PROJECT WORK ON

DOCTRINE OF ELECTION: AN ANALYTICAL STUDY

(FACULTY, TRANSFER OF PROPERTY ACT)

SUBMITTED BY: SACHIN

(ROLL NO. 114)

SEMESTER: IV

SUBMITTED ON: 9TH APRIL, 2013

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR,(C.G)

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 ACKNOWLEDGEMENT

Thanks to the Almighty God who gave me the strength to accomplish the project with sheer
hard work and honesty.

May I observe the protocol to show my deep gratitude to the venerated Faculty-incharge Ms.
Kiran Kori, for her kind gesture in allotting me such a wonderful and elucidating research
topic. Her sincere and honest approach have always inspired me and pulled me back on track
whenever I went astray.

It would be very unjust to forget the friends, while expressing thanks to one and all. Honestly
speaking I feel pride to have friends.

Last, but by no means the least, I would like to thank all the members of HNLU family in
general and my blooming and charismatic friends in particular for their wholehearted co-
operation throughout the odyssey.

Sachin

(semester IV)

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 Table of Contents
Research Methodology ……………………………………………………………..3

Introduction................................................................................................................................4

Doctrine of Election...................................................................................................................5

Principle of Doctrine of election................................................................................................6

Circumstances in which election takes place.............................................................................6

Requisites essential to election...................................................................................................7

Revert to the transferor –............................................................................................................9

As part of the same transaction................................................................................................10

Doctrine of election cannot be availed of to cure any illegality –...........................................11

Exception to the rules...............................................................................................................12

Enjoyment for two years..........................................................................................................13

Ratification and election..........................................................................................................14

Hindu Law................................................................................................................................14

Conclusion................................................................................................................................15

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RESEARCH METHODOLOGY –

The Doctrinal Method of Research is used in this project. It included collection of materials
from primary and secondary sources. The primary data sources includes legislations, treaties
etc. And the secondary data sources include form of books and articles.

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Introduction –
It is a famous proverb in English that “one cannot eat the cake and have it too” which relates
to the fact that if given a choice, an individual can either opt for the choice or relinquish it.
However both the options cannot be exercised at the same time. The same concept is more or
else ingrained in the Indian legal system in as much as the Transfer of Property Act
incorporates the Doctrine of Election which has been consistently apply to imply that benefit
under one option can alone be exercised by an individual.

In the recent judgement of Supreme Court in the case of Mumbai International Airport Pvt.
Ltd. v. Golden Chariot Airport1, held that he who accepts a benefit under a deed or will or
other instrument must adopt the whole contents of that instrument, must conform to all its
provisions and renounce all rights that are inconsistent with it.

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 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 is based on intention to this extent that the law presumes that the author of an
instrument intended to give effect to every part of it.2

1
Special Leave Petition (C) No.6556/09
2
Mulla, The Transfer of Property Act, p. 236 (10th Ed., 2006)

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Doctrine of Election –

The foundation of the doctrine of election is the intention of the transferor, either expressed in
the instrument of transfer or implied by its terms; and the Court, by requiring an election to
be thus made, carries into effect that intention.

The basis of the doctrine of election, is, that

(a) a person taking the benefit of a transfer must also bear its burden, and

(b) he must not take under and against the same instrument.

It is a branch of the general rule that no one may approbate and reprobate.

The doctrine is based on intention to this extent, which the law presumes that the author of an
instrument intended to give effect to every part of it.

In Cooper v. Cooper,3 Lord Hatherley observed that there is an obligation on him who takes a
benefit under an instrument to give full effect to that instrument under which he takes a
benefit, and if it be found that 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 received the benefit under the same instrument, the law will impose
on him, who takes the benefit, the obligation of carrying the instrument into full and complete
force and effect.

