“No one can approbate and reprobate at the same time”- Discussion of the Doctrine of election under the transfer of property act.
Introduction
Doctrine of Election basically means to a principle that while a person does an agreement with a representative of any agency without knowing of the agency and later on comes to know the principal’s identity, the individual may force the agreement against the representative or the principal, but not both. The individual has to choose between the principal or representative.
Transfer of Property Act (TPA), 1882
“Transfer of property” or means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and “to transfer property” is to perform such act. In this section “living person” includes a company or associations or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. The Transfer of Property Act of 1882 pertained to British India and outlined the legal procedures for transferring property from one person to another. The act defined “transfer of property” as “an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons.” This means transferring of property needed to occur between living people, needed to happen in the present or future and could be between single people or groups of people. Transferable property could be movable or immovable.
Location
· India is a country in Asia that is bordered by the Bay of Bengal, the Indian Ocean, the Arabian Sea and the Himalayan mountains. As of September 2009, it had an area of 1,269,210 square miles, making it the seventh-largest country in the world. India had a population of over 1.028 billion people as of a 2001 census.
Government
· India is a Sovereign Socialist Democratic Republic and has a parliamentary system of government. The Indian Parliament is made up of the president, the House of the People and the House of the States. The constitution for this government came into effect on January 26, 1950. The Transfer of Property Act carried to the new government from previous British India and was last amended in 2002, as of September 2009.
Purpose
· The Transfer of Property Act of 1882 states that any property can be transferred between parties with the following exceptions: heir-specific transfers, rights of re-entry, easement, property that cannot be enjoyed by anyone but the owner, the right to sue, public office or salary, military and civil pensioner stipends and property given to transferees legally disqualified to receive it. The Transfer of Property Act also outlines transfers of property by act of parties, sales of immovable property, mortgages and charges, leases of immovable property, exchanges, gifts and actionable claims.
Commerce and infrastructure in India expanded in the late nineteenth century and increased the importance of having specific laws in place to govern transactions. Conflicts can easily arise when making business exchanges that often involve large sums of money. The Transfer of Property Act of 1882 governs this aspect of the Indian economy to control potential conflicts.
History
· India was rife with conflict under British rule in the 1800s. British occupation of India in the early nineteenth century caused conflicts of landholders and taxation. Indian landowners grew angrier because of property loss, limited means for entrepreneurship and high taxation. The Republic of India gained its independence 1947 after nearly 200 years of violent and nonviolent struggle.
Implications
· Despite conflict, the British were able to expand the infrastructure of India in the second half of the nineteenth century. The economic impact of this was minimal largely because of famines in the 1880s and 1890s. The Transfer of Property Act of 1882 aided in Indian commerce in this expanding environment of exchange.
Doctrine of Election Under Transfer of Property Act
The doctrine of elections comes into effect when one take under a will or against the will. When we signed up for a Social Security number we elected to take under the will. (Fourteenth Amendment codicil) An Election implies a free choice between two distinct objects or subjects; however I do not recall having neither that freedom of choice nor the knowledge of its existence.
A. The doctrine of election in connection with testamentary instruments is the principle that one who is given a benefit under a will must choose between accepting such benefit and asserting some other claim he has against the testator’s estate or against the property disposed of by the will.
B. One who elects to accept the benefit extended to him by a will is bound to give effect to all the provisions of the instrument and perform the burdens imposed on him herein, including the renunciation of any inconsistent rights or claims.
C. A testamentary beneficiary to elect whether to take under or against the will in case he has some inconsistent claim against the testator’s estate is personal to him.
D. Acceptance of benefits “under the will” constitutes an election which will preclude the devisee from enforcing contractual rights in property bequeathed by the will.Have you noticed that when you accept the benefits of employment you are precluded from enforcing a contract for labour?
E. Creditors (The Banks)
1. “In accordance with the generally accepted principle that the right to elect for or against a will is a personal privilege[1], many cases apply or recognize the principle that such right may not be controlled by the creditors of the beneficiary; that they can claim no right or interest in the estate contrary to their debtor’s election and they have no rights in respect of a legacy or devise to their debtor if the latter has ELECTED to take AGAINST THE WILL.
