DOCTRINE OF ELECTION

DR. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY,

LUCKNOW

FACULTY OF LAW

TRANSFER OF PROPERTY ACT 1882

AN ASSIGNMENT ON
“DOCTRINE OF ELECTION”

SUBMITTED TO- SUBMITTED BY-

SUSMITA MA’AM SAURABH KUMAR YADAV

GUEST FACULTY B.COM LL.B(HONS), 5TH SEM

FACULTY OF LAW FACULTY OF LAW

DSMNRU, LUCKNOW DSMNRU, LUCKNOW

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INTRODUCTION

This doctrine is based on the equitable principle under which a person is cannot approve that of
an instrument which is beneficial to him and disapprove the part that is to his disadvantage. This
means that no one can approbate and reprobate in the same transaction. The Intention of enacting
the Transfer of Property Act, 1882 was to define and amend the existing law, rather than
introducing new principles. The Act utilizes principles of equity, justice and good conscience.
The primary objectives of the Act were to initially convey the rules that regulate the transfer of
property between living persons with accordance to the rules that affect devolution of property
upon death. This provides for and complements the work commenced in framing the law of
testamentary and intestate succession. The second objective was to complete the code of
Contract Law as it would relate to immovable property. The doctrine of election is bases on the
principle of equity and is applied to every species of instrument whether deed or will and to
every kind of property movable or immovable. Election is an obligation of having to choose one
among two inconsistent or alternative rights in a situation where the grantor’s intention is that the
grantee should not receive both. Under any instrument if two rights are conferred on a person in
such a manner that one right is lieu of the other, he is bound to elect only one of them. a person
utilizing 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, then he cannot turn around and claim that he was not liable
to perform his part as it was void. The 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 property who is put to election The rule of
election operates only when the transfer and benefit from part of the same transaction. By 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 from part of
the same transaction. There is no election if the two are independent transaction. However is not
necessary that these two transactions are provided on one instrument. It is possible that two
separate instrument may be executed to carry out one and the same transaction.

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DOCTRINE OF ELECTION-
The Doctrine of Election is applicable to both movable and immovable property. The doctrine of
election may be stated by Maitlandas follows:-

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

(a) Adopt the whole contents of that instrument;

(b) Control to all its provisions; and

(c) Renounce all rights that is inconsistent with it.”

This doctrine is based on the equitable principle under which a person is cannot approve that of
an instrument which is beneficial to him and disapprove the part that is to his disadvantage. This
means that no one can approbate and reprobate in the same transaction. Courts hold that when a
person accepts benefit and declines the burden at the same time frustrates the intention of the
donor. The law presumes that the author of an instrument intended to give effect to every part of
it. In Cooper v/s Cooper, 1 it was held that the Doctrine of Election applies to every instrument
and to every type of property, be it movable or immovable2. A person cannot take under and
against the same instrument3. Section 35 of Transfer of Property Act, 1882 provides the rules for
making election. The owner receives some direct, specific benefit when he accepts the transfer
and when he dissents, he must return the benefit. In case he receives indirect, extra benefit that is
separate and beyond the instrument, it need not be relinquished.

1
(1874) 7 HL 53.
2
Codrington v. Lindsay 1873 8 Ch. 578
3
Beepathumma v. S.V. Kadambolithaya AIR 1965 SC 241

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SECTION 35 OF THE TRANSFER OF PROPERTY ACT 1882

Section 35 of Transfer of Property Act, 1882 embodies the Doctrine of Election:

Ingredients Necessary For the Doctrine of Election:

1) The transferor should not be owner of the property which he transfers.

2) The transferor must at the same time grant some of his own property to the owner of property,
in the same instrument.

3) The two transfers must be made in the same transaction: Transfer of the property of the owner
to the transferee and conferring the benefit on the owner of property. The doctrine of election is
not applicable if the two transfers are made by virtue of two distinct instruments.

4) It is necessary that the owner has proprietary interest in the property. A creditor is not
involved in the election as he merely has a personal right to be paid by the debtor.

5) The owner that does not receive direct benefit under transaction, but getting a benefit under it
indirectly, is not put to election.

6) Question of election does not arise when the benefit is received by a person in different
society4.

