January 27, 2024
truth concept arrangement with balance

The foundation of the doctrine of election is equity. A person is only required to choose one of two rights granted to him under any instrument if the other is to be used in substitution of the other. An individual cannot decide whether portion of an instrument or transaction is advantageous to him while rejecting the other.

The doctrine’s purview is incredibly broad. It is applicable to all types of property, both moveable and immovable, and to all kinds of instruments, including wills and deeds. Put another way, in situations where there is a manifest intention, the doctrine of election requires the parties to select or elect between two contradictory or alternative rights or claims.

explain the doctrine of election in transfer of property act

  • The opportunity to choose from presumptive options is referred to as the election under the virtue of Section 35 of the Transfer of Property Act (“TPA”). Election includes properties that are both movable and immovable.
  • It states that someone must approach the owner to request the property’s disposal if they believe they are transferring property over which they lack legal power without first telling them. The owner has the final say over whether or not to approve it.
  • Thus, he is legally able to agree to a transaction or object to it by using the doctrine of election. Pre-registering your gift deed is usually preferable.
  • For example: C owns the Sultanpur farm, which is valued at Rs. 800. A claims to transfer it to B via a gift instrument and gives C Rs. 1,000 through the same instrument. C decides to keep the farm. He loses the Rs. 1,000 gifts. A also passes away prior to the election. His agent has to give B Rs. 800 out of the Rs. 1,000.

doctrine of election under transfer of property act 1882: Time Limit

Section 35 states that the transferor or his representative shall get notification from the property’s owner within a year after the transfer date. If they don’t respond after the deadline has passed, it will be assumed that they have chosen to ratify the election, even if they are aware of the expiration date and have not made a decision after receiving information from their representatives.

A disabled person is not eligible to run for office until and unless:

  • His disability disappears.
  • Someone else who is not impaired makes the election on his behalf.

doctrine of election under transfer of property act: Essential Conditions

The Dhanpati v Devi Prasad & other case led to the conclusion that the following requirements must be met prior to an election:

  • A person who is not authorized to transfer property
  • As part of the same transaction, he has to provide the property owner with some benefit.
  • The owner has to decide whether to approve the transfer or object to it.

Election’s negative impact on the transfer

In the event that the owner objects to the transfer of his property:

  • He has to give up the benefit.
  • The transferor would then receive the advantage that was planned for him.

doctrine of election under transfer of property act: Exceptions

This doctrine has a particular exception that says that in the following situations, it will be presumed that the transferee has approved it if they do not provide their explicit approval or make a solid decision:

  • If the transferee completely benefits from the beneficiary clause specified in the transfer, or in other situations where they do, it will be considered that they have accepted.
  • If, a year later, the transferee has not received consent for the transfer of the property, they must reply. It would be presumed that they had consented to the transfer if they didn’t.
  • Election duty is suspended in cases of infirmity, such as insanity or minority, unless the guardian transfers the status.
  • Assume that at the time of transfer, the transferor had both an independent beneficiary clause as well as a beneficiary clause. Consequently, even in the event that the transferee does not approve of the transaction, they will still obtain the independent beneficiary clause.

Elections are about making a decision between two options or competing rights. You can select one of the two rights by designating one as superior to the other. It is not possible to have both. The recipient must select between two discrepancies or alternate rights; the application cannot use both. This basically indicates that the recipient has to shoulder the responsibility as well.

Originating from the equity concept, which makes it very evident that one cannot have profited from both sides. This theory has been effective in resolving a lot of issues involving poverty.

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