ELECTION
Election when necessary
35. (1) 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.
(2) 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.
(3) A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect.
(4)
A person who in his own 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
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