In M/s New Bihar Biri Leaves Co. & Ors. vs. State of Bihar & Ors.,4 the Court observed that
it is a fundamental principle of general application that if a person of his own accord, accepts
a contract on certain terms and works out the contract, he cannot be allowed to adhere to and
abide by some of the terms of the contract which proved advantageous to him and repudiate
the other terms of the same contract which might be disadvantageous to him. The maxim, qui
approbate non reprobate (one who approbates cannot reprobate), applies in our laws too.

The foundation of the doctrine is the intention of the transferor, an intention which, extending
to the whole disposition is frustrated by the failure of any part. Its characteristic is that, by
equitable arrangement, effect is given to a donation of that which is not the property of the
donor

3
7 HLC 53 (71)
4
(1981) 1 SCC 537

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Principle of Doctrine of election –

The broad principle is, that no man can be allowed to claim anything under a deed of transfer,
without conforming, as far as he is able, and giving effect, to everything contained in it,
whereby a transfer is made, showing an intention that it will take effect, without reference to
the circumstances, whether the transferor had any knowledge of the extent of his power or
not. Where the transferor had the intention to make the transfer, irrespective of whether he
thought, he had the right or, knowing the extent of his authority; and intended, by an arbitrary
exercise of power, to exceed it, no person taking under the transfer can disappoint his
intention.

In Paru Kutty Amma v. Chettath Navoth Lakshmi Amma,5 it was said, that a person cannot
prefer to accept a benefit and refuse to be bound by the other provisions of the instrument. A
person, who wants to get a benefit under an instrument, must conform to the entire provisions
of that instrument, and thus give effect to the intentions of its maker. It is not open to a person
who accepts a benefit under an instrument, to defeat its maker s intentions with reference to
some of its provisions. The doctrine of election applies only when a person, who gets a
benefit under an instrument, takes up an inconsistent position with reference to the other part
of the same document. To attract the application of the doctrine of election, there must be two
sets of properties, the one, to which the transferor is entitled, and the other, of which the
person who gets the benefit is the owner, and it is then that such owner is put to the necessity
of election, as to whether he would accept his gift, in which case he should allow his property
transferred by the transferor to devolve in the manner provided by the law. The essence of the
doctrine is that a person cannot affirm and, at the same time, dissent from the same
document, accept one part and reject the other, receive the benefit provided and refuse to give
full effect to the document.

Circumstances in which election takes place –

The doctrine of election rests on the principle that he who accepts a benefit under an
instrument must adopt the whole of it, conforming to all its provisions and renouncing every
right inconsistent with them. The general rule is, that a person cannot both accept and reject
the same instrument. So, where a transferor disposes of property, which is not his own, and
gives a benefit to the person to whom that property belongs, the latter, accepting the benefit
so given to him, must take good the transferor s attempted disposition. But if, on the contrary,
he chooses to enforce his proprietary right against that disposition, he must relinquish the
benefit conferred upon him by that transfer, and the benefit so relinquished shall revert to the
transferor, or his representative, as if it had not been disposed of.

5
AIR 1954 M 556 (559).

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A case of election can arise only when the person sought to be bound by his election has a
right to, or some interest in some property, which is professed to be disposed of by another
person. Thus, a descendant can have no interest, in his ancestor s property so long as that
ancestor is alive. A presumptive heir cannot renounce or release his interest or right before
the inheritance opens, and there can be no question of election between two inconsistent
rights, until he acquires an interest after death of the ancestor. A case for election can arise
only,

(1) where a person professes to transfer property which he has no right to transfer; and

(2) as part of the same transaction, he confers a benefit on the owner of that property.

The intention of the transferor to dispose of the property which is not his own, should be
clear. It must appear by demonstration plain, or by necessary implication. In order to raise a
case of election under a transferor must have clearly intended to transfer the particular
property over which he had no power of transfer and which belonged to another and that
other must have enjoyed the benefit provided for him.

