DOCTRINE OF ELECTION AND ITS ESTABLISHMENT

The doctrine of election is stated in transfer of property act 1882 in section 35 and within 180-
190 of Indian succession act. Election means a choice between two alternative or
conflicting rights. Granting two rights in such a way that one is higher than the other, you can
choose either of them. You cannot have both. The applicant cannot use both, the recipient
must choose between two inconsistencies or alternative rights. Basically it means that the
person taking the benefit should also bear the burden. (C. Beepathuma V. Viduri Shankar
Narayana Kadambolithya AIR 1965SC 241). It is an important part of the transfer of property act
1882 to resolve property conflicts among people. This principle was derived from the equity
principle where a person cannot retain all the benefits of a transaction thus, he cannot keep
the property and get benefits still.

Example: A promises to give B, 50 lakh but only on one condition that he will sell his house to
C, now B here has to make the election on what to do? If he takes A’s offer he will have to give
his house to C. On the other hand if he doesn’t, he won’t get 50lakh also hence he has to make an
election on what to choose.  Maitland’s describes its doctrine of election as (Maitland’s lecture
on equity)

 Adopt all the contents of that instrument.

 Accord to all its provisions.
 Cede all rights that are inconsonant.

Election when necessary (section 35)

 Concede to transfer property on which he has no rights.

 In the same transaction, they must elect either to accept it or not, in case he doesn’t.
 He must release the benefits till then.
 The benefits he had till then goes back to the transferor as if not given.

Although when benefit is transferred back, he must make some good to the transferee at least it
can be done in the following cases:
  Where the transfer is voluntary and the Transferor had died or had become incapable
of doing a fresh transfer.
 Transfer is for consideration.

Example:  The farmhouse at Udaipur is a property of C. A by gift means promises to give B

1,00,000. He accepts it although C now wants to retain his farmhouse and A forfeits his gift. In
such a course of action B died, now his representative must pay C 1,00,000.

Who doesn’t have to elect

The person who indirectly derives benefits from the transactions and not directly according to
section 35 does not need to elect.

Example::  A promises to give B 1000 given if his son buys C’s house for 1200, Nowhere n’s son
doesn’t have to elect as it is B who will have to make the decision on what to do.

When does a person elect to dissent

According to section 35 If the owner decides not to approve the transfer, he will surrender the
transferred service to him and this service will be returned to the transferor or his representative
as if he had not been released. Following could take place:

 The transfer is voluntary and the transferor had died or had become incapable of doing
a fresh transfer.
 In all cases where the transfer must be checked, it is the responsibility of the transferor
or his representative to compensate disappointed buyers. The compensation amount is
the amount or value of the property that will be transferred if the option.

Section 35 determines

The reception of the service by the person to whom the service is available is a decision by that
person to confirm the transfer if they know the service. The obligation to choose and know
circumstances that will affect the judgment of reasonable people in the election, or it refuses to
adapt to the Situation. Knowledge or rejection is assumed if the opposite evidence is not
available, if the person providing the service has used it for two years without taking action to
explain their disagreement. Section 35 also determines this knowledge or rejection can be
inferred from any action by that person, so that it is not possible to place people who are
interested in the property, which is believed to be transferred, in the same conditions as if the
action was not carried out.

Time limit for election

According to section 35, when the owner of the property within one year after the date of transfer
signifies to either transferor or his representative. Even if they know the expiration period and
even after knowing from their representatives does not make a decision they are deemed to have
elected to confirm the election if they don’t reply after the period is over.

Election by a disabled person, a disabled person cannot do election until and unless:

 His disability ceases.

 Someone else on his behalf makes election who is not disabled.

Doctrine of election applied

Hindu law

This principle has always been applied to Hindus. According to Rungamma v atchamma, the
privy council made a rule that a person cannot accept and reject according to him. One cannot
accept until he gains from it and stop accepting it until prejudiced.

English law

The buyer chosen not to be transferred, does not lose profits, but is obliged to compensate
disappointed people. Difference between English law and Bangladesh law. There is a difference
between English and! Bangladesh law in relation to elective teaching. The main differences are
as follows British law applies the principle of compensation, while English law applies the rules
of confiscation. English law does not regulate the time for election. British law stipulates a year
in which the property owner must decide whether to confirm the transfer or not. If the owner
does not comply with the reuse, he is deemed chosen to confirm the transfer.

Basic requirements for applying this teaching

The basic conditions for applying this teaching are as follows: The seller may not be the owner
of the buyer’s property. The seller must transfer ownership to another athlete owner The seller
must simultaneously make all property available to property owners using the same instrument
outside the owner. Two transmissions, Transfer of ownership to the owner of the transmitter and
provision of benefits to the owner of the property must be done through the same transaction.
The Election obligation does not arise if the two transfers are carried out through two separate
instruments. The owner must have an ownership interest in the property Owners who do not
benefit directly from the transaction, but indirectly divert the benefits from the transaction, do
not have to make a choice. Mandatory choice does not appear if it benefits someone of a
different quality.

Case Laws

Mohd. Kader Ali fakir V lukman hakim

The basis of the doctrine of choice is that the person who uses the instrument must also bear the
burden imposed in this way and that he cannot carry under and against the same instrument. This
is a violation of general rules that cannot be accepted or rejected by anyone. This doctrine is
based on the fictional intent of this ether that the law implies that the author of the instrument
intends to manifest any part of it. There is an obligation for anyone using a will or other
instrument to make that instrument fully effective, which donors or settlers cannot have.
However, what effect can be obtained from his agreement that has received compensation based
on the same instrument? The law will apply to the applicant’s obligation to use the instrument in
full force and effect. If the tool is partially invalid, the rest is enough to place someone to vote if
they say so.
Dr Ally’s Wobben V Shri Yogesh Mehra and ors on 6 December 2010

The Supreme Court, in National Insurance Company v. Masan & Anr., 2006 (2) SCC 641
;spelt out what is the rule, in the following terms:

“A party to a Lis, having regard to the different provisions of the two Acts cannot enforce
liabilities of the insurer under both the Acts. He has to elect for one. The ‘doctrine of election’ is
a branch of ‘rule of estoppel’, in terms whereof a person may be precluded by his actions or
conduct or silence when it is his duty to speak, from asserting a right which he otherwise would
have had. The doctrine of election postulates that when two remedies are available for the same
relief, the aggrieved party has the option to elect either of them but not both. Although there are
certain exceptions to the same rule but the same has no application in the instant case.”

Conclusion

Election is choosing between two alternatives or conflicting rights. By giving two rights so that
one is higher than the other, you can choose one of them. You cannot have both. The applicant
cannot use both, the recipient must choose between two inconsistencies or alternative rights.
Basically, this means that the recipient must also bear the burden. Being derived from the equity
principle which clearly states that a person cannot have benefited from both the sides. This
doctrine has been successful and many poverty conflicts can be resolved using it.