Doctrine of Election | Section 35 of the Transfer of Property Act, 1882
The article 'Doctrine of Election' throws light on the doctrine of election under the Transfer of Property Act and its applicability with the help of case laws.
The article 'Doctrine of Election' throws light on the doctrine of election under the Transfer of Property Act and its applicability with the help of case laws.
The idea of election is supported by the law of estoppel. It is predicated on the idea that it is impossible to approve and reprobate at the same time. Estoppel in pais, a form of equitable estoppel, is the doctrine (or equitable estoppel). The doctrine of election is based on the idea that the burden falls on the individual receiving the benefit from an instrument. In other words, a person cannot use the same instrument both for and against them.
According to this doctrine, when a party transfers property over which he has no transfer rights and the benefit conferred onto the original owner of the property is included in the transaction, the title-holder must choose whether to accept or reject the transfer. Section 35 of the Transfer of Property Act of 1882 and Sections 180 to 190 of the Indian Succession Act of 1925 both refer to the Doctrine of Election.
Introduction
The Doctrine of election is based on the idea that the burden falls on the individual receiving the benefit from an instrument. When the grantor's clear purpose is that the grantee should not enjoy both rights, the grantee must choose between two incompatible or alternative rights. In other words, a person cannot use the same instrument both for and against them. If you have two transactions through one instrument, you must accept both of them or none at all. One cannot be accepted while the other is rejected.
Section 35 of the Transfer of Property Act of 1882 states that 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 shall elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so relinquished.
The doctrine of election may be stated in the classic words of Frederic William Maitland as follows:
"He who accepts a benefit under a deed or will or other instrument, must. -
1. adopt the whole contents of that instrument;
2. conform to all its provisions; and
3. renounce all rights that are inconsistent with it".
The doctrine of election is based on the equitable premise that one cannot accept what is advantageous to him under one instrument while disapproving of that which is detrimental to him. It is impossible to approve and disapprove simultaneously. In other words, if someone benefits from a deed or other legal document, they must also pay its burden.
Conduct can convey or imply an election. Where a decision is made explicitly, it is binding and conclusive. However, if the transferee accepts the advantage provided to him by the transaction while being conscious of his responsibility to elect and having a full understanding of things like the worth of properties, then action on his side counts as an election in favour of the transaction.
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. In the same case, A dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B.
The rule in the first paragraph of this section applies whether the transferor does or does not believe that which he professes to transfer to be his own. A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect. A person who in his one capacity takes a benefit under the transaction may in another dissent therefrom.
Explanation of the Illustration:
Transfer of Sultanpur Farm: A, the transferor, owns Sultanpur Farm worth Rs. 800. A decides to gift the farm to B through an instrument of gift, and as part of the same transaction, A also gives Rs. 1,000 to C.
C's Election: C, the recipient of the Rs. 1,000 gift, decides to retain the farm. However, in doing so, C forfeits the gift of Rs. 1,000.
A's Death: Before C makes the election, A dies. Now, A's representative (perhaps an executor or administrator of the estate) steps in to handle A's affairs.
Application of Doctrine of Election: The doctrine of election comes into play when A's representative must decide how to distribute the benefits and obligations arising from the transaction. Since C chose to retain the farm, despite forfeiting Rs. 1,000, A's representative is bound by the principle of election. A's representative must now pay Rs. 800 to B out of the Rs. 1,000 that was initially meant for C.
Principle Underlying the Doctrine of Election
The foundation of the doctrine of election is based upon principles of equity. A person is required to choose only one of two rights that are granted to him under any instrument if one of them is in lieu of the other. It is not possible for a person to choose to accept only the portion of an instrument or transaction that benefits him. His choice will be valid for the entirety of the deal or the instrument. No one can simultaneously approve and reprobate. When someone benefits from a deed or other legal document, he also has to pay its responsibility.
The legal maxim "Allegans Contraria Non-Est Audiendus," which merely states that a person making contradictory remarks in the same event shall not be heard, contains an implicit reference to the doctrine. It means that in this case, if an owner chooses to both approve (and receive advantages) and reject (retain the property), he shall not be heard because doing so would be unfair and unjust to the rights of other parties. Quod approbo non reprobo, which literally means that no one can approve and reprobate, or that no one can accept and reject the same act or instrument, is another maxim that is consistent with the idea.
Applicability (Hindu, Muslim and English Law)
The guiding idea of the provision has always been applied to Hindus. The Privy Council cited the rule that states a party cannot simultaneously confirm and disaffirm the same transaction, affirming it insofar as it is to his benefit and disaffirming it insofar as it is to his detriment, in the case of Rungamma v. Atchamma, (1858) 4 Moo Ind App 1:7 SuthWr 57, which clearly highlights the applicability of the doctrine of election.
As far as Muslim law is considered the same doctrine is followed which could be interpreted by the case law: Muhammad Kader Ali Fakir v. Fakir Lakman Hakim, PLR 1956 Dacca 370, where the Court stated, a person receiving the advantage of an instrument must also face the burden imposed therein and that he cannot take under and against the same instrument. This is the cornerstone of the notion of election. It violates the general prohibition against approval or reprobation. The law presumes that the author of a document intended to give effect to every component of it because the doctrine is thus based on intended aim.
The law imposes an obligation on the person who receives a benefit under a will or other instrument to carry the instrument into full and complete force and effect even though it was beyond the donor's or settler's power to dispose of the benefit. If the beneficiary agrees to carry the instrument into full effect, the law will impose the obligation on the donor or settler. If a portion of an instrument is invalid, what is left over is enough to force a person to make their choice if they are claiming benefits under it.