There is no distinction, for the purpose of election between movable and immovable
property. This is evident, as this section falls under Part A of this Chapter which relates to
transfers of property, whether movable or immovable. The doctrine is also applicable to
interests, immediate, remote, contingent, of value, or not of value.

Requisites essential to election – 6

(a) General –

The essential requisites to election are, that the intention of the transferor must be expressed,
or clearly implied, in the instrument of transfer in two respects :

(1) to dispose of that which is not his own; and

(2) the person taking the benefit under the instrument of transfer should take under the
condition of giving effect thereto; or, in other words, the person taking the benefit must
relinquish any inconsistent right; unless such intention is clear, the person taking the benefit
under the transfer, will not be obliged to make election between that benefit and his own
independent right.7

(b) Transferor must have an intention to dispose of property not his own.

6
Commentary of Manupatra on Transfer of Property Act
7
Bhau Ram v. Banj Nath Singh, AIR 1961 SC 1327

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It is not to be supposed that a transferor disposes of that which is not his own. His intention to
do so must be expressed, or appear by necessary implication. It rests upon those contending
for a case of election to show that there is such manifest play in demonstration.

(c) Owner whose property is transferred must be cognizant of his rights.

Before a party can be compelled to make his election, it is also necessary that he should have
had the opportunity to ascertain for himself the loss and gain under the transfer, and the party
having the right of election must be cognizant of his rights.

It is true that anyone taking possession under a transfer cannot set up an adverse title, but this
doctrine is subject to the qualification that an election can be made only with full knowledge
of all the circumstances.8

(d) Transferor must have personal competence to make the disposition.

In order to raise a case of election, the transferor must have a personal competency to make
the attempted disposition, as the doctrine is founded upon the disposing intention, which
supposes such competency.

(e) Proprietary interest.

A person is not put to his election unless he is the owner, or unless he has a proprietary
interest in the property disposed of in derogation of his rights. So, a creditor, who has only a
personal claim for payment by his debtor, is not put to his election.

The question of election does not arise:

(a) if the property which the transferor professes to dispose of does not belong to any of the
persons to whom an interest is given by the transfer.

(b) if the transferor does not confer any benefit on the person to whom the whole or part of
the property disposed of belongs.

8
Subhodhchandra v. Bhubalika, AIR 1934 C 356 (359)

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Revert to the transferor –

(a) General.

If the owner of the property relinquishes the benefit so conferred, it (the benefit) shall revert
to the transferor, or his representative, as if it had not been disposed of; in other words, such
benefit does not go to the transferee to whom the property of the owner was transferred; on
the other hand, the benefit reverts to the transferor or his representative.

(b) Difference between English and Indian law.

In this last respect, the law in India differs from that in England; there the refractory donee,
who dissents from the transfer, does not forfeit the benefit under the transfer, but takes it
subject to a charge to compensate the disappointed donee. In Re Macartney, Macfarlane v.
Macartney, it was said, that there is an equitable principle which is sometimes referred to as a
principle of election, sometimes of compensation, sometimes of approbation and reprobation,
but the doctrine is wider. The simplest instance of it is where a testator purports to dispose of
property to A, which in fact belongs not to the testator but to B, while B himself takes
benefits under the will. B cannot accept the benefits given to him by the will unless he will
surrender his right to his own property in favour of A. In this case the doctrine imposes the
necessity of election. In the case of Pickersgill v. Rodger, it is treated as a doctrine of
compensation. But these cases are only instances of the application of an equity which may
arise under a great variety of circumstances. In Pickersgill v. Rodger, Sir G. Jessel thus state,
the principle,

“You are not allowed by Court of Equity to take away out of the testatrix s estate that which
you would otherwise be entitled to; until you have made good to me the benefit she intended
for me. That means that no one can take the property which is claimed under the will without
making good the amount; or, in other words, as between the devisees and legatees claiming
under the will, the disappointed legatees are entitled to keep back from the other devisees or
legatees the property so devised and bequeathed until compensation is made. Thence arises
the doctrine of an equitable charge or right to realise out of that property the sum required to
make the compensation a volunteer under a will cannot take the benefit and at the same time
wilfully defeat the expressed intention of the testator. The doctrine of election is a rule of
equity by virtue of which the Court of Equity compels a recipient of the testator s bounty to
conform to all the legal provisions of the will.”

