Introduction 

Choosing between two alternative rights is what election is all about. If a person is given the option to choose between two rights, he or she must exercise only the right that is more favourable to the other.

The Transfer of Property Act Section 35, together with the Indian Succession Act Sections 180 to 190, lays down the doctrine of election. It provides that when a party transfers a property over which he does not have a transfer right and the advantage bestowed upon the initial owner of the property is entailed in the transaction, the original owner of the property must select whether to recognise the transfer of the property or reject it. In order to settle property disputes between individuals, it is an essential aspect of the Transfer of Property Act 1882.

As with the equity principle, a person cannot retain all of the advantages of a transaction, therefore they cannot keep the property and continue to reap the benefits of the deal as well. They must choose whether or not to use it. When it comes to inheriting someone else’s property, the receiver has to decide whether or not he or she is willing to accept the successor's goals.

Example –

An individual named A owns a farmhouse and a person named B owns a factory. A transfer’s ownership of the farmhouse to C, who is the transferee, while B transfers ownership of himself (B) owns a factory to A.

A is now put to a vote, which means that A must decide whether or not he wants to give his farmhouse to C in order to acquire B’s factory. A may only take over B’s factory if he abides by the terms of the agreement and transfers the farmhouse to C in complete surrender of his rights therein.

The Basic Principle Establishing This Doctrine

According to the Latin maxim “quod approbo non reprobo,” says “no one may praise and criticise at the same time.” People cannot use the same tool to accept one thing and reject another. The idea of election is founded on this maxim. Equity courts in England adhered to the legal principle ‘Allegans contraria non est audiendus,’ According to this principle, ‘he who alleges things that are contradictory in nature is not to be taken into consideration.’

When Lord Hather laid out the idea of election in the case of Cooper v Cooper, it was the first time it had been discussed at length. That “There is a responsibility on him who gets a benefit under an instrument to give full effect to that instrument which was beyond the donor or settlor's ability to dispose of but which may be given effect with the consent of him who receives the advantage under the same instrument, the law will impose on him who receives the benefit the responsibility of putting the instrument into full and complete force and effectiveness.”

In order for an election to be valid, the individual eligible to be elected must be fully apprised of all of the relevant rights and interests at stake. Only one election may be held at a time. It is not possible to switch from one remedy to another if two options are available and a person attempts one and fails.

Essential Conditions

In the case of Mst. Dhanpatti v Devi Prasad and others, the Supreme Court established the necessary requirements for the doctrine of election 

The following are the prerequisites for the application of the election doctrine:

• In order for a property to be transferred, the transferor must claim possession of the property being transferred.
• In order for a transfer to be legal, the owner of the property being transferred must get some kind of benefit from the transferor.
• This is a two-part transaction: transferring something and receiving something in exchange for it.
• The property owner must get the benefit directly.
• The benefit must be provided to him in a similar manner as he now holds ownership of the property.

Mode of Election

It is possible for the owner to make a direct or indirect election. In a direct election, candidates are nominated and elected only on the basis of what they say about their preferred alternative. There are two requirements that must be met in order for an indirect election to be valid:

1. He must be conscious of his responsibility to elect and
2. When making an election, there must be evidence that the candidate was aware of conditions that might affect the decision of a reasonable man.

The individual who receives the benefit may enjoy it for two years without making any complaint. 

When the donee behaves in such a way with the property given to him that it becomes difficult to restore it to the original owner in its original condition, the election is deemed to have taken place.

Exceptions

The transferor is not required to forego any other benefits that he obtains through the same transaction if he expressly states that a specific advantage will be granted to the owner of the property that the transferor wishes to transfer and that such benefit is in substitution for that property.

If the original owner accepts the benefit, it will be deemed an election by him to affirm the transfer, if he is aware of his obligations and responsibilities and the conditions that would influence a sensible (rational) man into making an election.

After receiving the benefit for a period of more than two years without taking any action to show dissatisfaction, it is reasonable to presume that the person receiving the benefit is aware of the conditions.

