Section 35 of The Transfer of Property Act, 1882 incorporates the Doctrine of Election. In layman language, the term ‘Election’ means choosing, and with reference to The Transfer of Property Act, it means choosing between two alternative or inconsistent rights. If in any instrument two rights are conferred on a person in such a way that the person has to select one of them i.e. one right is in lieu of another, then this is where the Doctrine of Election comes into play. In the case of Beepathumma v. S.V Kadambolithaya1, the Supreme Court said that “A person cannot take under and against the same instrument”.
So, in a case where ‘B’ gifts some money to ‘A’ and in lieu of it ‘A’ would need to transfer his car to ‘C’ then according to the Doctrine of Election either ‘A’ can choose to keep his car and relinquish the benefit of gift transferred to him by ‘B’ or ‘A’ can choose to transfer his car to ‘C’ and keep the money gifted to him by A. Therefore, ‘A’ cannot enjoy both the benefits. In legal language, ‘A’ shall be put to an election.
In the case of Cooper v. Cooper2, it was held that “The Doctrine of Election which is based on equity is applied to every species of the instrument whether deed or will and to every kind of property movable or immovable”.
Conditions Necessary For Doctrine of Election
- The transferor must have professed to transfer property not his own:
Section 35 of the Transfer of Property Act, 1882 is applicable in the circumstances where any person makes a contract to transfer the property of another person. But, the question arises why a person professes to transfer a property which he does not even own. He/she may do so either because of his/her negligence, ignorance, or misunderstanding of their rights regarding the ownership of the property. Another reason to do the same is that they may have an expressed or implied consent of the real owner of the property to transfer his property. Mostly a person is put to the election in cases of wills. It is immaterial whether the transferor has the knowledge of the fact that he/she has no authority to transfer the property for the applicability of the Rule or Doctrine of Election.
- Some benefit must be conferred on the owner of the property:
In this section, the word ‘owner’ has a very wide ambit for interpretation and includes a person having a contingent interest as well as has a vested interest and even a person having a remote interest in the property falls in the ambit of the interpretation of the word ‘owner’ with respect to this section. Always the owner of the property is put to an election and therefore he is provided with some benefit as compensation in lieu of his ownership of the property. Furthermore, the direct benefit must be conferred upon the owner of the property and not indirectly.
For example- ‘X’ professes to transfer ‘Z’s property to ‘Y’ and gives Rs. 10,000/- to the wife of ‘Z’. In the mentioned example the Doctrine of Election doesn’t come into the picture since the benefit is being indirectly conferred upon the owner of the property by giving the benefit to his son.
In the case of Valliammai v. Nagappa3, a testator professed to bequeath a joint family property to his coparcener who was entitled to that property under Hindu Law and the Supreme Court held that the coparcener cannot be said to derive any benefit under the will and was not put to an election.
- Part of the same transaction:
The Doctrine of Election is applicable only when the transfer as well as the benefit conferred both are part of the same transaction. They are considered to be part of the same transaction if they are interdependent and inseparable which implies that there is no election if the transfer professed and benefit conferred both are independent transactions. However, it is not mandatory that both of them should be mentioned in the same instrument since it is possible that both are carried out with fewer than two different instruments.
Owner’s Duty To Elect
If a property is professed to be transferred and in lieu of which in the same transaction some benefit is conferred upon the owner of the property then such owner is under a duty to elect. He may either accept the transfer of his own property and the benefit derived through it or he may reject the instrument altogether. However, he is not entitled to get only the benefits arising out of the transaction.
The duty to elect arises only when the person acts in one and the same capacity i.e. the person to whom the benefit is bestowed is also the owner of the property. Where a person has to act in two different capacities i.e. one as the owner and other vicariously as guardian or trustee then he may accept the benefit in one capacity and reject the other part of the instrument in another capacity.
Mode of Election
The election can be expressed or implied. It is the discretion of the owner of the property who is given the benefit. The person put to the election may express his intention is clear and specific words which are said to be an express election and it is said to be final and conclusive. In the case of an implied election, the intention of the owner is to be inferred from his acts and conduct.
An election is implied when the owner of the property:
- Being aware of his duty to elect and
- Having full knowledge of the circumstance accepts the benefit.
Such an election would lead to an inference that the owner has chosen in the favour of the transaction. In the following circumstances, it is presumed that the owner has accepted the transaction:
- Where the owner has enjoyed the benefit for two years without doing any act of refusal or dissent of the transaction. It is assumed that since he enjoyed the benefit for two years then he has waived from the inquiry.
- Where the owner of the property consumes or exhausts the benefit conferred upon him i.e. he has done some act which makes it impossible to place the interested parties in the same condition as before.
For example- ‘X’ transfers a bungalow owned by ‘Y’ to ‘Z’ and in the same transaction gives a coal mine to ‘Y’. ‘Y’ does not elect in express words but takes the possession of the coal mine and exhausts it. In this case, it would be presumed that ’Y’ elected to take the benefit and thereby transferred his property to ‘Z’.
Requisition to Elect
After the expiry of one year, if the owner does not elect i.e. he neither confirms nor dissents from the transfer then the transferee may require him to make such election and if he does not elect, within a reasonable time after such requisition then he is deemed to have elected in the favor of the transfer.
Suspension of Election
If at the time of the transfer, the elector or the owner of the property is legally disabled for example, minority or lunacy of the elector, then the election is postponed until such disability ceases or the election is made on his behalf by a competent authority i.e. guardian.
Election Against Transfer
In cases where more than two benefits are conferred upon the owner of the property in which one is against the professed transfer of the property and the other benefit/s which is/are given to him is independent of the transfer made under the same instrument then for the benefit against the transfer the rule of election is applicable. If the owner ends up dissenting to the transaction then he has to relinquish only the benefit deriving out of the transfer of the property and not the benefit which was independently given in the same instrument.
For example- Where a person is given two benefits ‘A’ and ‘B’ under an instrument but only ‘A’ has been given in lieu of property then if he elects against the transfer then he forfeits only benefit ‘X’. But, he is entitled to claim benefit ‘Y’.
Rights of Disappointed Transferee
When the owner of the property elects against the transfer then the transferee to whom the property was professed to be transferred does not get the property and hence becomes a disappointed transferee. But, the disappointed transferee is bestowed upon with some rights:
- Where the transfer is gratuitous i.e. without consideration and the transferor dies or becomes incapable of making a fresh transfer and;
- Where the transfer is with consideration, whether he is alive or dead at the time of the election.
The transferee is entitled to get reasonable compensation from the transferor or his representative. “Reasonable compensation” means compensation equal to the value of the property professed to be transferred.
The Doctrine of Election is based on an equitable principle under which a person may not be allowed to approve that part of an instrument which is beneficial to him and disapprove its that part which goes against him. No one can approbate and reprobate at the same time. In other words, where a person takes some benefit under a deed or instrument, he must also bear its burden.
- AIR 1965 SC 241.
- (1874) 7 HL 53.
- 1967 AIR 1153, 1967 SCR (2) 448.
Student, ILS Law College, Pune
Siddhant is an aspiring lawyer who is pursuing his final year of 3 years LL.B from ILS Pune. He is a diligent & meticulous person who possesses experience in both Corporate & Litigation sector and wishes to aware the general public regarding some crucial aspects of law in as simple language as possible. Siddhant is always willing to groom himself and prove to be a valuable asset to any organization he becomes a part of.