Author: Aman Tiwari, IV year of B.A.,LL.B. from Delhi Metropolitan Education, Noida Affiliated to Guru Gobind Singh Indraprastha University, Delhi
INTRODUCTION
Voting refers to the ability to select from presumed alternatives. The idea of election protects both moveable and immovable property. In simple words, it means that if any person wishes to transfer any property over which he himself has no legal title then he must first notify the owner of the property, in order to give it away. It depends on the will of the property owner to allow it or deny it. Therefore, it should be considered that he has the authority to validate or reject a transaction using the theory of election.
For example:- Akash gives Mr. Seth his house as a present, and in the same transaction, Akash asks Mr. Seth to give his own shop to Simran. Seth has the choice of accepting or refusing the transfer. If Seth agrees to this transfer, he will be able to get the home but has to also give shop to Simran.
The Rule of Election is discussed in “Section 35 of the Transfer of Property Act”. It is stipulated that when a property is transferred to an individual, the transferee has the option of accepting or rejecting the transferee. Along with the advantages of the transfer, the burden of the transfer is complementary.To put it another way, the legal principle “qui approbat non reprobate” states that a man cannot both approve and disapprove.
If the person who is scheduled to get a benefit denies it, the property that was due to be transferred to him reverts to the transferor, who is obligated to compensate the unhappy transferee. “If the transferor dies before the transferee can make an election, the transferor's legitimate heirs shall compensate the disappointed transferee from the inherited properties.”[i]
“The Doctrine/Rule of election applies to all. In terms of the mode of elections, the owner's preference can be primary, by correspondence, or indirect. The acceptance of the benefit by the original owner is subject to conditions:
A person should have an electoral obligation of which he must be aware,
There must be proof of knowledge of the circumstances that could influence a reasonable man's decision.
Acceptance for a two-year term (Indian Succession Act, Section 188(1))
Status quo cannot be restored.”[ii]
INGREDIENTS
The transferor should not be the owner of the property.
The transferor is liable to grant any of his property to the owner of the property, during the same time and also in the same instrument.
The owner of the land may have a proprietary interest in it. Creditors are uncommitted to the referendum and only is capable of having a personal right which has to be paid by the debtor.
Any individual who does not gains any profit directly in the transaction but gains it indirectly cannot be put up for election.
The question regarding election does not arrive in the case where an owner is getting benefit in a separate role. For example, a person may recognise a bequest for a land while still having personal competence over the property.
RELEVANT CASE LAWS
COOPER V. COOPER
“The House of Lords clarified the theory of the doctrine of election in the landmark case of Cooper vs. Cooper.”[iii]
FACTS OF THE CASE
Two persons named Vera and Harold got married to each other in the year 1993. After their marriage, they had two children.After obtaining a mutual decree of separation, they also did a property settlement agreement where Vera was entitled to family house and automobile whereas Harold was entitled to tools along with the equipment’s of the shop.
The significant point here is that Vena was benefited from 4 initiatives in the name of Harold. As a consequence, the judge issued the divorce decree. After the decree was passed, Vena married Alves, and on the other side Harold married Ida. Because of remarriage, the benefit which was taken by Vera went to Ida as one policy was signed by Vera and not Harold. Harold later died.
ISSUE
“Whether vera and his children have a vested interest over the property?”
JUDGEMENT
“Since Harold's duty to support Vera under the terms of the divorce decree ended upon her remarriage, Vera had no interest in the policies at the time of Harold's death; and since the children's interest in their father's estate is limited to the amount necessary for their support as measured by the provisions of the divorce decree prior to reaching their majority, the children's interest in the estate of their father is limited to the amount necessary for their benefit as measured by the provisions of the divorce decree prior to reaching their majority.”[iv]
“MUHAMMAD KADER ALI FAKIR V. FAKIR LAKMAN HAKIM”[v]
In another case the court explained the Doctrine of Election. The court explained that,
“The foundation of the doctrine of election is that a person taking the benefit of an instrument must also bear the burden, imposed thereby and that he cannot take under and against the same instrument. It is a breach to the general rule that no one may approbate or reprobate. The doctrine is based on intended intention to this extent that the law presumes that the author of an instrument intended to give effect to every part of it. There is an obligation on him who takes a benefit under a will or other instrument intended to give full effect to that instrument under which it was beyond the power of the donor or settler to dispose of, but to which effect can be given by the concurrence of him who receives the 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. If an instrument is invalid in part what remains is sufficient to put a person to his election if he claims a benefit under it.”[vi]
EXCEPTION TO THE DOCTRINE OF ELECTION
As stated in Section 35 of the TP Act, if any person wishes to transfer his property to any other person he has to make a beneficiary provision for the concerned transferee after acknowledging the transfer. The transferee may then refuse the transferor's offer to take advantage of the beneficiary provision.However, there is an exception to this provision such that if the transferee does not give his or her clear permission or a definitive judgement, then the following situations will be added as he or she approves the transfer:
Whether the transferee fully enjoys the beneficiary provision stated in the transfer, or fully enjoys the benefit, this would be known as transferee acceptance.
If the transferee has not given his or her consent to the transfer of property after one year, the transferee is required to answer. If he or she does not do so, it would be presumed that he or she has given his or her approval to the move.
In cases of disabilities, such as minority or lunacy, the duty of election may be revoked. Until their guardian makes the transfer.
If the transferor creates a beneficiary clause as well as an independent beneficiary clause at the time of the convey. As a result, if the transferee does not consent to the transaction, the independent beneficiary clause will be applied to him or her.
MODES OF ELECTION
1. Direct / Express
2. Indirect / Implied
The selected option is conveyed directly to the transferor in case of a direct election. However, in the case of indirect election, the selection is revealed by the transferee’s conduct. There are three provisions for presumption under implied election: the advantage has been transferred and the person has enjoyed it for two years without taking any effort to waive the right; the person has no experience of election and has acknowledged the benefit; and the person has not taken any choice/ decision within one year of the transition.
CONCLUSION
“The Doctrine of Election” is outlined in “Section 35 of the Transfer of Property Act” of 1882. Using historic cases, this effort aims to answer the doctrine's multiple difficulties. This study has placed a special emphasis on presenting a clear picture of the conditions for the original owner's election to take place. If any individual wants to remove some property of any other person then the concept of common-law equity comes in play that forces a beneficiary to choose between keeping the property and adopting the device. “As a result, Section 35 states that an individual who does not gain directly from a transaction but benefits indirectly from it is not required to vote. Furthermore, a person who benefits from the transaction in one capacity may object to it in another.”
[i] Doctrine of Election – Transfer of property Act (section 35), available at: https://www.lawcolumn.in/doctrine-of-election-transfer-of-property-act/ (last visited on 22-02-2022)
[ii] Doctrine of Election and its Incorporation, available at: https://blog.ipleaders.in/doctrine-of-election-and-its-incorporation/ (last visited on 24-02-2022)
[iii] 49 Cal.2d 30
[iv] Cooper v. Cooper, available at: https://scocal.stanford.edu/opinion/cooper-v-cooper-29722 (last visited on 24-02-2022)
[v] (PLR 1956 Dacca 370)
[vi] Section 35: Doctrine Of Election Under Transfer Property Act, 1882, available at: https://legalonus.com/section-35-doctrine-of-election-under-transfer-property-act-1882/?utm_source=rss&utm_medium=rss&utm_campaign=section-35-doctrine-of-election-under-transfer-property-act-1882#_ftn3 (last visited on 24-02-2022)