News By/Courtesy: Sonika Sekhar | 18 Jan 2020 4:43am IST


  • Transfer of Property Act, 1882
  • Section 35

Doctrine of Election is an important aspect of the Transfer of Property Act, 1882, in order to settle property disputes that often arise between two parties.

Section 35 of the said Act deals with the Doctrine of Election. This doctrine arises when a third person, referred to the transferor for the sake of convenience, makes an arrangement to transfer a property of the owner, and in lieu of this arrangement, confers a benefit on the owner of the property. In this situation, the owner of the property is put to election or has the duty to choose between the two inconsistent or distinct, separate rights. This means that the owner of the property is required to choose between either accepting the benefit received from the transferee or retaining his property. If the benefit is accepted, it implies that the ownership of the property must be transferred. However, if the benefit is rejected, it means that the property shall be retained by the owner.

This doctrine arises from the principles of equity which emphasize that no individual can retain all the benefits from a transaction. Hence, in the same transaction, both the benefit and the property cannot be kept by the owner.

The Doctrine of Election refers to a situation where the person purporting to make the transfer is not the actual owner of the property. The individual simply professes to make the transfer and the power of confirming or rejecting the transaction lies only in the hands of the real owner, be it a vested, contingent or reversionary owner.

The owner of the property has the duty to elect or choose between the two different rights. The owner cannot receive the benefit when s/he decides to retain the property. However, in a situation where in one person there are two different capacities to act on, the person can accept the benefit in one capacity and reject the requirement for transfer of the property acting in the other capacity.

The mode of election or choice can be express, that is, in clear words or implied, that is via the conduct or behaviour that shows that there is a knowledge of the duty to elect along with the circumstances. Implied election arises when the owner of the property either uses the benefit for two years without refusing the transaction, or when the owner exhausts the benefit such that the parties can never return to their original position.

Election can be suspended when the owner is a minor or lunatic. In such situations, the owner will elect after age of majority or end of lunacy unless a legal guardian makes an election on his or her behalf.

A compensation equal to the market value of the property is to be provided to a transferor who does not receive the property that he/she hoped to receive. This market value will be paid by the transferor or his/her representative in the event of death. This will apply when the transfer is gratuitous and the transferor is dead or when the transferor is dead or alive after purporting a transfer with a consideration.

This is the Doctrine of Election.

Section Editor: Prithvijit Mukherjee | 18 Jan 2020 14:06pm IST

Tags : Transfer of Property Act, 1882

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