Doctrine of Election
Doctrine of Election is stated in sec.35 of transfer of property act, 1882. This concept simply defines that one cannot change or escape from the obligations that he chosen and can enjoy the benefits as same chosen.
Under Transfer of Property, the doctrine of election means – A has option to choose, i.e.., B or C, to transfer his property, but cannot have both, if election is on favour of proposed transfer then transfer takes effect, if not proposed transfer declines.
This Doctrine can be opined that a donee shall not be allowed to approbate and reprobate and that if he approbates, he shall do all in favour as such. The maxim, qui approbat non reprobat (one who approbates cannot reprobate).
In another way, the doctrine of election may be stated as if a person accepts benefit under a contract or will or other instrument must adopt the whole provisions as stated but cannot renounce the rights or liabilities that are inconsistent with, i.e the person taking benefit under an provisions must also bear the burden.
Section 35 of Transfer of Property Act, 1882 – Election when necessary
Where a person professes to transfer property which he has no right to transfer, and 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.
Essentials of Doctrine of Election
1. Transferor transferring the property in which he has no right;
2. Transferor must confer a benefit;
3. Same Transaction – Benefit and the Burden must be part of same transaction.
4. Owner has 2 options namely – Accept the proposal or Reject the Proposal.
Results
Section 35 states 2 results – Accept or Reject the proposal
when proposal is Accepted – The property transfers and confers the benefit
when proposal is rejected – compensate need to be paid
Here, the person who rejects a proposal to transfer property to them is called refractory donee and the person who is intended to receive the property is called the disappointed donee.
Mode of Election
Election may be direct or indirect, direct which conveys the intention and words spoken or signs can be termed as direct election. In terms of indirect election, there are three modes that we mentioned under sec.35 of TPA
(i) Acceptance of benefit with knowledge of duty to elect – donee must be aware of benefit given by the transferor, the primary aspect is that the acceptance of benefit must be clear for duty to elect, otherwise the election can be revoked
(ii) Two year’s enjoyment – When a person is put to elect, he must express the consent or dissent the proposal neither of them being elected, if he retains the property for time being. The property for 2 years from the day it is conveyed to him and says nothing, the law presumes that the property belongs to him and accepts the documents proposed.
(iii) status quo cannot be restored – If the property is exhaustible by consumption, then the election in favour is presumed, for instance coal mine the moment coal mine is dug out or moment excavation starts, then election in favour would be presumed, No specific time period is required.
