Doctrine of Election – Transfer of property Act (section 35)

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Doctrine of election - section 35 - Transfer of property Act

Doctrine of Election – Rights of disappointed transferee | Transfer of property Act notes

Abstract

This project attempts to discuss the nuances associated with various judgments and provisions associated with the doctrine of election. It is our immense effort to understand and interpret section 35 of the Transfer of property act 1882. Simultaneously, the paper highlights section 180- 190 of the Indian Succession Act. It goes on to discuss the meaning of the doctrine, necessary ingredients, rule and exception along with case laws and also the modes of election.

Introduction to Doctrine of Election

Election means the right of choosing between presumptive alternatives. The doctrine of election is applicable to both movable and immovable properties. It states that, when one professes to transfer the property over which he has no right, without having informed the owner, he must approach the owner to seek its disposal. The owner must decide whether or not to allow it. Henceforth, it can be inferred that he has the right to exercise the doctrine of election to either confirm or dissent during a transaction.

Let’s understand this with the help of an illustration: Raj transfers his house to Mr. Rahul, by a gift and in the same gift deed asks Me Rahul to transfer his shop to Anuj. Rahul may elect to accept the transfer or reject the transfer. If Rahul accepts the transfer, he will get the house, but in that case, he will also have to transfer the shop to Anuj.

Understanding the Doctrine of Election

Section 35[1] of the Transfer of property act deals with the Doctrine of election. It provided that where a property is transferred to a person, then the transferee can make a choice between whether to accept the transferee or reject it. The burden of the transfer is complimentary along with the benefits of the transfer. In other words, enshrined in legal maxim qui approbat non reprobate i.e Aman cannot approbate and reprobate.[2]

In case the person upon whom a benefit us conferred rejects it, the property which was attempted to be transferred to him will revert to the transferor and it is the transferor who will compensate the disappointed transferee. If the transferor dies, before the transferee makes the election, then the legal heirs of the transferor will compensate the disappointed transferee out if the inherited assets.
The doctrine of election is universally applicable.3 In reference to the mode of elections, the election by the owner can either be direct, through communication or indirect, “the acceptance of the benefit by the original owner is subject to  conditions:

  1. He has a duty to elect which he must have the awareness, and
  2. There must be proof of knowledge of circumstances which would influence the judgment of a reasonable man in making an election.4
  3. Acceptance for two years (Section 188(1) of the Indian Succession Act)
  4. Status quo cannot be restored

The doctrine of election stated by Maitlandas[3]is that- “He who accepts a benefit under a deed or will or other instruments, must adopt the whole contents of that instrument; Contort to all its provisions; and Renounce all right that is inconsistent with it.”

The Necessary ingredients for the Doctrine of Election[4]:

  • The person transferring the property should transferor should not be the owner of the property.
  • The person transferring must at the same time and in the same instrument, grant some of his own property to the owner of the property.
  • Both the transfers must be made in the same transaction i.e Transfer of the property of the owner to the transferee and conferring the benefit on the owner of the property. The doctrine of election is not applicable if the transfers are made by virtue of two separate instruments.
  • It is required that the owner has a proprietary interest in the property. A person being a creditor is uncommitted in the election as he merely has a personal right to be paid by the debtor.
  • The owner is not put to election who does not receive direct benefit under the transaction, but gets some benefit under it indirectly.
  • The question of election does not arise when the benefit is received by a person in a different capacity. For example, a person can accept legacy for an estate, at the same time in his personal competence, he could retain the property.

Case laws on Doctrine of Election

Codrington v Lindsay[5]states that the doctrine of election is based on the principle of equity. One cannot approbate and reprobate at the same time. In layman’s terms, where a person takes some pleasure or advantage under a deed or instrument, he must also bear its burden.

For example, by a deed, Amit gives to Bipen a house belonging to Chandu, and by the same instrument gives other property belonging himself to chandu . Chandu is entitled to Amit’s property only upon the connection of Chandu’s conforming to all the powers of the Instrument by renouncing the right to his own property given in favor of Bipen. He must inevitably make his choice, or as it is technically described “he is put to his election”., to take either under or against the instrument. If Chandu elects to take under the Instrument, he must favor of Bipen his property given to Bipen by Amit; and takes the property much is given to him by Amit.

