Professional Documents
Culture Documents
Transfer of Property Project
Transfer of Property Project
Transfer of Property Project
CERTIFICATE
I, MrRISHABH with Reg.No201290 Of IIIrd Semester has prepared the project on Analysis of rule of election In partial fulfilment of his/her semester course in the subject Transfer of property during the academic year 2013-14 under my supervision and guidance.
Signature of faculty
ACKNOWLEDEGEMENT
I, Rishabh would like to take this opportunity to thank Dr Laxmi Priya (transfer of property faculty) for helping and guiding me in completing my project.
I would also like to thank our Vice-Chancellor, Prof .R.G.B. Bhagvath Kumar and our Registrar, Prof.P.Sudhakar, for giving me this opportunity to do a detailed study on the urban social problems. Lastly I would like to thank my friends for their efficient help and co-operation in helping me complete my project work
INDEX
DOCTRINE OF ELECTION MODES OF ELECTIONCONDITIONS FOR APPLICATION OF DOCTRINE OF ELECTION METHOD OF ELECTION RULE MAY BE EXCLUDED BY THE EXPRESS TERMS IN THE TRANSFER RULES OF ELECTION PERSON TAKING UNDER TWO CAPACITIES PRESUMPTION OF ELECTION FROM TWO YEARS ENJOYMENT IMPOSSIBILITY OF RESTORING STATUS QUO ELECTION BY A PERSON UNDER A DISABILITY TRANSFERORS DISABILITY AND ELECTION ELECTION UNDER POWER OF APPOINTMENT RATIFICATION IS NOT ELECTION DIFFERENCE BETWEEN THE ENGLISH LAW AND SEC 35, TRANSFER OF PROPERTY ACT CONCLUSION BIBLIOGRAPHY
RULE OF ELECTION The rule of election says that when a person professes to
transfer property which he has no right to transfer, and as a part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it :and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and in all cases where the transfer is for consideration, to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.1 The Doctrine Of Election is based on Equitable Principle under which a person may not be allowed to approve that part of an instrument which is beneficial to him and disapprove its that part which goes against him. No one can approbate and reprobate at the same time which means where a person takes some benefit under a deed or instrument, he must also bear its burden. This Equity is applied to every species of instrument whether deed or will and to every kind of property movable or immovable. Sec 35 of the Act makes following provisions in respect of the rule of electioni) Where a person professes to transfer a property which may or may not be his own. ii) In lieu of the transfer, the transferor obtains certain benefits upon the owner of the property. iii) The two things i.e. transfer of property and conferring of the benefit from part of the same instrument.
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Then, the owner of property is bound to elect either to take the benefit and transfer his property or to retain his property and give up the benefit.
Benefit conferred on the owner of propertyThe transferor must confer any benefit on the owner of property. The word owner in this section has a very wide meaning. It includes a person having vested interest as well as contingent interest and also a person who has even reversionary or remote interest in the property. It is the owner of the property who is put to election of the property. Therefore, he must be given some benefit in compensation for his ownership of the property.
Part of the same transactionThe rule of election takes place only when the transfer and the benefit form part of the same transaction. Here same transaction is meant that the transfer of property is to be made evidently only in lieu of the benefit. Thus where the benefit and transfer are interdependent and inseparable, they form part of the same transaction.
Owners duty to electIf a property is professed to be transferred and in the same transaction some benefit is given to the owner of property, then such owner is under a duty to elect. By his election he may either accept the instrument with all its contents or reject it altogether. He has no option to accept only the beneficial part of instrument. Where he elects to accept the instrument, he is entitled to get the benefit, but he is bound to transfer his property. If he elects to reject the instrument he cannot claim benefit, but he may retain his property.
MODES OF ELECTIONa) Express b) Implied. a) Express- The owner may express his intention in clear and specific words. Where election is express, it is final and conclusive. b) Implied- Election is implied when the owner of property being aware of his duty to elect and having full knowledge of the circumstances accepts the benefit. Such election would mean that he has chosen in favour of the transaction.
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Requisition to electThis is a special procedure for expediting election. After the expiry of one year, if owner of property does not elect, i.e. neither confirms nor dissents from the transfer, the transferee may require him to make such election. And if he does not elect, within a reasonable time after such requisition he is deemed to have elected in favour of the transfer.
Suspension of electionWhere at the time of transfer, the elector is legally disabled; the election is postponed until such disability ceases or until the election is made on behalf by a competent authority, e.g. his guardian. Legal disability may be minority or lunacy of the elector. Thus, his duty to elect is suspended during his minority or lunacy unless the election is made by his legal guardian.
