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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 Election" 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.
The doctrine of election is stated in Sec. 35 of the Transfer of Property Act. 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.

And in all cases where transfer is for consideration,

To the charge of making good to the disappointed transferee the amount or value of property
attempted to be transferred to him.

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" transfer "B"'s property worth Rs.100 without his consent or knowledge to "C" and in the
same transaction, "A" gives Rs.1000 to "B".
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.

EXCEPTIONS
Where a particular benefit is expressed to be conferred on the owner of the property which the
transferor professes to transfer and such benefit is expressed to be in lieu of the property, if such
owner claims the property, he must relinquish the particular benefit, but he is not bound to
relinquish any other benefit conferred on him by the same transaction.
Acceptance of the benefit by the person on whom it is conferred constitute election by him to
confirm the transfer, if he is aware of his duty to elect and of those circumstances which would
influence the judgement of a reasonable man in making an election, if he waives inquiry into the
circumstances.
Such knowledge or waiver shall, in the absence of evidence to the contrary, be presumed, if the
person on whom the benefit has been conferred has enjoyed it for two years without doing any
act to express dissent.
Such knowledge or waiver may be inferred from any act of his 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.

BARE PROVISION
Section 35 in The Transfer of Property Act, 1882
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,
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 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. Illustrations 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. In the same case, A dies before the election. His representative must out of the Rs. 1,000
pay Rs. 800 to B. The rule in the first paragraph of this section applies whether the transferor
does or does not believe that which he professes to transfer to be his own. A person taking no
benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect. A
person who in his one capacity takes a benefit under the transaction may in another dissent
therefrom. Exception to the last preceding four rules.Where a particular benefit is expressed to
be conferred on the owner of the property which the transferor professes to transfer, and such
benefit is expressed to be in lieu of that property, if such owner claims the property, he must
relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred
upon him by the same transaction. Acceptance of the benefit by the person on whom it is
conferred constitutes an election by him to confirm the transfer, if he is aware of his duty to elect
and of those circumstances which would influence the judgment of a reasonable man in making
an election, or if he waives enquiry into the circumstances. Such knowledge or waiver shall, in
the absence of evidence to the contrary, be presumed, if the person on whom the benefit has been
conferred has enjoyed it for two years without doing any act to express dissent. Such knowledge
or waiver may be inferred from any act of his which renders it impossible to place the persons
interested in the property professed to be transferred in the same condition as if such act had not
been done. Illustration A transfers to B an estate to which C is entitled, and as part of the same

transaction gives C a coal-mine. C takes possession of the mine and exhausts it. He has thereby
confirmed the transfer of the estate to B. If he does not within one year after the date of the
transfer signify to the transferor or his representatives 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. In case
of disability, the election shall be postponed until the disability ceases, or until the election is
made by some competent authority. COMMENTS When question of election arises A case of
election arises only when the transferee takes a benefit directly under a transaction. When the
transferee derives any benefit indirectly, no question of election arises, as he, in that case, cannot
be said to take under the deed; Valliammai v. Nagappa, AIR 1967 SC 1153.

Mode 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 :

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 willfully abstains from inquring 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 persumed. No period of consumption is necessary for this
presumption.
In Beepathumma v/s Kadambolithaya SC held that:
A person cannot take under and against the same instrument. Means he can approbate and
reprobate at the same time. Example-Abu Bakar offer 1,00,000 to Joy in lieu of transfer his
house, So, Joy can elect only one, either he can retain the money and transfer his house or deny
the money, he can not enjoy the both. Section 35 of the Transfer of Property Act embodied the
doctrine of election.
Benefit Conferred on the Owner of property
The transfer must confer any benefit on the owner of property. The word owner in this section
has 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 the
property who is put to election. Therefore he must be given some benefit in compensation for
his ownership of the property.
The occasion for election arises only when a benefit is directly conferred on the owner of
property. Where is benefit to the owner other than for transferring property or is given indirectly,
there is no case for election. For example A profess to transfer property of C to B and give Rs
5000 to wife of C. This is not direct benefit to C and therefore C has no duty to elect.

Part of the Same Transaction


The rule of election operates only when the transfer and benefit form part of same transaction.
By same transaction is meant that the transfer of property is to be mad evidently only in lieu of
benefit. There is no election if benefit and transfer are independent transactions. However, it
is not necessary that these two transactions are provided on one instrument.
In Muhammad Afzal v. Gulam Kasim, after the death of Nawab of Tank, the government while
transferring the chiefship to Nawabs eldest son, transferred some cash to allowances to Nawabs
second son. The Nawab in his life-time had already granted two villages to the second son for his
maintenance. The Privy Council held that since the two grants (cash by allowances and villages
by Nawab during his life) came to second son from two different sources, they were not part of
same transaction. The second son was not put to election.

According to the section 35 where a person


i) Professes to transfer property which he has no right to transfer, and
ii) as part of the same transaction , confers any benefit on the owner of the property , such owner
must elect either to confirm the transfer or to dissent from it .
If he dissents from it ,a) he must relinquish the benefit so conferred ; and
b) b) the benefit so relinquished reverts to the transferor
had not been disposed of .

or his representative

as if it

Those are the essential ingredients for this doctrine :1) The transferor must not be owner of the property which he transfers .
2) The transferor must at the same time grant some property , in the same instrument , out of his
own , to the owner of property .
3) The two transfers i.e. transfer of the property of owner to the transferee and conferment
of benefit on the owner of property must be made in the same transaction . Question of electiond
oes not arise if the two transfers are made by virtue of two separate instruments .
4) The owner must have proprietary interest in the property , a creditor is not put to election as he
has only a personal right to be paid by the debtor.

5) The owner taking no benefit under a transaction directly , but diverting a benefit under it
indirectly , is not put to election .
6) Question of election does not arise when benefit is given to a person in a different capacity.

UNDERSTANDING THE PRINCIPLE


In simple words, 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. 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. Also, the election is
confined to the case of a gift or Will 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.

Proprietary Interest
Election over a property is not asked to made by a person unless he holds a proprietary interest
which are disposed off in derogation of the persons rights. 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.

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 wasnt 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.

Donors 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 Parol evidence is not
acceptable and thus the intention must be prima facie clear.
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 utilize a benefit while can dissent or reject that benefit in
another capacity. 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

The election by the owner can either be direct or indirect. In direct election, it is simply through
communication about the elected choice or option. Though, in case of an indirect election, the
acceptance of the benefit by the original owner is subject to two conditions:
1. He has to be aware of his duty to elect, and
2. There must be proof of knowledge of circumstances which would influence the judgment
of a reasonable man in making an election :
Enjoyment for two years of the benefit by the person on whom it is conferred with any dissent.
The election shall be presumed when the donee acts in such a manner with the property gifted to
him that it becomes impossible to return it to the original owner in its original state
Difference between English Law and the Indian Law Perspective
The English law depends upon the principle of compensation which means that if the original
owner does not choose to validate the transfer, he can keep the property and also the benefit
accrued, subject to compensation provided to the donee, to the extent of the property he had
suffered a loss for.
But in the Indian law context, this doctrine is influenced by the principle of forfeiture which
states that if the original owner does not choose to validate the transfer, the donee incurs a
forfeiture of the conferred benefit which goes back to the transferor

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

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 Examples. In this project 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 also
well explained that is Principle of forfeiture and Principle of compensation.