DOCTRINE OF ELECTION

HIDAYATULLAH NATIONAL LAW UNIVERSITY

TRANSFER OF PROPERTY ACT PROJECT
ON
DOCTRINE OF ELECTION
SUBMITTED TO
Mrs. BALWINDER KAUR

VIKASH GOEL
SEMESTER IV
ROLL NO. 172

SUBMITTED ON
26TH FEBRUARY, 2014

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ACKNOWLEDGEMENT
I feel highly elated to work on this dynamic topic on DOCTRINE OF ELECTION. Its ratio is
significant in todays era when there is increasing stress on property law and various dispute
relating to transfer of property. As this topic drew my attention and so I was attracted to select
this as a project topic.
The practical realization of this project has obligated the guidance of many persons. I express my
deepest regard for our faculty MrS. BALWINDER KAUR. HER consistent supervision, constant
inspiration and invaluable guidance and suggestions have been of immense help in carrying out
the project work with success.
I extend my heartfelt thanks to my family and friends for their moral support and encouragement.
Vikash Goel
Semester IVTH
Roll no. 172

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TABLE OF CONTENTS
1.
2.
3.
4.
5.
6.
7.
8.
9.

Acknowledgement2
Introduction.........4
Research methodology6
Objective6
Scope of section...7
Doctrine of election.8
Mode of election....14
Conclusion16
Bibliography.16

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Introduction
The Doctrine of Election is one of the most important areas of the law relating to transfer of
property. Section 35 of the Transfer of Property Act deals with this doctrine. Before going into
the doctrine, lets understand about the concept of election with reference to Sec. 35 of transfer of
property act. Section 35 explains that Election means has option to choose i.e., X or Y, but
cannot have both.
Para 1 has description what election means, effect if election is in favour of proposed transfer
and when proposed transfer is declined to. It also says what would happen when choice is one
way and what if it is the other way.
Paras 2, 3 and 4 complete the Code on Election.
Second thing in Section is that 4 exceptions are detailed wherein election would not be required.
These areno election in case of additional or extra-benefits, deemed election, presumed
election or when status quo is not restorable. Election can be asked for if nothing is heard within
one year and last is disability extends time.
The premise is.A gives his property to B and Bs property to C.
B has to choose whether he confirms this or dissents from. If yes. He gets Aa and C gets Bs. If
No B gets none 'C' compensation.
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
in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished
shall revert to the transferor or his representative as if it had not been disposed of,
subject nevertheless,

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where the transfer is gratuitous, and the transferor has, before the election, died or otherwise
become incapable of making a fresh transfer,
and in all cases where the transfer is tor consideration,
to the charge of making good to the disappointed transferee the amount or value of the property
attempted to be transferred to him.
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. 1,000 to C. C,
elects to retain the farm. He forfeits the gift of Rs. 1,000.
(b) In the same case, A dies before the election. His representative must out of the Rs.
1,000 pay Rs. 800 to B.
Explanations of rule of election in Para I:
Three rules of law are given which explain the principle of election, naznefr;
(i) Belief of transferor irrelevant.Whether the property, he is giving is his own or not his
own. Professing is enough; belief is not insisted.
(ii) Indirect benefit.no election is required,
(iii) Different capacity.no election is required.
Exceptions to Election.The exceptions are; five
(i) Additional or extra benefits given.These need not to be returned even if proposal is
rejected by refractory donee. These can be retained by him;
(ii) Acceptance of benefits means Yes to the proposal.
(iii) Two years enjoyment means Yes to the proposal.
(iv) Status quo being rendered impossible to be restored means Yes to the proposal;
(v) Notice after 1 year unheeded.Yes to proposal after expiry of reasonable period.

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Disability
The election shall be postponed if donee becomes disabled after proposal
(a) Till disability ends, or
(b) Till legal representative of donee elects on his behalf.

