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DOCTRINE OF ELECTION UNDER TPA, 1882

election

INTRODUCTION

In general meaning, election means that a person holds the right, power, or privilege of making choice[1]. As same in the case of election means in the transfer of property means that the persons whose instrument or property is there have the right to choose or power to reject the offer which he will be getting. A person can choose or enjoy ant one right by electing that. In this, the base is the person who is enjoying the right has also a burden of it because he cannot choose or elect both the rights.

DOCTRINE OF ELECTION IS IN SECTION 35 OF TRANSFER OF PROPERTY ACT, 1882 WHICH STATES – [2]

Election when necessary.—[3]

  1. Where a person professes to transfer property which he has no right to transfer, [4]
  2. and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or
  3. if he dissents from it; and
  4. in the latter case, he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or
  5. his representative as if it had not been disposed of,
  6. Subject nevertheless,
  7. Where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and
  8. 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 attempted to be transferred to him.[5]

As the above section mention about the doctrine of election in TPA means the person has the right to choice by his own will but he has to elect which right he wants to choose because they cannot choose both the rights and enjoy it they have an obligation to elect one.

ILLUSTRATIONS

  1. A person has the property of RS 2000 and he as a gift gives to X. Then X gives the same property to Z in the double amount which means RS 4000. Now it is on the part of Z whether he wants that property or not. He has the right to choose or elect whether he wants that benefit or not.
  2. X has a property of RS 50000 and Y says he will give X RS 70000 if he will give his property to Z. now it is upon to the real owner X whether he wants to elect his right and gives property to Z in RS 70000 and enjoys the benefit or he wants to reject the offer. As the doctrine of elections gives the power to choose and elect.

ESSENTIALS OF DOCTRINE OF ELECTION

  1. The real owner of the property has some rights-
  2. Right to choose
  3. Right to reject
  4. Power to elect
  5. Full disclosures of facts
  6. The owner cannot enjoy both the rights he has to choose any one from two it is an obligation on side of the owner.
  7. It fully upon the discretion of the owner.
  8. Whether he wants that property or not?
  9. Whether he wants that benefit or not?
  10. The transaction must be the same in the dealing of property.
  11. In these three parties are involved [6]
  12. Real owner
  13. Transferor
  14. Transferee
  15. The person who transfers the property should be other than the owner.

For example-

A gives property to B of RS 1L, without the consent of the real owner which is X and in the same, he gives RS 1L to B.

So in the above transaction X has the full right to whether he wants to sell the property or not? And same applies in case of B because he didn’t know that A is not the real owner he has also full rights that the owner has the RIGHT TO CHOOSE WITH OWN WILL AND RIGHT TO REJECT after knowing the truth.  

The doctrine of the election – in this a person who on its own will accept the benefit by deed or agreement has to give his full consent while accepting it. And has to giveaway all its rights. This principle is based on the principle of equity which says it the person has the right to elect by his own will and give his consent then he has to renounce his rights upon it. Because a person has to choose one right –

  1. Whether he will be beneficial or not?
  2. Whether he is giving its consent or not?

For example – A has an instrument that he gifted to Z but that instrument is of Y and the whole instrument is of Y. as Y is the real owner of the instrument so the rights also belong to him only. Now Y will decide whether he wants to give away his rights for the benefit but need to renounce all the rights from it or whether he wants to reject it. Now in this case doctrine of election can be applied and decide with his will without any influence. If Y wants to give his instrument then he needs to give way his proprietary rights from it and can give to A. everything is involved in the owner’s right with the obligation and with the interest.

MODES OF ELECTION

  1. DIRECT ELECTION
  2. INDIRECT ELECTION
 WHAT IS DIRECT ELECTION?

Direct election means that without any problem the owner is ready for the transaction. It can be done by simply communicating by oral or written form.

For example – A wants the property to sell. B says he will give RS 10000 to you if you agree to sell the property to Z.

In this above example if A simply agrees to it sell the property to Z, then it will be a direct election.

WHAT IS INDIRECT ELECTION?

The indirect election in this owner has some condition like the person has full knowledge of the conditions and the owner by proof or by choice to elect it because after the transaction it is difficult to give it to the original owner.

This status cannot be restored and can enjoy for 2years.

For example- A has a property of RS 1L and B says he will give RS 2 L to him. If he will sell it to Z.

 In the above example if A puts some conditions regarding selling then the person who is taking has to fulfill it then only he will sell it. Indirect election means with conditions. Whether to accept it or reject it’s upon the owner.

EXCEPTIONS OF SECTION 35 OF TRANSFER OF PROPERTY ACT

  1. If anything which goes against the property or the benefit of the property is accepted by the owner then it will be difficult to retain but he will be getting some part of the benefit from it.
  2. If the owner does not elect or reject it’s his choice of decision with his will.
  3. If there is knowledge of the property then they can enjoy the benefit of it for 2 years.
  4. If any minor is there then the property will be dealt with on behalf of the minor’s guardian for the benefit of the minor.
  5. If there is any disability or any other condition if a person cannot deal then on behalf of them there guardian can do the election for their benefit.

