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Doctrine of Election

Doctrine of Election is based on principles of equity. Under any instrument if two rights are conferred on a person in such a manner that one right is in lieu of the other, he is bound to elect only one of them. A person cannot choose to select the part of instrument or transaction that is beneficial to him and choose to reject the other part.

His election will apply to the whole of the transaction or the instrument. No one can approbate and reprobate at the same time. Where a person takes some benefit under a deed or instrument he must also bear its burden[1]. The basis of the doctrine of choice is that the person who uses the instrument must also bear the burden imposed in this way and that he cannot carry under and against the same instrument.[2]

The doctrine itself is very wide in in its scope. It is applicable to every species of instrument whether deed or will and to every kind of property movable or immovable[3]. In other words it can be said that doctrine of election imposes an obligation on the parties to choose or elect between two inconsistent or alternative rights or claims in case where there is clear intention.

The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both.[4]

Doctrine of election is explained by Maitland in following words.[5]

He who accepts a benefit under a deed or a will or other instrument must:
  1. Adopt the whole contents of that instrument
  2. Confirm to all its provisions
  3. Renounce all rights that are inconsistent with it

A owns a property that is worth Rs 800. B professes to transfer the same to C through the Rs1000 instrument to A. But the A, the owner opts/elects to retain his property and thus, forfeits the gift of Rs 1000.[6]

Election when necessary (Section 35)
Section 35 of Transfer of Property Act imports this English doctrine in Indian scenario. It comprehensively deals with the prerequisites, who need to elect, mode of election and exception of the doctrine.

Prerequisites of doctrine of election
As per the provision of the Section 35 of the Transfer of Property Act, 1882, doctrine of election can be applied in a particular case only when certain conditions are fulfilled.

"person professes to transfer property which he has no right to transfer"
Election over a property is asked to be made to a person only when he holds a proprietary interest which are disposed of by the act of such professed transfer.

"As part of the same transaction confers any benefit on the owner of the property"
Owner of such proprietary interest can be asked to be made to a person only when some benefit is conferred on him by the transferor also such benefit should be a part of the same transaction. In case the benefit is conferred on the owner as a part of a separate transaction, the owner need not to be put on election.

Who doesn't have to elect?
If the owner is benefited indirectly from the professed transaction and no benefit is conferred upon him directly he need not elect. Owner needs to elect only when the benefit is conferred upon him directly and as a prat of the same transaction.

Duty to elect arises only when the person acts in one and the same capacity. That is to say he is the person who owns the property and gets the benefit. No question of election can arise where a person has two different capacities but under the circumstances are merged into one.[7]

When a person chooses to confirm
A person can confirm the transfer impliedly by his conduct or explicitly by words. It is a question of intention of the owner of property who is given the benefit.[8] Acceptance of the benefit by the owner, constitutes as election and amounts to confirming the transfer.

Such acceptance of benefit communicates the intention of the owner that in exchange of the benefit conferred he is ready to forfeit his ownership over the transferred interest, thus confirming the transaction. However, such acceptance of benefit would constitute election in favour of transaction only if:
  1. The owner is aware of his duty to elect.
  2. Owner is fully aware of the circumstances which would influence judgement of a reasonable man in making an election.
If the owner waives enquiry into circumstances then, a presumption of election may arise by the conduct of the owner. Such presumption also constitutes as implied election.

It arises where:
  1. The owner has enjoyed the benefit for two years without doing any act of refusal or dissent of the transaction.
  2. Where the owner of property exhausts or consumes the benefit. Thus, whether he has done some act which renders it impossible to place the parties (interested in property) in same condition as before.

A transfer B a house owned by C as a part of same transaction transfers a mine to C. C exhausts the mine. This amounts to election by C in favour of transaction as C's act of exhausting mine has rendered it impossible to place the parties (interested in property) in same condition as before.

When a person chooses to dissent
Where the owner elects to dissent from the transfer he shall relinquish the benefit so transferred to him and such benefit shall relinquish the benefit so transferred to him and such benefit shall revert back to the transferor or his representative as if it had not been disposed of. When property reverts back and.
  1. The transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and
  2. In all cases where the transfer is for consideration, it shall be the duty of the transferor or his representatives to compensate the disappointed transferee.

