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Sec 35

Tpa section 35

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34 views8 pages

Sec 35

Tpa section 35

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easywaytolearnenglish.ewtle
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ie. er corm eatceG se ON EANSTQ) 34. Transf a js to orest cr am “ean ac teres! specified —V hl d before an wondition on condition to py him, ral “4 to another person, a property iS enjoyed ? ie to pass from ae act, if such performa’ of which the Haya h performan’® iB he fraud of a person Section 35 of the Act makes following provisions in respect of the rule of election : (i) Where a person professes to transfer a Property not his own, (ii) and, in lieu of this transfer the transferor confers certain benefits upon the owner of the property and, (iii) the two things, ie., transfer of property and conferring of the benefit forms part of the same instrument. Then, the owner of property is bound to elect (choose) either to take the benefit and transfer his property or to retain his property and give up the benefit. Transferor Professes to Transfer Property Not His Own.—Section 35, applies where a person professes to transfer the property of another person. ‘Professes' means purports or makes contract. Since such person is not the owner, he cannot transfer that property. But, he can contract or make arrangement for a transfer of that property. He can contract or make arrangement for transfer of a Property which he does not own.! For example, A may profess to transfer a Property to B which is owned by C and also confer on Ca benefit of Rs. 1000/-. In ‘Ns contract A is not transferring C’s property, he is simply professing ee ee i Searngton v, Lindsay, (1873) 8 Ch. 578. Refer : Mulla; TRANSFER OF PROPERTY ACT, Ed. IX p. 7. 5 Gioper x, Cooper, (1878) 7 HL 53, Bid ite and Tudor's LEADING CASES IN EQUITY, Vol Ed"VIII, p. 444. ‘ ‘ te Y 2 Petsor transi sty which he does not own, is an apt question. Hi may aoc ater bees his ‘ead ore ‘misunderstanding about his ownership eights in aprctty or may have express or implied authority by the owner of property t9 do so. Normally plication of this rule occurs in the cases of wills. \NSFER OF PROPERTY ACT, 1882 erty which he does not own. Therefore, 4 , tag the sake of senvenience, hereinafter A may bec n ‘ts rater -Hevever it is not necessary ea roperty not his omen itig . ‘ ci i rans: waitin specific words that he a Erte ee S wprticular case and from the wa : | inferred by the Court from 4 used in the instrument. t transferor has no authority to transfor & pe licability of the rule of election, sq. | Pit clear that the rule applies whether 4 thatthe property which he is professing | feror may have misunderstood or forgotten | transfer it due to any othe | 142 THE TRA! (contracting) to transfer a Knowledge of the property is immaterial for ap} paragraph of this section make transferor does or does ee transfer is not his own. The trans about his rights in the property or may profess to Feason. -—The transfe ae oe ee hud omer in tee | confer any benefit on the owner of property. The w iia has a very wide meaning. It includes a person having vested interest as wel] 4, | contingent interest and also a person who has even reversionery or remote interest in the property.’ It is the owner of property who is put to election Therefore, he must be given some ‘benefit’ in compensation for his ‘ownership’ of the property. To attract the application of this rule there must be two sets of tights; one the right of ownership and the other a ‘benefit’ given under the instrument. In other words, the occasion for election arises only where a benefit is directly conferred on the owner of property. Where benefit is given to the owner otherwise than for transferring property or is given to him indirectly, there js no case for election. For example, A professes to transfer C’s Property to B and gives Rs. 5000/- to wife of C. This is not direct benefit to C and therefore C has no duty to elect. In Valliammai v. Nagappa 2a testator purported to bequeath a joint family property to his coparcener. The coparcener was otherwise under Part of the Same Transaction.