Rules for Election:

Rule 1: When a person professes to transfer some property which he has no right to transfer,
conferring some benefit on the actual owner of the property, such owner is required to elect to
either confirm the transfer or to dissent from it. In the case of dissent, he must give up the benefit
so conferred, which would return to the transferor or his representative as if it had not been
disposed of.

4
Shafique Hossain, Transfer of Property Act, 1882, 1st edition, p.40

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REQUIREMENT::

1.Real Owner: Real owner of the property must elect to either confirm or dissent from the
transfer. If he chooses to dissent from the transfer, the real owner must give up the benefit.

2. Transferor: The party transferring the property does not have any right to transfer in the same
transaction. The transferor confers benefit on the owner of the property

3. Transferee: It is the transferor’s responsibility to return to the transferee. If it is not properly

done or the matter is not properly disposed of, the transferor will be liable. The transferee is
allowed to file a suit against the transferor rather than against the real owner.

ILLUSTRATIONS

(a)-The farm of Sultanpur is the property of ‘C’ and worth Rs. 800. A by an instrument of gift
professes to transfer it to B giving by the same instrument Rs. 1000/- to C. C elects to retain the
farm. He forfeits the gift of Rs. 1,000. In the same case, A dies before the election. His
representative must, out of the Rs.1000/ pay Rs. 800 to B.

(b)-Jack profess to transfer a property owned by Jill to Jones. He confers a benefit of Rs.
1,00,000 to Jill. Here Jack is not transferring Jill’s property to Jones, but professes that property
which he himself does not own.

When the transfer is gratuitous, and the transferor has died or has otherwise become incapable of
making a new transfer before the election, and when the transfer is for consideration,
relinquishing of the benefit is subject to the charge of making good to the disappointed transferee
the amount or value of the property that was to be transferred to him.

Gift is one such gratuitous transfer. Sam gifts a house to Edward. Before the election, Sam dies
and owner of the house dissents. It is not possible for a new transfer to take place. Here, it is
Sam’s representative’s duty to pay the value of the house to Edward.

Rule 2: The rule in the section involves whether or not the transferor believes the property which
he professes to transfer to be his own.

In a scenario of master and agent, there is no need for election.

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Rule 3: A person receiving an indirect benefit under a transaction rather than a direct benefit is
not required to elect.

If a benefit is received by the real owner’s relative, it is not required that they elect. In case the
owner elects to dissent, it is not necessary to relinquish the benefit.

Rule 4: A person who in his capacity receives a benefit under a transaction, may in another,
dissent.

Transferor Professes to Transfer Property Not His Own-

Section 35 applies where a person professes to transfer the property of another person. Professes
means purports or makes contract. Since such person is not the owner, he cannot transfer that
property. But he can contract or make arrangement for a transfer of a property which he does not
own. For example A may profess to transfer a property to B which is owned by C and also confer
on C a benefit to Rs. 1000. In this contact A is not transferring C’s property he is simple
professing (contacting) to transfer a property which he does not own. Therefore A is not
transferor. But for the sake of convenience, hereinafter A may be called as a transferor. However
it is not necessary that transferor should mention it in specific word that he is professing to
transfer a property not his own. This is inferred by the court from the facts of a particular case
and from the language used in the instrument. Knowledge of the fact that transferor has no
authority to transfer the property is immaterial for applicability of the rule of election. Second
paragraph of this section makes it clear that the rule applies whether the transferor does or does
not believe that the property which he is professing to transfer is not his own. The transferor may
have misunderstood or forgotten about his rights is the property or may profess to transfer it due
to any other reason.

(2)-Benefit Conferred on the Owner of Property::

The transferor must confer any benefit on the owner of property. The word owner in this section
has a very wide meaning 5. 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 property who is put to election. Therefore he must be given some benefit in

5
Dhanpati v.Devi Prasad, (1970) 3 SCC 776

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compensation for his ownership of the property. To attract the application of this rule there must
be two sets of rights one the right of ownership and the other a benefit given under the
instrument. In other words the occasion for election arises only where a benefit is directly
conferred on the owner of property. Where benefit is given to the owner otherwise than for
transferring property or is given to him indirectly there is no case for election. For example A
professes to transfer C’s property to C has no duty to elect. In Valliammai v. Nagappa6 a testator
purported to bequeath a joint family property to his coparcener. The coparcener was otherwise
under Hindu Law entitled to that property. The Supreme Court held that the coparcener could not
be said to have derived any benefit under the will and was not put to election.