RESEARCH METHODOLOGY
The method of research adopted is analytical in nature. I have referred sources on the internet as
well as a few books on Transfer of property act available in the university library besides adding
my personal views and knowledge of the topic. Books and other references as guided by the
faculty of Transfer of property act have been primarily helpful in giving this project a firm
structure. Websites, dictionaries and articles have also been referred.

OBJECTIVE
The objective of the project is to,
1.
2.
3.
4.

Study the concept of Doctrine of election

Study the scope of election
Study the mode of election.
Analyse the importance of the doctrine.

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Scope of the section.

Section 35 of the Act embodies a principle of highest equity, and as such it applies to all
persons irrespective of their personal laws. The principle is not peculiar to English Law alone
but is common to all laws which are based on the rules of justice. It was, therefore, often
applied by the Privy Council to the Indian cases even before the passing of the Transfer of
Property Act, 18821. It applies to all kinds of property, vested, contingent, reversionary and
remote as well as immediate interests2, whether movable or immovable3. There is no
distinction for the purpose of this principle between personal estate and real estate, between
specific and residuary legatees and next-of-kin of an estate.

1 A.I.R. 1956 S.C. 241

2 Rungamu v. Atchama, 4 M.I.A. 1 : Shah Mukhun lal v, Shri Krislmn Siiifih, 12 M.l.A 157
3 Wilson v. Lord Townshed

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Section 35 dealing with doctrine of election is an exception to Section 7 of T.P. Act and principle of
nemo dat quod non habet rule (Section 27 of Sale of Goods Act). Under this Section, a person can
transfer a property that is not his own and can get this transfer operative as per provision of
Section 35.
First paragraph (first 8 lines) lays down premises in which election is possible. Second thing
commences with nevertheless relating to compensation to disappointed donee. Next three
paragraphs provide three different rules for example, Belief of transferor being immaterial, no
election is required when benefit is not direct (it is indirect) and in different capacity (to take
and to give. Remaining paras lay down exceptions to above four paragraphs. For example,
additional benefits shall not go even if proposal is rejected
Deviation from English Rule.Section 35(1) lays down the principle which differs from
English doctrine of election.
The English doctrine is based on compensation. Indian rule is based on forfeiture. The result is
that under English law, the refractory donee may retain the benefit and may refrain the burden
but he shall incur the liability to give compensation to disappointed donee. But in India,
refractory donee cannot do so. He will forfeit the benefit and liability to compensate falls on the
transferor, his heirs, or his legal representative.

Doctrine of Election.
The doctrine of election may be stated thus; he who accepts a benefit under a deed or Will
or other instrument must adopt the whole contents of the instrument, must conform to all its
provisions and renounce all rights that are inconsistent with it. This principle is often put in
another form that a person cannot approbate and reprobate the same transaction 4, or blow hot
and cold at the same time.
Election is defined as "choosing between two rights when there is clear intention, express or
implied, that both are not to be enjoyed." The foundation of the doctrine is the intention of the
transferor and its characteristic is the effectuation of a transfer of property not belonging to him. 5
4Cooper v. Cooper, L.R. 6 Ch. 15.
5 Dillon v. Parker, 1 Swan 359

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The doctrine is that "a donee shall not be allowed to approbate and reprobate and that if he
approbates, he shall do all in his favour to confirm the instrument which he approbates.6
The foundation of the doctrine of election is that the person taking a benefit under an instrument
must also bear the burden.' In other words, he cannot take under and against one and the same
instrument. "The doctrine of election is 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 and renounce everything inconsistent
with it. The court exercising jurisdiction in equity will bind
him to his election and preclude him from going behind the sameThe
fact that the alienation as such is void is no bar to the applicability of the doctrine of election
which is rested on equitable principle." The principle is in fact a branch of the general rule that
no one may approbate and reprobate. As stated by the Privy Council in Rangamma v. Atchama,
a party shall not at the same time affirm and disaffirm the same transactionaffirm it as far as it
is for his benefit and disaffirm as far as it is as to his prejudice.
"Suppose A by will or deed gives to B a property belonging to C, and by the same
instrument gives other property belonging to himself to C. A Court of Equity will hold C
entitled to the gift made to him by A only upon the implied condition of his (0s) conforming to
all the provisions of the instrument by renouncing the right to his own property given in favour
of B. He must consequently make his choice, or as it is technically termed lie is put to the
election to take either under or against the instrument. If he elects to take under the instrument,
he must relinquish in favour of C, his property given to C by A and take the property which is
given to him by A. The doctrine of election is applicable to all kinds of property and person. The
doctrine of election was first applied to Wills in England. Later it was extended to conveyances
and settlements."
The foundation of the doctrine lies in the intention of the author of the instrument, namely,
6

