Amity Law School

Block I-2, Sector-125, Amity Campus

Amity University, Noida

DOCTRINE OF ELECTION

- LAKSHYA PARASHER
A3211113013
B.A., LL.B (H); SECTION- A
SEMESTER - 8
 AMITY LAW SCHOOL
CERTIFICATE

I have the pleasure to certify that A3211113013, student of Amity Law School, Uttar Pradesh
pursued his research work and prepared a project entitled ‘DOCTRINE OF ELECTION’
under my supervision and guidance.

MS UPMA SHREE
 ACKNOWLEDGEMENT

This project is an outcome of study by the author. Any material written by another person has
been used in this project has been thoroughly acknowledged. As my research for this project
has concluded, there are a number of people I would like to thank for this endeavour.

I would like to thank Ms Upma Shree for guiding me during the preparation of this project.
INTRODUCTION

"Election" means choosing of one right between two rights, when there is clear intention that
both the rights cannot be enjoyed but only one. Section 35 of the Transfer of the Property Act
defines the "Doctrine of Election".The "Doctrine of Election1" is based on the rule in Cooper
vs Cooper.

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.

Conditions for application of the Doctrine of Election:

The following are the essentials for the application of the Doctrine of Election:

1. The transferor should dispose of the property in which he has no right to transfer.

2. The transferor must confer a benefit to the real owner of the property.

3. Both the benefits conferred and the transfer made must be part of the same transaction or

Document.

4. The owner is now given a choice of election either to accept the benefit and allow the

Transfer or to reject both

Eg:-
A owns a property that is worth Rs 800. B professes to transfer the same to C through the
Rs1000 instrument to A. But the A, the owner opts/elects to retain his property and thus,
forfeits the gift of Rs 1000.2

The basic of this doctrine is that a person who gets the benefits must also bear the burden.
Generally, the benefit is greater in value than the burden. The benefit should be express and
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.

The doctrine of election is stated in Sec. 35 of the Transfer of Property Act alongside Section
180 to 190 of the Indian Succession Act.

1
Section 35, The Transfer of Property Act, 1882
2
G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law Publishing 2010).
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; upon rejection, the benefit shall be relinquished back to the transferor subject
nevertheless:

• “Where the transfer has been through gratuitous means and the transferor has become
incapable of making a new transfer.

• In all cases where the transfer is for consideration”.

An illustration to further explain:

A owns a property that is worth Rs 800. B professes to transfer the same to C through the
Rs1000 instrument to A. But the A, the owner opts/elects to retain his property and thus,
forfeits the gift of Rs 1000.

EXCEPTIONS

When the owner who is considering the election between retaining the property and accepting
a particular benefit, chooses the former, he is not bound to relinquish any extraneous benefit
that he gains through the transaction.

The acceptance of the benefit by the original owner shall be deemed to be as election by him
to validate the transfer, if he is aware of his responsibilities and the circumstances that might
influence a prudent man into making an election.

This knowledge of the circumstances can be assumed if the person who gains the benefit
enjoys it for a period of more than two years. Further discussion over this has been made
under the heading of “Modes of Election”.

If the original owner does not elect his option within a year of the transfer of property, the
transferor would require him to elect his choice. Even after the reasonable time, if he still
does not also still elect, the original owner shall be assumed to have elected the validation of
the property transfer as his choice.3

In context of a minor, the period of election shall be stalled till the individual attains majority
unless he is represented by a guardian.

UNDERSTANDING THE PRINCIPLE

3
Salil Paul, Mulla the Transfer of Property Act ( 9th Edn. Butterworths 2005)
In simple words, a person utilising the benefits of an instrument also has to carry the burden
attached. This doctrine is founded upon a model wherein a person persuades another to act in
a manner to his prejudice and derives any advantage from that, and then he cannot turn
around and claim that he was not liable to perform his part as it was void.4 This doctrine is
universal and is applicable to Hindus, Muslims as well as Christians.

So, this doctrine contains the principle that the exercise of a choice by a person left to himself
of his own free will to do one thing or another binds him to the choice which he has
voluntarily made, and is founded on the equitable doctrine that he who accepts benefit under
an instrument or transaction of his choice must adopt the whole of it or renounce everything
inconsistent with it. Thus, it is a general rule that a person cannot approbate and reprobate.5
Also, the election is confined to the case of a gift or Wil6l and does not apply in case of a
legal remedy.

Conditions precedent for equity of election:

• A transfer of property by a person who has no right to transfer;

• As a part of the same transaction, he must confer some benefit on the owner of the

Property and

• Such owner must elect either to confirm such transfer or to dissent from it.

SECTION 35- ELECTION WHEN NECESSARY

Where a person professes to transfer property which he has no right to transfer, and as 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 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 becomes 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.

Maitland stated the doctrine of election as follows:

“He who accepts a benefit under a deed or will or other instrument, must-

• Adopt the whole contents of the instrument

4
Darashaw J. Vakil, The Transfer of Property Act ( 2nd Edn. Wadhwa Nagpur 2004) 334.
5
Beepathuma ( C ) v. VS Kadambolithiya [1964] 5SCR 836,850, AIR 1965 SC 241; Codrington v. Codrington
(1857) 7 HL 854, 861.
6
Nihar v. Anath Nath, AIR 1956 Pat 223 (226) (DB) : 1956 BLJR 177.
• Conform to all its provisions: and

• Renounce all rights that are inconsistent with it”

While the same principle was stated in the White and Tudor’s case in Equity......”Election is
the obligation imposed upon a party by Courts of Equity to choose between two inconsistent
or alternative rights of claims in case where there is a clear intention of the person from who
derives one that he should not enjoy both. That he who accepts a benefit under a deed or will
must adopt the whole contents of the instrument.”

