Doctrine of Election in India: A Legal Analysis

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The act of choosing between two competing or dissimilar liberties is called an election. Only one of the two rights provided to a person by a contract in which one right prevails over the other may be chosen or selected by that person. The same weapon cannot be used both under and against. The grantee is forced to choose between two competing or alternative rights when it is clear that the grantor does not want the recipient to exercise both rights. The idea that responsibility rests with the person who benefits from an instrument is the foundation of the concept of election. In other words, a person cannot use the same instrument for and against them. The illustrious writer F.W. Maitland writes in his book “Equity-A Course of Lectures,” which Cambridge University published in 1947, “The doctrine of Election may be thus stated: That he who accepts a benefit under a deed, will, or other instruments must adopt the whole contents of that instrument, must conform to all its provisions, and renounce all rights that are inconsistent with it.” [1] This theory has been tested and applied by both Indian and foreign courts in a number of situations. With equity as its cornerstone, it is a just and intriguing idea. In India, this idea is covered under Section 35[2] of the Transfer of Property Act in combination with Sections 180 to 190 of the Indian Succession Act.

To ascertain if this equity-based notion is appropriate, a simple three-step test may be used:

If a person called “X” transfers a piece of property that belonged to a person named “B,” X may also transfer a benefit to B, the property owner. B would then have the option of maintaining his property or accepting the benefit from A. B is not allowed to maintain his belongings while simultaneously receiving A’s advantage. A person is required to opt (choose) just one right if two rights are granted to them under any document in a way that makes one of them substitute for the other. The same instrument cannot be taken under and against.

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The Principle Underlying the Doctrine of Election

The principle underlying the Doctrine of Election stems from the legal maxim “Allegans contraria non est audiendus”, which means he is not to be heard who alleges things contradictory to each other.

In Cooper v. Cooper, Lord Hather 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 the instrument under which he takes benefit; and if it is found out that instrument purports to deal with something which it was beyond the power of the donor 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 .” [3]

For the election to be legitimate, the candidate for office must be fully aware of all pertinent rights and interests at risk. Only one election may be taken into account at once. If more than one choice is available and a person tries one, but it does not work, they cannot try the other.

The following prerequisites must be met in order for this concept to be applicable: 

  1. The transferor must be someone other than the owner of the property being transferred.
  2. The transferor must give the other owner’s property to a third party.
  3. The transferor must also award a portion of his property to the property owner in the same document.
  4. The giving of the benefit to the owner of the property and the transfer of the owner’s property to the transferee must take place in the same transaction. If the two transfers are done as a result of two different instruments, the election question is not raised. A creditor cannot be put to an election because he merely has a personal claim to compensation from the debtor; the property owner must have a proprietary interest in it. 
  5. The owner who does not directly gain from a transaction but diverts a benefit from it is not subject to election.
  6. When a person is benefited from a different role, the election issue is not raised.

In terms of the doctrine of election, English and Indian law diverge.

While Indian law follows the rule of forfeiture, English law uses the notion of recompense. English law does not establish a deadline for making an election, while Indian law stipulates a one-year window for the property owner to decide whether to approve or object to the transfer. The owner is assumed to have chosen to ratify the transfer if he refuses to comply with such a request.

Exceptions to Section 35

The concept of election has one exception. When a specific benefit is stated to be given to the owner of the property that the transferor professes to transfer and is stated to be in lieu of that property, the owner of that property must give up that specific benefit in order to obtain the property. However, he is not required to give up any other benefits that were given to him through the same transaction. An illustration might help to clarify this exception. Let’s say that in addition to giving Y’s property B to Z, X provides Y with property A as well as property C. If Y decides to keep his own property, he must renounce his claim to A but not to C. If someone chooses to reject the instrument, they will only lose the benefit that is connected in place of the property, not the entire benefit. (Election only applies to some benefits)

If an election has not been made after a year has passed from the transfer, the transferor may force him to do so. He will be considered to have chosen to confirm the transaction if he doesn’t respond to this request within a reasonable amount of time. Other situations are when the donee has a handicap brought on by insanity, lunacy, or some similar condition. In this case, the election must be postponed until the impairment goes away or until a competent authority, such as a guardian of a child, make it.

Mode of Election

The manner of election is also covered in this section. Out of the two incompatible rights, the owner must select one. This decision may be made explicitly or inferred from behaviour. When the owner makes their choice explicitly, it is an express choice that is binding and decisive. However, if the owner accepts the benefit without saying anything, it is assumed that he has chosen to proceed with the transaction, provided that he is aware of his duty to elect and is aware of any circumstances that might sway a reasonable man’s decision to proceed with the transaction. When the property owner accepts the benefit while fully aware of the situation and conscious of his obligation to decide, it indicates that he has decided to support the transaction. 

There is a presumption that he has intentionally accepted the advantage in the following two situations:

  1. When the owner has taken use of the benefit for two years without protest. 
  2. When the property owner has taken some action that prevents putting the parties (persons interested in the property) in the same situation they would have been in if the action had not been taken.

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The Doctrine of Election rests on the principle of fairness and estoppel. It requires a person who is given a choice between two rights, one being beneficial and the other burdensome, to make an informed decision and elect one of the available options. In the context of property law, the doctrine arises when a person is entitled to a property interest but also faces an obligation or liability associated with that interest. The doctrine hence transformed into a key idea in property law, which was subsequently codified in Section 35 of the Transfer of Property Act, 1881. It makes people choose between competing rights and duties, ensuring justice, equity, and certainty in real estate transactions. The theory upholds the ideas of estoppel and good faith, which encourages honesty and deters opportunistic behaviour. To preserve the credibility and stability of property transactions in India, it is crucial for citizens and legal professionals to comprehend and implement this theory.

This article is authored by Philip John, a second-year student at National University of Advanced Legal Studies, Kochi.

  [1] D. T. O., Equity. A Course of Lectures. By F. W. Maitland. Edited by A. H. Chaytor and W. J. Whittaker. Revised by J. Brunyate, M.A., formerly Fellow of Trinity College, Cambridge, and of Gray’s Inn, Barrister-at-Law. Cambridge University Press. 1936. xxiv and 343 pp. (15s. net.), 6 The Cambridge Law Journal 298–298 (1937).

[2] The Transfer of Property Act, 1882, §35.

[3] Cooper V. Cooper, (1874) LR 7 HL 53


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