Cavendish v. Dacre, (1886) 31 Ch. D. 466

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that every part of the instrument must be given effect to. Consequently, the person who takes a
benefit under an instrument, or Will or otherwise, is under an obligation to give full effect to it.
"The main principle was never disputed, that there is an obligation on him who takes a
benefit under a Will or other instrument, give effect to that instrument under which he takes
a benefit; and if it be found that instrument purports to deal with something which it was
beyond the power of the donor or settlor to dispose of, but to which effect can be given by
the concurrence of him who receives the benefit under the same instrument, the law will
impose on him who takes the benefit, the obligation of carrying the instrument into full
effect and complete force."7
According to Section 35 (1), the circumstances in which a person may be put to his
election, are
(1) Where another person transfers his property to someone else; and
(2) by the same instrument and as a part of the same transaction the transferor confers some
benefit out of his own property on such person.
(3) Where these circumstances exist, the person whose property is transferred has got to choose
whether he would take the benefit conferred upon him or not. If he elects to accept the benefit,
then ho him to carry out the other terms of the instrument as well, namely, that he must
relinquish all the rights to his property which the transferor has transferred in favour of some one
else. If he chooses otherwise, the status quo is preserved, that is to say, he remains the owner of
his property which is unauthorisedly transferred by the grantor, and the benefit conferred on him
reverts to the grantor or his representative in case of his death before election. But subject to
some obligation regarding compensation. Who is to be compensated? How much amount of
compensation are given in Section 35.
Inapplicability of principle in case of legal remedy.It is not open to the court to compel
a party to choose one remedy in law or another. Election, in the circumstances in which a party
may be put at the opinion of the court is a matter of indulgence.8
Same transaction.-The equity of election does not apply unless the two donations are
7 Cooper v. Cooper, L.R. 6 Ch. 15
8 AIR 1956 Pat. 223

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part of the same transaction, for, if the two are independent, then one which is in the power of
the transferor will stand, while the other will fail i.e., Mohammad Afzals case.9 Government on
the death of the Nawab of Tonk when transferring the chiefship to the eldest son, transferred a
portion of the cash allowance of the late Nawab to the second son on whom the late Nawab had
already made a grant of two villages for maintenance. The Privy Council said that the second
son was not put to his election, as the two grants came from independent sources. The section is
applicable only where the benefit and burden come directly from the same transaction.
Owners duty to elect.One of the essentials of Section 35 is that where a property is
preferred to be transferred and in the same transaction some benefit is given to the owner
of the property then such owner is duty bound to elect either to accept the instrument with
its all contents or rcject it altogether. Where he elects to accept the instrument, he is
entitled to get the benefit but at the same time, he is bound to transfer his property.
If he elects to reject the instrument, he cannot claim the benefit but he can retain his
property.
Reverts to grantor.Where by reason of election, the benefit conferred on the owner of
the property is forfeited and reverts to the grantor, the transferee who -is disappointed by
such election is not helpless in the matter. Where the transfer to him is gratuitous, he is
entitled out of the benefit conferred on the owner of the property compensation equal to the
amount of the value of the property attempted to be transferred to him, and if the transferor
dies or otherwise becomes incapable of making a fresh transfer, he is entitled to a charge for
such amount upon the benefit which has reverted to the grantor. There is, of course, no
occasion for a charge if the grantor survives the election, for it is open to the grantor to make
a substituted gift. Where, on the other hand, the transfer is for consideration, the disappointed
transferee is invariably entitled to the I charge upon the rejected benefit irrespective of the
grantor dying 0r surviving the election. Thus, where A transfers Cs property worth Rs. 500 to
R for Rs. 300 and not as a gift, the benefit rejected by the refractory donee C reverts to A
subjcct to the charge of his making good to B the amount of the value of Cs property, i.e.,
9 Mohammad