Under the English law, when such owner elects to dissent from the transfer, he takes the
benefits subject to a charge to compensate the disappointed transferee and they would not
revert to the transferor. This is so, because the doctrine in England rests on compensation and
not on forfeiture, while the doctrine in India rests on forfeiture, and in this country, the
disappointed transferee looks to the transferor to compensate him by a charge on the property
that reverts to him under this section but, as provided by the succeeding words of the
paragraph, although there is occasion for a charge

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(a) if the transfer is gratuitous, and the transferor has, before the election, died or otherwise
become incapable of making a fresh transfer, and

(b) in all cases where the transfer is for consideration, of making good to the disappointed
transferee the amount or value of the property attempted to be transferred to him, yet there is
no occasion for a charge, if the transferor survives when the transfer is gratuitous, for it is
open to the transferor to make a substituted gift.

The plaintiffs ought to have averred in the plaint that they elected to return the benefits
derived by them. In absence of any such averment regarding election of their claim in suit
under Section 35 of the Act the plaintiffs have to be non-suited.9

As part of the same transaction –

An essential condition for the application of the doctrine of election is that the transferor must
have conferred any benefit on the owner of the property as part of the same transaction. From
this it follows, that the right to election will not arise, unless the transferor confers a benefit
on the owner of the property, as part of the same transaction by which he professes to transfer
property which he has no right to transfer. If the two transactions, namely,

(1) of transferring property which the transferor has no right to transfer, and

(2) of conferring any benefit on the owner of the property, are independent,

the one which is in the power of the transferor will stand, but the other will fail.

Same transaction and not the same instrument. To be the same transactions, the transaction
need not necessarily be under one document only.

In Ramayyar v. Mahalaxmi,10 a Hindu widow made a gift in excess of her powers and
subsequently left a will in which she said that excluding the properties which I have already
given away, I will make the following dispositions . It was held, that the plaintiff taking
under the will was not precluded by the doctrine of election from disputing the prior gift
which was not the subject of the will at all.

In Muhammad Afzal v. Ghulam Kasim,11 the Government transferred a portion of the cash
allowance of the late Nawab of Tonk, while transferring the chief ship to the eldest son, to the
second son to whom the late Nawab had already granted two villages for maintenance. It was
held, that the second son was not put to his election, as the two grants came from independent
sources.

9
Mulla, The Transfer of Property Act, p. 238 (10th Ed., 2006)
10
AIR 1922 Mad 357 (358)
11
LR 30 IA 190

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A case for election may, however, arise where the two gifts are made by two deeds, if they
are used to carry out only one transaction.

Doctrine of election cannot be availed of to cure any illegality –

The doctrine of election cannot be resorted to in order to cure an illegality. 12 Thus a gift,
which infringes the rule against perpetuities, cannot be used to arise a case for election. A
purported release by a Muslim daughter, which was void under s. 6(a), cannot be saved by
the doctrine of election, for that would amount to curing a manifest illegality. 13 The Court
will refuse a testator to commit a breach of the law. The doctrine of election cannot be
applied not only to cure an illegality, but also not, if it will lead to inequitable results.14

TESTATORS BELIEF AS TO THE OWNERSHIP –

Although the doctrine of election may be referred to the implied intention of the testator, yet
it is not necessary that he should have had in mind the equitable principle of election. 15 It is
immaterial whether a transferor believed that he had the power to transfer, or knowing the
extent of his authority intended by an arbitrary execution of power to exceed it. In Whistler v.
Webster, Lord Alvanley said that nothing can be more dangerous than to speculate upon what
the transferor would have done, if he had known one thing or another. It is not necessary to
prove that the testator was aware that the subject of disposition was not his own.47 The
obligation of making an election will be equally imposed on the transferee, although the
transferor proceeded on an erroneous supposition that both the subjects of bequests were
absolutely at his own disposal.16

It is not necessary that the transferor should have known that the property did not belong to
him, or that he intended to put the donee to an election. But if the transferor intends to put the
donee to an election, the condition is a condition precedent which must be literally
performed.