Election against transferThe owner of property whose duty is to make election has freedom to elect either for the transfer or against it. Where he elects against it i.e. dissents from the professed transfer, he forfeits his claim to the benefit conferred on him. However, he can claim any other benefit which is given to him independently of the transfer under the same instrument. As an instance, where a person is given two benefits x and y under an instrument but only x has been given in lieu of property, then, if he elects against the transfer he forfeits only benefit x. But he is entitled to claim benefit y. The Doctrine of Election is based on the rule in Cooper vs. Cooper. COOPER V COOPER X gave a certain property to trustees on trust to sell it after his widows death and to hold the sale proceeds in trust for his children in such form as his widow shall appoint before a certain fixed period. The widow executed a deed before the expiration of the fixed period directing the proceeds to be divided equally among the three sons A, B and C. later she made a will by which she gave the property to A, the eldest son; and a legacy of her own property to the other two sons, B and C and to the sons of B. B predeceased the testatrix. The appointment under the will was inoperative, inter alia, as the will took effect long after the date fixed for the appointment. A brought the action to compel C and the sons of B to elect between their claims under the deed of appointment and under the will. It was held that since the testatrix
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was not the owner of the property, her attempt to dispose of it by her will when she has no longer a disposing power over it raised a case of election against the persons who, taking under her will, had an interest in that property. Lord Hatherley explained the principle underlying the doctrine of election thus: there is a n obligation on him who takes a benefit under a will or other instrument to give full effect to that instrument under which he takes a benefit; and if it be found that that instrument purports to deal with something which it was beyond the power of the donor or settlor to dispose of, but to which effect can be given by the concurrence of him who receives a benefit under the same instrument, the law will impose on him who takes the benefit the obligation of carrying the instrument into full and complete force and effect. If a person transfers some property which he has no right to transfer, and the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or reject it. If he rejects the transfer, he shall relinquish the benefit conferred upon him and the property will revert back to himself or his representative as if it had not been disposed of.
particular. It must be in the same transaction. The silence of the transferee for two years shows the acceptance of benefit and approval of the transfer of his property to a third person. The transfer and benefit should be gratuitous without money. If the transferor has died or has become incapable of making a fresh transfer before such election, then the subsequent election by owner of the property is void. The Doctrine of Election only applies when the two donations are part of the same transaction.
METHOD OF ELECTION:
Election must be divided into two categories:
1. Direct Election or 2. Indirect Election.
1. Direct Election:
There is no prescribed form. A letter, telegram, oral words of transferor or any other sign by the person which conveys the intention of the transferor is enough.
2. Indirect Election:
There are three types of Indirect Election. They are:1. Acceptance of benefit without knowledge of duty to elect 2. Enjoyment for two years and 3. Status quo cannot be restored.
1. Acceptance of benefit without knowledge of duty to elect: If the donee accepts the benefit conferred upon him by the transfer, then such acceptance on his part constitutes election by him. But the acceptance must be made with full knowledge of his duty to elect and all matters about such benefits. If the donee accepts the benefits without knowledge, then the representatives of the donee may revoke the election. If the election is made under mistake of fact, it may be revoked by the elector or his representatives. But if the donee wilfully abstains from inquiring into the
circumstances under which the benefit is conferred upon him and makes an election, such an election is binding on him and his representatives.
2. Enjoyment for two years: [Section 188(1) of the Indian Succession Act] If a person who has to elect knows that he is under a duty to elect, he must express his dissent, if he retains the property for some time and not interested to elect in favour of the proposal. If he keeps the property for two years, without expressing that he is not in favour of the election, then it is presumed that the person so retaining the property is doing so with knowledge and acceptance of the document. 3. Status quo cannot be restored: In the case of property which is exhaustible by consumption or use, if he once starts consuming the property, election in his favour is presumed. No period of consumption is necessary for this presumption.
A person is prima facie presumed to have transferred only what is his own, and not what belongs to other person. Where ,therefore, a property does not, in fact, belong to a person, his intention to transfer it must be clear and manifest on the face of the deed of transfer. Such intention may be expressed in clear terms, or if it is implied in the terms of deed, it must be so plain by demonstration and by implication that it should appear utterly improbable that the transferor could mean anything otherwise the use of general words will raise no case of election and particularly so, where the transferor has a partial interest in the property transferred, as the general words apply equally to his own interest and do not imply an intention to dispose of any other property than his own. But where the transferor is a coowner and transfers whole of the property specifically conferring some benefit upon the co owner the necessary intention is clear from the deed the co- owner is put to election. It is not necessary that the transferor should intend to put the party to election. Such an intention presumes the knowledge of the equitable doctrine of election on the part of the transferor which is usually absent. The intention which the court requires to give property which the transferor has no right to give and to give benefit to the person who is the owner of the property. Once these two intentions are clear from the deed, the court draws the conclusion that there should be an election. The onus of providing that there is such an intention rests on those who contend for a case of election. But where the intention is clear on the face of the deed to pass the whole property and thus to raise a case of election, the burden of proving that the transferor meant to transfer only what was left with him and not more, lies on those who oppose election. The intention of the transferor must, however, appear on the face of the deed.no extrinsic evidence, dehors the deed is admissible to show that the transferor had an intention to pass what was not his and thus to raise a question of election.