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Afzal v. Gulam Kasim, (1933) 30 Cal. 843

DOCTRINE OF ELECTION

Rs. 500. The principle of this rule is that the Courts of Equity assume jurisdiction to
sequester the benefit intended for the refractory donee in order to secure compensation to
those whom the election disappoints.1 Thus, though compensation to disappointed
transferees is secured both under the English and the Indian law there is a material difference
between the two systems of law, as to how such compensation is secured. Unlike the Indian
law, the refractory donee under the English law does not forfeit the benefit conferred upon
him by the grantor but takes it subject to a charge to compensate the disappointed
transferee.2 Accordingly, in the Illustration to Section 35(1) on Cs election to retain the
farm, the gift of Rs. 1,000 would not in English law revert to A the grantor; would be taken
by C subject to a charge in favour of B for Rs. 800. This is because the doctrine in England
rests on compensation and not on forfeiture.10 Hie doctrine in India rests on forfeiture, and
the disappointed donee looks to the transferor to compensate him by a charge on the property
that has reverted to him.

Time of Election and reminder to elect.Section 35 of the Transfer of Property Act lays
down the provision that if the person, put to election, "does not, within one year, after the date of the
transfer, signify to the transferor, or his representative, his intention to confirm or to dissent from the
transfer, the transferor or his representative may, upon the expiration of that period, require him to make
his election; and if he does not comply with such requisition within a reasonable time after he has
received it, he shall be deemed to have elected to confirm the transfer." But the English law does
not provide any time within which the election should be made. The transferee, however, may
be called upon by the parties interested to make his election without undue delay. The
instrument may prescribe a period, within which the transferee must exercise his election but if
he fails to make his election within that period, he will be deemed to have elected against the
instrument.11 But under the Indian law, in such a case, he is deemed to have made an election,
to take under the instrument.

10 Gretton v. Howard, 1 Swan 409

11 Dillon v. Parker, 5 F.R. 799 (H.L.).

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Belief of the transferor immaterial (Clause (2)].Belief of the transferor is immaterial. If

the transferor in fact transfers a property of someone else, it is immaterial whether he does or
does not believe such property to be his own. It would not, therefore, matter whether the
transferor, though he had the power to convey, or knowing the extent of h-'s authority, intended
by an arbitrary execution of the power to exceed it.12
Section 35 will apply in all cases whether the transfer or proposal to transfer is under any misconception
as to title of the transferor over affected properties or is motivated by any known or unknown device or
design. The personal factors, on the part of the transferor do not matter in any way as regards the operation
of Section 35. What matters is the fact that X has purported to confer benefits plus burdens on Y, Y may
oblige X or may not. But he cannot be permitted to go half way in between the two i.e., yes, to the whole
lot or no to the whole. He cannot say "yes to one half and no to the other.
Indirect benefitNo election needed [Clause (3)].The occasion for election arises where a
benefit is directly conferred upon the owner of the property. Consequently, there would be no
need for election where such owner derives a benefit under the transaction indirectly. The
principle of the rule is that a devisee or a donee who claims derivatively through another, does
not take under the deed and is not therefore, bound by the equity attaching thereto. This rule
corresponds to Section 184 of the Indian Succession Act, 1925, and is explained by the
following illustration :
"The lands of Sultanpur are settled upon C for life, and after his death upon D, his only
child. A bequeaths the lands of Sultanpur to B, and Rs. 1,000 to C. C dies intestate shortly after
the testator, and without having made any election, D takes out administration to C, and as
administrator elects on behalf of Cs estate to take under the Will. In that capacity he receives the
legacy of Rs. 1,000 and accounts to B for the rents of the lands of Sultanpur which accrued after
the death of the testator and before the death of C. In his individual character as C"s heir, he
obtains the lands of Sultanpur in apposition to the Will."
In an Oudh case, "a person received benefit under an endowment as a trustee, he claimed
another estate against the trust in the capacity of an owner. It was held, he could do so."1
12

