Doctrine of Election

Section 35,
Transfer of Property Act 1882
Intro
• Doctrine of election is based on the law of equity and it is
applicable to all persons irrespective of their personal
laws. The doctrine is an exception to the general rule that
no one can transfer better title than he has or say nemo
dat quod no habet rule.
• This section empowers a person to transfer what is not his
own and he can get this transfer operative by the virtue of
section 35 of the Act.
 Section 35
• Election when necessary: Where a person professes to
transfer property which he has no right to transfer and
as part of 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.
Principle
• The underlying principle of doctrine of election is that
benefit and burden must co-exist. A person while
accepting a benefit of a deed cannot reject or go against
the burden expressed in the same.
• Section 35 can be divided into following parts:
• (1) When any person A-
• transfers, or
• proposes to transfer,
• Any property,
• Movable or immovable or both,
• That is his own,
• To any other person-B
(2) And
(3) At the same time,
(4) In the same transaction,
(5) By the same deed.
• (6) the same person A
• Transfers, or
• Proposes to transfer,
• An property,
• Movable or immovable or both,
• Of that other person, ‘B’
• Without caring for his consent or without his knowledge,
• To any third person- C
(8) B is under a statutory obligation under this section to
- either accept the proposal or whole transfer as it is, or
- to reject whole of it.
(9) B must accept the whole of the deed or must reject the
whole of it.
He cannot divide the proposal so as to accept one part- that is
beneficial for him and to reject, the other part which is
burdensome or onerous.
Consequences
• Section may carry either of two results:
• In case, proposal is accepted- the property of A goes to B and
property of B goes to C.
• In case, proposal is rejected- no transfer will take place, B will be
called refractory donee and C will be known as disappointed
donee.
Exceptions
• (1) Additional or extra benefits given: Any extra benefit
need not to be returned even if proposal is rejected by
refractory donee. These can be retained by him.
• (2) Acceptance of benefit excluding extra benefit means
‘yes’ to the proposal.
• (3) Two years enjoyment of the property of Transferor
implies ‘yes’ to the proposal.
• (4) Status quo or say being restoration of the property to
transferor has become impossible- will be taken as ‘yes’
to the proposal.
Mode of Election
• It may be direct or indirect. For direct election, no form is
prescribed and no formula is laid down. Anything that
conveys the intention clearly is sufficient for the purpose.
In case of indirect election, section 35 through clauses 5,6
& 7 provides:
• Acceptance of benefit with knowledge of duty to elect.
• Two years enjoyment.
• Status quo cannot be restored.
• So it must be clear that he who accepts a benefit under a
deed or other instrument must adopt the whole contents
of the instrument, must conform to all its provisions and
renounce all rights that are inconsistent with it. This
principle is often put in another form that a person cannot
approbate and reprobate the same transaction or blow hot
and cold at the same time.
• The foundation of the doctrine is that the person taking
benefit under a document must also bear the burden.
Election is defined as ‘choosing between two rights when
there is clear intention, express or implied, that both are
not to be enjoyed’.
• The foundation of the doctrine is the intention of the
transferor and its characteristic is the effectuation of a
transfer of property not belonging of him.