INTRODUCTION
Election means choosing between two alternative rights or inconsistent rights. If an instrument confers two rights on a person in such a manner that one right is in lieu of the other, that person can choose or elect only one of them. A person cannot take under and against the same instrument.
Election is an obligation, to choose between two inconsistent or alternative rights in a case where there is a clear intention of the grantor that the grantee should not enjoy both.
The foundation of the doctrine of election is that the person taking a benefit under an instrument must also bear the burden. In other words, a person cannot take under and against one and the same instrument.
DEFINITION
The doctrine of election, stated in classic words of Mailtland as:
“He who accepts a benefit under a deed or will or other instrument, must-
- Adopt the whole contents of that instrument,
- Conform to all its provisions, and
- Renounce all rights that are inconsistent with it.”
MEANING
The concept or principle of the doctrine of election was explained by the House of Lords in the leading case:
Case: 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 a benefit under a will or other instrument to give full effect to that instrument under which he takes a benefit, and if it be found that instrument purports to deal with something which is was beyond the power of the donor or settlor 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.”
DOCTRINE UNDER TRANSFER OF PROPERTY ACT, 1882 (TPA)
- The Transfer of Property Act, 1882 was intended to define and amend the existing law, and not to introduce any principle. It embodies principle of equity, justice and good conscience.
- The chief objects of TPA were first to bring the rules which regulate the transmission of property between living person into harmony with the rules affecting its devolution on death and thus, to furnish and complete the work commenced in framing the law of testamentary and intestate succession and secondly, to complete the code of contract law so far as it relates to immovable property. But the doctrine of election relates to movable and immovable property.
- The foundation of the doctrine of election is that the person taking a benefit under an instrument must also bear the burden, and that he cannot take under and against the same instrument.
- Election is an obligation to pick between two inconsistent or alternation rights in a case where there is a clear intention of the grantor that the grantee should nit obtain both.
SECTION – 35: ELECTION WHEN NECESSARY, THE TRANSFER OF PROPERTY ACT, 1882
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 the transfer or to dissent from it.
If he dissents from it-
- He must relinquish the benefit so conferred and
- The benefit so relinquished reverts to the transferor or his representative as if it had not been dispose of.
However, when such benefit reverts back to the transferor, it is subject to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred in two cases, namely-
- Where the transfer is gratuitous, and the transferor has, before election, died or otherwise become incapable of making a fresh transfer and
- Where the transfer is for consideration.
INGREDIENTS OF DOCTRINE OF ELECTION
- It is immaterial whether the transferor does not believe that the property which he professes to transfer is his own property.
- A person who takes on benefit directly under a transaction, but derive a benefit under it indirectly, need not elect.
- Likewise, a person who takes a benefit in one capacity may dissent therefrom in another capacity.
- In case of dissent, only that the particular benefit is to be relinquished, any other benefit conferred on him by the same transaction is not to be relinquished.
- If a person accepts a benefit for 2 years (or more), there is a presumption that he has elected in favor of the transfer.
- If the owner does not, within a year’s time, signify to the transferor, his intention to confirm or dissent, the transferor may require him to make an election. If he does not comply with such requisition, he is deemed to have elected to confirm the transfer.
CONDITIONS FOR APPLICABILITY OF THIS DOCTRINE
- The transferor must not be owner of the property which he transfers.
- The transferor must transfer the property of other (owner) to a third person.
- The transferor must at the same time grant some property, by the same instrument, out of his own, to the owner of property.
- The two transfers i.e. transfer of the property of owner to the transferee and conferment of benefit on the owner of property must be made by the same transaction. Question of election does not arise if the the two transfers are made through two separate instructions.
- The owner must have proprietary interest in the property.
- The owner taking no benefit under a transaction directly, but diverting a benefit under it indirectly, need not to elect.
- Question of election does not arise when benefit is given to a person in a different capacity.
RULES OF THE DOCTRINE
RULE 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 must elect either to confirm such transfer or to dissent from it.
- If he dissents, he shall relinquish the benefit so conferred, and the benefit so relinquish shall revert to the transferor or his representative as if it had not been dispose 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 amounts to be transferred to him.
RULE 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.
(in case of relationship between master and agent, no need to elect is there.)
RULE 3:
A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect.
(directly not benefited, indirectly benefited. As, getting benefit from real owner’s relative, in that case, no need to election, and if the owner elect to dissent, it is not mandatory to return the benefit.)
RULE 4:
A person who in his one capacity takes a benefit under the transaction may in another dissent therefrom.
EXCEPTIONS TO THE RULES
I. REAL OWNER IS NOT BOUND TO CONFER ANY OTHER BENEFIT OF A PARTICULAR TRANSACTION
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, if such owner claimed the property, he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction.
II.IF REAL OWNER ACCEPT THE BENEFIT BEFORE CONFIRM ELECTION AND WAIVES ENQUIRY INTO THE CIRCUMSTANCES
Acceptance of the benefit by the person on whom it I 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 waiver enquiry into the circumstances.
III. 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 enjoyment it for two years without doing any act to express dissent according to Indian Succession Act, 1925 section 188, it was presumed that he approved the transfer and need not apply the doctrine of election.
IV. IMPOSSIBLE FOR REAL OWNER TO BACK THE PREVIOUS POSITION
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 conditions as if such act had not been done.
V. WARNING THE REAL OWNER AFTER CERTAIN PERIOD
If he does not within one year after the date of the transfer signify to the transferor or his representative may, upon the expiration of that period, required him to make his election, and if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer.
VI. SUSPENSION OF ELECTION
In case of 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.
DIFFERENCE BETWEEN ENGLISH AND INDIAN LAW
ENGLISH LAW
- The doctrine of compensation applies.
- There is no fixed time for making an election.
INDIAN LAW
- The doctrine of forfeiture applies.
- A period of one year is prescribed for making an election.
APPLICABILITY UNDER DIFFERENT LAWS
HINDU LAW
The principle underlying this section has always been applied to Hindus.
Case: Rungamma V Atchamma
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
Case: Sadik Hussain V Hashim Ali
The Privy Council applied this doctrine to Muslims also.
ENGLISH LAW
Under English law, a transferee by electing against the transfer does not lose his benefit but he becomes bound to make compensation out of it to the disappointed person.
RELEVANT CASE TO DOCTRINE OF ELECTION
Case: Muhannad Kader Ali Fakir V Fakir Lakman Hakim (PLR 1956 Dacca 370)
The doctrine of election was explained by the Court. The Court explained that,
- ”The foundation of the doctrine of election is that a person taking the benefit imposed thereby and that he cannot take under and against the same instrument.
- It is a breach to the general rule that no one may approbate or reprobe.
- The doctrine is based on intended intention to this extent that the law presumes that the author of an instrument intended to give effect to every part of it.
- There is an obligation on him who takes a benefit under a will or other instrument intended to give full effect to that instrument under which it was beyond the power of the donor or settler to dispose of, but to which effect can be given by the concurrence of him who receives the benefit under the same instrument, the law will impose on him who takes the benefit, the obligation of accruing the instrument into full and complete force and effect.
- If an instrumenty is invalid in part what remains is sufficient to put a person to his election if he claims a benefit under it.”
BIBLIOGRAPHY
Doctrine of Election under the Transfer of property Act, 1882- Avindan Dhar
Critical Exploration “The Doctrine of Election” In the light of Transfer of Property Act,1882- Md. Abu Bakar
Analysis the Doctrine of Election under the Transfer of property Act, 18- Saidur Kahan
Farheen Dhanjal 