The Doctrine of Election under Section 35 of the Transfer of Property Act of 1882 

by  Adv. Deepak Pandey  

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3 mins

  

Section 35 of TPA

Introduction

  • The election under Section 35 of the Transfer of Property Act (“TPA”) refers to the ability to select from presumed options. Both moveable and immovable properties are included in the notion of election. 
  • It stipulates that if someone claims to be transferring property over which they have no legal authority without first notifying the owner, they must go to the owner to ask for the property’s disposal. The decision to authorize it or not rests with the owner.
  • It follows that he has the legal authority to use the doctrine of election to concur in a transaction or to object to it. It is always better to register your gift deed beforehand.

What are the essential ingredients for constituting an Election under Section 35 of TPA?

  • Property transfers should not be made by the owner of the asset being transferred.
  • The transferor is required to grant a portion of his own property to the property’s owner simultaneously and in the same document.
  • Both transfers—transferring the owner’s property to the transferee and giving the owner of the property a benefit—must be completed in the same transaction. If the transfers are made as a result of two different instruments, the notion of election is not relevant.
  • The proprietor must have a proprietary interest in the asset. A creditor has no obligation to support the candidate because he only has a personal claim to payment from the debtor.
  • The owner who benefits indirectly from the transaction but does not directly profit from it is not put to an election.
  • When the benefit is received by a person in a different capacity, the election issue is not present. For instance, a person could receive an inheritance from an estate while also keeping the property if it was within his personal competence.

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When does the requirement of Election arise under Section 35 of TPA?

The requirement of Election arises under Section 35 of TPA when the transferor-

  • Decides to quit his rights in order to transfer.
  • They must decide whether to take it or not in the same transaction if he doesn’t.
  • Until then, he must release the advantages.
  • Benefits accrued up to that time return to the transferor as if they had never been granted.

Even if he at least pays to the transferee when benefits are returned, this is possible in the following circumstances:

  • When a transfer is voluntary, and the transferor is unable to execute another transfer due to death or another circumstance.
  • The transfer is a possibility.

When is a person not required to Elect under Section 35 of TPA?

According to Section 35 of TPA, the individual gains indirectly from the transactions rather than directly.

In what circumstances does a person elect to dissent from the Election under Section 35 of TPA?

The transferred service will be returned to the transferor or his representative as if he had not been released, in accordance with Section 35 of TPA, if the owner decides not to allow the transfer. It might happen as follows:

  • The transfer is voluntary, and the transferor has either passed away or lost the ability to make further transfers.
  • In all circumstances where the transfer needs to be verified, it is the transferor’s or his agent’s duty to make up for disgruntled purchasers. The property’s worth or amount that will be transferred if the option is exercised is the compensation amount.

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What is the time limit applicable to ELection under Section 35 of TPA?

Section 35 of TPA states that the transferor or his representative must get a notice from the property owner within a year of the transfer’s date. If they don’t respond after the term has passed, even if they are aware of the expiration date and have heard it through their representatives, they will be assumed to have confirmed the election.

Election by a person with a disability is not possible unless and until:

  • His condition gets better.
  • Someone else who is not impaired makes the decision on his behalf.

What are the exceptions applicable to the doctrine of Election under Section 35 of TPA?

According to the provisions of Section 35 of the TPA, a beneficiary clause must be made for the transferee when the transferee accepts the transfer. The transferor may then accept the transfer and make use of the beneficiary clause, or the transferee may object. However, there is a specific exemption to this regulation, which states that if the transferee does not expressly consent or make a firm decision, then it will be assumed that they have approved the transfer in the following circumstances:

  • It will be deemed that the transferee has accepted if they fully benefit from the beneficiary clause mentioned in the transfer or in other circumstances where they do.
  • The transferee is required to respond if, after a year, no approval has been given about the transfer of the property. If he or she didn’t, it would be assumed that they had given their consent to the transfer.
  • When there is a disability, such as a minority or insanity, the electoral duty is suspended unless the guardian makes the transfer.
  • Suppose the transferor includes both an independent beneficiary clause and a beneficiary clause at the moment of transfer. Therefore, the transferee will likewise receive the independent beneficiary clause even if they did not consent to the transaction.

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Conclusion 

The Doctrine of Election is described in Section 35 of TPA, 1882. According to the doctrine of election, which may be a common-law rule of equity, the beneficiary must decide between maintaining the property or accepting the device if a testator attempts to remove property that belongs to someone else and makes a device thereon.

Therefore, Section 35 of TPA states that a person who derives an indirect benefit from a transaction but does not directly gain from it need not elect. Additionally, a person who benefits from the transaction in one role may object to it in another.

Take the help of a legal expert to understand the relevance of Section 35 of the TPA. It helps you choose whether to go with the transaction and get online advice.

Adv. Deepak Pandey

Adv. Deepak Pandey

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Deepak Pandey offers legal consultancy and advisory services with a keen emphasis on ethical and professional conduct to achieve favourable results. He has 5 years of experience in handling legal cases. As a result of his strong communication skills, Deepak is able to present his clients' cases with clarity and persuasion.

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