Where a man having a power to appoint to A a fund, which in default of appointment is given
to B, exercises the power in favour of C and gives other benefits to B, the execution is void,
but if B accepts the gift to him, he must convey the estate to C according to the
appointment.17 So, where a person having a power to appoint, delegates the power to a third
12
Abdul Kafoor v. Abdul Razack, AIR 1959 Mad 131
13
Ibid
14
Brown v. Gregson, (1920) App Cases 860
15
Cooper v. Cooper, 7 HL 53 (67, 71).
16
Whistler v. Webster. (1792) 2 Ves 367 (370).
17
Whistler v. Webster, (1792) 2 Ves 367 (370)

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person and confers benefits upon the objects of the power by the same instrument, the objects
of the power cannot retain the benefits given to them and also claim the property against the
execution of the power so improperly delegated.

Where there is an absolute appointment in favour of proper object of the power, and that
appointment is followed by attempts to modify the interest so appointed in a manner which
the law will not allow, the transfer is to be read as if all the passages in which such attempts
are made were swept out of it, not only so far as the attempt to regulate the quantum of
interest to be enjoyed by the appointee in the settled property, but also so far as they might
otherwise have been relied on as raising a case of election.52 There can be no question of
election in such a case. The instrument must be read as if the invalid appointment were not in
it at all. The ordinary case of election arises, where a donor attempts to give by his transfer
property which belongs to someone else.

Exception to the rules –

(a) General.

The Exception corresponds to Section 186 of the Indian Succession Act, 1925. In East v.
Cook,18 Lord Hardwicke observed that the rule of not claiming by one part of a will in
contradiction to another, is a true rule, but has its exception. Several cases have been, and
several more may be, in which a man shall give a child, or other person, a legacy or portion in
lieu of satisfaction of particular things expressed, which shall not exclude him from another
benefit though it may happen to be contrary to the will; for the Court will not construe it as
meant in lieu of everything else, when he has said a particular thing.

In Brown v. Parry,19 the testator died possessed of property of which the defendant, his
widow was dower able. He devised to his wife certain particular estates for her life, and
bequeathed to her some parts of his personal estates, but did not add in bar of dower. He also
gave to his wife an annuity to be accepted by her in lieu of dower. The widow elected to keep
her dower and not to take the annuity. The question was whether by keeping the dower she
forfeited her right to the rest of the testator s estate. It was held, that she was entitled to the
rest of her husband s bounty.

A transferee may be put to election, if the words of the gift are sufficiently wide. Thus, a
widow maybe put to her election by expressed words between her dower and a gift conferred
upon her, unless there be anything ambiguous or doubtful, so that the Court cannot say that is
was clearly the intention to exclude her from the benefit. In such cases, the averment that the
gift was made in lieu of dower cannot be supported. To make a case of election, it is
necessary to show

18
2 Ves Sen 33
19
2 Dick 685

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(1) that a particular gift is expressed to be made on the owner of the property, which the
transferor professes to transfer, and

(2) such benefit must be expressed to be in lieu of that property.

If these conditions are fulfilled, then, if such owner claims the property, he must relinquish
the particular benefit, but not any other benefit conferred upon him by the same transaction.
To make a case of election, it is necessary to show that the gift was made in lieu of certain
property. The ordinary rule is, that the gift is to be taken as pure, until a condition appears.
The only question, in all cases, is whether intention, not expressed by apt words, could be
collected from the terms of the instrument. The instrument must contain some provision
inconsistent with a right to retain a benefit conferred upon the donee by the transfer. In other
words, it must appear from the instrument of transfer that a particular benefit is expressed to
be conferred upon him in lieu of certain property of the owner.

