By Palak Verma, Amity University
Editor’s Note: Notes on the Doctrine of Election as laid down in Section 35 of the Transfer of Property Act.
SECTION 35- ELECTION WHEN NECESSARY
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 must elect either to confirm such transfer or to dissent from it, 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 becomes 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.
Maitland stated the doctrine of election as follows:
“He who accepts a benefit under a deed or will or other instrument, must-
- Adopt the whole contents of the instrument
- Conform to all its provisions: and
- Renounce all rights that are inconsistent with it”
While the same principle was stated in the White and Tudor’s case in Equity……”Election is the obligation imposed upon a party by Courts of Equity to choose between two inconsistent or alternative rights of claims in case where there is a clear intention of the person from whom derives one that he should not enjoy both. That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument.”
It is an obligation, to choose between two inconsistent or alternative rights in a case where there is a clear intention of the grantor that the grantee should not enjoy both. The foundation of the election is that the person taking a benefit under an instrument must also bear the burden.
MST. DHANPATTI V. DEVI PRASAD AND ORS., AIR 1970 SCD 174
The law pertaining to the election is set out in Section 35(1) of the Transfer of Property Act. Before there can be an election there must be: (1) a transfer of a property by a person who has no right to transfer (2) as apart of the same transaction, he must confer some benefit on the owner of the property; and (3) such owner must elect either to confirm such transfer or to dissent from it.
ANALYSIS OF SECTION 35
- The transferor must profess to transfer a property which he has no right to transfer. It is immaterial whether in doing so he knows or does not know it to be lost his property.
- He must confer a benefit on the owner whose property he purports to transfer to another person
- The two things (viz., the transfer and conferring of the benefits) must form parts of the same transaction.
- The benefit must be conferred on him in the same capacity in which he is the owner of the property. Eg. B is the guardian of his son , B may keep his own property, and also take as his guardian Rs. 1000/-
ELECTION LIMITED TO PART OF BENEFIT
It is an exception to the general rule that if a person elects against the instrument, he will forfeit the whole of the benefit received under it. For Eg. Suppose A transfers a property X belonging to B and by the same instrument confers benefits, a, b, c on B and it is expressly stated that the benefit c is given to B in lieu of property X, then, if B elects to retain X, he will not be bound to relinquish all the benefits conferred on him by the instrument but only c which is expressed to be in lieu of X.
PRESUMPTION AS TO ELECTION
- If the benefit has been enjoyed for two years without doing any act to express dissent, it shall be presumed that he had the knowledge or he waived enquiry.
- If he has done act which render it impossible to place the person interested in the property professed to be transferred in the same condition as if such act had not been done.
Edited by Hariharan Kumar