This article on “The doctrine of Election under the Transfer of Property Act: All you need to know” was written by Tuba Sanobar, an intern at Legal Upanishad.
The doctrine of election is a legal clause in the Transfer of Property Act that prohibits a person from exercising a right that they otherwise would have. The doctrine of election has a very wide scope. Equity-based principles serve as the foundation for the doctrine of election.
It is applicable to all types of property, whether movable or immovable, and to all types of legal documents, including wills and deeds. A person cannot opt to accept only the parts of a deal or instrument that are advantageous to him and reject the others. Let’s now talk about the doctrine of election as it is mentioned in Section 35 of the Transfer of Property Act, using some relevant examples and significant precedents.
The Doctrine of Election (Section 35 of the Transfer of Property Act)
When someone claims to transfer property that they do not have the right to transfer and grant the owner of the property any benefit as part of the same transaction, the owner has the option of confirming the transfer or objecting to it.
For instance, C owns the Sultanpur farm, which is worth Rs. 800. A promises to transfer it to B using a gift instrument while also giving Rs. 1,000 to C using the same instrument. If C decides to hold onto the farm. He gives up the Rs. 1000 gift. In the same case, A dies before the election. Out of the 1,000 rupees, his representative must give B, rupees 800.
A person who benefits indirectly from a transaction but not directly is not required to make a decision. A person who gains from the transaction in one capacity might object to it in another.
An exception is that if a specific benefit is stated to be given to the owner of the property that the transferor professes to transfer and is stated to be in lieu of that property, the owner who claims the property must forfeit the specific benefit but is not required to forfeit any other benefits that were given to him through the same transaction.
Any action on his part that makes it impossible to put the parties interested in the property that is purported to be transferred in the same condition as if such action had not been taken suggests that he is aware of the waiver.
Let’s try to understand this with the help of an illustration
A transfers to B an estate to which C is entitled, and as part of the same transaction, A gives C a coal mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B.
If he does not, within one year after the date of the transfer, indicate to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of that period, require him to make his election; and, if he does not comply with such a requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer. When there is a disability, the decision must be delayed until the disability ends or until it is made by a competent authority.
In Beepathuma vs. Kadambolithaya, an elderly testator left his niece’s land to his grandson along with an inheritance of Rs 800. The supreme court ruled that the niece had to choose between the legacy and the land. If she chooses to accept the legacy, she cannot invalidate the transfer in her nephew’s favor. She confirms the transfer to the nephew while also acknowledging the bequest.
The election must be a part of the same transaction
If the two transfers are separate from one another and not part of the same transaction, the transferee is not allowed to exercise the election. A beneficiary of a prior gift and a later will is not precluded by the doctrine of election.
For instance, A executes a transfer of his son’s property in favor of his second wife. Upon his son’s protest, he executes another deed after a week in which he gifts his land to his son. As both transfers in this case are independent of one another and are not a part of the same transaction, the validity of the first transfer is not dependent on the doctrine of election in this case.
Here, the son has the option to accept the benefit of the second transfer while simultaneously declining to proceed with the first one because the two transfers are distinct from one another and do not constitute a single transaction.
According to the doctrine of election, a party that derives an indirect benefit from a transaction but does not directly benefit from it need not elect. For instance, A gives house X to B for as long as he lives, and to B’s son S as soon as he passes away. After that, he writes a will in which he bequeaths X to C and Y to B.
Within a short period of time, A and B both pass away without exercising their option to accept or reject the benefit under the bequest. Upon the passing of his father B, his son S would now inherit X in accordance with the original transfer made by A and would inherit the land Y through intestacy. He wouldn’t have to make the election because he is an indirect beneficiary.
Does acceptance imply a final election?
An election is implied by the acceptance of a benefit. A party shouldn’t confirm and reject the same transaction at the same time. As a result, when he accepts the benefit of the transaction, the other transfer, in which his own property is given to someone else, is automatically confirmed. When a person accepts the benefit while fully aware of the circumstances, his decision is final and cannot be changed.
However, if the decision is made without full or complete knowledge of the circumstances, the party representatives may choose to change their minds. It must be established that he was unaware of the full circumstances in order for this to be the case.
When should the election be held?
Ordinarily, the time for the election may be fixed by the transferor himself. It will be assumed that the transferee does not want to confirm the transfer if the situation is fixed and he does not elect. In the case of a person with a disability, the election can be made either by his guardian of property or by him personally, when the disability is removed.
According to Section 35, if the transferee does not, within one year after the date of the transfer, indicate to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of that period, require him to make his election; and, if he does not comply with such a requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer.
Some Relevant Case Laws on the Doctrine of Election
This precedent-setting case teaches us that there is always a responsibility on the part of the recipient of benefits who has consented to or voluntarily accepted them and that the donor has the right to reject or dispose of it if it is untrue or deceptive. It was stated that in this case, whoever benefits has some obligations as well.
In this case, the doctrine that states that when an owner has the choice to accept or reject an instrument and understands that doing so will benefit him must be followed by another party engaging in the same transactions was put into practice.
When two rights conflict and one must choose one over the other, this idea is relevant. When a person chooses a right out of his or her own free will, he or she accepts both benefits and obligations.
The choice philosophy is based on the idea that the person using the instrument must bear the substantial weight limits imposed by it and that he cannot carry both under and against a relatively similar instrument. While donors and settlers are exempt from this obligation, anyone who makes use of a will or other legal document must fully carry out its provisions.
In this instance, the fundamentals of the doctrine of the election are explained. a property transfer made by someone without the required authority under the law. As part of the same single transaction, he must speak with the real owner. The owner can decide whether to accept or reject his own desires.
In this instance, a widowed woman has the power to exclude and include any property she chooses, but the man is refusing to part with his entire estate, so a lawsuit has been filed. The court asserts that because she is the property’s owner, she alone has the authority to choose which portion she wants to sell, accept, or reject.
A plaintiff is not allowed to “approbate and reprobate.” The phrase is apparently borrowed from the Scotch law, where it is used to express the principle embodied in our doctrine of election-namely, that no party can accept and reject the same instrument
A person cannot accept one portion of a text while disapproving of another, accept one part while rejecting another, or take advantage of something while refusing to give it full effect, the court ruled in this case. Thus, this is the doctrine’s central tenet.
The principle underlying the doctrine of election is that benefit and burden must co-exist. A person, while accepting a benefit under one deed, cannot reject or go against the burden expressed in the same. The transferor transfers two properties: one that he owns and gives to the transferee, and another that he claims to transfer to the transferee through the same transaction.
He transfers ownership of the second property in favour of a third party without the owner’s, i.e., the transferee, consent. So, while the first transfer benefits the transferee, the second involves the transfer of the transferee’s property to a third party against his will.
- Ayush Upadhyay. The doctrine of Election, Legal Services India, available at: https://www.legalserviceindia.com/legal/article-9396-doctrine-of-election.html#:~:text=Owner%20needs%20to%20elect%20only,prat%20of%20the%20same%20transaction.&text=A%20person%20can%20confirm%20the,who%20is%20given%20the%20benefit.
- Devm, Doctrine of Election under TPA, 1882, Jus Corpus, 14 October 2020, available at: https://www.juscorpus.com/doctrine-of-election-under-tpa-1882/
- Tazeen Ahmed, Doctrine Of Election In Property Law, Law Corner, 11 December 2021, available at: https://lawcorner.in/doctrine-of-election-in-property-law/