the ground that what was decided in the case was a question of intention as evidenced by a deed of settlement as to whether income derived from rents and shares was apportionable de die in diem though they felt the force of the admission made by the parties before their Lordships that the law of apportionment applicable to India was the old law in England. They were also of opinion that the old English law of non-apportionment was not applicable to the case before them which was not a case between persons standing in relation of lessor and lessee or of persons who were bound by covenants, relating to payment of rent at stated intervals. In the case before us also, it is hardly proper to describe, as already pointed out, the zamindar and the persons from whom the payments are due as persons standing in the position of lessor or lessee. 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 I.L.R.(1933) 61 Cal. 711 and Aparna Debi v. Sree Sree Shiba Prashad Singh I.L.R. (1924) 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.