F. What Constitutes an Election
1. A testamentary election may be express or may be implied from the acts or conduct of the beneficiary or may be evidenced by matters of record or matters in pais.
2. A beneficiary faced with an election “for” or “against” a will has accepted, used, enjoyed, or entered upon or remained in the possession of money, property, or some other benefit extended him by the will tends to establish an election “in favour of the will”.
This rule is of course, subject to the qualification that acceptance of a benefit under a will when made in ignorance of the beneficiary’s rights or a misapprehension as to the condition of the testator’s estate does not operate to constitute an election.Here we have “misapprehension as to the condition of the testator’s estate”. Can you see that, the Crash of 29, the Great Depression, rumors of the Bankruptcy of the United States, could intentionally create a misapprehension of the condition of the estate, in order to elicit an “election to take under the will” and receive the benefits offered by the Social Security act? Can you see that, an employer telling you that you must have a social security number in order to work is misrepresentation to force you take under the will? Can you see that, a so-called peace officer telling you that you must have a Drivers license is coercion to take under the will? Diabolical isn’t it?
3. Where the money or property was received or accepted in some other capacity than that of a testamentary beneficiary, or amounted to no more than what the beneficiary would have been entitled to independently of the will such receipt or acceptance does not indicate the making of a binding election in favour of the will.
4. Acceptance of the benefit of a provision in a will does not constitute an election precluding the done from asserting any rights he may have as promises under a contract with the testator, where the provision in the will does not appear to have been made for the purpose of satisfying the testator’s obligation, but for a wholly different motive.[2] I believe there is a contract with the testator, a covenant in fact.
G. Effect of Fraud or misrepresentation
1. Failure to make an election within the statutory period may be excused where the beneficiary was induced to refrain from an election through the FRAUD OR MISREPRESENTATION of interested parties.
2. Two things are necessary in order that the acts (conduct of the beneficiary) relied upon will amount to an election:
a. The person alleged to have made an election must have been cognizant of his rights, that is he must have had knowledge not only of the condition and extent of the testator’s estate, but also of his duty to elect between the two inconsistent RIGHTS.
b. Having knowledge of his rights, he must have intended, as shown by clear and unequivocal acts to make a choice.
3. Lack of knowledge, when accepting benefits under the will, that the provisions of the will did not fulfil the contractual obligation is a factor affecting a determination of whether the acceptance of benefits under the will constitutes an election.
4. Elections procured through fraud or undue influence, or of elections followed by the failure of the provision made in the will for the electing party or the non-performance of a condition upon which the election was made, has been widely recognized.Election means ‘choice’. Doctrine of Election provides that where a property is transferred to a person, then the transferee can make a choice between whether to accept the transfer or reject it. If he is accepting the transfer, then the transferee shall, along with the benefits of transfer, also accept the burden of transfer.
In nutshell, it means that a man taking a benefit under an instrument must also bear the burden. In other words, a man cannot approbate and reprobate or below hot and cold.
For example, A transfers his house to B, by a gift and in the same gift deed asks B to transfer his shop to C. B may elect to accept the transfer or reject the transfer. If B accepts the transfer, he will get house but in that case he will also have to transfer the shop to C.
It may be noted that the question of election arises only when a transfer is made by the some document. If the transferor makes a gift of property by one deed and asks the done, by another deed, to part with his own property, there is no question of election.
The common law doctrine of election of (contract) remedies that the district judge invoked in so ruling has two aspects, a procedural and a substantive. The procedural aspect derives from the overriding goal of common law pleading, which was by successive rounds of pleading to narrow the issues until there was just one for trial. 5 Wright & Miller, Federal Practice and Procedure Sec. 1202, at p. 61 (1969). It was essential to the attainment of this goal that a party be forbidden to plead in the alternative, for that would generate two or more issues for trial. He must therefore elect his remedy. Applied to this case that would mean that Racine had to sue either for breach of the contract or to disaffirm the contract as having been induced by fraud. Common law pleading was superseded long ago, however–in the federal courts by the Federal Rules of Civil Procedure, which expressly abolish election of remedies. Fed.R.Civ.P. 8(e)(2). Those rules of course apply in all federal civil litigation, even if the issue being litigated is one of state law, as noted with specific reference to election of remedies in Koedding v. Slaughter, 481 F.Supp. 1233, 1237 (E.D.Mo.1979), aff’d, 634 F.2d 1095 (8th Cir.1980).