Part of the Same Transaction::

The rule of election operates only when the transfer and benefit from part of the same
transaction. By 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 from part of the same transaction. There is no election if the two are independent
transaction. However is not necessary that these two transactions are provided on one instrument.
It is possible that two separate instrument may be executed to carry out one and the same
transaction. Similarly it is also possible that there is only one instrument containing two separate
and independent transaction. In Muhammad Afzal v.Gulam Kasim7 after the death of Nawab of
Tank, the government while transferring chief ship to Nawab’s eldest son transferred some cash
allowance to Nawab’s second son. The Nawab in his life-time had already granted two villages
to the grants (cash by the Govt. and villages by Nawab himself in his life) came to second son
from two different sources they were not part of the same transaction. The second son was not
put to election.

(3)-Owner’s Duty to Elect::

The operative part of section 35 is that if 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 its all contents or reject it

6
AIR 1967 SC 1153
7
1903 30 Cal. 843

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altogether. He had no option to accept only the beneficial part of instrument. Where he elect to
accept the instrument he is entitled to get the benefit but he is bound to transfer property. If he
elect it reject the instrument he cannot claim benefit but he may retain property.

Exceptions to the Rules::

When a specific benefit is conveyed to be conferred on the real owner in lieu of his property that
the transferor professes to transfer, and the owner decides to claim the property, he must return
the benefit. However, he is not required to relinquish any other additional benefit conferred upon
him, even if it is by the same transaction. Extra benefit that is separate and beyond the instrument
is not to be returned. Particular benefit that is expressed to be received upon transfer of the
property, is returnable in case of dissent.

Exception 1: Acceptance of the benefit by the owner on whom it is conferred implies an election
by him to confirm the transfer. It is confirmed if he is aware of his duty to elect and aware of
those circumstances which would influence the judgment of a reasonable man in making an
election, or if he waives enquiry into the circumstances.

In a few cases, law assumes that election to be done, because the owner acts as if it he has
elected, although no election direct had taken place. This includes acceptance of benefit, no
enquiry into the circumstances; reading the document and receiving the money, or getting the
money without the ability to read. Because a reasonable person would know the facts, the law
assumes that election had been done and there is no opportunity to deny the contract.

For instance, Reza transfer a property Kahan which is owned by Saidur and gives benefit Saidur
at the same instrument. Now Saidur accept benefit from Reza without confirming election and he
also waives enquiry into the circumstances. So in this situation court presume that he approved
the transaction and take benefit as election.

Exception 2: Such knowledge or waiver shall, without contradicting evidence, be presumed, if

the person that received the benefit has enjoyed it for over two years without acting to express

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dissent. If the owner consumes the benefit without dissent for over two years, election would be
assumed. The election would be exclusion.

Exception 3: Such knowledge or waiver may be inferred from any act that makes it impossible
to place the party interested in the property professed to be transferred in the original condition
as if such act had not taken place. It is not possible to return the property, such as consumption of
a land used for mining.

Exception 4: If he does not indicate to the transferor or his representative, his intention to
confirm or to dissent from the transfer even one year after the date of transfer, the transferor or
his representative may after the expiration of that period, oblige him to make his election. If he
does not comply with such requisition within a rational amount of time after receiving it, it
would be presumed that he shall have elected to confirm the transfer. Suppose, A transfers a
house belonging to B and by the same instrument confers benefits, a, b, and c on B and it is
expressly stated that the benefit c is given to B in lieu of the house, then if B elects to retain the
house, he will not be bound to relinquish all the benefits conferred on him by the instrument but
only c which is expressed to be lieu of the house.

Mode of Election:

Election may be expressed or implied by conduct. Where, the election is mentioned in express
words, it is thereby final and conclusive. However if it is not so made, but the transferee

(1) Is aware of his duty to elect

(2) Having full knowledge of matters such as the value of properties, accepting the benefit given
to him by the transaction

Such action on his part creates an election in favor of the transaction8.

Hence, if a person’s act is due to ignorance or mistake, the doctrine of election gives way.

