What is doctrine of election in property law?
Meaning of Doctrine of Election: – Doctrine of election means choosing between two alternative rights or incompatible rights. Under any instrument, if two rights are conferred on a person in such a way that one right is in exchange for the other, he is bound to choose only one of them. The applicant cannot use both, the recipient must choose between two inconsistencies or alternative rights. Basically it means that the person taking the benefit should also bear the burden.
The doctrine of election is predicated on the principle of equity that one cannot take what’s beneficial to him and disapprove that which is against him under an equivalent instrument. One cannot approbate and reprobate at an equivalent time. In simple words, where an individual takes some benefit under a deed or instrument, he must also bear its burden.
The doctrine of election is stated in transfer of property act 1882 in section 35 and within 180-190 of Indian succession act. Election means a choice between two alternative or conflicting rights. The doctrine of election is a general legal rule that requires the recipient to choose whether the heir wants to own someone else’s property and decide whether to preserve the property or accept his intentions.
If the testator attempts to dispose of the property belonging to someone else and also creates a will for that person, the beneficiary must choose between keeping the property or accepting the devise.
If a person transfers any 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 of property or reject it. If he rejects the transfer, he will relinquish the benefit given to him and the property will be returned to him or his representative, as if it were not disposed of.
Understanding the Principle of Doctrine of Election
Doctrine of election consists of the principle of exercising a person’s choice to do an act of his own free will and is founded on the justifiable principle that one who accepts a profit under an instrument or a transaction of his choice- Should adopt the gift completely or discard everything. This principle is universal in nature and applicable to Hindu, Muslim, and Christian.
For example: – ‘A’ promises to give 50 lakh rupees to ‘B’ but only on one condition that he will sell his house to ‘C’, now ‘B’ here has to make the election on what to do? If he takes A’s offer then he will have to give his house to ‘C’. On the other hand if he doesn’t, he won’t get 50 lakh also hence he has to make an election on what to choose.
What are the essential conditions for application of the doctrine of election?
Following are the essential conditions for the application of doctrine of election: –
- The transferor must not be owner of the property which he transfers,
- The transferor must transfer the property of other (owner) to a third person,
- The transferor must at the same time grant some property, by the same instrument, out of his own, to the owner of property,
- The two transfers i.e. transfer of the property of owner to the transferee and conferment of benefit on the owner of property must be made by the same transaction.
- Question of election does not arise if the two transfers are made through two separate instruments,
- The owner must have proprietary interest in the property,
- The owner taking no benefit under a transaction directly, but diverting a benefit under it directly, need not to elect.
- Question of election does not arise when benefit is given to a person in a different capacity.
What are the exceptions to the Doctrine of Election?
The exceptions to the Doctrine of Election are as follows: –
- When the owner who is considering the election between retaining the property and accepting a particular benefit, chooses the former, he is not bound to relinquish any extraneous benefit that he gains through the transaction.
- “The acceptance of the benefit by the original owner shall be deemed to be as election by him to validate the transfer, if he is aware of his responsibilities and the circumstances that might influence a prudent man into making an election”
- This knowledge of the circumstances can be assumed if the person who gains the benefit enjoys it for a period of more than two years.
- If the original owner does not elect his option within a year of the transfer of property, the transferor would require him to elect his choice. Even after the reasonable time, if he still does not also still elect, the original owner shall be assumed to have elected the validation of the property transfer as his choice.
- In context of a minor, the period of election shall be stalled till the individual attains majority unless he is represented by a guardian.
When does a person elect to dissent?
According to section 35 If the owner decides not to approve the transfer, he will surrender the transferred service to him and this service will be returned to the transferor or his representative as if he had not been released.
Following could take place: –
- The transfer is voluntary and the Transferor had died or had become incapable of doing a fresh transfer.
- In all cases where the transfer must be checked, it is the responsibility of the transferor or his representative to compensate disappointed buyers. The compensation amount is the amount or value of the property that will be transferred if the option.
What are the modes of doctrine of election?
There are two types of elections, such as: –
- Direct Election: – There is no prescribed form. A letter, telegram, oral words of the transferor or any other indication by the person that states the transferor’s intention is sufficient.
- Indirect Election: – There are three types of indirect elections: –
- Acceptance of benefits without knowledge of duty for election
- Enjoy for two years and
- The status quo cannot be restored.
- Acceptance of benefits without knowledge of duty for election: –If he accepts the benefit conferred by the transfer, such acceptance on his behalf constitutes an election by him. But there should be acceptance with full knowledge of his duty for elections and all matters regarding such benefits.
- Enjoyment for two years [Section 188 (1) of the Indian Succession Act]: – If any person who has to make an election knows that he is under duty to make the choice, he should express his dissent, if he has held the property for some time and is unwilling to contest the election in favor of the transfer. If he holds the property for two years, without expressing that he is not in favor of the election, it is presumed that the person possessing the property is doing so with the knowledge and acceptance of the document.
- Status quo cannot be restored: – In the case of property which is exhaustible by consumption or used, if the person once starts consuming the property, the election in his favor is presumed. No period for consumption is necessary for this presumption.
- Mohd. Kader Ali fakir vs. lukman hakim
The basis of the doctrine of choice is that the person who uses the instrument must also bear the burden imposed in this way and that he cannot carry under and against the same instrument. This is a violation of general rules that cannot be accepted or rejected by anyone. This doctrine is based on the fictional intent of this ether that the law implies that the author of the instrument intends to manifest any part of it. There is an obligation for anyone using a will or other instrument to make that instrument fully effective, which donors or settlers cannot have. However, what effect can be obtained from his agreement that has received compensation based on the same instrument? The law will apply to the applicant’s obligation to use the instrument in full force and effect. If the tool is partially invalid, the rest is enough to place someone to vote if they say so.
- Dhanpati vs. Devi Prasad and others (1970) (3) SCC 776
In this case, the court held that it was determined that the following conditions must be followed before the election: –
- A person having no right to transfer the property.
- He has to transfer some profit to the owner of the property as part of the same transaction.
- The owner must either elect to confirm the transfer or dissent from it.