(b) Particular benefit must be clearly expressed to be transferred.

A mere gift of an interest to the owner of certain property, even though charged on all the
transferor s property, is not sufficient to put a particular donee to election. Therefore, a mere
gift to such person, unless it is expressed to be made to the owner of the property in lieu of
his property, which the owner professes to transfer, is not sufficient. It must appear

(a) that the transferor professes to transfer the property of another person, and

(b) that the transferor expresses to confer a benefit by the transfer in lieu of that property on
that person, the owner of that property.

If these two conditions are fulfilled, then such owner, if he claims his property, must
relinquish the particular benefit; but he is not bound to relinquish any other benefit conferred
upon him by same transaction. He is bound to relinquish only such benefit, as is expressed to
be in lieu of that other person’s property.

Enjoyment for two years –

This corresponds to 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.

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Ratification and election –

Ratification must be distinguished from election. Ratification refers to acts done on behalf of
the ratifier. Thus, where an agent does an act without authority from his principal, the latter
may elect either to ratify or to disown it. 20 The doctrine of ratification also rests on the
principle that a man cannot both affirm and disaffirm the same transaction.21

Election, on the other hand, is the choosing between two rights, where there is a clear
intention, that both were not intended to be enjoyed. It originates in two inconsistent
alternative donations or benefits, the one of which the pretending donor has no power to
make without the assent of the donee of the other benefit. In such donations, there is intention
that the one gift shall be a substitute for the other, and shall take effect only, if the donee
thereof permits the other gift also to take effect, substantially in the manner and to the extent
intended by the donor. The permitting donee has the right to choose.

Hindu Law –
The principle of this doctrine has always been applied to the Hindu Law. But in the case of
Mangaldas v. Runcchoddas,22 this doctrine was directly applied to the Hindu Law. A Hindu
widow devised to K immovable property of her husband and gave the plaintiff, a revisionary
heir, a legacy of Rs. 2000. The plaintiff claimed the legacy under the will and the immovable
property as heir. The court said that the doctrine of election applied, and that he must elect to
take the one or other.

The doctrine of election was applied to Mahomedans by the Privy Council in the case of
Sadik Husain v. Hashim Ali.23

20
Section 196 of the Contract Act
21
Modhu Sudan v. Rooke, 24 IA 164
22
(1890) ILR 14 Bom 438
23
(1916) ILR 38 All 627

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Conclusion –
Sec 35 of Transfer of Property Act, 1882 incorporates the Doctrine of Election. Election
means choosing between two inconsistent or alternative rights. Under any instrument if two
rights are conferred on a person in such a manner that one right is in lieu of the other, he is
bound to elect only one of them.

The Doctrine Of Election is based on Equitable Principle under which a person may not be
allowed to approve that part of an instrument which is beneficial to him and disapprove it’s
that part which goes against him. No one can approbate and reprobate at the same time which
means where a person takes some benefit under a deed or instrument, he must also bear its
burden.

The Doctrine Of Election which is based on Equity is applied to every species of instrument
whether deed or will and to every kind of property movable or immovable.

Sec 35 of the Act makes following provisions in respect of the rule of election-

i) where a person profess to transfer a property not his own.

ii) in lieu of his transfer, the transferor confers certain benefits upon the owner of the
property.

iii) the two things, i.e. transfer of property and conferring of the benefit forms part of the
same instrument.

Then, the owner of property is bound to elect either to take the benefit and transfer his
property or to retain his property and give up the benefit.24

24
http://jurisonline.in/?p=4845, last accessed on 08/04/2013

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Bibliography –


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