Section 35 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 35 deals with an awkward situation: a person purports to transfer property that belongs to someone else and, in the same transaction, gives that owner a benefit. The owner cannot keep both. This article explains the doctrine of election as per the text of the Act consulted.
Where a person professes to transfer property he has no right to transfer, and as part of the same transaction confers a benefit on the owner, the owner must elect either to confirm the transfer or to dissent from it. If he dissents, he relinquishes the benefit, which reverts to the transferor or his representative, subject to a charge to make good to the disappointed transferee the value of what was attempted to be transferred. Acceptance of the benefit with knowledge is an election to confirm; two years' enjoyment raises a presumption of knowledge; and after one year the transferor may require the owner to elect.
A note on how the section is printed
The copy consulted prints section 35 as one long block. The main rule, the illustrations, the further rules, the Exception and the later paragraphs run together without numbering. The sections below keep the printed order and name each rule by its content.
The main rule
Section 35 says: "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".
In steps:
- A (the transferor) professes to transfer property belonging to C (the owner) to B (the transferee).
- In the same transaction A gives C a benefit.
- C must choose: confirm the transfer to B and keep the benefit, or dissent and keep his own property but give up the benefit.
- If C dissents, the benefit goes back to A or A's representative.
An owner facing such a choice can get early advice through legal dispute resolution.
The charge in favour of the disappointed transferee
The main rule is "subject nevertheless" to a charge: 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, there is a charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.
So the person who loses out, B, is not simply left with nothing if C dissents. The relinquished benefit can be charged to compensate B.
The Act's illustrations, retold
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.
Present-day example. Ramesh Kulkarni signs a deed that purports to give a plot to his niece Sonal. The plot really belongs to his brother Kunal. In the same deed, Ramesh gives Kunal an apartment worth more. Kunal must choose. If he keeps his plot and rejects the deed, he gives up the apartment, and the apartment goes back to Ramesh or his representative. Sonal, the disappointed transferee, can then look to the value of the plot out of the relinquished apartment, in the cases the section describes.
If you are caught in a situation like this, early advice can help you decide how to respond before time runs against you.
Further rules, in the order printed
| Rule | In plain words |
|---|---|
| The rule applies whether the transferor does or does not believe that which he professes to transfer to be his own | A genuine mistake by the transferor does not remove the need to elect |
| A person taking no benefit directly under the transaction, but deriving a benefit under it indirectly, need not elect | Indirect benefit alone does not force a choice |
| A person who in his one capacity takes a benefit under the transaction may in another dissent therefrom | The same person can accept in one capacity and dissent in another |
The Exception
The printed Exception to the "last preceding four rules" says: 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, then, if the owner claims the property, he must relinquish that particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction.
This limits the loss. Only the benefit expressed to be in place of the property has to be given up. A different situation, where a person wrongly claims authority to transfer and later acquires an interest, is dealt with in our article on section 43.
How an election is made or presumed
Acceptance of the benefit
"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."
Two years' enjoyment
"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."
Acts that make restoration impossible
"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."
The Act's 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.
One year and the requisition
If the owner 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, the transferor or his representative may, upon the expiration of that period, require him to make his election. If he does not comply with the requisition within a reasonable time after he has received it, he is deemed to have elected to confirm the transfer.
Practical points: the one-year period runs from the date of the transfer; the requisition is a demand to choose; the "reasonable time" is not defined in the text. A written, dated requisition and a record of when it was received are sensible. Our guide on legal notice format and drafting tips is relevant to how such a demand is usually put in writing.
Disability
"In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority." The text does not say who the competent authority is or define disability; check the current law.
Timeline at a glance
| Stage | What happens |
|---|---|
| Transaction | A purports to transfer C's property to B and gives C a benefit |
| Within one year | C may signify confirm or dissent |
| After one year | A or his representative may require C to elect |
| After requisition | If C does not respond within a reasonable time after receipt, he is deemed to have confirmed |
| Throughout | Acceptance of the benefit with knowledge, or two years' enjoyment without dissent, points to confirmation |
Need help if you are faced with an election?
If a deed gives you a benefit while transferring something that is yours, the choices and timelines in section 35 matter. We can help you assess your position through legal dispute resolution.
Key takeaways
- If a person professes to transfer property he has no right to transfer and gives the owner a benefit in the same transaction, the owner must elect to confirm or dissent.
- If the owner dissents, he relinquishes the benefit, which reverts to the transferor or his representative, subject to a charge to compensate the disappointed transferee.
- Accepting the benefit with knowledge, or waiving enquiry, is an election to confirm; two years' enjoyment without dissent raises a presumption of knowledge.
- After one year from the transfer the transferor may require an election, and silence for a reasonable time after the requisition is deemed confirmation.
- Disability postpones the election.
- Later amendments and State changes should be checked.
Read next
- Sections 31 to 34: conditions that end an interest and time for performance
- Sections 36 and 37: apportionment of rent and of obligations on severance
- Section 43: transfer by unauthorised person who later acquires interest
- Introduction to the Transfer of Property Act, 1882
Disclaimer: Based on a publisher's print of the Transfer of Property Act, 1882 showing amendments up to the Transfer of Property (Amendment) Act, 2002 (3 of 2003), as consulted on 2 October 2026. State amendments, later amendments, stamp duty and registration charges are not covered and should be checked. This article is general information, not legal advice; check the official text before acting.