—The rule f electi yh the ‘transfer’ and ‘benefit’ for ieameleancnan ine si Part of the same transaction. By same tran insier of property is to be made evident! only in lieu of the benefit. Thus where the ‘benefit’ and ‘transfer’ are interdependent and inseparable, they form part of the same transaction. There is no election if the two are independent transactions However, it is not necessary that these {wo transactions are provided on one instrument, {tic poselble that bro separate CERES is Sieh A pero J} Goer. Cooper, (1874)? HL 53; Dhanpttiv. Devi Prasad, (1970) 3 scc 776, 2 AIR 1967 SC 1153 ; Piara Singh v. Charan Singh, AIR ; ight of caren as eo offered to the plaintiff transferor in deans nthe pes oe ight, the t lair i gh sans “ror cannot claim that he had elected the alternative land in lieu of the 3. Ramayya v. Mahalaxmi, ATR 1922 Mad. 357. RSOFTROPERTY by ACTF PARTIES 143 = may be executed to carry out one and the cis also possible that there is only one sant independent transactions. In Mulianny apt oath of Nawab of Tank, the Government while Wansfering chie ne the Seldest Son, transferred some cash allowance to Nawab's 4 Nawab in his life-time had already a Naw’ ” h Sranted two villages to the s raintenance. The Privy Council held that since the ike . : i ind villages by Nawab himself in his life) came same transaction, instrument containing two nad Afzal v. Gulam Kasim! ‘cond son, econd son two grants (cash by to second son from ion. The second son te CFjrent sources, they were not part of the same trang ver ot put toelection. yas A Owner's Duty to Elect—The Operative part of Section 35 is that if a erty s professed to be transferred and in the same transaction some pr jven to the owner of property the: n such owner is under dection he may either accept the c instrument with its all contents or reject it iiogether. He has no option to accept only the benetic f ( al part of instrument, \vhere he elects to accept the instrument, he is entitled to Set the benefit; but eis bound to transfer his property, If he ject the instrument he cannot claim benefit ; but he may benefit a duty to elect. By his elects to re retain his property. However, the duty to elect arises only when the Person acts in one and the same capacity. That is to say, he is a person who gets benefit and algo owns the property. No question of election can arise where a person has two different capacities but under the circumstances they are merged in one person.? Where a geson has to act in two different capacities e.g. one as individual (owner) and the other vicariously e.g. as guardian or trustee, he may accept the benefit in one capacity and reject the other p: art of instrument in another capacity. “Mode of Election. —Election may be express or implied. It is a question of itention of the owner of property who is given the benefit. He may express his intention in clear and specific words. Where election is express, it s final and conclusive. The intention of the owner may also be inferred from his acts or conduct. This is implied election. Implied Election.—Election is implied when the owner of property ) being aware of his duty to elect and (b) having full knowledge of the ances, accepts the benefit. Such election would mean that he has chosen "vour of the transaction. In other words, where the owner knowingly accepts benefit, it amounts to his election in favour of the transaction. In me teing citcumstances, there is presumption that he has knowingly accepte ‘he benefit () Where the owner has enjoyed the benefit for two years without doing act of refus, al or dissent of the transaction; or 1 2 (905) 30 al 943: 301A 190, uty Commissioner: ‘v. Ram Swarup, (1917) OC 243 : 42 iS 18. -rwiak Re Had ateea on Te erloyed the benefit actually for two years it is presumed tha a Me nenadtes fRauiry, However, this presumption may be rebutted on the Breach proof the person (omar ofthe transaction and Re enjoyed the benefit innocently. On such p "© 8 permitted to make a fresh election, 8 7 ‘THE TRANSFER OF PROPERTY ACT, 1882 144 , | hausts or consumes the benegi, 3) (2) Where the owner of property ex! ‘cimpossible to plac 2, | whether he has done some act which render tition as befor e the van (interested in the property) in the SAM Oy nef’ For instance, A 4p Siig presumption of his election for accepting the Tan, Sle b B an estate owned by C and as part of he same transaction gives to ¢ e : Coa nine. C does not elect in express words but takes possess on of the Coal-ming exhausts it. C is presumed to have Jected to take the benefit ang the dissents the transac: “YY i nee because if C now Msact transfer his property to B. This is $0, ; on "Sacton} would not be ore for him to place the parties (A and C) in the position Dri to his exhausting the said Coal-mine. : —This is special procedure for expediting lection if owner of property does not elect ive. neithe confirms nor dissents from the transfer, the transferee may require him to Make such election, And, if he does not elect, within a reasonable time after sy requisition, he is deemed to have