8
Shukla Dr. S.N, Transfer of property Act, 24th Ed; Allahabad law agency, p.86

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Presumption As Election:-

The question as to whether the benefit was accepted with the adequate knowledge of the
circumstances would be a question of fact subject to the following rules9:

(a) If the benefit has been enjoyed for more than two years without doing any act to express
dissent, it shall be presumed that he had the appropriate knowledge or that he waived enquiry.

(b) If it is impossible for real owner to go back the previous position.

Warning the real owner after certain period:

If he does not indicate to the transferor or his representative, his intention to confirm or to dissent
from the transfer even one year after the date of transfer, the transferor or his representative may
after the expiration of that period, oblige him to make his election. If he does not comply with
such requisition within a rational amount of time after receiving it, it would be presumed that he
shall have elected to confirm the transfer. Section 35 of Transfer of Property Act, 1882 provides
the rules for making election. The owner receives some direct, specific benefit when he accepts
the transfer and when he dissents, he must return the benefit. In case he receives indirect, extra
benefit that is separate and beyond the instrument, it need not be relinquished. An exception to
this is when confirmation is implied by the owner by acceptance of the benefit, by showing some
requisite document or a reasonable person’s understanding of the matter. If the owner enjoys the
benefit for more than two years without dissent, it is impossible for him to return to the original
position. One year after receiving a notice from the transferor and passing of the prescriptive
time limitation, the court automatically assumes that owner had accepted the transfer. If a person
is disqualified for the election, it would be postponed until either the disability ceases or until the
election is made by a competent authority such as in the case of disqualification due to the party
being minor, lunacy, infancy.

9
Shukla Dr. S.N, Transfer of Property Act, 24th Ed; Allahabad law agency, p.87

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Rights To Disappointed Transferee-

When the owner of property elects against the transfer, the transferee to whom the property was
professed to be transferred, cannot get the property. The transferee becomes disappointed.
However, he has following rights:

a. Where the transfer is gratuitous (without consideration) and the transferor has before the
election died or otherwise become incapable of making a fresh transfer,

b. Where transfer is with consideration, the disappointed transferee has a claim for reasonable
compensation from the transferor. Reasonable compensation means compensation equal to the
value of property professed to be transferred.

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CONCLUSION

It is given in the Transfer of property Act, 1882, in Section 35 that when one professes to transfer
property over which he has no right, without having informed the owner, he must approach the
owner to seek its disposal. The owner must decide whether or not to allow it. This implies that he
has the right to exercise the doctrine of election to either confirm or dissent during a transaction.
When the owner chooses to dissent, it is the transferor’s responsibility for if a new transfer is not
possible, the money or the consideration value are to be returned. If it is a gratuitous transfer
such as gift, he is to pay the property value and even in case of election before the transferor has
died, his representative is to pay whole or exact value. In case the transferor or his representative
does not pay or give the property, claim would be against the transferor rather than the real
owner. Section 35 of Transfer of Property Act, 1882 provides the rules for making election. The
owner receives some direct, specific benefit when he accepts the transfer and when he dissents,
he must return the benefit. In case he receives indirect, extra benefit that is separate and beyond
the instrument, it need not be relinquished. An exception to this is when confirmation is implied
by the owner by acceptance of the benefit, by showing some requisite document or a reasonable
person’s understanding of the matter. If the owner enjoys the benefit for more than two years
without dissent, it is impossible for him to return to the original position. One year after
receiving a notice from the transferor and passing of the prescriptive time limitation, the court
automatically assumes that owner had accepted the transfer. If a person is disqualified for the
election, it would be postponed until either the disability ceases or until the election is made by a
competent authority such as in the case of disqualification due to the party being minor, lunacy,
infancy.

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BIBLIOGRAPHY

BOOKS

SINHA, R.K., The Transfer of Property Act (1882), Central Law Agency,(20th ed. 2019)

TRIPATHI G.P, The Transfer of Property Act (1882), Central Law Publications (19th ed. 2019)

TAXMANN The Transfer of Property Act (1882), LexisNexis (20 th ed. 2019)

WEBSITES

https://www.legalserviceindia.com.

https://www.lawoctopus.com.

http://www.lawtimesjornal.com

http://www.academia.edu.

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