A year after the transfer of property, the transferor would urge him to choose his preference if the original owner does not do so. If the original owner does not elect within a reasonable period of time, the validity of the property transfer will be deemed to be his preference.

When a minor is involved, the election period is postponed until the person attains the majority, unless he or she is represented by a guardian.

Compensation

Approximate compensation for the transferee is based on the estimated cost of the property being tried to be transferred. Nevertheless, in the case of immovable property, the concern of the item’s value fluctuating with the passage of time becomes relevant. As a result, rather than at the moment of election, this valuation will take place at the time the instrument becomes operative.

Applicability in Indian law and English law

In Indian law this doctrine can be seen under Hindu Law and Muslim Law. Hindus have traditionally adhered to this idea, according to Hindu law. A regulation imposed by the privy council, according to the case of Rungamma v. Atchamma, is one that a person cannot accept or reject. The only way to accept anything is if you benefit from it, and only then can you quit accepting it. As per the Muslim law the case of Sadik Husain v. Hashim Ali which state that the doctrine of election is applied on the Muslim also.

Unlike in other laws, the doctrine of election has a distinct meaning under English law. Even if the owner of the property rejects the transfer, he or she does not lose any revenue as a result of the deal. The owner maintains the benefit, but pays the dissatisfied transferee a sum equivalent to the value of the property. It's the transferor and his agents who are on the hook for any compensation.

Case Laws Related to The Doctrine of Election

Mohd. Kader Ali Fakir v. Lukman Hakim

In this case the court says that, according to this doctrine, those who use an instrument must also bear its weight, and they can't carry it both ways at the same time. No one can accept or reject this as a breach of universal norms.

According to this theory, an instrument's creator intended to manifest all of the ether contained inside it, despite the fact that the law does not expressly state as much. Anyone utilising a will or other legal document has a duty to ensure that it is completely effective, whereas donors or settlers do not. However, what impact can be achieved from his agreement on the basis of which he earned compensation?

The applicant's responsibility to utilise the instrument in full force and effect shall be governed by the applicable legislation. Even if a portion of the tool is flawed, the remaining validity may still be used to cast a vote.

Paru Kutty Amma & Ors. v, Cheetah Navoth Lakshmi Amma

In this case the court ruled that, A person cannot affirm and dissent at the same time from the same text, accept one portion and reject the other, take the advantage supplied and refuse to give full effect to it. This is the core of the doctrine therefore.

That a person cannot simultaneously affirm and deny the same transaction, affirming inasmuch as the advantage offered is true, and disaffirming insofar as it harms him, is based on a rule of fairness, not an English or Scottish law concept. This transaction or instrument must be referenced in the affirmation and disaffirmation.

Conclusion

Transfer of Property Act, 1882 section 35 defines the Doctrine of Election concept. The concept of election might even be a common-law rule of equity that requires the beneficiary to choose between maintaining the property or accepting the device if a testator seeks to remove the property of someone else and also creates a device for that person.

Election is a choice between two options or rights that are in dispute. You may choose one of two options by giving one option more weight than the other. Both are incompatible. It is impossible for the application to utilise both, thus the receiver must choose between two contradictions or other privileges.

Section 35, on the other hand, states that a private benefiting indirectly from a transaction does not need to make an election. Furthermore, a person who receives a financial gain from the transaction may object to it in another position.

References

Section 35, The Transfer of Property Act, 1882

Darashaw J. Vakil, The Transfer of Property Act (2nd Edn. Wadhwa Nagpur 2004) 

Cooper v Cooper, 1874 LR 7 HL 53

Mst. Dhanpatti v Devi Prasad and others, AIR 1970 SDC 174

Rungamma v. Atchamma, 1964 SCR (2) 933

Sadik Husain v. Hashim Ali, (1916) ILR 38 ALL 627

Mohd. Kader Ali Fakir v. Lukman Hakim, PLR 1956 Dacca 370

Paru Kutty Amma & Ors. v, Cheetah Navoth Lakshmi Amma, AIR 1954 Mad 556