Section 35 of The Transfer of Property Act, 1882 in hindi
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. Illustrations The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of gift professes to transfer it to B, giving by the same instrument Rs. 1,000 to C. C elects to retain the farm. He forfeits the gift of Rs. 1,000. In the same case, A dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B. The rule in the first paragraph of this section applies whether the transferor does or does not believe that which he professes to transfer to be his own. A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect. A person who in his one capacity takes a benefit under the transaction may in another dissent therefrom. Exception to the last preceding four rules.-- Where a particular benefit is expressed to be conferred on the owner of the property which the transferor professes to transfer, and such benefit is expressed to be in lieu of that property, if such owner claim the property, he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction. Acceptance of the benefit by the person on whom it is conferred constitutes an election by him to confirm the transfer, if he is aware of his duty to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives enquiry into the circumstances. Such knowledge or waiver shall, in the absence of evidence to the contrary, be presumed, if the person on whom the benefit has been conferred has enjoyed it for two years without doing any act to express dissent. Such knowledge of waiver may be inferred from any act of his which renders it impossible to place the persons interested in the property professed to be transferred in the same condition as if such act had not been done. Illustrations A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B. If he does not within one year after the date of the transfer signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of that period, require him to make his election; and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer. In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority.
Summary
- Under the doctrine of election, if a person transfers property they do not own and gives a benefit to the true owner in the same transaction, the owner must choose between keeping their property or accepting the benefit.
- If the owner dissents (rejects the transfer) to keep their property, they must forfeit the offered benefit, which then reverts to the transferor or their representative.
- If the transfer is for consideration, or is gratuitous and the transferor dies or becomes incompetent before election, the disappointed transferee is entitled to compensation from the forfeited benefit.
- The amount of compensation must make good the value of the property that was attempted to be transferred.
- Enjoying the offered benefit for two years without expressing dissent raises a legal presumption that the owner has elected to confirm the transfer.
Practical examples
FAQ
1. What is the doctrine of election under Section 35 of the Transfer of Property Act, 1882?
The doctrine of election under Section 35 of the Transfer of Property Act, 1882 applies when a person transfers another's property and gives that owner a benefit in the same transaction, forcing the owner to choose between keeping their property or accepting the benefit.
2. If an owner dissents from a transfer under Section 35 of the Transfer of Property Act, 1882, what happens to the benefit they were offered?
Under Section 35 of the Transfer of Property Act, 1882, if the owner chooses to keep their property and reject the transfer, they must relinquish the benefit offered, which then goes back to the transferor or their legal representative.
3. What are the compensation rules if the transferor dies before the election under Section 35 of the Transfer of Property Act, 1882?
Under Section 35 of the Transfer of Property Act, 1882, if a gratuitous transferor dies before election and the owner rejects the transfer, the representative must compensate the disappointed transferee out of the relinquished benefit up to the value of the property attempted to be transferred.
4. How does a two-year enjoyment affect election under Section 35 of the Transfer of Property Act, 1882?
Under Section 35 of the Transfer of Property Act, 1882, if the person entitled to elect enjoys the offered benefit for two years without expressing dissent, a waiver of inquiry or knowledge of their duty to elect is presumed, constituting confirmation of the transfer.
Test yourself
Q1.Under Section 35 of The Transfer of Property Act, 1882, if a person transfers property they do not own to a transferee, and in the same transaction gives a benefit of twelve thousand rupees to the true owner, and the owner elects to keep their property, what happens to the twelve thousand rupees?
Q2.Under Section 35 of The Transfer of Property Act, 1882, when is the transferor's representative bound to compensate a disappointed transferee out of the relinquished benefit if the owner dissents from the transfer?
Q3.Under Section 35 of The Transfer of Property Act, 1882, if a person receives an indirect benefit under a transfer of property transaction without being the direct recipient of a benefit in lieu of their property, what is their duty to elect?
Q4.Under Section 35 of The Transfer of Property Act, 1882, what is the legal presumption if the owner of the property has enjoyed the conferred benefit for two years without doing any act to express dissent?
Q5.Under Section 35 of The Transfer of Property Act, 1882, if the owner of the property does not signify their intention within one year, and fails to elect within a reasonable time after a requisition is made by the transferor, what is the legal result?