Doctrine of Election (DoE) under TPA, 1882–Important for Upcoming Exams

Doctrine of Election (DoE) under TPA, 1882–Important for Upcoming Exams

Doctrine of Election—Section 35

• The doctrine of election (DOE) is based on equitable principle that ‘no one can approbate and reprobate at the same time’.
• Statutory Basis: Section 35 incorporates the doctrine of election. (MPAPP-20010). Section 35 also deals with the effect of declaration.(MPHJS-2010)
• Applicability of DoE: The DOE is applied to every kind of instrument whether transfer inter-vivos or transfer by operation of law. The DOE also applies to every kind of property i.e. movable or immovable.
• Cooper vs. Cooper (1874) is a leading case on doctrine of election. (UKJ-2006)
• According to this doctrine, a person is bound to elect either to take the benefit and transfer his property OR to retain his property and give up the benefit in case his property has been transferred by other person.(UPJ-2003)
• Illustrations:

1. The farm of Sultanpur belongs to C and worth Rs.800/- A by gift professes to transfer it to B, for Rs.1000/-. C elects to retain the farm. Here, C forfeits the gift of Rs.1000/-.
2. In the same case, A dies before the election, his representative must, out of Rs.1000/- pay Rs.800/- to B. (MPJ-1996/ MPHJS-2010)

• Essentials of Section 35—

1. Transferor professes (contracts) to transfer the property not his own—Section 35 also provides that the knowledge of the fact that the transferor has no authority to transfer the property is immaterial. It is also not necessary that whether the transferor does or does not believe that which he professes to transfer to be his own. (MPAPP-2008)
2. Benefit conferred on the owner of property—The transferor must confer any benefit on the owner of the property.
3. Part of the same transaction—The “transfer” and the “benefit” must for part of the same transaction.

• This section provides that a person taking no benefit directly under the transaction but indirectly deriving a benefit under it, need not elect.
• Implied election—The election may be express or implied. Section 35 provides that where the owner has enjoyed the benefit for two years it is presumed that owner has knowingly accepted the benefit.
• Requisition to elect—Section 35 provides that after the expiry of one year, if the owner of the property does not elect, the transferee may require him to make such election. (MPAPO-2008)
• Suspension of election—Section 35 further provides that where at the time if the elector (i.e. owner of the property) is legally disabled, the election is postponed until such disability ceases or until the election is made on his behalf by his guardian or any competent authority.
• Right of disappointed transferee—When the owner of the property elects against the transfer, the disappointed transferee has following rights:(MPAPO-2008)

1. Where the transfer is gratuitous and the transferor dies or becomes incapable of making fresh transfer, the transferee is entitled to get reasonable compensation from the transferor/ his representative.
2. Where transfer is non-gratuitous and whether the transferor is dead or alive the transferee is entitled to get reasonable compensation from the transferor/ his legal representatives.

• The doctrine of election is applicable to Hindus and not to Muslims or Christians. (MPAPP-10)
• English Law: Under English Law, if the election is against the transfer, the benefit does not revert to the transferor. The owner is entitled to take benefit conferred on him. Such owner is called ‘Refractory donee’ or ‘Rebellious donee’. But such owner has to compensate the disappointed transferee. The transferor or his representatives are not liable to compensate him.

_______________________________________________

Prepared by team LegalMines. Typographical error, if any, is inadvertent. The copyright as to contents and the style are with the LegalMines.