Thelusson

v.

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Woodford,

13 Ves 709

: Parker

v.

Sawerby, 4 De, G.M. &

G. 321

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Different capacityNo election needed [Clause (4)],Where a person holds two capacities,
e.g., individual and vicarious, he may accept the benefit in one and dissent therefrom in the
other. The vicarious capacity may be one as a guardian, a trustee, an administrator or an
executor. No question of election can arise merely because owing to certain circumstances, the
two capacities have temporarily merged in one person. This rule corresponds to Section 185 of
the Indian Succession Act, 1925, and is explained by the following illustration :
"The estate of Sultanpur is settled upon A for life, and after his death upon B. A leaves the
estate of Sultanpur to D, and Rs. 2,000 to B, Rs 1,000 to C, who is B's only child. B dies
intestate shortly filler the testator without having made an election. C takes out administration
to B and as administrator, elects to keep the estate of Sultnnpur in apposition to the Will, and to
relinquish the legacy of Rs. 2,000. C may do this and yet claim his legacy of Rs. 1,000 under
the Will."
Additional or extra benefitNo Election needed.If a benefit under an instrument is
expressed to be in lieu of the property which the transferor professes to transfer, and the owner
of such property claims to retain it, he must relinquish the particular benefit, but he is not bound
to give up any other benefit conferred upon him by the same transaction. Where such a case
occurs, the refractory donee need not occupy a different capacity nor need the benefit be given to
him indirectly. He occupies one and the same individual position. The only peculiarity of such a
case is that the transferor by the same transaction and under the same instrument confers on the
owner of the property two kinds of benefits, one in lieu of his property which the transferor
transfers to someone else, and the other as a pure and simple benefit, by way of gift as it were,
without any consideration at all. Both these benefits are regarded as independent of each other.
This exception corresponds to Section 186 of the Indian Succession Act, 1925, and is explained
by the following illustration :
"Under As marriage settlement his wife is entitled, if she survives him, to the enjoyment of
the estate of Sultanpur during her life. A by his will, bequeaths to his wife an annuity of Rs. 200
during her life in lieu of her interest in the estate of Sultanpur, which estate he bequ eaths to his
son. He also gives his wife a legacy of Rs. 1000. The widow elects to take what she is entitled to

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under the settlement. She is bound to relinquish the annuity but not the legacy of Rs. 1000.

Mode of Election
Election may be direct or indirect. For direct election no form is prescribed and no formula
is laid down. Anything that conveys the intention clearly is sufficient for the purpose. A letter,
telegram, a word spoken orally in presence and within hearing range of the transferor or any
other sign made or marked at the desire of or to understanding of the transferor is enough. In
case of indirect election, the following three modes are given in Section 35, clauses 5, 6 and 7.
(i) Acceptance of benefit with knowledge of duty to elect [Clause (5)]Election
assumed.If the donee accepts the benefit given to him by the transferor, such act on his part
constitutes an election by him. It is, therefore, essential that the acceptance of the benefit should
have been made with full knowledge of his duty to elect and of all matters connected with such
benefit. If the benefit is accepted without such knowledge, the election may be revoked by the
representative of the electing party. Similarly, if the election is made either expressly or
impliedly under a misconception or mistake of fact it is not binding and can be revoked even by
the elector himself. If, however, the donee, willfully abstains from inquiring and thereby waives
an inquiry into the circumstances under which a benefit is conferred upon him and makes an
election, such election will be bindingon him and his representatives.
(ii) Two years enjoymentElection presumed [Clause (6)] The clause corresponds to
Section 188(1) of the Indian Succession Act, 1925. The period of two years is taken from the
case of Crabtree v. Bramble.13
The presumption may be rebutted.
There is presumption in form of election. If the person put to elect jmows that he is under a
duty to elect, he must express dissent if he is retaining the property for the time being and is not
interested in election in favour of the proposal. If one keeps the property for two years from the
day it is conveyed to him and says nothing to explain the conduct otherwise, the law leaves
every body to presume that the person so retaining the property for such a duration is doing so
under belief that it is his own and he accepts the document as originally proposed.
(iii) Status quo cannot be restoredElection presumed [Clause (7)].This clause
13 1925 Cal.724 (D.B.)