elected in favour of the transfer. i i i fer, the elector (j of Election—Where at the time of transfer, the elector (i, Sera legally disabled, the election is postponed until such | owner of property) is legally disabled 3s esto disability ceases or until the election is made on his behalf by a competen, authority eg. his guardian. Legal disability may be minority or lunacy of the | elector. Thus, his duty to elect is suspended during his minority or lunacy unless | the election is made by his legal guardian. Election against transfer—The owner of property whose duty is to | make election has freedom to elect either for the transfer or against it, Where he elects against it ie. dissents from the professed transfer, he forfeits _ his claim to the ‘benefit’ conferred on him. The benefit so conferred reverts | back to the transferor or his representative. However, he can claim any other benefit which is given to him independently of the transfer under the | same instrument. For example, where a person is given two benefits X and Y_ under an instrument but only X has been given in lieu of property then, if he elects against the transfer he forfeits only benefit X. But he is entitled to claim benefit Y. Requisition to Elect. After the expiry of one year, Rights of Disappointed Transferee When the owner of property elects against the transfer, the transferee {0 whom the property was professed to be transferred, cannot get the property. He becomes disappointed as he must have entertained some hope of getting th property. However, such disappointed transferee is not allowed to be a helpless person. He has the following rights : (i) Where the transfer is gratuitous ie. without consideration and th transferor dies or becomes incapable of making fresh transfer and, at o ns (ii) Where transfer is with consideration, whether he is alive or dead the time of election, the transferee is entitled to get a reasonable compenstt from the transferor or his representative. “Reasonable compensation” me” compensation equal to the value of property professed to be transferred. | | OF TRANSFERS OF PROPERTY oil BY ACTOF PaRtiEs Mlustration is farm of Sultanpur is the Property of C and j : ae instrument, Professes to transfer it to B ace Tale is Re. 800/-, aelit of BS. ne ie es Against the transfer and decides teins mein. ¢ forfeits the benefit of Rs. 1000/- which reverts back to anes re pein 3 ‘disorpes b te - eae clection, his fee a en ointed transferee) by giving p- ves. must comp’ Y giving B Rs, 800/- a o00/ 8 00/- out of English Law.—Under English law, where the election is agai while rejecting the transfer may insist upon taking also the benefit conferred ee him. He i, therefore, called a refractory donee or a rebullians donee. But ch fairactory donee takes the benefit subj, sate the ject to a charge com, Sisappointed transferee ; the transferor or fies eee his representatives are not i t ; r iabl compensate him. Thus, in the above illustration, the owner of Property C while electing against the transfer, would take al: a fn so the benefit of Rs. 1000/-. But, C would be liable to give Rs. 800/- to B, the disappointed transferee. 4 of hip representatives are not liable to compensate B, Apportionment 36. Apportionment of periodical Payments on determination of interest of person entitled.—In the absence of a contract or local usage to the contrary, all rents, annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof. APPORTIONMENT BY TIME Apportionment means distribution of a common fund between two or more claimants, In a transfer of property, the transferee gets the property with all its incidental benefits, produce or income. Where the property yields some Periodical income, there must be specific mention of what portion of its income temains with transferor and what goes to transferee and from which particular date. In the absence of any specific mention by a contract to the contrary or local Custom, the distribution or apportionment of the periodical income between transferor and transferee is governed by rules of (i) apportionment by time and (ii) apportionment by estate. This section deals with the rules for *Pportionment by time. Section 36 provides that in a transfer of property all rents, eas dividends and other periodical payments in the nature of sine sta e “med to accrue from day to day and be apportionable accordingly us, as tween transferor and transferee, the periodical income which # 7 propery ‘lds, is to be distributed between transferor and transferee at fixe as the basis of its accrual on each date. For instance, A's house is on ren

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