This article will talk about the Doctrine of Election as laid down in Section 35 of the Transfer of Property Act (TOPA).
Election means a choice between two alternative or conflicting rights. Granting two rights in such a way that one is higher than the other, you can choose either of them.
Through an instrument, if A confers two rights on B; and B has to select only one, this mechanism is the Doctrine of Election.
Illustration: A promises to give B, 50 lakh but only on one condition that he will sell his house to C, now B here has to make the election on what to do? If he takes A’s offer he will have to give his house to C. On the other hand if he doesn’t, he won’t get 50lakh also hence he has to make an election on what to choose.
WHAT IS THE DOCTRINE OF ELECTION?
It is a doctrine based on an equitable principle which has been conceptualized under Section 35 of the Transfer of Property Act, 1882 (TOPA); and within 180-190 of the Indian Succession Act, 1925. It means to have a choice between the two rights. Selecting one right will render the person ineligible for the other one.
INGREDIENTS OF THE DOCTRINE OF ELECTION
Following are the ingredients of the valid election:
1. The person transferring the property should transferor should not be the owner of the property.
2. The person transferring must at the same time and in the same instrument, grant some of his own property to the owner of the property.
3. Both the transfers must be made in the same transaction i.e Transfer of the property of the owner to the transferee and conferring the benefit on the owner of the property. The doctrine of election is not applicable if the transfers are made by virtue of two separate instruments.
4. It is required that the owner has a proprietary interest in the property. A person being a creditor is uncommitted in the election as he merely has a personal right to be paid by the debtor.
5. The owner is not put to election who does not receive direct benefit under the transaction, but gets some benefit under it indirectly.
6. The question of election does not arise when the benefit is received by a person in a different capacity. For example, a person can accept legacy for an estate, at the same time in his personal competence, he could retain the property.
WHEN IS ELECTION NECESSARY?
There will be two transactions, one where the property of the owner will be subjected to the transfer to any third person by non-owner of the property. Other transaction will be where a benefit will be conferred to the owner of the property. If the transaction dealing with the conferment of benefit to the owner is direct as the result of the earlier transaction; then the election is necessary.[ Mahammad Afzal Khan v Ghulam Kasim Khan, (1903) 30 Cal 843 : 30 IA 190]
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