Andhra Pradesh Financial Corporation v. Gar Re-rolling Mills[6], relied on by the Plaintiff, wherein it was held that the Doctrine of Election was applicable if there were two or more remedies available and if the ambit and scope of the remedies were same. Hence, there would be an option to elect either remedy.

Brief facts and judgment of Cooper v. Cooper – Doctrine of Election

The case of “Cooper V. Cooper” is one of the landmark decisions which describes the principles of Doctrine of Election:

Facts of Cooper V. Cooper:

  1. Vera and Harold Cooper were married in 1933. They had two children. Due to legal separation, there was a property settlement agreement, and though this agreement Vera took the family home and automobile and Harold took tools and shop equipment.
  2. The main thing is that in the name of Harold, four policies were there where Vera was beneficiary. Subsequently, the decree of divorce was a grant by the court.
  3. After that, Vera married one Alves, and Harold married Ida. After the remarriage of Harold changed the beneficiary of the three equitable policies from Vera to Ida. One of the policy, which was left signed by Vera but not signed by Harold. And subsequently, Harold has died.

Issues:

  1. Whether vera and his children have a vested interest over the property?

Judgment:

Vera had no interest in the policies at the date of Harold’s death, because Harold’s obligation for her support, under the terms of the divorce decree, terminated upon her remarriage; and that the interest of the children in the estate of their father is limited to the amount necessary for their support measured by the provisions of the divorce decree prior to reaching their majority.

The exceptions to the doctrine of election:

As explained through the sec.35 of TP Act that if any person in the time of transfer the property to another person and make a beneficiary clause for transferee after accepting the transfer.  Than the transferee can deny the transferor can accept the transfer and enjoy the beneficiary clause.  But there is a certain exception regarding this rule that if the transferee does not give his or her express consent or conclusive decision than in the certain situation is will be introduced as he or she is accepted the transfer, those are:

  1. If the transferee full enjoy the beneficiary clause mention in the transfer or where transferee enjoyed the full benefit, then it will be considered as an acceptance by the transferee.
  2. If the transferee after one year did not give any consent regarding the transfer of property than transferee is bound to give his or her reply. If he or she did not do that then it will consider that he give the assent for the transfer.
  3. The duty of election will be suspended in disability cases like minority, lunacy. Unless the transfer is made by their guardian.
  4. If the transferor at the time of making transfer makes a beneficiary clause and an independent beneficiary clause. So, if the transferee did not give assent for the transaction then also he or she will get the independent beneficiary clause.

Conclusion

Section 35 of the Transfer of Property Act, 1882 explains the concept of the Doctrine of Election. The doctrine of election may be a common-law rule of equity that needs that if a testator attempts to eliminate property belonging to somebody else and also makes a device thereto person, the beneficiary must choose from either keeping the property or accepting the device. Thus, Section 35 provides that, a person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect. Moreover, an individual who in his one capacity takes a benefit under the transaction may in another dissent therefrom.

References 

  1. BOPPANASAHIR, “ DOCTRINE OF ELECTION” , National Academy of Legal Studies and Research Hyderabad
  2. B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007)
  • C.V SubbaRao, Law of Transfer of Property (4th ed, Universal Law Publishing 2010)
  1. Akash Mishra, WBNUJS, “Doctrine of Election” published On February 5, 2015, available at https://www.lawctopus.com/academike/doctrine-election/
  2. Urwashi Ahuja, “Doctrine of Election” published on July 2, 2019 available at http://lawtimesjournal.in/doctrine-of-election/
  3. Dr.R.K.Sinha, The Transfer of Property Act, 141 (2019)

[1] 1Where a person professes to transfer property which he has no right to transfer, 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 to dissent from it;

and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and 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.

[2] Codrington v Codrington [1875] LR 7 HL 85, National Insurance Company v. Mastan and anr. [2006 (2) SCC 641] 3 Mangaldas v Runchhoddas (1890) ILR 14 Bom 438 , Sadik Hussain v Hashim Ali (1916) ILR 38 All 627 4B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 206.
[3] Maitland’s Lectures on ity-Lecture 18
[4] Shafique Hossain, Transfer of property act, 1882, 1st edition, p.40
[5] Codrington v Lindsay (1873) 8 Ch 578
[6] Andhra Pradesh Financial Corporation v. Gar Re-rolling Mills [1994 (2) SCC 647],

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