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 .
