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What is Doctrine of election?

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What is Doctrine of election?
posted Jun 16, 2017 by Prachi

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Doctrine of Election
Section 35 of the Transfer of Property Act embodied the doctrine of election.
According to the section 35 where a person ---

i) professes to transfer property which he has no right to transfer , and

ii) as part of the same transaction , confers any benefit on the owner of the property ,

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

If he dissents from it ,----

a) he must relinquish the benefit so conferred ; and

b) the benefit so relinquished reverts to the transferor or his representative as if it had not been disposed of .

However , when such benefit reverts back to the transferor , it is subject to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred in two cases , namely ---

i) where the transfer is gratuitous , and the transferor has , before election , died or otherwise become incapable of making a fresh transfer ; and

ii) where the transfer is for consideration .
The doctrine of election is based on the principle of equity .

The conditions necessary for application of this doctrine are as follows :-

1) The transferor must not be owner of the property which he transfers .

2) The transferor must transfer the property of other owner to a third person .

3) The transferor must at the same time grant some property , in the same instrument , out of his own , to the owner of property .

4) The two transfers i.e. transfer of the property of owner to the transferee and conferment of benefit on the owner of property must be made in the same transaction . Question of election does not arise if the two transfers are made by virtue of two separate instruments .

5) The owner must have proprietary interest in the property , a creditor is not put to election as he has only a personal right to be paid by the debtor .

6) The owner taking no benefit under a transaction directly , but diverting a benefit under it indirectly , is not put to election .

7) Question of election does not arise when benefit is given to a person in a different capacity .

answer Jun 17, 2017 by Mukul Chag
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