Introduction

Election simply means to choose. In legal terminology the Doctrine of Election is based upon principle of equity and is an obligation imposed upon a party by the court to make a choice between two inconsistent rights and that he should not enjoy both.

Statutory Provision

The doctrine is dealt with under Section 35 of The Transfer of Property Act, 1882 (TPA).

Essentials of the Doctrine Under Section 35

• The essentials can be enumerated as follows:
  • The transferor professes to transfer property which is not his own.
  • In the same transaction, benefit is conferred upon the owner of the property.
  • The owner must either confirm the transfer or dissent from it.
  • In case he dissents, he shall relinquish the benefit so conferred.
• The benefit so relinquished reverts back to the transferor or his representative where:
  • The transfer is gratuitous and transferor before election dies, becomes incapable of making a fresh transfer and
  • The transfer is for consideration.

Then, the disappointed transferee has to be made good (compensated) the losses equal to the amount of property attempted to be transferred.

• Transfer – Section 5 of TPA defines transfer as an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act.
• Transferor - A person who makes a transfer or conveyance of property.
• Transferee - A person to whom a conveyance is made.

Illustration:

The farm of Sultanpur is the property of C and worth Rs. 800. A, by an instrument of gift professes to transfer it to B, giving by the same instrument for Rs. 1,000 to C. C elects to retain the farm. He forfeits the gift of Rs. 1,000. In the same case, A dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B.

Disappointed Transferee

A transferee who chooses to reject the benefits conferred, dissents from the transaction and can no longer take the property is a disappointed transferee.

Choice of Election

A person not entitled to a direct benefit but to an indirect benefit under the transaction need not elect.

Case Law

• Valliammai V Nagappa (1967), the Supreme Court (SC) held that the question of election arises only when the transferee takes the benefit directly under the transaction.

Exception to the Doctrine

• 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 claims 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.
  • This simply means that if someone offers a benefit in place of property during a transfer and the property owner chooses the property, they have to give up that specific benefit. However, they don't have to give up any other benefits offered in the same transaction.

Mode Of Election

• Acceptance of the benefits by the person on whom they are conferred constitutes an election if:
  • He is aware of his duty to elect.
  • He is aware of those circumstances which would influence the judgment of a reasonable man in making an election, or
    • He waives enquiry into the circumstances.
• In the case where the owner, after complying with the above-said provisions has knowingly accepted the benefits, it signifies he has accepted the transaction. A presumption is drawn towards acceptance where:
  • He enjoys the benefit for two years without doing any act to express dissent.
  • He does some act by which it is impossible to restore the parties to their original position.

Illustration:

A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B.

Limitation Period

• Where the owner does not within one year after the date of the transfer, signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of that period, require him to make his election.
  • 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.

Effect Of Disability

In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority.

Case Laws

• Cooper v. Cooper (1873): The principle of the doctrine of election was explained by the House of Lords in this leading case in following words:
• “... there is an obligation on him who takes a benefit under a will or other instrument to offer full effect thereto instrument under which he takes a benefit ; and if it’s found that instrument purports to affect something which it had been beyond the facility of the donor or settlor to eliminate, but to which effect are often given by the concurrence of him who receives a benefit under an equivalent instrument, the law will impose on him who takes the benefit the requirement of carrying the instrument into full and complete force and effect.”
• Muhammad Afzal v. Gulam Kasim (1903), it is a landmark case on the topic described below:
• Facts – On death of Nawab of Tank, the Government transferred cash allowance to Nawab's second son. Nawab, during his lifetime had already transferred villages to his second son for his maintenance.
• Question – Whether both transactions were a part of the same transaction, and can doctrine of election be applied in this case?
• Verdict – Privy Council in this case held, as the second son acquired grants through two different sources, they do not form part of same transaction and second son cannot be put to election.

Application

The Doctrine is applicable to both Hindu Law as well as Muslim Law.

Concept Under English Law

• A transferee by electing against the transfer does not lose his benefit rather he needs to compensate the disappointed person.
  • However, under Indian law, such person has to forfeit the benefit.
• There is no limitation period prescribed for making the election under English Law whereas under the Indian Law it is one year.

Conclusion

Doctrine of elections is based upon the Latin maxim ‘quod approbo non reprobo’ which translates to ‘that which I approve, I cannot disapprove’. A person who elects thus cannot choose to select the part of instrument or transaction that is beneficial to him and choose to reject the other part. As this doctrine forms a part of the rule of estoppel, a person must also bear the burden if he receives the benefit.