Panchapakesa Ayyar, J.
1. This revision petition raises an interesting question of law, namely, whether in a purchase of agricultural land by private sale, the land being under a lease at the time of the sale, the rent can be apportioned between the buyer and the seller under Section 36, T. P. Act. The petitioner. Poongavanam Pillai, purchased 1 acre 56 cents of land from respondent 1, Subramania Pillai, for RS. 8,500 under a sale deed dated 27-1-1948. At the time of the sale there was standing on the land paddy crop raised by the lessee, respondent 2, who had to pay, according to finding of the lower Court, 24 3/4 kalams of paddy as rent to respondent 1 for the whole year, though only 7 kalams out of it remained to be paid at the time of the sale The contract of sale did not say anything about this paddy or the rent to be paid by respondent 2 to respondent 1. Nor did respondent 2 then agree to pay the petitioner any portion of the rent. So, no 'different intention' was expressed under Section 8, T. P. Act. It was admitted by the vendee (petitioner) in the lower Court, that he fixed the price only with reference to the land (at about Rs. 23 a cent) and without taking into account the crops or the rent, but the lower Court did not infer that a different intention was necessarily implied by this under Section 8, and there is no revision petition by the vendor. In this revision petition I accept the findings of fact by the lower Court regarding the quantum of rent, namely, that an annual rent of 24 3/4 kalams of paddy was payable, and that the rent was not payable in two fixed instalments, and that a katam of paddy was worth Rs. 12 at the material time. The paddy was harvested a month after the sale. The vendee, Poongavanam Pillai, then asked the vendor and the lessee to pay him the rent. The lessee said that he had paid the rent except 7 kalams to the vendor. The vendor also confirmed this, and denied the vendee's right to the rent, but, in order to avoid a suit, offered to make the lessee pay the 7 kalams still due to the vendee. The vendee refused this very generous offer of compromise and filed S. C. no. 117 of 1948 for recovering the entire rent of 24) kalams or its value, Rs. 834-2-0 as estimated by him. The lower Court applied Section 36, T. P. Act, apportioned the rent between the vendor and the vendee, and gave the vendee (petitioner) a decree for two kalams or Rs. 24, and dismissed the rest of his claim against defendant 1 (vendor) with costs. The suit was dismissed against defendant 2 without costs. Hence the revision petition by the vendee.
2. The learned counsel for the vendor urged before me that the lower Court had given the vendee even two kalams erroneously, and that it should have found a 'different intention' necessarily implied at the time of the sale and dismissed the suit in toto. I cannot agree. Firstly, the vendor has acquiesced in the lower Court's order and has not filed a civil revision petition himself. Secondly, the vendee, admittedly, did not tell the vendor that he would not claim any part of the paddy or rent. So there was no understanding or agreement about it. In the lower Court, the vendee claimed the entire rent as his, or, in the alternative, at least 7 kalams of paddy, as offered by the vendor in his reply notice. The lower Court held that there was no 'different intention' expressed, or necessarily implied, under Section 8, and that, as the property sold was land, the vendee would be entitled, under Section 8, to the rents and profits accruing from the land after the transfer. To find out what would be the rent or profits from the land accruing after the sale, the lower Court applied Section 36, T. P. Act relying on the ruling in Nand Kishore v Ram Sarup : AIR1927All569 , and, as there was no contract or local usage to the contrary, it held that the rent accrued between the transferor and the transferee from day to day and gave the petitioner two kalams of paddy, being one month's rent out of the year's rent payable, and decreed the suit to that extent with proportionate costs dismissed the remainder of the suit with the costs of defendant 1. It rejected the vendor's contention that an intention on the part of the vendee not to claim any portion of the rent must necessarily be implied under Section 8 by his calculating the purchase price only on the price of the land (at Rs. 23 or so a cent) and not taking into account the rent or any portion of it. It also rejected the vendee's contention that the vendor's offer of 7 kalams in his reply notice showed or implied an intention to pay him at) least 7 kalams due by the date of the sale. The plaintiff has filed this revision petition. As already stated, the vendor has not filed any revision petition. Nor has defendant 2.
3. I have perused the entire records, and heard the learned counsel on both sides. Mr. Srinivasa Aiyar, the counsel for the petitioner, frankly admitted that there was no 'different intention' regarding the paddy crop standing on the land or the rent due for it at the time of the sale. He also, of course, supported the lower Court's finding that no different intention could also be necessarily implied in the circumstances of the case. But he contended that, even so, under Section 8, T. P. Act, all the interest which the transferor was then capable of passing in the property would pass to the transferee, and that this would entitle the plaintiff to the whole year's rent, or at least to the 7 kalams remaining due at the sale. He also said that Section 30, T. P. Act would not apply to agricultural crops or rents, as they do not accrue from day to day. Indeed, he went to the extreme length of contending that all interest which the transferor was then capable of passing in the property would automatically pass to the transferee forthwith, and urged that even if three years' rent was in arrears, at the time of the sale, the transferee would be entitled to it. I am unable to agree with this contention. Rents and profits accruing due before the transfer are not legal incidents of the property transferred. See Bhogilal v. Jethalal A. I. R. 1929 Bom. 51 : 114 I. C. 262; Ganeshlal Tewari v. Shamnarain, 6 Cal 213; Muthu Hengsu v. Netravati Naiksavi, 58 I. C. 383 : A. I. R. 1920 Mad. 386 and Chandrasekharalingam v. Nagabhushanam : AIR1927Mad817 . Such arrears of rents are a debt or actionable claim, and, if they are to be transferred, must be assigned separately. See Sheogobind Singh v. Gowri Prasad, 4 Pat. 43 : : AIR1925Pat310 .