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corresponds to Section 188(2) of the Indian Succession Act, 1925. It is amply explained by the
Illustration to Section 35(7). The principle is that of restitutio in integrum recognised in Section
36 of the Specific Relief Act. The section permits inference of knowledge which ma; be rebutted
by circumstances

This clause explains another way as to how indirect election may take place. If the
property is exhaustible by consumption, the moment its consumption starts, the election in
favour is presumed. The case of coal mine is a very typical example. The moment excavation
starts and even few chunks of coal are dug out the coal mine begins to exhaust. In these
cases, no period is necessary.
Time of election [Clause (8)].If the donee is fully aware of his duty to elect and other
circumstances connected therewith, does not elect either way, for as long as one year from the
date of the transfer, Section. 35(8) says that in such a case the transfer does not lapse, but the
transferor or his representative may call upon him to elect. The English law makes no such
provision, but there is nothing in that law, to prevent a transferor from fixing a time in the
instrument within which the election must be made. If any such time is fixed and the donee
does not elect within that time, he is deemed to have elected against the instrument.
Disability [Clause (9)].This paragraph provides that where the donee suffers from some
disability, i.e., minority, the election shall be postponed until the disability ceases or until the
election is made by some competent authority, e.g., a guardian of a minor. A transfer by a person
under a legal disability cannot give rise to a case of election.14
Ratification.Cases of ratification must be distinguished from cases of election. For
ratification, properly speaking, refers to acts done on behalf of the ratifier. If done without
authority of the principal, may elect either to ratify or to disown them (Section 196, Indian
Contract Act). The doctrine of ratification, however, rests on the same principle that a man
cannot both affirm and disaffirm the same transaction. Thus, when a widow who had a life
estate for maintenance granted a permanent lease, the reversioner could elect either to ratify it or
to set it aside, and it was held that he was not bound by the lease when he accepted rent for three
14(1970)

1 S.C.W.R.

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403 : A.I.R.

1967

S.C.

1153.

DOCTRINE OF ELECTION

years in ignorance of the circumstance under which the lease was granted or the terms on which
it was held. A converse case is Mad.hu Sudan v. Rooke15, where the reversioner accepted rent
with full knowledge that the widow had granted a patni lease and he was held to have elected to
ratify the lease.

15 (1898) 25 Cal. 1

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Conclusion
Therefore, doctrine of election is one of the most important and complex concept of transfer of
property act which needs deep and comprehensive study and must be understood and applied
carefully to prevent adverse situation. It finds very much applivation in personal law,i.e., both
Hindu law and Mohemaden law and has been used in various cases like Mangaldas v.
Ranchhodas, Sadik Husain v. Hashim Ali, etc. there is need to do proper research on the doctrine
and remove the problems by the lawmakers to bring it to full use.

Bibliography

B.B.Mitra, & S.P.Sengupta- Transfer of Property Act,

Dr. Sir Hari Singh Gour- Transfer of Property Act,
Dr. S.N.Shukla- Transfer of Property Act,
Dr. G.P.Tripathi The Transfer of Property Act,

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