Doctrine of Election

The doctrine of election is stated in Sec. 35 of the Transfer of Property Act alongside Section 180 to 190 of the Indian Succession Act.

It states that when a party transfers a property over which he does not hold any right of transfer and entailed in that transaction is the benefit conferred upon the original owner of the property, such title-holder must elect his option to either validate such transfer of property or reject it; upon rejection, the benefit shall be relinquished back to the transferor subject nevertheless :

1. “Where the transfer has been through gratuitous means and the transferor has become incapable of making a new transfer.

2. In all cases where the transfer is for consideration”.

An illustration to further explain :

A owns a property that is worth Rs 800. B professes to transfer the same to C through the Rs1000 instrument to A. But the A, the owner opts/elects to retain his property and thus, forfeits the gift of Rs 1000.

EXCEPTIONS

When the owner who is considering the election between retaining the property and accepting a particular benefit, chooses the former, he is not bound to relinquish any extraneous benefit that he gains through the transaction.

The acceptance of the benefit by the original owner shall be deemed to be as election by him to validate the transfer, if he is aware of his responsibilities and the circumstances that might influence a prudent man into making an election.

This knowledge of the circumstances can be assumed if the person who gains the benefit enjoys it for a period of more than two years. Further discussion over this has been made under the heading of “Modes of Election”.

If the original owner does not elect his option within a year of the transfer of property, the transferor would require him to elect his choice. Even after the reasonable time, if he still does not also still elect, the original owner shall be assumed to have elected the validation of the property transfer as his choice.

In context of a minor, the period of election shall be stalled till the individual attains majority unless he is represented by a guardian.

UNDERSTANDING THE PRINCIPLE

In simple words, a person utilizing the benefits of an instrument also has to carry the burden attached. This doctrine is founded upon a model wherein a person persuades another to act in a manner to his prejudice and derives any advantage from that, then he cannot turn around and claim that he was not liable to perform his part as it was void. This doctrine is universal and is applicable to Hindus, Muslims as well as Christians.

So, this doctrine contains the principle that the exercise of a choice by a person left to himself of his own free will to do one thing or another binds him to the choice which he has voluntarily made, and is founded on the equitable doctrine that he who accepts benefit under an instrument or transaction of his choice must adopt the whole of it or renounce everything inconsistent with it. Thus, it is a general rule that a person cannot approbate and reprobate. Also, the election is confined to the case of a gift or Will and does not apply in case of a legal remedy.

Conditions precedent for equity of election:

1. A transfer of property by a person who has no right to transfer;

2. As a part of the same transaction, he must confer some benefit on the owner of the property and

3. Such owner must elect either to confirm such transfer or to dissent from it.

OTHER IMPORTANT CONDITIONS

Proprietary Interest

Election over a property is not asked to made by a person unless he holds a proprietary interest which are disposed off in derogation of the person’s rights.

So, election cannot take place if the property that is decided by the transferor to be disposed does not happen to be owned by any individual to whom an interest is being provided through the transfer. Also, it cannot take place if the transferor does not provide any benefit on the individual who is the original owner of the property.

“As part of the same transaction”

One cardinal condition for the doctrine of election to be executed is that the benefit conferred upon the original owner should be as part of the same contract by which he transfers the property over which he holds no right to transfer.

In the landmark case of Ramayyar v. Mahalaxmi, a widow had given a gift in excess of her powers and had then provided a will which stated that “ excluding the properties which I have already given away, I will make the following dispositions”. The Court ordered that the plaintiff under the will was not excluded from the election doctrine from contesting the previous gift which wasn’t the issue of the will at all.

It is to be noted that different nature of two properties is not a bar to election by the owner like in the case of Ammalu v. Ponnammal, where a person who was managing the properties of the daughter of his deceased brother, died leaving a will bequeathing a portion of it to B. It was held that the doctrine of election did apply for the niece.

Donor’s Intention

In order to create a situation of election, it is important that the intention of the testator should be clear with regard to disposing of the property which he does not own. Parol evidence is not acceptable and thus the intention must be prima facie clear.

Indirect Benefit

The benefit that the original owner is conferred with has to be direct in nature and if indirect, he does not need to elect.[xxi] This principle is explained in Section 184 of Indian Succession Act, 1925 and states that “when the devisee who claims derivatively through another does not take under the deed, and is not bound by the equity attaching thereto.

Difference in Capacity

An individual can in one capacity utilize a benefit while can dissent or reject that benefit in another capacity. It means to explain that it is possible to facilitate two roles of an individual wherein he can for example, accept legacy for an estate while in his personal competence, he could retain the property.

