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Indian Journal of Law and Legal Research Volume IV Issue I ISSN: 2582-8878
DOCTRINE OF ELECTION: CRITICAL ANALYSIS
Shivangi Pathak, BA.LLB, Delhi Metropolitan Education, GGSIPU
INTRODUCTION
The concept of doctrine of election is acknowledged in "transfer of Property Act 1882" which
is mentioned in section 35. However, in "Indian Succession Act" it is mentioned in within 180-
190 sections. "Election" means it is a choice between two differing or two contradictory rights.
In this concept you cannot have both you can choose either of them. It is basically on the
prioritize manner that "one is higher than the other1 ."
The claimant can't use both, the benificary must opt among two differing or contradictory
rights. Generally its confers that the person whose is taking profit "should also bear the burden.
"to resolving the property conflicts between the parties is the main aim of the "transfer of
property act 1882."
"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 property and decide
whether to preserve the property or accept his intentions2 ".
Example: A guarantees to provide B 50 Lakhs rupees however, solely on the condition that he
can sell his house to C, currently B here needs to create the election on what to do? If he takes
A's offer he need to offer his house to C. on the opposite hand if he does not, he won't get 50
lakh also thus he needs to create an election on what to decide on.
1 (C. Beepathuma V. Viduri Shankar Narayana Kadambolithya AIR 1965SC 241
2 Shukla S. N transfer of property act 24 the edition edited by Dp Ghousal reprint 2007).
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Indian Journal of Law and Legal Research Volume IV Issue I ISSN: 2582-8878
It was held in the case of Cooper v. Cooper3 by Lord Hather that the person who takes the
benefit under a transaction it is the obligation on him to give full effect to that transaction and
it is also stated that it is the obligation on him to give him full effect to the instrument is on the
donor who takes the benefit of that transaction.
So, this is the situation of election where B has to choose one thing he is not keep both property
and money at the same time. He has to pay some consideration to get Rs. 50,000,00 from A.
LEGAL MAXIM-
Allegans contraria non est audiendus
"Doctrine of election is depending on the legal maxim " Allegans contraria non est audiendus"
which means he is not to be heard who alleges things contradictory to each other"
ESSENTIAL CONDITIONS OF SECTION 35 OF THE TRANSFER PROPERTY
ACT1882
" Transfer of the property must not have the right to transfer the property
" The owner must have the option elect either the offer or not in the same transaction
* The transferor must transfer some actual benefits "to the owner of the property"
" The "owner must either elect to confirm" the tranferor "to dissent from it".
" When the owner of the property dissent the form of the transfer he must quit the benefit
which conferred by the transaction.
* And, all the benefits would go back to the transfer
In the case of Mst. Dhanpati v. Devi Prasad4 and the others the court discuss about the
essentials rulees of election and stated that, transfer of the property must be done by the person
3 Cooper v. Cooper, Moore, Hather, 144 N.W. 2d 146(1966)
4 Mst. Dhanpati v. Devi Prasad, k.s Hedge, J.C. Shah, A.N Grover, Civil appeal No. 1285, February 20, 1970.
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Indian Journal of Law and Legal Research Volume IV Issue I ISSN: 2582-8878
who has no rights over the property, the must confer some benefits by the same transaction,
and the owner of the property must have choice to elect the two options
EXCEPTIONS
"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"
WHAT IS THE DETERMINATION OF SECTION 35?
"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". It refuses to adapt the situation or
it will affect the judgement pf reasonable people in the election it is the obligation to choose
and know the circumstances. If the opposite evidence is not available knowledge or rejection
is to be assumed, "if the person providing the service has used it for two years without taking
action to explain their disagreement".
LIMITATION OF TIME FOR ELECTION
Either tranferor or his represntative signified date of transfer within one year by the owner of
the property. "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".
CONCLUSION
We can conclude that the election is the choice between the two alternative from which a person
have to choose one and this doctrine also based on the principle that no loose no gains. So, if a
person wants the benefit of any transaction he also bear all the burdens which are attached with
that benefits. It is based on the equity principle which states that the person cannot benefit from
the sides.
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