Doctrine of Election Under the Transfer

Doctrine of election
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  Doctrine of Election under the Transfer of Property Act, 1882 Avinandan Dhar 1  Doctrine of Election: Election means choosing between two alternative rights or inconsistent rights. If an instrument confers two rights on a person insuch a manner that one right is in lieu of the other, that person canchoose or elect only one of them. A person cannot take under andagainst the same instrument. 2 Election is an obligation, to choose between two inconsistent or alternative rights in a case where there is a clear intention of thegrantor that the grantee should not enjoy both. The foundation of the doctrine of election is that the persontaking a benefit under an instrument must also bear the burden. Inother words, a person cannot take under and against one and the sameinstrument.    For example,  suppose, by a deed A gives to ! a house belonging to , and by the same instrument gives other property belonging to himself to . is entitled to A#s property only upon theconnection of #s conforming to all the provisions of the instrument byrenouncing the right to his own property given in favour of !$ he mustconse%uently make his choice, or as it is technically termed &he is putto his election', to take either under or against the instrument. If elects to take under the instrument, he must relin%uish in favour of !his property given to ! by A$ and takes the property which is given tohim by A. ( 1  Author is an Advocate of )udges# ourt hittagong, !angladesh. 2   C. Beepathuma v. Velasari Shankarnarayana Kadambolithya , AI* +- / 2(+. 3  /hukla /.0, Transfer of Property Act  , 2(th Edition 1223 *eprint 24, *evised by 5.67hoshal, Allahabad 8aw Agency, 9aridabad 1:aryana3 24, p. ;(. 4  Ibid.    The doctrine of election may be stated in the classic words of  Maitland as follows  <&:e who accepts a benefit under a deed or will or other instrument, must.= a. adopt the whole contents of that instrument$ b. conform to all its provisions$ and c. renounce all rights that are inconsistent with it'.The doctrine of election is based on the principle of e%uity thatone cannot take what is beneficial to him and disapprove that which isagainst him under the same instrument. >ne cannot approbate andreprobate at the same time. In simple words, where a person takessome benefit under a deed or instrument, he must also bear its burden. - The principle of the doctrine of election was e?plained by the:ouse of 8ords in the leading case of Cooper vs. Cooper . In  Cooper v. Cooper, 7    Lord Hather   e?plained the principleunderlying the doctrine of election in the following words, & @. there is an obligation on him who takes a benefit under awill or other instrument to give full effect to that instrument under which he takes a benefit $ and if it be found that instrument purports todeal with something which it was beyond the power of the donor or settlor to dispose of , but to which effect can be given by theconcurrence of him who receives a benefit under the same instrument,the law will impose on him who takes the benefit the obligation of carrying the instrument into full and complete force and effect .'/ection  of the Transfer of 6roperty Act, +;;2 embodied thedoctrine of election.  Election When Necessary (Section 3!: 5  /ee aitland#s 8ecture on E%uity=8ecture +;, %uoted in supra note 2, p. ;. 6   Codrington v. indsay , 1+;43 ; h 4;. 7  8.* 4, :.8.  at p. -.      According to Section 35 of the Transfer of ropert! Act, ##$, where a person.= i.  professes to transfer property which he has no right totransfer , and ii. as part of the same transaction, confers any benefit on theowner of the property, such owner must elect either toconfirm the transfer or to dissent from it.If he dissents from it,= a. he must relin%uish the benefit so conferred $ and b. the benefit so relin%uished reverts to the transferor or hisrepresentative as if it had not been disposed of.:owever , when such benefit reverts back to the transferor , itis subject to the charge of making good to the disappointed transfereethe amount or value of the property attempted to be transferred in twocases , namely === i. where the transfer is gratuitous , and the transferor has , before election , died or otherwise become incapable of making a fresh transfer $ and ii. where the transfer is for consideration.  %ll&stration' The farm of Blipur is the property of and worth Tk. ;. A by an instrument of gift professes to transfer it to !, giving by thesame instrument Tk. +, to . elects to retain the farm. :e forfeitsthe gift of Tk. +,.In the same case, A dies before the election. :is representativemust out of the Tk. +, pay 1Tk.3 ; to !. Who Need not Elect#  Section 35 provides that,  a person taking no benefit directlyunder a transaction, but deriving a benefit under it indirectly, need notelect. oreover, a person who in his one capacity takes a benefit under the transaction may in another dissent therefrom. 3    Thus, an estate is settled upon A for life, and after his death,upon !. A leaves the estate to 5, and Tk. +, to !, and Tk. , to , who is !#s only child. ! dies intestate shortly after the testator,without having made an election. takes out administration to !#sestate, and as administrator, elects to keep the estate in opposition tothe will, and to relin%uish the legacy of Tk. +,. may do this, andyet claim his legacy of Tk. , under the will. Where $erson Elects to Dissent % : (nder Section 35, where the owner elects to dissent from thetransfer, he shall relin%uish the benefit so transferred to him and such benefit shall revert back to the transferor or his representative as if ithad not been disposed of. Chen property reverts back and i. the transfer is gratuitous, and the transferor has, before theelection, died or otherwise become incapable of making a freshtransfer, and ii. in all cases where the transfer is for consideration, it shall be the duty of the transferor or his representatives tocompensate the disappointed transferee. The amount of compensationshall be the amount or value of the property which was going to betransferred to him, if the option has been e?ercised in favour of thetransaction.  %ll&stration The farm of Blipur is the property of and worth Tk. ;. A by an instrument of gift professes to transfer it to !, giving by thesame instrument Tk. +, to . elects to retain the farm. :e forfeitsthe gift of Tk. +,. E&ception to the 'le of Election nder Section 3:  Section 35 provides that,  Chere a particular benefit ise?pressed to be conferred on the owner of the property which the 8  5r. Avtar /ingh, Te!tbook on The Transfer of Property Act  , (th Edition 10ew 5elhi< Bniversal 8aw 6ublishing . 6vt. 8td, 2+(3, p. +. )


Apr 16, 2018
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