Modes of Election

The election by the owner can either be direct or indirect. In direct election, it is simply through communication about the elected choice or option. Though, in case of an indirect election, “the acceptance of the benefit by the original owner is subject to two conditions:

1. He has to be aware of his duty to elect, and

2. There must be proof of knowledge of circumstances which would influence the judgment of a reasonable man in making an election :

Enjoyment for two years of the benefit by the person on whom it is conferred with any dissent.

The election shall be presumed when the donee acts in such a manner with the property gifted to him that it becomes impossible to return it to the original owner in its original state.

Difference between English Law and the Indian Law Perspective

The English law depends upon the principle of compensation which means that if the original owner does not choose to validate the transfer, he can keep the property and also the benefit accrued, subject to compensation provided to the donee, to the extent of the property he had suffered a loss for.

But in the Indian law context, this doctrine is influenced by the principle of forfeiture which states that if the original owner does not choose to validate the transfer, the donee incurs a forfeiture of the conferred benefit which goes back to the transfer

COMPENSATION

Estimated cost of the property which is attempted to be transferred towards the transferee is the approximation of the compensation that he shall receive. However, in context of immovable properties, there arises the issue of changing value of the property according to the lapse of time. Thus, this valuation is to take place at the date of the instrument becoming operational rather than at the time of elect.

CONCLUSION

Section 35 of the Transfer of Property Ac, 1882 explains the concept of the Doctrine of Election. This project tries to deal with the various nuances involved in the doctrine through the usage of various landmark judgments. Herein, special emphasis has been placed upon providing a clear understanding of the conditions necessary for the election by the original owner to take place. The differences between the Indian Law perspective as well as the English Law perspective is brought out through critical analysis of the provisions i.e. Principle of forfeiture and Principle of compensation. Various aspects such as Proprietary Interest, Compensation estimated, indirect benefit, the intention of the donor etc have been dealt and explained for the enhanced understanding over the model of Doctrine of Election.

Temporary Injunction

1. Cases in which temporary injunction may be granted.

Where in any suit it is proved by affidavit or otherwise-

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in a execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.

2. Injunction to restrain repetition or continuance of breach.

(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may be order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

2A. Consequence of disobedience or breach of injunction.

(1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of which time if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.

3. Before granting injunction, Court to direct notice to opposite party.

The Court shall in all case, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.

3A. Court to dispose of application for injunction within thirty days.

Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty day from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.

4. Order for injunction may be discharged, varied or set aside.

Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:

Provided that if in an application for temporary injunction or in any affidavit support such application a part has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice:

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused under hardship to that party.

5. Injunction to corporation binding on its officer.

An injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.

Interlocutory Order in CPC

6. Power to order interim sale.

The Court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property being the subject-matter of such suit or attached before judgment in such suit, which is subject to speedy and natural decay, or which for any other just and sufficient cause it may be desirable to have sold at once.

7. Detention, preservation, inspection, etc, of subject-matter of suit.

(1) the Court may, on the application of any party to a suit, and on such terms as it thinks fit,- (a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit or, as to which any question may arise therein;

(b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and

(c) for all or any of the purposes aforesaid authorize any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence.

(2) The provisions as to execution of process shall apply, mutatis mutandis, to person authorized to enter under this rule.

8. Application for such orders to be after notice.

(1) An application by the plaintiff for an order under rule 6 or rule may be made at any time after institution of the suit.

(2) An application by the defendant for a like order may be made at any time after appearance.

(3) Before making an order under rule 6 or rule 7 on an application made for the purpose, the Court shall except where it appears that the object of making such order would be defeated by the delay, direct notice thereof to be given to the opposite party.

9. When party may be put in immediate possession of land the subject-matter of suit.

Where land paying revenue to Government, or a tenure liable to sale, is the subject-matter of a suit, if the party in possession of such land or tenure neglects to pay the Government revenue, or the rent due to the proprietor of the tenure, as the case may be, and such land or tenure is consequently ordered to be sold, any other party to the suit claiming to have an interest in such land or tenure may, upon payment of the revenue or rent due previously to the sale (and with or without security at the discretion of the Court), be put in immediate possession of the land or tenure; and the Court in its decree may award against the defaulter the amount so paid, with interest thereon at such rate as the Court thinks fit, or may charge the amount so paid, with interest thereon at such rate as the Court orders, in any adjustment of accounts which may be directed in the decree passed in the suit.

10. Deposit of money, etc. in Court.

Where the subject-matter of a suit is money or some other thing capable of delivery and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court.