Professional Documents
Culture Documents
Doctrine On Election
Doctrine On Election
Chapter -1
Introduction
Chapter -2
EXCEPTIONS
Chapter -3
UNDERSTANDING THE PRINCIPLE
Chapter -4
OTHER IMPORTANT CONDITIONS
Chapter -5
Modes of Election
Chapter -6
COMPENSATION
Chapter -7
Conclusions
Chapter -8
Bibliography
Chapter -1
Introduction
The doctrine of election is stated in Sec. 35 of the Transfer of Property Act
alongside Section 180 to 190 of the Indian Succession Act.
It states that when a party transfers a property over which he does not hold any
right of transfer and entailed in that transaction is the benefit conferred upon the
original owner of the property, such title-holder must elect his option to either
validate such transfer of property or reject it; upon rejection, the benefit shall be
relinquished back to the transferor subject never the less :
Where the transfer has been through gratuitous means and the transferor
has become incapable of making a new transfer.
This knowledge of the circumstances can be assumed if the person who gains the
benefit enjoys it for a period of more than two years. Further discussion over this
has been made under the heading of Modes of Election.
If the original owner does not elect his option within a year of the transfer of
property, the transferor would require him to elect his choice. Even after the
reasonable time, if he still does not also still elect, the original owner shall be
assumed to have elected the validation of the property transfer as his choice.
In context of a minor, the period of election shall be stalled till the individual
attains majority unless he is represented by a guardian.
Chapter -3
UNDERSTANDING THE PRINCIPLE
In simple words, a person utilizing the benefits of an instrument also has to carry
the burden attached. This doctrine is founded upon a model wherein a person
persuades another to act in a manner to his prejudice and derives any advantage
from that, then he cannot turn around and claim that he was not liable to perform
his part as it was void. This doctrine is universal and is applicable to Hindus,
Muslims as well as Christians.
So, this doctrine contains the principle that the exercise of a choice by a person left
to himself of his own free will to do one thing or another binds him to the choice
which he has voluntarily made, and is founded on the equitable doctrine that he
who accepts benefit under an instrument or transaction of his choice must adopt the
whole of it or renounce everything inconsistent with it. Thus, it is a general rule
that a person cannot approbate and reprobate. Also, the election is confined to the
case of a gift or Will and does not apply in case of a legal remedy.
As a part of the same transaction, he must confer some benefit on the owner
of the property and
Such owner must elect either to confirm such transfer or to dissent from it.
Chapter -4
So, election cannot take place if the property that is decided by the transferor to be
disposed does not happen to be owned by any individual to whom an interest is
being provided through the transfer. Also, it cannot take place if the transferor does
not provide any benefit on the individual who is the original owner of the
property.
One cardinal condition for the doctrine of election to be executed is that the benefit
conferred upon the original owner should be as part of the same contract by which
he transfers the property over which he holds no right to transfer.
It is to be noted that different nature of two properties is not a bar to election by the
owner like in the case of Ammalu v. Ponnammal where a person who was
managing the properties of the daughter of his deceased brother, died leaving a will
bequeathing a portion of it to B. It was held that the doctrine of election did apply
for the niece.
Donors Intention
Indirect Benefit
The benefit that the original owner is conferred with has to be direct in nature and
if indirect, he does not need to elect. This principle is explained in Section 184 of
Indian Succession Act, 1925 and states that when the devisee who claims
derivatively through another does not take under the deed, and is not bound by the
equity attaching thereto.
Difference in Capacity
An individual can in one capacity utilize a benefit while can dissent or reject that
benefit in another capacity. It means to explain that it is possible to facilitate two
roles of an individual wherein he can for example, accept legacy for an estate while
in his personal competence, he could retain the property.
Chapter -5
Modes of Election
The election by the owner can either be direct or indirect. In direct election, it is
simply through communication about the elected choice or option. Though, in case
of an indirect election, the acceptance of the benefit by the original owner is
subject to two conditions:
Enjoyment for two years of the benefit by the person on whom it is conferred with
any dissent.
The election shall be presumed when the donee acts in such a manner with the
property gifted to him that it becomes impossible to return it to the original owner
in its original state.
The English law depends upon the principle of compensation which means that if
the original owner does not choose to validate the transfer, he can keep the
property and also the benefit accrued, subject to compensation provided to the
donee, to the extent of the property he had suffered a loss for.
But in the Indian law context, this doctrine is influenced by the principle of
forfeiture which states that if the original owner does not choose to validate the
transfer, the donee incurs a forfeiture of the conferred benefit which goes back to
the transferor.
Chapter -6
COMPENSATION
Conclusions
Section 35 of the Transfer of Property Ac, 1882 explains the concept of the
Doctrine of Election. This project tries to deal with the various nuances involved in
the doctrine through the usage of various landmark judgments. Herein, special
emphasis has been placed upon providing a clear understanding of the conditions
necessary for the election by the original owner to take place. The differences
between the Indian Law perspective as well as the English Law perspective is
brought out through critical analysis of the provisions i.e. Principle of forfeiture
and Principle of compensation. Various aspects such as Proprietary Interest,
Compensation estimated, indirect benefit, the intention of the donor etc have been
dealt and explained for the enhanced understanding over the model of Doctrine of
Election