Property LawResearch Paper DOCTRINE OF ELECTION SUBMITTED BY: SAHIR BOPPANA B.A., LL.B. (HONS) National Academy of Legal Studies and Research Hyderabad ............................................ 4 Rules for Election .................................................................................................................................................................................... 13 .. 7 CONCLUSION ......................................... Table of Contents INTRODUCTION.......................................................................................................................................................................... 6 Ingredients Necessary for the Doctrine of Election .................. 4 SECTION 35 OF THE TRANSFER OF PROPERTY ACT 1882 .............................................................................................................................................................. 4 Exceptions to the Rules ............................................................................................................................. 3 DOCTRINE OF ELECTION ............................................................................................. justice and good conscience. The Doctrine of Election is applicable to both movable and immovable property. INTRODUCTION The intention of enacting the Transfer of Property Act.1 The Act utilizes principles of equity.241 .R.C. 1882 was to define and amend the existing law. The foundational basis of the doctrine of election is that a person gaining a benefit under an instrument must also bear the consequential burden3. as held in Beepathumma v/s Kadambolithaya. Under any instrument if two rights are conferred on a person in such a manner that one right is lieu of the other. This provides for and complements the work commenced in framing the law of testamentary and intestate succession. Brad may elect only one of the two options.e. Principle of forfeiture and Principle of compensation.721 3 Codrington v Lindsey 1873 ch 578 4 Dillon v Parkar (1818) 1 swan 359. To illustrate this.394 5 Beepathumma v/s Kadambolithaya A. Anglo-Indian Codes. vol.(1965)S. and that they may not take under and against the same instrument4. The second objective was to complete the code of Contract Law as it would relate to immovable property2. He cannot enjoy both benefits. 1 Tajjo Bibi v Bhagwan (1899) ILR 16 ALL 205 2 Whitley stokes. he may retain the money and transfer his plot or he may retain his plot and deny the money. he is bound to elect only one of them. This project attempts to discuss the various nuances associated with the doctrine of election through the discussion of various landmark judgments.5 Election is an obligation of having to choose one among two inconsistent or alternative rights in a situation where the grantor’s intention is that the grantee should not receive both. 2 lakhs to Brad in lieu of transfer of his plot. p.I. Special importance has been given to provide a true understanding of the required conditions for the election by the original owner to take place. The primary objectives of the Act were to initially convey the rules that regulate the transfer of property between living persons with accordance to the rules that affect devolution of property upon death. rather than introducing new principles. The differences between the Indian Law perspective as well as the English Law perspective is brought out through critical analysis of the provisions i. suppose Adam offers Rs. p. In Cooper v/s Cooper. he must give up the benefit so conferred. The Real Owner: Real owner of the property must elect to either confirm or dissent from the transfer. The law presumes that the author of an instrument intended to give effect to every part of it. There is a requirement of three parties for this engagement. In the case of dissent. This means that no one can approbate and reprobate in the same transaction. The transferor confers benefit on the owner of the property 6 L.7. the real owner must give up the benefit. Rules for Election Rule 1: When a person professes to transfer some property which he has no right to transfer. Courts hold that when a person accepts benefit and declines the burden at the same time frustrates the intention of the donor. be it movable or immovable. it was held that the Doctrine of Election applies to every instrument and to every type of property.H. 1882 embodies the doctrine of election. 2. conferring some benefit on the actual owner of the property. 6 SECTION 35 OF THE TRANSFER OF PROPERTY ACT 1882 Section 35 of Transfer of Property Act. such owner is required to elect to either confirm the transfer or to dissent from it. DOCTRINE OF ELECTION This doctrine is based on the equitable principle under which a person is cannot approve that of an instrument which is beneficial to him and disapprove the part that is to his disadvantage.R.L 53 at page 69 . 1. which would return to the transferor or his representative as if it had not been disposed of. If he chooses to dissent from the transfer. Transferor: The party transferring the property does not have any right to transfer in the same transaction. 00. To illustrate this. Assume.000 to Jill. 15. When the transfer is gratuitous. Before the election.3. 