Election involves choosing between two alternative rights. When a person is granted two rights under any instrument, and one right is more favorable than the other, they must choose or elect one of them. Section 35 of the Transfer of Property Act, 1882, addresses the Doctrine of Election. This doctrine is also reflected in Sections 180-190 of the Indian Succession Act, 1925.
The principle behind Section 35 is captured by the Latin phrase Allegans contraria non est audiendus, meaning "he is not to be heard who alleges things contradictory to each other."
The section reads as follows:
When someone attempts to transfer property they do not have the right to transfer, and within the same transaction, they confer a benefit on the actual owner of that property, the owner must either confirm the transfer or reject it. If the owner rejects it, they must give up the benefit, which will then revert to the transferor or their representative as if it had not been disposed of. This applies whether or not the transferor believed they had the right to transfer the property. The owner, if they receive no direct benefit from the transaction, need not make an election.
This doctrine is universal, applying to Hindus, Muslims, and Christians. It is based on the principle that a person exercising a choice must do so voluntarily, adopting the whole transaction or renouncing it entirely.
The case of Dhanpati v. Devi Prasad and others (1970) established that the following conditions must be met before an election can occur:
If the owner rejects the transfer:
If a benefit is conferred on the owner in lieu of the property, and the owner claims the property, they are not required to relinquish any other benefit gained through the transaction. The owner's acceptance of the benefit will be considered an election to confirm the transfer if they are aware of their responsibilities and the circumstances influencing their decision.
The owner’s election can be direct, by simply communicating their choice, or indirect, through actions that imply acceptance of the benefit. The owner must be aware of their responsibility to elect and the circumstances that would influence a prudent person’s decision.
English law operates on the principle of compensation, allowing the owner to retain both the property and the benefit, subject to compensating the donee for any loss. Indian law, however, follows the principle of forfeiture, where if the owner does not confirm the transfer, the donee forfeits the benefit, which reverts to the transferor.
The compensation given to the transferee is based on the value of the property at the time the instrument comes into force, not at the time of election. This is particularly important for immovable properties, where values can fluctuate over time.
Section 35 of the Transfer of Property Act, 1882, outlines the Doctrine of Election. This doctrine is grounded in the principle that a person benefiting from an instrument must also bear any accompanying burdens. In simple terms, a person cannot take under and against the same instrument. This doctrine, along with the principles of forfeiture and compensation, ensures fairness in the transfer of property.
Comment
Nothing for now