DOCTRINE OF ELECTION[1]
(S. 35)
- 1. Explain fully the ‘Doctrine of Election’ and how does it differ from ‘Part performance’.
- 2. Explain the ‘Doctrine of Election. Illustrate it with suitable illustrations.
Q.3. Explain the essential conditions for the application of the Doctrine of Election.
- Doctrine of Election.
III. Person taking under two capacities:- 40
- Exception to the rule of election:- 41
- Time as to Election:- 41
- a) Acceptance of Benefit constitute election:- 41
- b) Presumption as to acceptance:- 42
- c) Presumption as to requisition to elect:- 43
- d) Presumption in case when time for election is fixed:- 43
- Postponement of election:- 43
I. Doctrine of Election (S. 35):-
Where a person professes to transfer property:-
(1) which he has no right to transfer, and
(2) as part of the same transaction confers any benefit on the owner of the property,
(3) such owner shall elect
(i) either to confirm such transfer, or
(ii) to dissent from it, and in the latter case, he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of[2].
The property reverts back:-
(a) without any charge if the transfer is gratuitous and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer.
(b) with charge of making good to the dispossessed transferee, the amount or value of the property attempted to be transferred to him.
Illustration
The farm of Sultanpur is the property of C and is worth Rs 800. A, by an instrument of gift, professes to transfer it to B, giving by the same instrument Rs. 1000 to C. C elects to retain the farm. He forfeits the gift of Rs. 1000[3].
In the same case, A dies before the election. His representative, out of Rs. 1000, pay Rs. 800 to B.
Indian Succession Act of 1925 incorporates a similar provision of the election. S. 182 of the Act provides the following illustrations to clarify the doctrine of election, viz.
(i) The farm of Sultanpur was the property of C. A bequeathed it to B, giving a legacy of 1000 rupees to C. C has elected to retain his farm of Sultanpur, which is worth 800 rupees. C forfeits his legacy of 1000 rupees, of which 800 rupees goes to B, and the remaining 200 rupees falls into the residuary bequest or devolves according to the rules of intestate succession, as the case may be.
(ii) A bequeaths an estate to B in case B’s elder brother (who is married and has children) shall leave no issue living at his death. A also bequeaths to C a jewel, which belongs to B. B must elect to give up the jewel or lose the estate.
(iii) A bequeaths to B 1000 rupees, and to C an estate which will, under a settlement, belong to B if his elder brother (who is married and has children) shall leave no issue living at his death. B must elect to give up the estate or to lose the legacy.
The rule of election applies whether the transferor does or does not believe that the property which he professes to transfer is his own.
English Law:- In English law, where the transferee elects against the instrument, the benefit does not revert to the transferor, but he can keep the benefit also, provided the benefit is subject to a charge to compensate the disappointed transferee.
Illustration
The farm of Sultanpur is the property of C and is worth Rs 800. A, by an instrument of gift, professes to transfer it to B, giving Rs. 1000 to C by the same instrument. C elects to retain the farm.
Here, if the case were according to English law, C while electing against the transfer, would also take the benefit of Rs. 1000/-, but C would be liable to give Rs. 800 to B, the disappointed transferee. A or his representatives are not liable to compensate B.
II. No election where the benefit is derived indirectly:-
A person taking no benefit directly under a transaction but deriving a benefit under it indirectly need not elect.
This third paragraph of S. 35 is similar to S. 184 of the Indian Succession Act 1925. It explains the principle by the following illustration.
The land of Sultanpur is settled upon C for life and after his death upon D, his only child. A bequeaths the land of Sultanpur to B and 1000 rupees to C. C dies intestate shortly after the testator and without having made any election. D takes out administration to C and, as administrator, elects on behalf of C’s estate to take under the will. In that capacity, he receives the legacy of 1,000 rupees and accounts to B for the rents of the lands of Sultanpur, which accrued after the death of the testator and before the death of C. In his individual character, he retains the lands of Sultanpur in opposition to the will.
In this case, D is not under obligation to elect. It is C upon whom the obligation of the election was cast either to receive Rs. 1000 or to transfer his life interest (because C only had life interest) in Sultanpur property to B. Here, being an administrator on behalf of C, D elects to take Rs. 1000 as per the will and, therefore, as a duty cast by will, accounts for all rents of lifetime of C to B and pays it to B, however, being absolute owner after cessation of life interest of C, D keeps the property; therefore, he need not elect.
III. Person taking under two capacities:-
The fourth paragraph of S. 35 lays down that a person who in one capacity takes a benefit under the transaction may in another dissent therefrom. S. 185 of the Indian Succession Act is similar to this clause. It provides the following illustration, viz.
The estate of Sultanpur is settled upon A for life and, after his death, upon B. A leaves the estate of Sultanpur to D, and 2000 rupees to B, and 1000 rupees to C, who is B’s only child. B dies intestate, shortly after the testator, without having made an election. C takes out administration to B, and as administrator, elects to keep the estate of Sultanpur in opposition to the will and to relinquish the legacy of 2000 rupees. C may do this and yet claim his legacy of 1000 rupees under the will.
In this illustration, C takes the legacy of 1000 rupees in his individual capacity while making the election. He acts as an administrator of B. These are two distinct capacities, and hence, he can accept the benefit in one capacity and repudiate the transfer in another.
IV. Exception to the rule of election:-
The exception to the rule of election in the fifth paragraph of S. 35 lays down that where a particular benefit is expressed to be conferred on one of the properties which the transferor professes to transfer, and such benefit is expressed to be in lieu of that property, if such owner claims the property, he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction. S. 186 of the Indian Succession Act and the illustration below are illustrative of this exception.