that as no part of As own property was given to B, the latter was not under a duty to elect. The Lord Chancellor observed: in all cases there must be some free disposable property given to the person which can be made compensation for what the testator takes away. AS PART OF SAME TRANSACTION The operation of this section is extremely limited to cases where a person professes to transfer property which he has no right to transfer and as part of the same transaction confers a benefit upon the owner of the property so transferred. In other words the section is applicable only where the benefit and the burden come directly from the same source or the same transaction. If the property belonging to a third person is disposed of by one transaction and a benefit is conferred on him by another transaction both being independent of each other, such person is not bound to elect. Thus, where a Hindu widow gave away some immovable property in excess of her power of transfer, by a gift deed, and by a will executed later on, she conferred on her reversionary some other benefit and it was found that the gift was not subject of the will. In Sardar Muhammad afzal khan v.Nnawab ghulam kasim khan, X granted Y, his second son, a village for maintenance. after the death of X the government also granted Y, a portion of the cash allowance allowed to his father X. the question arose whether Y could be put to election in respect could arise as the grants were independent and derived from different sources.
The ownership referred in this section is the ownership at the time when the liability to elect arises. A person sought to be put to election must be the owner of the property at the time. When the obligation to elect arises. If he is not the owner at the time he cannot be put to his election merely because he receives a benefit under the transfer. Even an acquisition of interest in the property by him after the time will be of no avail, because the equities of the parties to election must be determined according to the state of circumstances existing when the duty to elect arises.
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ELECTION
AGAINST
TRANSFER
DOES
NOT
RENDER
CANCELLATION NECESSARY
The fact that the owner of the property transferred elects to dissent from it does not render it necessary that the document of transfer should be cancelled.
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CONCLUSION
The general principle of election is wider than the doctrine embodied in Section 35 of the Transfer of Property Act. The section in terms seems to apply only when the transferor disposed of anothers property and confers on that other some benefit out of his own property. The general principle of election is wider than this. It applies also to a case where a person deals with his own property but owing to a personal disability, his disposition is not effectual. The disposition may be ineffectual because of some disabilities such as infancy or coverture. Such a disposition may be part of a transaction which cannot be set aside in toto and under which some benefit is conferred upon the person whose disposition is ineffectual owing to his personal incapacity. In such a case when the disability ceases an occasion for election arises and if the benefits are sought to be received under the transaction, it will have to be confirmed in toto. The doctrine does not apply if the benefits conferred are subject to a restraint on anticipation. In Re, Vardons trusts5, a marriage settlement settled a fund for the separate use of the wife for life with restraint on anticipation and contained a covenant by the wife to settle her future property. The covenant of the wife was invalid as she was an infant. It was held that the wife could not be compelled to elect between her after-acquired property and her interest under the settled fund but was entitled to retain both. This was because the restraint on anticipation was indicative of an intention that she should not be put to her election. The doctrine of election was applied to Hindus even prior to the enactment of the act in 1882 and thereafter until the act was amended in 1929 whereby the provisions of the second chapter which includes Section 35 were made applicable to Hindus. In Mangaldas v Ranchordas, D, a Hindu widow, died leaving a Will in respect of property which she had inherited from her husband. She bequeathed rs. 2000 at a legacy to the plaintiff and K were the heirs of her husband. The plaintiff sued for the legacy under the will as well as half of the immovable property as heir. It was held that the plaintiff must be put to his election either to take the one or the other. Although this section does not apply to Mohammedans, the doctrine of election was applied by the Privy Council in the case of Sadik Husain v Hashim Ali.
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BIBLIOGRAPHY
DR G.P. Tripathi, The Transfer of Property Act, 16th edition, Central Law Publications, 2009. G.C.V.Subba Raos, Law Of Transfer Of Property,5th Edition, vol 2,ALT Publications, 2010 Manohar and Chitaley,The Transfer of Property Act, 6th edition, vol. 2, ALL INDIA REPORTER PVT.LTD.
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