Section 35 TPA: Election: Election when necessary

Section 35 of Transfer of Property Act: Election: Election when necessary

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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 claims 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 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.

Illustration

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.

Legal Commentary & Landmark Judgments: Section 35

Section 35 of the Transfer of Property Act, 1882 codifies the equitable Doctrine of Election, enacting that a person who accepts a benefit under an instrument must also adopt the whole of it and surrender any inconsistent rights.

Core Legal Standard: Section 35 incorporates the equitable maxim 'allegans contraria non est audiendus' (a person cannot blow hot and cold / approbate and reprobate).
Statutory Rights & Obligations: 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.
Operational Mechanism: If he dissents, he must relinquish the benefit conferred, and the benefit reverts to the transferor or his representative as if it had not been disposed of.

If the transfer is for consideration, the disappointed transferee is entitled to reasonable compensation from the transferor.

Key Landmark Precedents:

C. Beepathuma v. Velasari Shankaranarayana Kadambolithaya (AIR 1965 SC 241): The Supreme Court held that the doctrine of election codified in Section 35 is founded on the principle that he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions and renouncing every right inconsistent with it.
Mumbai International Airport Pvt Ltd v. Golden Chariot Airport (2010) 10 SCC 422: The Supreme Court reaffirmed that the common law doctrine of election and the rule against approbation and reprobation applies strictly across Indian civil and property litigation; a party cannot accept the advantageous portions of a transaction while repudiating the burdens.
Cooper v. Cooper (1874) LR 7 HL 53: The House of Lords laid down the foundational common law principle that a person taking under an instrument must give full effect to that instrument so far as they have power.

Legal Commentary:

Section 35 frequently arises in family partition suits and wills where a testator or patriarch attempts to devise property belonging to a family member while simultaneously conferring ancestral cash or other lands on that same member. The beneficiary cannot pocket the gift while challenging the patriarch's authority to dispose of their property; they must make a binding statutory election.

Section 35: Election: Election when necessary

Section 35 of Transfer of Property Act: Election: Election when necessary

Legal Commentary & Landmark Judgments: Section 35