Illustration
Under A’s marriage settlement, his wife is entitled, if she survives him, to the enjoyment of the estate of Sultanpur during her life. A by his will bequeaths to his wife an annuity of 200 rupees during her life, in lieu of her interest in the estate of Sultanpur, which estate he bequeaths to his son. He also gives his wife a legacy of 1000 rupees. The widow elects to take what she is entitled to under the settlement. She is bound to relinquish the annuity but not the legacy of 1000 rupees.
V. Time as to Election:-
a) Acceptance of Benefit constitutes election:-
The sixth paragraph of S. 35 lays down that acceptance of the benefit by the person on whom it is conferred constitutes an election by him to confirm the transfer, provided
(i) he must be aware of his duty to elect and of those circumstances which would influence the judgment of a reasonable man in making an election or
(i) if he waives enquiry into the circumstances.
This principle corresponds to S. 187 of the Indian Succession Act. It is illustrated as follows:-
Illustration
(i) A is the owner of an estate called Sultanpur Khurd and has a life interest in another estate called Sultanpur Buzurg, to which, upon his death, his son B will be absolutely entitled. The will of A gives the estate of Sultanpur Khurd to B, and the estate of Sultanpur Buzaurg to C. B, in ignorance of his own right to the estate of Sultanpur Buzurg, allows C to take possession of it and enters into possession of the estate of Sultanpur Khurd. B has not confirmed the bequest of Sultanpur Buzurg to C.
(ii) B, the eldest son of A, is the possessor of an estate called Sultanpur. A bequeaths Sultanpur to C and to B, the residue of A’s property. B, having been informed by A’s executors that the residue will amount to 5000 rupees, allows C to take possession of Sultanpur. He afterwards discovers that the residue does not amount to more than 500 rupees. B has not confirmed the bequest of the estate of Sultanpur to C.
b) Presumption as to acceptance:-
In the absence of evidence to the contrary, the acceptance of the transfer with knowledge and inquiry is to be presumed if the person on whom the benefit has been conferred-
(i) has enjoyed it for two years without doing any act to express dissent, or
(ii) has so acted with the property to render it impossible to restore the property in its earlier condition.
Illustration
A transfers to B an estate to which C is entitled and, as part of the same transition, gives C a coal mine. C takes possession of the mine and exhausts it. He (C) has thereby confirmed the transfer of the estate to B.
Thus, by his act and making it impossible to restore the property to its earlier condition, it is presumed that C has accepted the transaction or elected positively.
c) Presumption as to requisition to elect:-
In the case where the time of election is not fixed in the transfer, and if the transferee does not, within one year after the date of the transfer, signifies to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representatives may, upon the expiration of that period, require him to make his election; and if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer.
This provision is somehow unique; it presumes that the transfer is accepted or confirmed even after not complying with the requisition within a reasonable time. [In fact, the law should presume in such cases that the transfer is denied if it is not confirmed within a reasonable time after requisition].
d) Presumption in the case when the time for election is fixed:-
In a case where the time for election is fixed by the settler or transferor, and the transferee does not elect within that period, it is presumed that the transfer is denied.
VI. Postponement of election:-
The last paragraph of S. 35 lays down that in case of disability, the election shall be postponed until the disability ceases or the election is made by some competent authority.
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[1] चुनाव का सिद्धांत
[2] जिथे एखादी व्यक्ती मालमत्ता हस्तांतरित करते:-
(१) की जी हस्तांतरित करण्याचा त्याला अधिकार नाही, आणि
(२) त्याच व्यवहाराचा भाग म्हणून मालमत्तेच्या मालकाला कोणताही लाभ देते,
(३) असा मालक (ज्याची ती मिळकत आहे) तो निवडेल
(i) एकतर अशा हस्तांतरणाची पुष्टी करण्यासाठी, किंवा
(ii) त्यापासून असहमती दाखवणे, आणि नंतरच्या बाबतीत, तो अशा प्रकारे प्रदान केलेला लाभ सोडून देईल, आणि असा त्याग केलेला लाभ हस्तांतरक किंवा त्याच्या प्रतिनिधीकडे परत जाईल जसे की तो निकाली काढला गेला नाही. [जहां कोई व्यक्ति संपत्ति हस्तांतरित करने का दावा करता है:-
(1) जिसे स्थानांतरित करने का उसे कोई अधिकार नहीं है, और
(2) उसी लेन-देन के हिस्से के रूप में संपत्ति के मालिक को कोई लाभ प्रदान करता है,
(3) ऐसा स्वामी चुनेगा
(i) या तो इस तरह के हस्तांतरण की पुष्टि करने के लिए, या
(ii) इससे असहमत होने के लिए, और बाद के मामले में, वह इस प्रकार प्रदान किए गए लाभ को छोड़ देगा, और इस प्रकार त्यागे गए लाभ को अंतरणकर्ता या उसके प्रतिनिधि को वापस कर दिया जाएगा जैसे कि इसका निपटान नहीं किया गया हो।]
[3] सुलतानपूरची शेती ही C ची मालमत्ता आहे, आणि त्याची किंमत रु 800 आहे. A, ती मिळकत बक्षीसपत्राने, B ला हस्तांतरित करण्याचा व्यवहार करतो, त्याच साधनाद्वारे तो रु. 1000 ते C ला देतो. C शेत स्वतः कडेच ठेवण्याची निवड करतो. त्यामुळे तो रु. 1000.घेऊ शकत नाही.