Doctrine of Election
"Election" maens choosing of one right between two rights, when there is clear intention that both the rights cannot be enjoyed but only one. Section 35 of the Transfer of the Property Act defines the "Doctrine of Election".The "Doctrine of Election" is based on the rule in Cooper vs Cooper.
If a person transfers some 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 reject it. If he rejects the transfer, he shall relinquish the benefit conferred upon him and the property will revert back to him self or his representative as if it had not been disposed of.
Conditions for application of the Doctrine of Election :
The following are the essentials for the application of the Doctrine of Election:
1. The transferor should dispose of the property in which he has no right to transfer.
2. The transferor must confer a benefit to the real owner of the property.
3. Both the benefits conferred and the transfer made must be part of the same transaction or document.
4. The owner is now given a choice of election either to accept the benefit and allow the transfer or to reject both.
Eg:-
"A" transfer "B"'s property worth Rs.100 without his consent or knowledge to "C" and in the same transaction, "A" gives Rs.1000 to "B".
The basic of this doctrine is that a person who gets the benefits must also bear the burden. Generally, the benefit is greater in value than the burden. The benefit should be express and particular. It must be in the same transaction. The silence of the transferee for two years shows the acceptance of benefit and approval of the transfer of his property to a third person.
The transfer and benefit should be gratutious without money. If the transferor has died or has become incapable of making a fresh transfer before such election, then the subsequent election by owner of the property is void.The Doctrine of Election only applies when the two donations are part of the same transaction.
Mode of Election :
Election must be divide into two :
1. Direct Election or
2. Indirect Election.
1. Direct Election :
There is no prescribed form. A letter, telegram, oral words of transferor or any other sign by the person which conveys the intention of the transferor is enough.
2. Indirect Election :
There are three types of Indirect Election.
They are :-
1. Acceptance of benefit without knowledge of duty to elect
2. Enjoyment for two years and
3. Status quo cannot be restored.
1. Acceptance of benefit without knowledge of duty to elect :
If the donee accepts the benefit conferred upon him by the transfer, then such acceptance on his part constitutes election by him. But the acceptance must be made with full knowledge of his duty to elect and all matters about such benefits.
If the donee accepts the benefits without knowledge, then the representatives of the donee may revoke the election. If the election is made under mistake of fact, it may be revoked by the elector or his representatives. But if the donee willfully abstains from inquring into the circumstances under which the benefit is conferred upon him and makes an election, such an election is binding on him and his representatives.
2. Enjoyment for two years : [ Section 188(1) of the Indian Succession Act ]
If a person who has to elect knows that he is under a duty to elect, he must express his dissent, if he retains the property for some time and not interested to elect in favour of the proposal. If he keeps the property for two years, without expressing that he is not in favour of the election, then it is presumed that the person so retaining the property is doing so with knowledge and acceptance of the document.
3. Status quo cannot be restored :
In the case of property which is exhaustible by consumption or use, if he once starts consuming the property, election in his favour is persumed. No period of consumption is necessary for this presumption.
This is the article about the "Doctrine of Election".
Like it on Facebook, Tweet it or share this article on other bookmarking websites.