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 inlieu of that property, if such owner claims the property, he mustrelinquish the particular benefit. But he is not bound to relinquish any other benefit conferred upon him by the same transaction.

Time limit for election
If within two years the owner or his representatives fail to express their dissent or reject the benefits conferred upon them, then such transfer is deemed to be confirmed in favour of the transfer.

Requisition to elect
After one year if the owner fails elect then the transferor may require him to make such election. In case the owner does not elect within a reasonable time after such requisition he is deemed to have elected in favour of such requisition.

Suspension of election
Under special circumstances like minority or unsoundness of mind of the owner it is possible that the owner is legally disabled to elect. In such case the election is postponed till the disability ceases or until election is made on his behalf by competent authority.

  • Hindu Law
    The principle underlying this section has always been applied to Hindus. In the case of Rungamma v. Atchamma[9], the Privy Council referred to the rule that a party shall not at the same time affirm and disaffirm the same transaction-affirm it as far as it is for his benefit and disaffirm it as far as it is to his prejudice.
  • Muslim Law
    In the case of Sadik Hussain v. Hashim Ali[10], the Privy Council applied this doctrine to Muslims also.

Rights of Disappointed Transferee
If the transferee chooses to reject the benefits conferred upon him thus dissent from the transfer, the transferee can no more get the property. Such transferee is called disappointed transferee. For the ends of justice to be achieved such transferee cannot be allowed to be helpless. Thus, such disappointed transferee has some remedies under law.

Indian Law:
  1. Where the transfer is gratuitous and the transferor dies or becomes incapable of making fresh transfer and
  2. Where transfer is non gratuitous, whether he is alive or dead at time of election
The transferee is entitled to get reasonable compensation from transferor of his property. Compensation must be equal to value of property professed to be transferred.

English Law
Under English law the benefit once rejected by the owner does not revert back to the transferor. The owner of property need not reject the whole benefit, he may insist upon taking the benefit. However, such owner can take benefit subject to a charge to compensate the transferee. Thus, under English law transferor is not under any liability to compensate the disappointed transferee. This liability is upon the owner, if he decides not to reject the benefits conferred upon him.

A transfers B's estate worth Rs. 1500 to C as a part of same transaction A confers benefit of Rs. 2000 on B.

Under Indian law if B has to reject the transfer he will have to forfeit benefit of Rs. 2000 which reverts back to A. It is duty of A or his legal representatives (if A dies before such election) to compensate C (disappointed transferee) by giving him Rs. 1500.

However, under English law owner B need not to forfeit the benefit conferred upon him but he will be liable to pay Rs. 1500 to C (disappointed transferee) and no liability will be on the transferor A.

Election is the process of selecting between two options or rights that clash. You can select one of them by granting two privileges, one of which is higher than the other. Both are not compatible. The receiver must pick between two different rights; the applicant is not permitted to exercise both.

This basically indicates that the weight falls on the recipient as well. Originating from the principle of equity, which asserts unequivocally that one cannot have gained from both sides. This theory has been effective in resolving several conflicts.

  1. Codrington v. Lindsay, (1873) 8 Ch.
  2. Mohd. Kader Ali Fakir v. Lukman Hakim, PLR 1956 Dacca 370.
  3. Cooper v Cooper, (1873) 7 HL 53.
  4. National Insurance Company v. Masan & Anr., 2006 (2) SCC 641 IA.
  5. Maitland's Lecture on Equity-Lecture 18, quoted in supra note 2, Page 84.
  6. G.C.V SubbaRao, Law of Transfer of Property (4th edition, Universal Law Publishing 2010
  7. Deputy Commissioner v. Ram Swarup, (1917) OC 243: 42 IC 18.
  8. Dr.R.K. SINHA, The transfer of property act (21st ed.)
  9. (1858) 4 Moo Ind App 1: 7 Suth WR 57.
  10. (1916) 38 All 627; 36 IC 104.

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