Election means choosing between two alternative rights. If two rights are endowed on a person under any instrument in such a manner that one right is more preferable than the other, he is bound to elect or choose only one of them.
The doctrine of election as 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.
Allegans contraria non est. audiendus: Person is not to be heard who alleges things contradictory to each other. This doctrine is universal in nature and is applicable to all Hindus, Muslims, and Christians. This doctrine consists of the principle of a person exercising a choice out of his own free will to do one thing and is founded on the equitable doctrine that he who accepts the benefit under an instrument or transaction of its choice must adopt the whole of it or renounce everything. This principle was determined in the case of Codrington v. Codrington (1857).
From the case of Dhanpati v. Devi Prasad and others (1970), it was determined that before the election following conditions must be fulfilled-
Where the owner dissents from the transfer of his property –
Where a particular benefit is expressed to be conferred on the owner of the property which the transferor possesses to transfer, and such benefit is in lieu of that property, if such owner claims the property, he is not bound to relinquish any other benefit that he achieves through the same transaction.
The acceptance of the benefit by the original owner will be considered to be an election by him to confirm the transfer, if he is aware of his duties and responsibilities and of the circumstances that might influence a prudent (reasonable) man into making an election.
This knowledge of the circumstances can be assumed if the person who gets the benefit enjoys it for a period of more than two years without doing any act to express dissent.
The transferor would ask him to elect his choice if the original owner does not elect his option within a year of the transfer of property. Even after a reasonable time, if he still does not elect, the original owner shall be presumed to have elected the validation of the property transfer as his choice.
In the context of a minor, the period of election shall be adjourned until the individual attains the majority unless he is represented by a guardian.
Modes of Election
The election by the owner can either be direct or indirect.
Indirect election, one just needs to simply communicate about the elected choice or option. Though, in case of an indirect election, the acceptance of the benefit by the owner is subject to two conditions:
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.