Doctrine of Election With Suitable Illustrations

30/11/2014

Q :- Wr Wr it ite a note on the doctr in ine of el ec ecti on on w itith sui ta tabl e i llll us ustr at ati on ons .

Q :-Write a note on the doctrine of election with suitable illustrations . | Print | Answer :-

The principle of the doctrine of election was explained by the House of lords in the leading case of Cooper Vs. Cooper . Lord Hatherley explained the principle underlying the doctrine of  election in the following words ,“ …. there is an obligation on him who takes a benefit under a will or other instrument to give full effect to that instrument under which he takes a benefit ; and if it be found that that instrument purports to deal with something which it was beyond the power of the donor or settlor to dispose of , but to which effect can be given by the concurrence of him who receives a benefit under the same instrument , the law will impose on him who takes the benefit the obligation of carrying the instrument into full and complete force and effect .”

Section 35 of the Transfer of Property Act embodied the doctrine of election. According to the section 35 where a person --i) professes to transfer property which he has no right to transfer , and ii) as part of the same transaction , confers any benefit on the owner of the property ,

such owner must elect either to confirm the transfer or to dissent from it . If he dissents from it ,---a) he must relinquish the benefit so conferred ; and b) the benefit so relinquished reverts to the transferor or his representative representative as if it had not been disposed disposed of . However , when such benefit reverts back to the transferor , it is subject to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred in two cases , namely --i) where the transfer is gratuitous , and the transferor has , before election , died or otherwise become incapable of making a fresh transfer ; and ii) where the transfer is for consideration . http://lawstude http://lawstudentshe ntshelpli lpline. ne.com/index.p com/index.php/ hp/20 2012-10 12-10-12-07-20-28 -12-07-20-28/transfe /transferr- of-propertyof-property- act/2-uncateg act/2-uncategorised/16 orised/168-q-wr 8-q-wr ite-a-note-on-the-doctrine-of-election-wi ite-a-note-on-the-doctrine-of-election-wi t…

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30/11/2014

Q :- Wr ite a note on the doctr ine of el ecti on w ith sui tabl e i ll ustr ati ons .

The doctrine of election may be illustrated by the following example .

Let us suppose that one farm of Sultanpur is the property of C and worth `8,00 /- . A , professes to transfer that farm of Sultanpur upon which he has no right to transfer . And by an instrument of gift , professes to transfer it to B , giving by the same instrument ` 1,000 /- to C . C

, the owner of the farm of Sultanpur , is to elect  either to confirm the transfer or to dissent from it . Here , C elects to retain the farm or dissents from the transfer . C , then forfeits the gift of ` 1,000 /- . In the same case , A dies before the election . The representatives of A must , out of the ` 1,000 /- pay ` 8,00 /- to B to make good to the disappointed transferee the amount or value of the property attempted to be transferred .

The doctrine of election is based on the principle of equity . The conditions necessary for application of this doctrine are as follows :1) The transferor must not be owner of the property which he transfers . 2) The transferor must transfer the property of other owner to a third person . 3) The transferor must at the same time grant some property , in the same instrument , out of  his own , to the owner of property . 4) 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 in the same transaction . Question of election does not arise if the two transfers are made by virtue of two separate instruments . 5) The owner must have proprietary interest in the property , a creditor is not put to election as he has only a personal right to be paid by the debtor . 6) The owner taking no benefit under a transaction directly , but diverting a benefit under it indirectly , is not put to election . 7) Question of election does not arise when benefit is given to a person in a different capacity .

There is difference in between English and Indian law regarding the doctrine of election . i) English law applies the principle of compensation while the Indian law adopts the rule of  http://lawstudentshelpline.com/index.php/2012-10-12-07-20-28/transfer- of-property- act/2-uncategorised/168-q-wr ite-a-note-on-the-doctrine-of-election-wi t…

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30/11/2014

Q :- Wr ite a note on the doctr ine of el ecti on w ith sui tabl e i ll ustr ati ons .

forfeiture . ii) English law does not specify any time within which election is to be made .Indian law specified one year time within which owner of the property is to elect whether he confirms the transfer or dissents from it .If the owner does not comply with such requisition , he is to be deemed to have elected to confirm the transfer .

There is one exception to the doctrine of election .

Where a particular benefit is expressed to be conferred on the owner of the property which the transferor professes to transfer , and such benefit is expressed to be in lieu of that property , if  such owner claims the property , he must relinquish the particular benefit , but he is not bound to relinquish any other benefit conferred upon him by the same transaction .

This exception may be explained by an example .

Let us suppose that X transfers to Y the property p/1 , in lieu of Y’s property P/2 which is given to Z . X also gives to Y the property P/3 . If Y elects to retain his own property he must relinquish claim over p/1 but not p/3 .

In the case of Promoda Dasi Vs. Lakhi Narain , it was held by the Hon’ble High Court of  Calcutta that where a Hindu testator in bequeathing all his property included therein the share of his brother’s widow , but made a suitable provision for her maintenance , and the widow at first sued for and obtained the allowance for maintenance but subsequently sued for her share in her husband’s property , the second suit would be precluded with regard to the doctrine of  election , as the widow must have known that the maintenance was provided for in lieu of her husband’s property .

Section 127 of the Transfer of Property Act also contains the doctrine of election or the onerous gifts also put the donee for election on the principle that he who wants the roses must not fear the thorns .   Section 127 says that where a gift is in the form of a single transfer to the same person of  http://lawstudentshelpline.com/index.php/2012-10-12-07-20-28/transfer- of-property- act/2-uncategorised/168-q-wr ite-a-note-on-the-doctrine-of-election-wi t…

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30/11/2014

Q :- Wr ite a note on the doctr ine of el ecti on w ith sui tabl e i ll ustr ati ons .

several things , of which one is , and the others are not , burdened by an obligation , the donee can take nothing by the gift unless he accepts it fully .

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