20.00.00.000 to B. professes to transfer it to B. and when the transfer is for consideration. by a deed A provides for B a house having a place with C. he should therefore settle on his decision. the transferor will be liable. or as it is actually named "he is put to his election".7 7 L. but professes that property which he himself does not own.69 . assume Jack profess to transfer a property owned by Jill to Jones. 20. 20. Gift is one such gratuitous transfer. 1. C elects to retain the farm forfeiting the gift of Rs. Cooper. he should surrender for B his property given to B by A. relinquishing of the benefit is subject to the charge of making good to the disappointed transferee the amount or value of the property that was to be transferred to him. to take either under or against the instrument. If it is not properly done or the matter is not properly disposed of. 15.00. He confers a benefit of Rs. C qualifies for A's property just upon the association of C's adjusting to all the arrangement of the instrument by disavowing the privilege to his own property given for B. Suppose A dies before the election.00. Here. His representative must pay Rs. A rose garden is the property of C and is worth Rs.000 to C. and takes the property which is given to him by A.000. as expressed by Lord Hather in Cooper v. Here Jack is not transferring Jill’s property to Jones. 7 H L 53 p. by instrument of gift. Sam gifts a house to Edward. and the transferor has died or has otherwise become incapable of making a new transfer before the election. Transferee: It is the transferor’s responsibility to return to the transferee. giving by the same instrument Rs. and by a similar instrument gives another property having a place with himself to C.00. it is Sam’s representative’s duty to pay the value of the house to Edward. Sam dies and owner of the house dissents. It is not possible for a new transfer to take place. The transferee is allowed to file a suit against the transferor rather than against the real owner. R.000 out of the Rs.000 A. even if it is by the same transaction. the law assumes that election had been done and there is no opportunity to deny the contract. In case the owner elects to dissent. no enquiry into the circumstances. he is not required to relinquish any other additional benefit conferred upon him. it is not necessary to relinquish the benefit. If a benefit is received by the real owner’s relative. although no election direct had taken place. or getting the money without the ability to read. it is not required that they elect. Extra benefit that is separate and beyond the instrument is not to be returned. This includes acceptance of benefit. Rule 3: A person receiving an indirect benefit under a transaction rather than a direct benefit is not required to elect. or if he waives enquiry into the circumstances. Particular benefit that is expressed to be received upon transfer of the property.Rule 2: The rule in the section involves whether or not the transferor believes the property which he professes to transfer to be his own. may in another. . law assumes that election to be done. dissent. because the owner acts as if it he has elected. However. reading the document and receiving the money. Exception 1: Acceptance of the benefit by the owner on whom it is conferred implies an election by him to confirm the transfer. he must return the benefit. In a scenario of master and agent. and the owner decides to claim the property. It is confirmed if he is aware of his duty to elect and aware of those circumstances which would influence the judgment of a reasonable man in making an election. is returnable in case of dissent. In a few cases. Rule 4: A person who in his capacity receives a benefit under a transaction. there is no need for election. Because a reasonable person would know the facts. Exceptions to the Rules When a specific benefit is conveyed to be conferred on the real owner in lieu of his property that the transferor professes to transfer. Now Saidur accept benefit from Reza without confirming election and he also waives enquiry into the circumstances. election would be assumed. in the same instrument. Exception 2: Such knowledge or waiver shall.For instance. such as consumption of a land used for mining. the transferor or his representative may after the expiration of that period. if the person that received the benefit has enjoyed it for over two years without acting to express dissent. Exception 3: Such knowledge or waiver may be inferred from any act that makes it impossible to place the party interested in the property professed to be transferred in the original condition as if such act had not taken place. . The doctrine of election is not applicable if the two transfers are made by virtue of two distinct instruments. Exception 4: If he does not indicate to the transferor or his representative. If he does not comply with such requisition within a rational amount of time after receiving it. it would be presumed that he shall have elected to confirm the transfer. The election would be exclusion. without contradicting evidence. 