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A transferor purports to transfer property they have no right to transfer and confers a benefit on its…

For a gratuitous attempted transfer, section 35 imposes the charge if the transferor has died or otherwise become incapable of making a fresh transfer before the election.…

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A transferor purports to transfer property they have no right to transfer and confers a benefit on its true owner in the same transaction. The owner dissents under section 35 of the Transfer of Property Act, 1882. In which listed circumstances is the relinquished benefit subject to a charge to compensate the disappointed transferee?

1. The attempted transfer is gratuitous and the transferor dies or becomes incapable of making a fresh transfer before the election.
2. The attempted transfer is gratuitous and the transferor is alive and remains capable of making a fresh transfer at the election.
3. The attempted transfer is for consideration and the transferor dies before the election.
4. The attempted transfer is for consideration and the transferor is alive at the election.

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Answer and explanation

Correct answer B

For a gratuitous attempted transfer, section 35 imposes the charge if the transferor has died or otherwise become incapable of making a fresh transfer before the election. Where the attempted transfer is for consideration, the charge applies whether or not the transferor has died.

Option feedback

Option A

A gratuitous transfer by a transferor still alive and capable at the election falls outside the charge rule.

Option B

The charge covers the specified gratuitous case and both listed transfers for consideration.

Option C

The code includes the gratuitous case with a capable transferor and omits the case where the gratuitous transferor has died or become incapable.

Option D

The code includes the gratuitous case with a capable transferor and omits a transfer for consideration with the transferor still alive.

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