It is an obligation, to choose between two inconsistent or alternative rights in a case where

there is a clear intention of the grantor that the grantee should not enjoy both. The foundation
of the election is that the person taking a benefit under an instrument must also bear the
burden.

MST. DHANPATTI V. DEVI PRASAD AND ORS. AIR 1970 SCD 174

The law pertaining to election is set out in Section 35(1) of the Transfer of Property Act.
Before there can be an election there must be: (1) a transfer of a property by a person who has
no right to transfer (2) as apart of the same transaction, he must confer some benefit on the
owner of the property; and (3) such owner must elect either to confirm such transfer or to
dissent from it.

ANALYSIS OF SECTION 35

1 The transferor must profess to transfer a property which he has no right to transfer. It is
immaterial whether in doing so he knows or does not know it to be lost his property.

2 He must confer a benefit on the owner whose property he purports to transfer to another
person

3 The two things (viz., the transfer and conferring of the benefits) must form parts of the
same transaction.

4 The benefit must be conferred on him in the same capacity in which he is the owner of the
property. Eg. B is the guardian of his son, B may keep his own property, and also take as his
guardian Rs. 1000/-

ELECTION LIMITED TO PART OF BENEFIT

It is an exception to the general rule that if a person elects against the instrument, he will
forfeit the whole of the benefit received under it. For Eg. Suppose A transfers a property X
belonging to B and by the same instrument confers benefits, a, b, c on B and it is expressly
stated that the benefit c is given to B in lieu of property X, then, if B elects to retain X, he
will not be bound to relinquish all the benefits conferred on him by the instrument but only c
which is expressed to be in lieu of X.

PRESUMPTION AS TO ELECTION

1. If the benefit has been enjoyed for two years without doing any act to express dissent, it
shall be presumed that he had the knowledge or he waived enquiry.
2. If he has done act which render it impossible to place the person interested in the property
professed to be transferred in the same condition as if such act had not been done.

IMPORTANT CONDITIONS

Proprietary Interest

Election over a property is not asked to make by a person unless he holds a proprietary
interest which are disposed off in derogation of the person’s rights.7
So, election cannot take place if the property that is decided by the transferor to be disposed
does not happen to be owned by any individual to whom an interest is being provided through
the transfer. Also, it cannot take place if the transferor does not provide any benefit on the
individual who is the original owner of the property.8

“As part of the same transaction”

One cardinal condition for the doctrine of election to be executed is that the benefit conferred
upon the original owner should be as part of the same contract by which he transfers the
property over which he holds no right to transfer.

In the landmark case of Ramayyar v. Mahalaxmi, a widow had given a gift in excess of her
powers and had then provided a will which stated that “excluding the properties which I have
already given away, I will make the following dispositions”. The Court ordered that the
plaintiff under the will was not excluded from the election doctrine from contesting the
previous gift which wasn’t the issue of the will at all.

It is to be noted that different nature of two properties is not a bar to election by the owner
like in the case of Ammalu v. Ponnammal where a person who was managing the properties
of the daughter of his deceased brother, died leaving a will bequeathing a portion of it to B. It
was held that the doctrine of election did apply for the niece.

7
Mst Dhanpatti v. Devi Prasad (1970) 3 SCC 779; Mohomed Ali v Nissar Ali (1927) 109 IC 835, AIR 1928 Oudh
67, 82
8
Salil Paul, Mulla the Transfer of Property Act ( 9th Edn. Butterworths 2005) 249.
Donor’s Intention

In order to create a situation of election, it is important that the intention of the testator should
be clear with regard to disposing of the property which he does not own.9 Parol evidence is
not acceptable and thus the intention must be prima facie clear.10
Indirect Benefit
The benefit that the original owner is conferred with has to be direct in nature and if indirect,
he does not need to elect. This principle is explained in Section 184 of Indian Succession Act,
1925 and states that “when the devisee who claims derivatively through another does not take
under the deed, and is not bound by the equity attaching thereto.”

Difference In Capacity

An individual can in one capacity utilise a benefit while can dissent or reject that benefit in
another capacity.11 It means to explain that it is possible to facilitate two roles of an
individual wherein he can for example, accept legacy for an estate while in his personal
competence, he could retain the property.

Modes of Election

Election must be divide into two:

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:

9
Rancliffe v. Parkins 6 Dow 179
10
Stratton v Best 1 Ves 185
11
Grissel v. Swinoe (1869) 7 Eq. 291 = 17 W.R. 438
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.

COMPENSATION

Estimated cost of the property which is attempted to be transferred towards the transferee is
the approximation of the compensation that he shall receive. However, in context of
immovable properties, there arises the issue of changing value of the property according to
the lapse of time. Thus, this valuation is to take place at the date of the instrument becoming
operational rather than at the time of election.12

CONCLUSION

Section 35 of the Transfer of Property Ac, 1882 explains the concept of the Doctrine of
Election. This project tries to deal with the various nuances involved in the doctrine through
the usage of various landmark judgments. Herein, special emphasis has been placed upon
providing a clear understanding of the conditions necessary for the election by the original
owner to take place. The differences between the Indian Law perspective as well as the
English Law perspective is brought out through critical analysis of the provisions i.e.
Principle of forfeiture and Principle of compensation. Various aspects such as Proprietary

12
Re Hancock. Hancock v. Pawson (1905) 1 Ch. 16
Interest, Compensation estimated, indirect benefit, the intention of the donor etc have been
dealt and explained for the enhanced understanding over the model of Doctrine of Election.
 BIBLIOGRAPHY

Books:
 Transfer of Property Act, 1882

Websites:
 https://www.atgf.com/tools-publications/pubs/doctrine-election-and-
survivorship-property
 http://www.academia.edu/22304035/Doctrine_of_Election_under_the_Transfe
r_of_Property_Act_1882