For example – A is a Minor and has a property of RS 1L as then in that case B is Guardian of A while be dealing from the minor side and for his or her benefit.AS it is an exceptional case where guardians can deal on behalf of minors.

CASE LAWS

  1. COOPER VS. COOPER [7]

This case was given by Lord Heather who explains the principle of the doctrine of election. That there is always an obligation on side of the person who has taken the benefit with their own consent or will, and if it is false or misrepresented then there is the power to the donor to reject it or dispose of it. And same with those who are going to take that instrument. In this case, it was said one who takes benefit he also has some obligations in it.

  1. CODRINGTON V. CODRINGTON[8]

In this case, also the doctrine has been exercised and said when there is a choice to the owner with his will whether to elect or reject if for the benefit he accepts then automatically this instrument has to adopt by another person and in the same transaction. The owner has to leave all his rights in the instrument. [9]

  This doctrine applies when there is a conflict between two rights and one has to choose one right over another, and when he chooses by his own will he has accepted both benefits and obligation.[10]

  1. P .R DESHPANDE V. MARUTI BALARAM HAIBATTI[11]

In this case, this case the Hon’ble SC is dealing with the doctrine of election in this it was observed that one cannot approbate and reprobate[12], for the principle inheres in the doctrine of election which is based on the rule of estoppels and the doctrine of estoppels by-election is one of the species of estoppels in pais which is the rule of equity.[13]This is mention in the case in Para 8.[14]By that rule, a person may be precluded by his action or conduct when it is his duty to speak, from asserting a right which he otherwise would have.(vide black’s law dictionary, 5th edition ).[15]

  1. DHANPATTI V. DEVI PRASAD [16]

In this case essentials of the doctrine of election is given-

  1. A transfer of property by a person who has no right to transfer.[17]
  2. As a part of the same transaction, he must confer the real owner.
  3. The owner has the right to elect or reject his own will.
  4. RAMAYYAE V. MAHALAXMI [18]

In this case, A is a lady who is a widow and has a gift that she has the power to exclude and include the property which she wants to elect but because of this due to not willing to give his whole property case has been filled. A court said that she is the owner of that property only she can decide which part she wants to sell or accept or reject with his own will.

CONCLUSION

Section 35 of the TRANSFER OF PROPERTY ACT is related to the DOCTRINE OF ELECTION which says when the person holds any benefit from an instrument or property they have both benefits and obligation to. This Doctrine is also applicable to Hindus, Muslims, and Christians also. This is totally based on the principle of equity. In this, it is especially emphasized in the rights of the real owner who has to choose between two rights or we can say has the power to choose, reject, or elect an instrument. In the laws whether it is Indian law or English, they both are similar as in both the provisions compensation is there and forfeiture is also. And the whole transaction to adopt or to accept needs to be done in the same transaction. The election is in hands of the real owner. And the owner has full right whether to reject or elect which part with his own will without any influence by the other person. But there should be ownership of the property. This is based on equity which means the beneficiary needs to choose between two right whether to keep it or whether to accept it. Because the person cannot enjoy both the rights equally, one has to select with the clear intention of what he wants and what he wants to do.

Author(s) Name: Parneet Kaur Chawla (ITM University, Raipur)

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[1] https://www.merriam-webster.com/dictionary/election

[2] Section 35 of Transfer of property ACT  1882

[3]https://indiankanoon.org/doc/1330663/#:~:text=%E2%80%94Where%20a%20person%20professes%20to,the%20benefit%20so%20conferred%2C%20and

[4] TRANSFER OF PROPERTY ACT –BY AVATAR SINGH (2ND EDITION)

[5] SECTION 35 OF TRANSFER OF PROPERTY ACT, 1882

[6] https://www.scribd.com/document/381435400/Analysis-the-Doctrine-of-Election-Under

[7] Cooper v. Cooper (1874) 7 HL 53

[8]  CODRINGTON V. CODRINGTON (1857) 7 HL 854 861

[9] https://www.slideshare.net/PratishthaMajumdar/meaning-and-essentials-of-doctrine-of-election#:~:text=%E2%80%9CElection%E2%80%9D%20means%20choosing%20of%20one,the%20Transfer%20of%20Property%20Act.

[10] 1970 (3) SCC 776 (778)

[11] 1998(6) SCC 507

[12] P.R. Deshpande v. Murti balaram haibatti 1998 (6) SCC507

[13] https://www.casemine.com/judgement/in/5609ad34e4b0149711410ca6#12

[14] https://www.casemine.com/judgement/in/5609ad34e4b0149711410ca6#12

[15]  Black’s law dictionary

[16] 1970 (3) SCC 776 (778)

[17] https://www.lawctopus.com/academike/doctrine-election/#_edn12

[18] AIR 1922 Mad 357 (358): 64 IC 481