In its substantive aspect, however, the doctrine of election of remedies is not affected by the federal rules of procedure. In that aspect the doctrine is a part of the law of remedies rather than of procedural law. It seeks to prevent double recovery. Wynfield Inns v. Edward LeRoux Group, Inc., 896 F.2d 483, 488 (11th Cir.1990). If Racine was, as it claims, overcharged in the administration of the contract, it would be entitled to damages for breach. And if it was induced to sign the contract by fraud, it would be entitled to damages arising from the fraud, including any overcharges by Olympia. But it would not be entitled to collect the overcharges twice, once as damages for breach of contract and the second time as damages for fraud.
That is all there is to the doctrine of election of remedies, viewed as a doctrine of the law of remedies rather than as a pleading doctrine. Election of remedies, the Supreme Court of Wisconsin has held (quoting with emphatic approval a decision from New Hampshire), “should be confined to cases where the plaintiff may be unjustly enriched or the defendant has actually been misled by the plaintiff’s conduct or the result is otherwise inequitable or res judicata can be applied.” Schlotthauer v. Krenzelok, 274 Wis. 1, 6, 79 N.W.2d 76, 79 (1956). See also Bank of Commerce v. Paine, Webber, Jackson & Curtis, 39 Wis.2d 30, 36-37, 39, 158 N.W.2d 350, 352, 354 (1968); Tuchalski v. Moczynski, 152 Wis.2d 517, 520, 449 N.W.2d 292, 293 (Ct.App.1989) (“the real purpose of the doctrine is to prevent double recovery”).
Conclusion
So, we can conclude after the analysis of our topic that ‘no one can approbate or reprobate at the same time’ in doctrine of election under transfer of property act. It is necessary to abide by the act of the country to be successful under all circumstances.
Bibliography
I. Wilson v Safe Deposit & Trust Co., 183 Md 245, 37 A2d 321, 152 ALR 892. The Founding Fathers had a Contract with the Posterity and the Fourteenth Amendment does not satisfy the testators obligation but has a wholly different motive.
II. Annotation : 173 ALR 3d 143 ‘9.
III. Crawford v Briant (CA10 Okla) 53 2d 754, Annotation: 60 ALR3d 1147, 1172, ‘7.
IV. Blacks Law 5th Ed. p.1000 Matters in pais signifies matter of fact, probably because matters of fact are triable by the country; i.e. by jury.
V. 80 Am Jur 2d Wills ‘1626, Annotation: 82 ALR 1525 et seq.
VI. 80 Am Jur 2d Wills ‘1607, Annotation: 82 ALR 1510, 1511.
VII. 80 Am Jur 2d Wills, ‘1607, Annotation 82 ALR 1510; 93 ALR 1384.
VIII. 80 Am Jur 2d, Wills ‘1611
IX. 80 Am Jur 2d Wills, ‘1610.
X. “US Legal Definitions,” US Legal Inc, 2001. [Online]. Available: http://definitions.uslegal.com/d/doctrine-of-election/. [Accessed 21 March 2013]
XI. “Transfers of Property by Act of Parties,” Legislative and Parliamentary Affairs Division – Ministry of Law, Justice and Parliamentary Affairs, 2010. [Online]. Available: http://bdlaws.minlaw.gov.bd/sections_detail.php?id=48§ions_id=15975. [Accessed 24 March 2013]
XII. “Explain The Common Law Doctrine of Election of Remedies,” 2003. [Online]. Available: http://www.chegg.com/homework-help/questions-and-answers/explain-common-law-doctrine-election-remedies-business-contract-standpoint-using-examples–q2320759. [Accessed 02 April 2013].
[1] 80 Am Jur 2d Wills, ‘1610.
[2] Wilson v Safe Deposit & Trust Co., 183 Md 245, 37 A2d 321, 152 ALR 892. The Founding Fathers had a Contract with the Posterity and the Fourteenth Amendment does not satisfy the testators obligation but has a wholly different motive.