Doctrine of Election (Section 35 of the Transfer of Property Act, 1882)

Doctrine of Election

Section 35 of the Transfer of Property Act, 1882

Section 35 of the Transfer of Property Act, 1882 incorporates the Doctrine of election alongside Section 180-190 of the Indian Succession Act 1925.

Election simply means choosing between two alternative rights or inconsistent rights. 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 (choose) only one of them.

One  cannot take under and against the same instrument.

Principle Underlying the Doctrine of Election

Allegans contraria non est audiendus : he is not to be heard who alleges things contradictory to each other.

In Cooper v. Cooper, Lord Hather explained the principle underlying the doctrine of election in the following words,

“…there is an obligation on him who takes benefit under a will or other instrument to give full effect to the instrument under which he takes benefit ; and if it is found out that instrument purports to deal with something which it was beyond the power of the donor to dispose of , but to which effect can be given by the concurrence of him who receives a benefit under the same instrument, the law will impose on him who takes the benefit the obligation of carrying the instrument into full and complete force and effect .”

 

Applicability

Hindu Law

The doctrine was directly applied in the case of Mangaldas v Runchhoddas (1890)

English Law

In this respect the English law is different because there the donee electing against the instrument does not incur a forfeiture of the benefit conferred on him by it , but is merely bound to make compensation out of it to the person disappointed by his election.

 

Difference between English Law and the Indian Law Perspective-

The English law depends upon the principle of compensation which states that if the original owner does not validate the transfer, he will be able to retain the property and also the benefit accrued, subject to compensation provided to the donee, to the extent to which he had suffered a loss.

But in the Indian law, this doctrine is affected by the principle of forfeiture which says that if the real owner does not confirm the transfer, the donee incurs a forfeiture of the granted benefit which goes back to the transferor.

 

In simple words, a person utilizing the benefits of an instrument also has to carry the burden attached. This doctrine is founded upon a model wherein a person persuades another to act in a manner to his prejudice and derives any advantage from that, then he cannot turn around and claim that he was not liable to perform his part as it was void. This doctrine is universal and is applicable to Hindus, Muslims as well as Christians.

So, this doctrine contains the principle that the exercise of a choice by a person left to himself of his own free will to do one thing or another binds him to the choice which he has voluntarily made, and is founded on the equitable doctrine that he who accepts benefit under an instrument or transaction of his choice must adopt the whole of it or renounce everything inconsistent with it. Thus, it is a general rule that a person cannot approbate and reprobate. Also, the election is confined to the case of a gift or Will and does not apply in case of a legal remedy.

Analysis of the Section

Essential Conditions

Mst.Dhanpati v.Devi Prasad and others (1970): Before there can be election there must be: 1. Transfer of a property by a person who has no right to transfer;

2. As part of the same transaction, he must confer some benefit on the owner of the property; and

3. Such owner must elect either to confirm the transfer or to dissent from it.

Effect of election against the transfer

Where the owner dissents from the transfer of his property –

1. He must relinquish the benefit ; 

2. The benefit intended for him would then revert to the transferor.

Exception

General Rule : If a person elects against the instrument, he will forfeit the whole of the benefit received under it.

Exception : If a person elects against the instrument , he will not forfeit the whole benefit but only the benefit attached in lieu of the property. (Election limited to part of benefit)

Mode of election

a.     Implied – by conduct

b.     b. Express – election when made in express words, it is final and conclusive.

NOTE: If a person acts through ignorance or mistake, the doctrine gives way.

Two years’ enjoyment

The presumption may be rebutted. A widow who enjoyed a provision made for her under a will in ignorance of her right of dower was held entitled to elect after a lapse of 16 years.[6]

Knowledge

The section permits an interference of knowledge which may be rebutted by circumstances.

Time limit for election

Upon the expiration of one year from the transfer, if an election has not taken place, the transferor may compel him to make his election.

If he fails to comply with this requisition within a reasonable time, he shall be deemed to have elected to confirm the transaction.

Suspension of election

Where the done suffers from some disability by reason of infancy, lunacy and so forth, the election shall be postponed until the disability ceases or until the election is made by some competent authority, e.g., a guardian of a minor

Illustrations

Aman is the owner of the property worth Rs.10 lakh, Bhanu is the transferor who has no rights over the property, Chandan is the transferee.

Bhanu offers to Aman that if he willing to sell his property to Chandan, he will give him Rs. 15 lakh. Now Aman (real owner) can either accept the offer or receive the benefit thereof, or to reject the whole offer.

A property worth Rs.7 lakh belongs to Ishaan. Anirudh by an instrument of gift professes to transfer it to Ria, giving by the same instrument Rs. 10 lakh to Ishaan. Ishaan elects to retain the farm. He forfeits the gift of Rs. 10 Lakhs.