Section 35 - Election when necessary : Transfer of Property Act, 1882
Election when necessary? Section 35 of Transfer of Property Act, 1882
Section 35 of Transfer of Property Act 1882 : "Election when
35. (1) 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.
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
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 or 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.
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 representatives 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
In case of disability, the election shall be postponed until
the disability ceases, or until the election is made by some