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Doctrine of Election Research Paper

The document discusses the Doctrine of Election under Section 35 of the Transfer of Property Act, 1882, which requires a true owner to either accept or reject a property transfer made without authority that also confers a benefit. It explores the historical and jurisprudential foundations of this doctrine, its connection to the principle of estoppel, and how Indian courts have interpreted these concepts. The paper emphasizes the statutory interpretation of Section 35, highlighting its flexibility compared to common law systems while upholding the principle that one cannot both accept and deny a transaction.

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9 views2 pages

Doctrine of Election Research Paper

The document discusses the Doctrine of Election under Section 35 of the Transfer of Property Act, 1882, which requires a true owner to either accept or reject a property transfer made without authority that also confers a benefit. It explores the historical and jurisprudential foundations of this doctrine, its connection to the principle of estoppel, and how Indian courts have interpreted these concepts. The paper emphasizes the statutory interpretation of Section 35, highlighting its flexibility compared to common law systems while upholding the principle that one cannot both accept and deny a transaction.

Uploaded by

best.abhinav2003
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Doctrine of Election under Section 35 of the Transfer of Property Act,

1882: Interplay with the Principles of Estoppel

Introduction
The Transfer of Property Act, 1882 codifies the law relating to the transfer of property by
act of parties in India and introduces various doctrines drawn from equity and common
law principles. Among them, Section 35 enshrines the Doctrine of Election, a concept
grounded in fairness and equity. It addresses a peculiar situation wherein a person
transfers a property which he has no authority to transfer, but within the same transaction,
bestows a benefit upon the actual owner of that property. The section requires the true
owner to either accept the transfer and the benefit, or to reject the entire arrangement.
This doctrine is inherently connected with the equitable principle of estoppel, which
precludes a person from acting inconsistently to the detriment of another.

This paper explores the jurisprudential basis of the Doctrine of Election under Section 35,
its historical evolution, statutory interpretation, and most significantly, the interplay
between this doctrine and the principle of estoppel under Indian law. It critically analyses
how courts have interpreted and reconciled these doctrines in various landmark decisions.

Background and Jurisprudential Foundations


The Doctrine of Election originates from Roman law and was adopted into English equity
jurisprudence through the equitable maxim: “He who accepts the benefit must also bear
the burden.” This doctrine is essentially a moral obligation transformed into a legal one,
preventing a person from denying a transaction while enjoying the advantages it offers.
The same equitable spirit animates the principle of estoppel under Section 115 of the
Indian Evidence Act, 1872, which prohibits a person from denying what they have
previously represented, if another has relied upon that representation.

In India, the Doctrine of Election was given statutory recognition through Section 35 of
the Transfer of Property Act, 1882. The provision applies when a person, not being the
owner of a property, purports to transfer it and simultaneously confers a benefit on the
true owner within the same transaction. In such cases, the true owner must elect either to
confirm the transfer and retain the benefit or to reject the transfer and surrender the
benefit.

Statutory Interpretation of Section 35


Section 35 is structured to cover two principal aspects—first, the unauthorized transfer of
property by a non-owner; and second, the simultaneous conferral of benefit upon the real
owner under the same instrument. The section explicitly provides that if the person whose
property is being transferred elects to dissent from the transfer, he must relinquish the
benefit conferred on him. If the person fails to make an election within a reasonable time
(which courts have interpreted on a case-by-case basis), the law presumes that he has
elected to confirm the transfer.

Furthermore, the section provides for situations where the benefit is not capable of being
returned, or where compensation would be more appropriate. The Indian statute thus adds
a degree of flexibility not rigidly present in common law systems, while maintaining the
fundamental principle that no one should be allowed to both approbate and reprobate.

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