Written by:Adv. Pooja Gupta

Doctrine of Election (T.P.A of  1882)

Introduction of the Doctrine of Election: – Election entails a choice between two distinct rights. If a person is endowed with two rights under any document, and one of them is preferable to the other, he is obligated to elect or select the only one of them.

The concept of election is established by section 35 of the TPA, as well as sections 180 to 190 of the Hindu succession act. It states whenever a party transfers a property and land over which he has no authority of transfer and the benefits conferred on the original owner of the land are involved in the transaction, the title-holder must decide whether to accept or disapprove the transfer.

Allegans contraria non est Audiendus

Someone who makes contradictory claims will be dismissed. This theory is comprehensive in scope, encompassing Hindus, Muslims, and Christians alike. This idea is based on the equitable remedy that whoever receives an advantage under an agreement or transactions of its discretion should adopt the entire document or transactions or relinquish anything and everything. In the case of Codrington v. Codrington, this concept was established (1857)

  • If necessary, elections (section 35)
  • When someone claims to be transfer property that he does not have the legal authority to do so,
  • And imparts any advantage on the property owner as part of the same transaction, such owner must choose between confirming the transfer or rejecting it.
  • If he is not in agreement with it; and
  • In the latter situation, he must give up the benefit that has been bestowed upon him, as well as the benefit that has been bestowed upon him.
  • The benefit so abandoned will revert to the transferor or to the beneficiary.
  • As if it hadn’t already been disposed of, his agent,
  • Regardless of subject,
  • If the transfer is uncompensated, and the transferor had, prior to the election,
  • If the person has died or is otherwise unable to make a new transfer,

To the charge of making sure good to the disappointed transferee, the value or price of the property tried to be successfully transferred to him in any case where the transfer is for full consideration.

As mentioned in the previous part, the idea of election in TPA means that an individual has the right to choose by his own free will, but he must choose which right he wants to select because they cannot choose both rights and enjoy both, thus they must elect one.

Election mehtods:

  1. Direct election
  2. Indirect ellection

What exactly is direct election?

The owner is ready for the transaction if he or she has made a direct election. It is possible to do so by simply communicating verbally or in writing.

For example, a wishes to sell the assets. B offers rs 10,000 if you agree to sell the asset to z.

In the preceding example, if a merely agrees to sell the house to z, it is a direct election.

What is an indirect Election?

The indirect elections in this house owner has some terms and conditions, such as the individual having full knowledge of the terms and the owner electing it by evidence or choice since it is difficult to deliver it to the original owner after the transactions.

This title is not reversible and is only valid for two years.

For example, a possesses a property of rs 1 l, and b promises to give him rs 2 l. If he’ll sell it to z, that is the indirect election.

In the instance above, if a sets some criteria for selling, the person who is receiving it must fulfil them before he may sell it. The term “indirect election” refers to a vote that is subject to certain circumstances. It is the owner’s choice whether to accept or refuse it.

Doctrine of election time limit

Sec. 35 of T.P.A,  states that the property owner must notify the transferor or his representative within one year of the date of transfer. Even if they are aware of the expiration period and therefore do not make that decision after being informed by their representatives, they are considered to have elected to confirm the election if they do not respond after the period has expired.

Election by a disabled person is not possible unless and until the following conditions are met:

His disability is no longer an issue.

Someone else, who is not disabled, votes on his behalf.

Cooper vs. Cooper

Lord heather presents this instance in which he illustrates the theory of election. That there is always a responsibility on the part of the person who has accepted the benefits with their own permission or will, and that the donor has the right to reject or dispose of it if it is inaccurate or misleading. The same could be said for those who will be performing on that instrument. In this situation, it was stated that whoever benefits has certain responsibilities as well.

Codrington v. Codrington

In this matter, the doctrine was applied, which stated that when the owner has the option to elect or reject, if he understands and accepts for the advantage, then this instrument must be adopted by another person and in the same transactions. All of the owner’s rights must be surrendered to the instrument.

This idea applies when two rights conflict and one must pick one over the other, and when he does so of his own free will, he accepts both advantages and obligations.

Mohd. Kader ali fakir v lukman hakim

The philosophy of choice is based on the notion that the individual using the instrument must bear the significant weight limits imposed by it, and that he cannot carry both under as well as against the relatively similar instrument. This is a universal rule violation of the general rule that no one can accept or reject. This interpretation is predicated on the law’s implication that the owner of the instrument intended to manifest any part of the ether. Anyone who uses a will or other instrument has an obligation to completely implement that instrument, whereas donors and settlers do not have.

What impact, on the other hand, can be derived from his agreement made that has been compensated based on the same instrument? The applicant’s responsibility to use the instrument in its entirety will be governed by the law. Even if a portion of the instrument is null and void, the remainder is sufficient to place someone to elect if they so request.

Dhanpatti v. Devi prasad

The basics of the doctrine of the election are explained in this case- A transferring of property by someone who does not have the legal right to do so. As part of the same single transaction, he must confer with the real owner. The owner has the option of electing or rejecting his own desires.

Mahalaxmi vs. Ramayyae

In this case, a is a widowed lady with the gift of being able to exclude and involve the property that she wishes to elect, but because he is unwilling to give up his entire estate, the lawsuit has been filed. According to the court, she is the owner of that property, and only she has the power to decide which portion she intends to sell, accept, or refuse at her discretion.

Conclusion of the Doctrine of Election

The doctrine of election is explained in sec. 35 of the T.P.A., of 1882. This doctrine is a basic principle of equity that requires that if a testator attempts to eliminate property belonging to another person and also tends to make a device thereto, the main beneficiary must choose between continuing to keep the property and simply accepting the device. Thus, section 35 states that a person who does not directly benefit from a transaction but indirectly benefits from it does not need to elect. Furthermore, an individual who benefits from the transaction in one power and ability may object to it in another.

Read more: –

Transfer of Property Act, 1882

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