This Article is written by SAKSHI NIGAM (3rd-year student of BBA LLB (Hons.) of ICFAI UNIVERSITY, DEHRADUN)
Table of Contents
The provision mentioned under the transfer of property act, 1882 states that election when necessary.Alleganscontraria non estaudiendus is the theme behind this section which means that “he is not to be heard who alleges things contradictory to each other.” The Doctrine of Election is universal in nature and applicable to Hindus, Muslims, Christians. The word “Election” refers to the process of choosing or selecting one between two alternative rights. If two rights are endowed on a person under any instrument in such a manner that one right is more preferable than the other, he is bound to elect or choose only one of them.
SECTION 35 reads as “where a person professes to transfer property which he has no right to transfer, and as a part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or 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, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and in all cases where the transfer is for consideration, to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.”
The principle behind this doctrine which was derived in the case of CODRINGTON V. CODRINGTON was that a person exercising a choice out of his own free will to do one thing and is originated on the equitable doctrine that he who receives the benefits under an instrument or transaction of its choice must embrace the whole of it or abandon everything.
PRE-REQUISITES OF SECTION 35:-
Essential conditions for the application of this doctrine are as follows:-
1. The transferor must not be the owner of the property which he transfers.
2. The transferor must transfer the property of the other (owner) to a third person.
3. The transferor must at the same time grant some property, by the same instrument, out of his own, to the owner of the property.
4. The two transfers i.e. transfer of the property of owner to the transferee and conferment of benefit on the owner of the property must be made by the same transaction. The question of election does not arise if the two transfers are made through two separate instruments.
5. The owner must have a proprietary interest in the property.
6. The owner taking no benefit under a transaction directly, but diverting a benefit under it indirectly, need not elect.
7. Question of election does not arise when the benefit is given to a person in a different capacity.
For instance, The Fully Furnished Flat at DEHRADUN is a property of X. Y by gift means promises to give Z 1,00,000. He accepts it although X now wants to retain his FULLY FURNISHED FLAT and Y forfeits his gift. In such a course of action, Z died, now his representative must pay X 1,00,000.
In the case of Mohd. Kader Ali fakir V Lukman Hakim in was observed that the basis of the doctrine of choice is that the person who uses the instrument must also bear the burden imposed in this way and that he cannot carry under and against the same instrument. This is a violation of general rules that cannot be accepted or rejected by anyone. This doctrine is constructed on the fictional intent of this ether that the law implies that the author of the instrument intends to manifest any part of it. There is an obligation for anyone using a will or other instrument to make that instrument fully effective, which donors or settlers cannot have. However, what effect can be obtained from his agreement that has received compensation based on the same instrument? The law will apply to the applicant’s obligation to use the instrument in full force and effect. If the tool is partially invalid, the rest is enough to place someone to vote if they say so.
EXCEPTIONS TO THE RULE:-
Section 35 provides that, Where a particular benefit is expressed to be conferred on the owner of the property 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.
What Constitutes Election?
If a person accepts such benefit for two years, it is to be assumed that he has been elected in favour of the transfer.
Section 35 provides that, Acceptance of the benefit by the person on whom it is conferred constitutes an election by him to confirm the transfer,
➢ if he is aware of his duty to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or
➢ if he waives enquiry into the circumstances.
Knowledge or Waiver when Presumed and Inferred:
Section 35 provides that, knowledge or waiver shall be presumed, in the absence of evidence to the contrary, if the person on whom the benefit has been conferred has enjoyed it for two years without doing any act to express dissent.
Section 35 also provides that, such knowledge or waiver may be inferred from any act of such person which renders it impossible to place the persons interested in the property professed to be transferred in the same condition as if such act had not been done.
Illustration:- A transfers to B an estate to which C is entitled and as part of the same transaction gives C a coal mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B.
Time Limit for Election:
Section 35 says that, if the owner of the property does not within one year after the date of the transfer indicate 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.
Election by the Person under Disability:
Section 35 provides that, where the person making election suffers from some disability, the election shall be postponed until-
➢ the disability ceases or
➢ the election is made by some competent authority on his behalf.
The election is choosing between two substitutive or conflicting rights. By giving two rights so that one is higher than the other, the owner can choose one of them. But he cannot have both. The applicant cannot use both, the recipient must choose between two inconsistencies or alternative rights. Being derived from the equity principle which clearly incorporates that a person cannot have benefited from both sides. This doctrine has been efficacious and many poverty conflicts can be resolved using it.
 Section 35, Transfer of property act, 1882.
 (1857) 7 HL 854, 861
 (PLR 1956 Dacca 370)