CASE STUDY-APR 01-DOCTRINE OF ELECTION
CASE STUDY-APR 08-DOCTRINE OF ELECTION
Question : Sushma is gifted a house by her father with the condition that she must transfer a paddy field to her sister. Is this transfer valid ? Explain as per provisions contained in Transfer of Property Act, 1882.
| SECTION 35 OF TRANSFER OF PROPERTY ACT, 1882 This principle is based on concept of election between two choices before a person. He cannot have both , if he chooses one then he will left the other. This is based on principle of equity. This principle was derived from the equity principle where a person cannot retain all the benefits of a transaction thus, he cannot keep the property and get benefits still. They have to elect for or against the instrument. The doctrine of election is a general legal rule that requires the recipient to choose whether the heir wants to own someone else property and decide whether to preserve the property or accept his intentions. (Shukla S. N transfer of property act 24 the edition edited by Dp Ghousal reprint 2007). SECTION 35 – ELECTION WHEN NECESSARY.— Concede to transfer property on which he has no rights.In the same transaction, they must elect either to accept it or not, in case he doesn’t.He must release the benefits till then.The benefits he had till then goes back to the transferor as if not given. Although when benefit is transferred back, he must make some good to the transferee at least it can be done in the following cases: Where the transfer is voluntary, and the Transferor had died or had become incapable of doing a fresh transfer.Transfer is for consideration. Example: 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. (Ibid) Maitland’s describes its doctrine of election as (Maitland’s lecture on equity). |
Answer:-
Yes, such transfer is valid as per Doctrine of Election.
Section 35 of the Transfer of Property Act deals with doctrine of election. Suppose, a property is given to you and in the same deed of gift you are asked to transfer something belonging to you to another person. If you want to take the property you should transfer your property to someone else, otherwise you cannot take the property which is transferred to you by someone.
Election may be defined as “the choosing between two rights where there is a clear intention that both were not intended to be enjoyed”. The foundation of doctrine of election is that a person taking the benefit of an instrument must also bear the burden, and he must not take under and against the same instrument. It is, therefore, a branch of a general rule that no one may approbate and reprobate.
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