Doctrine of Election
Election means choosing between two alternative rights or inconsistent rights. If an instrument confers two rights on an individual in such a fashion that one right is in lieu of the opposite , that person can choose or elect only one of them. A person cannot take under and against an equivalent instrument.
The doctrine of election is predicated on the principle of equity that one cannot take what’s beneficial to him and disapprove that which is against him under an equivalent instrument. One cannot approbate and reprobate at an equivalent time. In simple words, where an individual takes some benefit under a deed or instrument, he must also bear its burden.[i]
The principle of the doctrine of election was explained by the House of Lords within the leading case of Cooper vs. Cooper.
In Cooper v. Cooper,[ii] 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 offer full effect thereto instrument under which he takes a benefit ; and if it’s found that instrument purports to affect something which it had been beyond the facility of the donor or settlor to eliminate , but to which effect are often given by the concurrence of him who receives a benefit under an equivalent instrument, the law will impose on him who takes the benefit the requirement of carrying the instrument into full and complete force and effect .”
Section 35 of Transfer of Property Act, 1882 provides for Doctrine of Election by stating that when a party transfers a property over which he does not hold any right of transfer and entailed therein transaction is that the benefit conferred upon the first owner of the property, such title-holder must elect his choice to either validate such transfer of property or reject it; upon rejection, the benefit shall be relinquished back to the transferor subject nevertheless:
- where the transfer is gratuitous, and the transferor has, before Election, died or otherwise become incapable of making a fresh transfer; and
- where the transfer is for consideration.
Exceptions to the Doctrine of Election
- When the owner who is considering the election between retaining the property and accepting a particular benefit, chooses the former, he is not bound to relinquish any extraneous benefit that he gains through the transaction.
- “The acceptance of the benefit by the original owner shall be deemed to be as election by him to validate the transfer, if he is aware of his responsibilities and the circumstances that might influence a prudent man into making an election”
- This knowledge of the circumstances can be assumed if the person who gains the benefit enjoys it for a period of more than two years.
- If the original owner does not elect his option within a year of the transfer of property, the transferor would require him to elect his choice. Even after the reasonable time, if he still does not also still elect, the original owner shall be assumed to have elected the validation of the property transfer as his choice.
- In context of a minor, the period of election shall be stalled till the individual attains majority unless he is represented by a guardian.[iii]
Essential conditions for application of this doctrine are as follows:-
- The transferor must not be owner of the property which he transfers,
- The transferor must transfer the property of other (owner) to a third person,
- The transferor must at the same time grant some property, by the same instrument, out of his own, to the owner of property,
- The two transfers i.e. transfer of the property of owner to the transferee and conferment of benefit on the owner of property must be made by the same transaction.
- Question of election does not arise if the two transfers are made through two separate instruments,
- The owner must have proprietary interest in the property,
- The owner taking no benefit under a transaction directly, but diverting a benefit under it directly, need not to elect.
- Question of election does not arise when benefit is given to a person in a different capacity.
“The views of the authors are personal“
[i]Codrington v. Lindsay, (1873) 8 Ch 578.
[ii]L.R 7, H.L. 53 at p. 69.
[iii]Shukla S.N, Transfer of Property Act, 29th Edition 2015,