4. In cases like this, three different positions will arise under the law, namely, (1) If a 'different intention' is expressed, at the time of the transfer, that different intention will be given effect to. Thus, if at the time of the sale the transferor had stated that the standing paddy crop or accruing rent should go to him wholly, or to the transferee wholly, or to himself and the transferee in certain named shares, that intention will be given effect to, and Section 36, T. P. Act will have no application whatever. (2) Where no different intention is expressed, but the act of the transferor or transferee necessarily implies a different intention, that is, leads to an irresistible inference as to what was intended by the parties, that intention, so necessarily implied will be carried out, and Section 86 will have no application whatever. Thus, if in the presence of the transferee and with his consent, or absence of dissent, the transferor cut and took away the standing crops or collected the rent, or, in the presence of the transferor, the transferee did the same, then a different intention to that effect will be necessarily implied and the consenting or assenting party will be precluded from questioning the position, as the approval showed the implied different intention, even though it was not expressed at the time of the sale. Here, the lower Court held that there was no different intention necessarily implied by the vendor's not taking the rent into consideration when fixing the purchase price. That finding is one of fact, and cannot be canvassed now by the vendor, especially as he has not filed a civil revision petition himself. The vendee never told the vendor that he would not claim a share in the crop or rent. (3) If the positions indicated in NOS. (1) and (2) above do not exist, then the transferor will be entitled, in the case of a transfer of land, like this, to the rents and profits thereof accruing before the transfer as stated clearly in Section 55(4)(a), T. P. Act, and the transferee to the rents and profits thereof accruing after the transfer, and the passing of ownership to him, as stated clearly in Sections 8 and 55(6)(a), T P. Act. Such rents and profits should be apportioned under Section 86, T. P. Act, which has been held to apply to agricultural rents like this, in Kunhi Sow v. Mulloli Chathu, 38 Mad. 86 : A. I. R. 1916 Mad. 768 and Rangiah Chetti v. Vajravelu Mudaliar, 41 Mad. 370 : A. I. R. 1918 Mad. 557 , let alone the ruling in Nand Kishore v. Ramsarup : AIR1927All569 . The observation in Ma Hawa Bi v. Sein Kho, 6 Rang. 803 : A. I. R.1928 Rang. 67, that agricultural rents are not apportionable under Section 36 as they accrue once and for all when the crops are reaped and do not accrue from day to day, must be held to be incorrect as observed by Mulla in his 'Transfer of Property Act' (1949 Edn., p. 176), as it is precisely because rents do not accrue from day to day that the rule of apportionment has been applied to them under Section 36, T. P. Act. So I hold that Section 36, T. P. Act will apply to apportionment of agricultural rents also in terms. Even if this is not so, the rule of apportionment prescribed under Section 36 will apply, as a rule of justice, equity and good conscience even to agricultural rents. In Chinnathambiar v. Veerappa Pandian, I. L. R. (1937) Mad. 589 : A. I. R. 1937 Mad. 219 and David v. Rangaraju : AIR1944Mad568 , this Court has applied the rule of apportionment under Section 36 to purchases of land in execution proceedings, (though the Transfer of Property Act will not apply to sales in execution as per Section 2(d) of that Act itself) on the ground that Section 36 embodies a rule of justice, equity and good conscience. So I see no reason to discuss merits of this contention further. It is not the case here of a crop raised after the ownership, passed as in Hariharan v. Narayana : AIR1933Mad482 , but of a yearly rent payable by a lessee, the year expiring a month after the sale.
5. The petitioner was rightly refused by the lower Court his claim to at least 7 kalams, offered by the vendor in his reply notice, as it was refused, and lapsed, and had been made merely as a term of compromise, and to purchase peace, and without prejudice to the contentions of either side.
6. In the end, therefore, I hold that the lower Court was quite right in applying Section 36, T. P. Act to this case and in giving the petitioner only one month's rent, which alone accrued after the transfer, and in refusing him the 11 months' rent which had accrued before the transfer and belonged to the vendor and to which the vendee was not entitled under Sections 8, 55(4) and 55(6)(a), T. P. Act or in justice, equity and good conscience. So, the only modification I want to make in the lower Court's judgment and decree is to direct all the parties to bear their own costs in the suit, which order appears to me to be the most equitable order to pass regarding the suit costs in the circumstances, seeing the many untenable contentions raised on either side. Indeed, at one time the vendor offered to pay the vendee 7 kalams, or the whole rent remaining unpaid at the time of the sale, and encouraged the vendee to claim at least those 7 kalams in the suit on the ground that the vendor expressly or by necessary implication intended to give him 7 kalams, at any rate, out of the rent, thus expressing or implying a 'different intention' under Section 8. That too justifies the modification regarding cost. In other respects, the petition is dismissed. All parties to this petition also will bear their own costs in the peculiar circumstances, seeing that they persisted in their untenable contentions before me also.