2) The transferor must at the same time grant some of his own property to the owner of property. It is not possible to return the property. Ingredients Necessary for the Doctrine of Election: 1) The transferor should not be owner of the property which he transfers. be presumed. oblige him to make his election. If the owner consumes the benefit without dissent for over two years. So in this situation court presume that he approved the transaction and take benefit as election. 3) The two transfers must be made in the same transaction: Transfer of the property of the owner to the transferee and conferring the benefit on the owner of property. Reza transfer a property Kahan which is owned by Saidur and gives benefit Saidur at the same instrument. his intention to confirm or to dissent from the transfer even one year after the date of transfer. The court observed that a person cannot approbate and reprobate the same transaction. but getting a benefit under it indirectly.69 11 PLR 1956 Dacca 370 . Of an instrument is in valid in part. he must give up the respective benefit conferred to him. 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. Cooper10 it was decided that if the owner is allowed to retain his property. It is a contradiction to the general rule that one should not approbate or reprobate. A creditor is not involved in the election as he merely has a personal right to be paid by the debtor. Muhammad Kader Ali Fokir vs.” 9 Case Laws The foundation of the doctrine of election is that person gaining benefit of an instrument must also bear the burden.40 9 Maitland’s Lectures on Equity-Lecture 18 10 L. 1 st edition. is not put to election. 6) Question of election does not arise when the benefit is received by a person in different society8. (b) Contort to all its provisions. what remains is sufficient to put a person to his election if he claims a benefit under it. and (c) Renounce all right that is inconsistent with it.R. In Cooper v. 1882. imposed thereby and that he is not allowed to take under or against the same instrument. 5) The owner that does not receive direct benefit under transaction. must (a) adopt the whole contents of that instrument. p.7 H L 53 p. Fakir Lakman Hakim11 8 Shafique Hossain. Transfer of property act.4) It is necessary that the owner has proprietary interest in the property. The doctrine of election may be stated by Maitlandas follows:- “He who accepts a benefit under a deed or will or other instrument. ” 12 The India courts have applied this doctrine in several cases such as Ramakottaya v. Bhau Ram v.13 . 52 Md.10. 241. That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument. the case is similar to that of a will.000 as it reverts to A. Effect of Election against transfer16: Where the owner dissents from the transfer of property- (1) He must give up the benefit.358 15 AIR (1965) s. is as follows:- “Election is the obligation imposed upon a party by court of Equity to choose between two inconsistent or alternative rights of climes in case where there is clear intention of the person from who derives one that the he should not enjoy both. A gives a gift to B of a property that belongs to C and by the same deed gives Rs. Transfer of property Act. viraghavayya.86 17 Shukla Dr. It is accordingly governed by same rules and the disappointed transferee can claim for compensation. S. the case involves a contract and he similarly has a consequent claim for compensation. 12 8DLR 112 (120re-h) 13 AIR (1929) Mad 502 (f. 24 th ed.B) l. C does not agree to the transfer of his property to B.000 to C. Baij Nath Singh14 and Beepathuma v.R.The beneficiary must give effect to the instrument as a whole. p. p. (1962)1s. Allahabad law agency.c 241.N. (2) The benefit intended originally for owner would then go back to the transfer. but cannot claim Rs. Compensation to disappoint transferee17: Where the transfer is gratuitous and the transferor has died before the election or is incapable of making a new transfer.10. S.N. In every case where he has given consideration for the transfer which is defeated by the election.R.86 .C. (1964)5 16 Skula Dr.556 14 AIR (1961) S. Transfer of property Act. Allahabad law agency. Velasari Shankaranarayana Kadamguliaya15. White and Tudor’s Leading case in Equity. 24 th ed. 10 th ed. Yet. English Law and Indian Law The English law relies on the principle of compensation which implies that if the first proprietor does not approve the exchange. p. to the degree of the property he had languished a misfortune over. it is mentioned that the election shall be postponed until the disability ceases. declines to accept. he can keep the property and furthermore the benefit collected. 18 Bharuka Dr. in the Indian law setting. this doctrine is impacted by the guideline of forfeiture which expresses that if the first proprietor does not approve the exchange.GC.242 19 Bharuka Dr. A minor’s election may be postponed until he reaches age of majority.Subject only to these claims. Mulla The transfer of property Act 1882. Mulla The transfer of property Act 1882. “shall revert to the transferor or his representative as if had not been disposed of. subject to compensation gave to the donee. 