Doctrine of Election

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. Granting two rights in such a way that one is higher than the other, you can
choose either of them. You cannot have both. 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. (C. Beepathuma V. Viduri Shankar
Narayana Kadambolithya AIR 1965SC 241).it is an important part of the transfer of property
act 1882 to resolve property conflicts among people. This principle was derived from the
equity principle where a person cannot retain all the benefits of a transaction thus, he cannot
keep the property and get benefits still. They have to elect for Or against the instrument. The
doctrine of election is a general legal rule that requires the recipient to choose whether the
heir wants to own someone else#39;s property and decide whether to preserve the property or
accept his intentions. (Shukla S. N transfer of property act 24 the edition edited by Dp
Ghousal reprint 2007).

Example: A promises to give B, 50 lakh 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 he will have to
give his house to C. On the other hand if he doesn’t, he won’t get 50lakh also hence he has to
make an election on what to choose. (Ibid) Maitland’s describes its doctrine of election as
(Maitland’s lecture on equity)

 Adopt all the contents of that instrument.

 Accord to all its provisions.
 Cede all rights that are inconsonant.

Election when necessary (section 35)

 Concede to transfer property on which he has no rights.

 In the same transaction, they must elect either to accept it or not, in case he
doesn’t.
 He must release the benefits till then.
 The benefits he had till then goes back to the transferor as if not given.
Although when benefit is transferred back, he must make some good to the transferee at least
it can be done in the following cases:

 Where the transfer is voluntary and the Transferor had died or had become
incapable of doing a fresh transfer.
 Transfer is for consideration.

Example:  The farmhouse at Udaipur is a property of C. A by gift means promises to give B

1,00,000. He accepts it although C now wants to retain his farmhouse and A forfeits his gift.
In such a course of action B died, now his representative must pay C 1,00,000.

Who doesn’t have to elect?

The person who indirectly derives benefits from the transactions and not directly according to
section 35 does not need to elect.

Example::  A promises to give B 1000 given if his son buys C’s house for 1200, Nowhere n’s
son doesn’t have to elect as it is B who will have to make the decision on what to do.

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.

Exceptions to this doctrine as stated by section 35

Section 35 states that if the property owner is transferred by the seller, a particular service is
started and that the service is pressed to apply to that property if the owner claims the
property. Which must release the performance of certain properties. He is not obliged to
release the compensation given to him by the same transaction if you receive such
compensation for two years, you must assume that you have chosen the transfer.

Section 35 determines

The reception of the service by the person to whom the service is available is a decision by
that person to confirm the transfer if they know the service. The obligation to choose and
know circumstances that will affect the judgment of reasonable people in the election, or it
refuses to adapt to the Situation. Knowledge or rejection is assumed if the opposite evidence
is not available, if the person providing the service has used it for two years without taking
action to explain their disagreement. Section 35 also determines this knowledge or rejection
can be inferred from any action by that person, so that it is not possible to place people who
are interested in the property, which is believed to be transferred, in the same conditions as if
the action was not carried out.

Time limit for election

According to section 35, when the owner of the property within one year after the date of
transfer signifies to either transferor or his representative. Even if they know the expiration
period and even after knowing from their representatives does not make a decision they are
deemed to have elected to confirm the election if they don’t reply after the period is over.

Election by a disabled person, a disabled person cannot do election until and unless:

 His disability ceases.

 Someone else on his behalf makes election who is not disabled.

Doctrine of election applied

Hindu law
This principle has always been applied to Hindus. According to Rungamma v atchamma, the
privy council made a rule that a person cannot accept and reject according to him. One cannot
accept until he gains from it and stop accepting it until prejudiced.

English law

The buyer chosen not to be transferred, does not lose profits, but is obliged to compensate
disappointed people. Difference between English law and Bangladesh law. There is a
difference between English and! Bangladesh law in relation to elective teaching. The main
differences are as follows British law applies the principle of compensation, while English
law applies the rules of confiscation. English law does not regulate the time for election.
British law stipulates a year in which the property owner must decide whether to confirm the
transfer or not. If the owner does not comply with the reuse, he is deemed chosen to confirm
the transfer.

Basic requirements for applying this teaching

The basic conditions for applying this teaching are as follows: The seller may not be the
owner of the buyer’s property. The seller must transfer ownership to another athlete owner
The seller must simultaneously make all property available to property owners using the
same instrument outside the owner. Two transmissions, Transfer of ownership to the owner
of the transmitter and provision of benefits to the owner of the property must be done through
the same transaction. The Election obligation does not arise if the two transfers are carried
out through two separate instruments. The owner must have an ownership interest in the
property Owners who do not benefit directly from the transaction, but indirectly divert the
benefits from the transaction, do not have to make a choice. Mandatory choice does not
appear if it benefits someone of a different quality.

Case Laws

Mohd. Kader Ali fakir V 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.

Dr Ally’s Wobben V Shri Yogesh Mehra and ors on 6 December 2010

The Supreme Court, in National Insurance Company v. Masan & Anr., 2006 (2) SCC
641 IA

No.12638/2010 in CS(OS) No.1963/2009 Page 4 spelt out what is the rule, in the following
terms:

“A party to a Lis, having regard to the different provisions of the two Acts cannot enforce
liabilities of the insurer under both the Acts. He has to elect for one. The ‘doctrine of
election’ is a branch of ‘rule of estoppel’, in terms whereof a person may be precluded by his
actions or conduct or silence when it is his duty to speak, from asserting a right which he
otherwise would have had. The doctrine of election postulates that when two remedies are
available for the same relief, the aggrieved party has the option to elect either of them but not
both. Although there are certain exceptions to the same rule but the same has no
application in the instant case.”

Baisakhi Ram Binjhwar vs South Eastern Coalfields Ltd on 11 September, 2017

The observations of Scrutton, L.J. are as follows:

“A plaintiff is not permitted to ‘approbate and reprobate’. The phrase is apparently borrowed
from the Scotch law, where it is used to express the principle embodied in our doctrine of
election-namely, that no party can accept and reject the same instrument: Ker v. Wauchope
(1819) 1 Blight 1 (21) (E): Douglas- Menzies v. Umphelby 1908 AC 224 (232) (F). The
doctrine of election is not however confined to instruments. A person cannot say at one time
that a transaction is valid and thereby obtain some advantage, to which he could only be
entitled on the footing that it is valid, and then turn round and say it is void for the purpose of
securing some other advantage. That is to approbate and reprobate the transaction. “Hence it
is proved that the doctrine of election is based on the principle of Estoppel.

Election is choosing between two alternatives or conflicting rights. By giving two rights so
that one is higher than the other, you can choose one of them. You cannot have both. The
applicant cannot use both, the recipient must choose between two inconsistencies or
alternative rights. Basically, this means that the recipient must also bear the burden. Being
derived from the equity principle which clearly states that a person cannot have benefited
from both the sides. This doctrine has been successful and many poverty conflicts can be
resolved using it.