Discuss the doctrine of election under TP Act. What is the difference between English Law and Indian Law in this regard?

Question: Discuss the doctrine of election under TP Act. What is the difference between English Law and Indian Law in this regard? [HPJS 2016]

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Answer

Doctrine of Election is one of the important rules of transfer of property which has been explained in Section 35 of the Transfer of Property Act. Section 35 says: 

"Election when necessary: Where 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.”

For example, the farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of gift professes to transfer it to B, giving by the same instrument Rs. 1,000 to C.C. elects to retain the farm. He forfeits the gift of Rs. 1,000.

In C. Beepathuma and others v. Velasari Shankaranarayan Kadambolithanya and Others, AIR 1965 SC 241 it was observed:

the doctrine of election may be stated thus: he who accepts, a benefit under a deed or will or other instrument must adopt the whole contents of that 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.

In Valliammai v. Nagappa, AIR 1967 SC 1153, it was observed that a case of election arises only when the transferee takes a benefit under a transaction. When the transferred derives any benefit indirectly, no question of election arises as he, in that case, can not be said to `take' under the deed.

Section 35 sets forth the conditions whereby a person is put to an election or act of choosing between two alternatives or inconsistent rights. The conditions are:

(1) The transfer must profess to transfer a property which he has no right to transfer, it is immaterial whether in doing so he knows or does not know it to be not his property.

(2) He must confer a benefit on the owner of the property transferred.

(3) The transfer and the conferring of the benefit must form parts of the same transaction.

(4) The benefit must be directly conferred on him.

(5) The benefit must be conferred on him in the same capacity in which he is the owner of property.

Where the owner dissents from the transfer :

• He must relinquish the benefit conferred upon him.
• The benefit intended for him would then revert to the transferor.
  

Illustration:- The farm of Sultanpur is the property of `C' and worth Rs. 800. `A' by an instrument of gift professes to transfer it to `B', giving by the same instrument Rs. 1,000/- to `C'. `C' elects to retain the farm. He forfeits the gift of Rs. 1,000/-.

Difference between English Law and the Indian Law Perspective

The doctrine of election in both English and Indian law deals with a situation where a person receives a benefit under a will, gift, or any other legal instrument and is also entitled to another benefit that they need to accept or reject. The key difference lies in how each legal system approaches this doctrine.

English Law Perspective

In English law, the doctrine of election operates on the principle of compensation. If a person receives a benefit under a will or transfer, and the original owner or testator intended for the person to make a choice or election regarding the benefits, the person is given the option to choose. If the person chooses to accept the benefit, they must give up the other benefit to which they were entitled. However, this choice doesn't come without a safeguard for the person making the election.

The principle of compensation ensures that if the individual chooses to accept the benefit and give up the other, they will still be entitled to retain the property they've chosen along with any benefits that have accrued from that choice. This means that the individual won't suffer a loss and will be compensated for any detriment caused by their decision.

Indian Law Perspective

In contrast, the doctrine of election in Indian law is influenced by the principle of forfeiture. If a person in India receives a benefit under a transfer or will that requires them to make an election, and they fail to confirm or elect one of the benefits as specified, they may incur a forfeiture.

In Indian law, if the real owner or transferor doesn't confirm the transfer or doesn't make the election that the testator or transferor intended, the donee (the recipient) loses the granted benefit, and it reverts to the transferor or the estate. This means that, in India, if the person fails to make a choice or confirm the transfer as intended, they may lose the benefit entirely, and it goes back to the person or entity who made the transfer.

In summary, the key difference between the English and Indian law perspectives on the doctrine of election is the approach to consequences. English law uses the principle of compensation to ensure that the person making the election doesn't suffer a loss, while Indian law applies the principle of forfeiture, which can lead to the loss of the granted benefit if the choice or election is not confirmed as intended.