Doctrine of Election

Introduction to Doctrine of Election

Election involves choosing between two alternative rights. When a person is granted two rights under any instrument, and one right is more favorable than the other, they must choose or elect one of them. Section 35 of the Transfer of Property Act, 1882, addresses the Doctrine of Election. This doctrine is also reflected in Sections 180-190 of the Indian Succession Act, 1925.

Theme behind Section 35

Section 35 of the Transfer of Property Act, 1882

The section reads as follows:

When someone attempts to transfer property they do not have the right to transfer, and within the same transaction, they confer a benefit on the actual owner of that property, the owner must either confirm the transfer or reject it. If the owner rejects it, they must give up the benefit, which will then revert to the transferor or their representative as if it had not been disposed of. This applies whether or not the transferor believed they had the right to transfer the property. The owner, if they receive no direct benefit from the transaction, need not make an election.

Understanding the Doctrine of Election

This doctrine is universal, applying to Hindus, Muslims, and Christians. It is based on the principle that a person exercising a choice must do so voluntarily, adopting the whole transaction or renouncing it entirely.

Essential Conditions for the Doctrine of Election

The case of Dhanpati v. Devi Prasad and others (1970) established that the following conditions must be met before an election can occur:

• The transferor must transfer property they have no right to transfer.
• The transferor must confer a benefit on the owner of the property as part of the same transaction.
• The owner must choose either to confirm or reject the transfer.

Effect of Election Against the Transfer

If the owner rejects the transfer:

• They must forgo the benefit.
• The benefit intended for them will revert to the transferor.

Exceptions to the Doctrine of Election

If a benefit is conferred on the owner in lieu of the property, and the owner claims the property, they are not required to relinquish any other benefit gained through the transaction. The owner's acceptance of the benefit will be considered an election to confirm the transfer if they are aware of their responsibilities and the circumstances influencing their decision.

Modes of Election

The owner’s election can be direct, by simply communicating their choice, or indirect, through actions that imply acceptance of the benefit. The owner must be aware of their responsibility to elect and the circumstances that would influence a prudent person’s decision.

Difference Between English and Indian Law

English law operates on the principle of compensation, allowing the owner to retain both the property and the benefit, subject to compensating the donee for any loss. Indian law, however, follows the principle of forfeiture, where if the owner does not confirm the transfer, the donee forfeits the benefit, which reverts to the transferor.

Compensation

The compensation given to the transferee is based on the value of the property at the time the instrument comes into force, not at the time of election. This is particularly important for immovable properties, where values can fluctuate over time.

Conclusion

Section 35 of the Transfer of Property Act, 1882, outlines the Doctrine of Election. This doctrine is grounded in the principle that a person benefiting from an instrument must also bear any accompanying burdens. In simple terms, a person cannot take under and against the same instrument. This doctrine, along with the principles of forfeiture and compensation, ensures fairness in the transfer of property.