Furthermore, considering English law, the benefit does not revert to the transferor under English law after it has been rejected by the owner. Property owners are not required to refuse the entire benefit; they are free to insist on receiving it. Such an owner may, however, receive benefits in exchange for paying a fee to make up for the transferee. As a result, in English law, the transferor has no need to make amends to the disgruntled transferee. If the owner chooses not to refuse the benefits given to him, he is responsible for this obligation.
In the historic decision of Cooper v. Cooper, 147 Mass. 370 (1888), the House of Lords outlined the concept of doctrine of election and stated whoever receives a benefit under a will or other instrument is required to give full effect to the instrument under which he receives a benefit. If it is discovered that the instrument purports to affect something that the donor or settlor was unable to change but that is frequently given effect by the consent of the person who receives a benefit under an equivalent instrument, the law will impose the requirement on the person who receives the benefit
Essential Elements
The following prerequisites must be met in order for the concept of election to be applicable:
● First of all, neither the transferor nor the person "approved by the owner" to transfer the property may be the owner of the property being transferred. Even though he may not be, the transferor may assume that the property is his or that he has permission to transfer it;
● Second, the transferor must assign ownership of the owner's property to the transferee;
● Third, The transfer must be done in exchange for some consideration;
● Fourth, some reward must be conferred upon the owner;
● Fifth, the conveyance of the property of the owner to the transferee and the grant of a benefit to the owner of the property shall be made by the same transaction, instrument, deed, or will.
● Sixth, the owner needs to have a proprietary interest in the property;
● Seventh, the transferee must get the immovable or movable assets "directly."
● Eighth, the transfer must be unconditionally accepted in its entirety, must conform to the terms of the deed, and must waive all rights that are in conflict with those terms.
● Nine, if the owner decides to reject the transfer, the benefit must revert to the transferor, who would then be obligated to make up for the transferee's disappointment or pay compensation. Before the election, the transferor must transfer on behalf of himself or herself if they pass away or become unable of doing so.
Exceptions to the Doctrine
The doctrine of election is broadly applicable, however there are some notable exceptions. These are listed below:
1. Other benefits might not be relinquished
If the owner disagrees with the transfer, he is not required to give up any "other" benefits that were given to him as part of the same transaction.
2. Express or implied election
Owner acceptance of transfer may be expressed or implied, that is, it may be inferred from the owner's actions. Additionally, the election is automatically affirmed in favour of the transferee if the owner takes any action that makes it impossible to restore or return the benefit.
3. When conduct favours election or when there is a failure to check despite "knowledge" of the election, the doctrine is not applicable
According to the aforementioned point, a transfer is considered approved implicitly if the owner acts in a way that suggests acceptance of the benefit or waives his right to inquire about the transfer despite being aware of the requirement to decide whether to approve or disapprove.
4. Benefit received for two years
If there is no evidence to imply that the owner intended to delay the transfer, and the owner hasn't shown any indications that they intend to delay it and has instead been enjoying the benefit for at least two years, then it is assumed that they have approved the transfer.
5. Making reprobation "impossible"
The transfer is said to be accomplished if the owner takes any action or uses the benefit in a way that makes it hard to return the transferee to their pre-transaction state.
6. Willful failure to elect within the allotted (1 year) or reasonable time
The transferor (or his or her representative) may compel the owner to choose if, even after a year from the date of transfer, the owner has not expressed acceptance of or opposition to the transfer. The owner is presumed to have accepted the election in favour of the transferee if he still doesn't choose within a reasonable amount of time.
7. Election made after the end of the disability or on the owner's behalf
It should be emphasised that if the owner has been disabled due to being a child, a lunatic, or another reason, he may be compelled to make an election after the disability is over or an election may be made on his behalf by a competent authority, such as the guardian.
Case Laws
1) C. Beepathumma And Ors. v. V.S. Kadambolithaya And Ors., AIR 1965 SC 241.
White and Tudor's Leading Case in Equity's guiding concept was highlighted in this case as per which When there is a clear intention on the part of the person from whom he derives one that he should not enjoy both rights, courts of equity may order a party to elect between two competing or alternative rights or claims. that a beneficiary under a deed or will is required to adopt the entirety of the document's terms.
2) Valliammai v. Nagappa, AIR 1967 SC 1153.
It was mentioned that the election does not apply if the transferee receives a "indirect" benefit. For instance, if A grants B a house X for life, B's son S inherits it completely upon B's passing. After that, he makes a will in which he bequeaths X to C and Y to B. B passes away shortly after A, neither of them having chosen to accept or reject the benefit under the bequest. When his father B passed away, S would inherit X according to the original transfer made by A and the land Y through intestacy. Because he is an "indirect" beneficiary, he would not be required to make an election.
3) Paru Kutty Amma & Ors. v. Cheetah Navoth Lakshmi Amma, AIR 1954 Mad 556.
In this case it was held that a person cannot accept one piece of a text while disapproving of another, accept one part while rejecting another, take benefit of something while refusing to give it full impact, the court ruled in this case. Therefore, this is the doctrine's central tenet. It is a rule of fairness, not a concept of English or Scottish law, that a person cannot confirm and deny the same transaction at the same time, affirming inasmuch as the advantage presented is real, and disaffirming insofar as it harms him. The affirmation and disaffirmation must make reference to this transaction or item.
Conclusion
The Doctrine of Election is defined in Section 35 of the Transfer of Property Act of 1882. If a testator wishes to take another person's property while also creating a device for that person, the concept of election may even be a common-law rule of equity requiring the beneficiary to decide between accepting the device or keeping the property. Election is a decision between two competing options or rights. Giving one of the two options more weight than the other will allow you to select one. Both cannot coexist.
The recipient must pick between two contradictions or other privileges because the application cannot use both. On the other hand, Section 35 specifies that a private party who indirectly benefits from a transaction is not required to make an election. A person who benefits financially from the transaction may also object to it from a different viewpoint.
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