10 th ed. it is provided that the benefit that the person who being put to his election and choosing to retain his property. Mohamedan law. p. the donee causes a forfeiture of the gave benefit which backpedals to the transferor. The doctrine of election was applied to Mohamadens by the Privy council in the case of Sadik GHusain v Hasbim Ali(1916)19 Election limited to part of benefit:- The fifth paragraph states an exception to the general rule in case a person elects against the instrument.GC.243 . he will thereby forfeit the benefit received under it.” Disability: In case of Disability. or his guardian may elect for him18. or until the election is made by some competent authority. S. Allahabad law agency. (b) If it is impossible for real owner to go back the previous position. a. b. it is thereby final and conclusive. accepting the benefit given to him by the transaction Such action on his part creates an election in favor of the transaction20. the election is mentioned in express words. p. Warning the real owner after certain period: If he does not indicate to the transferor or his representative. A transfers a house belonging to B and by the same instrument confers benefits.86 21 Shukla Dr. the doctrine of election gives way. election may be expressed or implied by conduct. he will not be bound to relinquish all the benefits conferred on him by the instrument but only c which is expressed to be lieu of the house. but the transferee (1) Is aware of his duty to elect (2) Having full knowledge of matters such as the value of properties. 24 th ed. Mode of election: As stated in these paragraphs. Transfer of property Act. However if it is not so made.N. Hence. Presumption as election:- The question as to whether the benefit was accepted with the adequate knowledge of the circumstances would be a question of fact subject to the following rules21: (a) If the benefit has been enjoyed for more than two years without doing any act to express dissent.Suppose.87 . and c on B and it is expressly stated that the benefit c is given to B in lieu of the house. S. p. Allahabad law agency. the transferor or his representative may 20 Shukla Dr.N. his intention to confirm or to dissent from the transfer even one year after the date of transfer. Transfer of Property Act. then if B elects to retain the house. if a person’s act is due to ignorance or mistake. Where. 24 th ed. it shall be presumed that he had the appropriate knowledge or that he waived enquiry. it would be presumed that he shall have elected to confirm the transfer. It was held by the Privy Council that the younger son had not put his election as the two grants were received separately from independent sources and not in the same transaction. oblige him to make his election. This means that the benefit and transition are interdependent and inseparable as they form part of the same transition. 22 22 1903 ILR30 .after the expiration of that period. the Government transferred the chiefship to the eldest son and also transferred a portion of cash allowance to the younger son who had previously made a grant of two villages for maintenance. Ghulam Kasim: Upon the death of Nawab of Tank. Part of the same transition: This Doctrine may only be applied when the transfer and the benefit conferred are a part of and form the same transaction. If he does not comply with such requisition within a rational amount of time after receiving it. Mohammad Afzal vs. infancy. lunacy. it need not be relinquished. Section 35 of Transfer of Property Act. in Section 35 that when one professes to transfer property over which he has no right. specific benefit when he accepts the transfer and when he dissents. extra benefit that is separate and beyond the instrument. If a person is disqualified for the election. it is the transferor’s responsibility for if a new transfer is not possible. This implies that he has the right to exercise the doctrine of election to either confirm or dissent during a transaction. In case he receives indirect. he must return the benefit. without having informed the owner. his representative is to pay whole or exact value. it would be postponed until either the disability ceases or until the election is made by a competent authority such as in the case of disqualification due to the party being minor. the court automatically assumes that owner had accepted the transfer. The owner must decide whether or not to allow it. . it is impossible for him to return to the original position. If it is a gratuitous transfer such as gift. CONCLUSION: It is given in the Transfer of property Act. If the owner enjoys the benefit for more than two years without dissent. by showing some requisite document or a reasonable person’s understanding of the matter. he must approach the owner to seek its disposal. he is to pay the property value and even in case of election before the transferor has died. In case the transferor or his representative does not pay or give the property. One year after receiving a notice from the transferor and passing of the prescriptive time limitation. When the owner chooses to dissent. An exception to this is when confirmation is implied by the owner by acceptance of the benefit. the money or the consideration value are to be returned. 1882. The owner receives some direct. claim would be against the transferor rather than the real owner. 1882 provides the rules for making election.