The concept of ‘Election’ under The Transfer of Property Act , 1882
Election
The term “election” is commonly understood as the process of making choices that serve our best interests and contribute to our personal development. This concept is also relevant within the framework of the Transfer of Property Act 1882. This legal provision dictates that when it comes to the transfer of a specific property, individuals are faced with a decision: they can either accept the offer or reject it. Accepting the offer results in receiving the associated benefits, while rejecting it leads to the offer being withdrawn. Typically, this type of transfer is facilitated by a mediator, often for specific purposes or as a means of gifting. It’s important to note that such a transaction can only proceed if the property owner chooses to accept the offer.
Section 35 of the Transfer of Property Act, 1882
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.
Explanation
According to section 35 of the transfer of property act : A transaction involves three parties: the property owner, the transferee, and the transferor. It is important to note that the owner and the transferor are two distinct individuals. In this scenario, the owner holds the decision-making authority, as they have the option to either accept or deny the offer. If the owner chooses to accept, they will receive the benefits, and the transferee will gain ownership of the property. However, if the owner decides to reject the offer, they will retain their property, and the transferee will be refunded their money.
In the case of a gift, if the person giving the gift (transferer) does not receive the money from the person receiving the gift (transferee), then the transferer is responsible for paying the exact cost of the property to the owner of the property.
A unique situation arises if the transferer dies before the owner makes a decision. In this case, if the deceased transferer’s estate receives any money from the transferee, the legal representative of the deceased transferer must pay at least the actual amount of the property to the transferee. For instance, if the property costs Rs 1000 and the transferee paid Rs 1200 to the transferer, then after the transferer’s death, the legal representative must pay at least Rs 1000 to the transferee. However, if the transaction is a gift, then the legal representative will not be liable to pay anything to the transferee..
One important rule of this transaction is that if a person has two different capacities, they can only act in one capacity. They must choose which capacity they want to use for the transaction.
The expectation of this section is that if the transferee gives a specific benefit along with money for the property to the transferor, the transferor is only obligated to repay the money, not the benefit attached to it.
There is also a specific time limit given in this section for the owner to make a decision because it is unfair for the owner to take an unreasonable amount of time. If the owner does not decide within one year after the date of transfer, it is considered that they have accepted the offer after this period has expired.
The transfer of property act in the case of any disability says that the transaction will be put on hold until the disability ceases.
Also Read:
Rights of undertrial prisoners in India
How To Send A Legal Notice In India
