DOCTRINE OF ELECTION

Doctrine of Election
Submitted by:

Divya Raunak, B.A. L.L.B (Hons)

Roll no. 2119

Submitted to:

Mr. Vijay Kumar Vimal

Faculty of Transfer of Property Act, 1882.

This final draft is submitted in the complete fulfilment of the topic “Doctrine
of Election”

Chanakya National Law University,

Patna

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1. ACKNOWLEDGEMENT

I would like to thank my faculty Mr. Vijay Kumar Vimal, whose assignment of such a pertinent topic made me work towards
knowing the subject with a greater interest and enthusiasm and moreover he guided me throughout the project.

I owe the present accomplishments of my project to my friends, who helped me immensely with sources of research materials
throughout the project and without whom I couldn’t have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped me out at every stage of my project.

THANK YOU!

NAME-DIVYA RAUNAK

ROLL NO.- 2119

2nd Semester (BA LL. B)

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1. DECLARATION

I hereby declare that the work reported in the B.A. LLB (Hons.) project report entitled “Doctrine of Election” submitted at
Chanakya National Law University Patna, is an authentic record of my work carried under the supervision of Mr. Vijay Kumar
Vimal. I have not submitted this work elsewhere for any other degree or diploma. I am fully responsible for the contents of my
project report.

DIVYA RAUNAK

Chanakya National Law University

19/02/2020

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Table of Contents
1. ACKNOWLEDGEMENT...............................................................................................................................................................2
2. DECLARATION.............................................................................................................................................................................3
3. INTRODUCTION...........................................................................................................................................................................5
DOCTRINE OF ELECTION..........................................................................................................................................................6
4. RESEARCH METHODOLOGY....................................................................................................................................................7
5. SECTION 35 OF THE TRANSFER OF PROPERTY ACT 1882..................................................................................................8
6. EXCEPTIONS TO THE RULES..................................................................................................................................................11
7. MODE OF ELECTION.................................................................................................................................................................14
ILLUSTRATIONS........................................................................................................................................................................15
8. INGREDIENTS NECESSARY FOR THE DOCTRINE OF ELECTION:..................................................................................16
PROPRIETARY INTEREST........................................................................................................................................................17
DONOR’S INTENTION...............................................................................................................................................................18
INDIRECT BENEFIT...................................................................................................................................................................19
DIFFERENCE IN CAPACITY.....................................................................................................................................................19
9. CASE LAWS.................................................................................................................................................................................20
EFFECT OF ELECTION AGAINST TRANSFER 16.................................................................................................................21
COMPENSATION TO DISAPPOINT TRANSFEREE...............................................................................................................21
DISABILITY:................................................................................................................................................................................21
ENGLISH LAW AND INDIAN LAW.........................................................................................................................................22
MOHAMEDAN LAW;.................................................................................................................................................................22
MODE OF ELECTION:................................................................................................................................................................22
PRESUMPTION AS ELECTION:-..............................................................................................................................................23
FREQUENTLY ASKED QUESTIONS........................................................................................................................................24
10. CONCLUSION..........................................................................................................................................................................26
11. BIBLIOGRAPHY......................................................................................................................................................................28

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2. INTRODUCTION

The intention of enacting the Transfer of Property Act, 1882 was to define and amend the existing law, rather than introducing new
principles1.  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 2 . The
Doctrine of Election is applicable to both movable and immovable property. The foundational basis of the doctrine of election is
that a person gaining a benefit under an instrument must also  bear the consequential burden3 , and that they may not take under and
against the same instrument4, as held in Beepathumma v/s Kadambolithaya5.  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.

Election simply means choosing between two alternative rights or inconsistent 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 (choose) only one of them. One
cannot take under and against the same instrument.

Principle Underlying the Doctrine of Election

Allegans contraria non est audiendus : he is not to be heard who alleges things contradictory to each other.

In Cooper v. Cooper, Lord Hather explained the principle underlying the doctrine of election in the following words,“…there is an
obligation on him who takes benefit under a will or other instrument to give full effect to the instrument under which he takes
benefit ; and if it is found out that instrument purports to deal with something which it was beyond the power of the donor to
dispose of , but to which effect can be given by the concurrence of him who receives a 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 effect6 .”

To illustrate this, suppose Adam offers Rs. 2 lakhs to Brad in lieu of transfer of his plot. Brad may elect only one of the two
options; he may retain the money and transfer his plot or he may retain his plot and deny the money. He cannot enjoy both benefits.

This project attempts to discuss the various nuances associated with the doctrine of election through the discussion of various
landmark judgments. Special importance has been given to  provide a true understanding of the required conditions for the election
by the original owner to take place. The differences between the Indian Law perspective as well as the English Law  perspective is
brought out through critical analysis of the provisions i.e. Principle of forfeiture and Principle of compensation

1
Tajjo Bibi v Bhagwan (1899) ILR 16 ALL 205
2
Whitley stokes, Anglo-Indian Codes, vol, p.721
3
 Codrington v Lindsey 1873 ch 578
4
Dillon v Parkar (1818) 1 swan 359, p.394
5
 AIR (1965) s.C. 241; (1964)5
6
Muhammad Kader Ali Fakir vs. Fakir Lakman Hakim PLR 1956 Dacca 370.

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DOCTRINE OF ELECTION

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, it was held that the
Doctrine of Election applies to every instrument and to every type of property, be it movable or immovable7. 

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

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

This knowledge of the circumstances can be assumed if the person who gains the benefit enjoys it for a period of more than two
years8. Further discussion over this has been made under the heading of “Modes of Election”.

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

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

7
Cooper v. Cooper (1874) 7 HL 53.
8
Sopwith v. Maughan (1861) 30 Beav 235.

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3. RESEARCH METHODOLOGY

1. Objective of the study

i. The researcher wants to enlist the provisions of doctrine of election in Transfer of the Property act, 1882.
ii. The researcher wants to discuss some of the landmark cases related to the topic that will help the reader
understanding the topic.

2. Research Methodology :
The researcher will do doctrinal type of research in which he will go through the primary as well secondary sources. The
researcher through this methodology will be able to get an exact picture of the problem in question. The doctrinal method
helps in doing a comparative study of the topic. This methodology helps in going through not only the work of one eminent
person but of many other too. This helps in getting the bird’s eye view of the subject.

To satisfy the need of the project, the researcher will go through section by section and clause by clause of each section
in question. Then, the researcher will cross check the commentary of those provisions. This methodology will be the
most effective way in preparing the project.
The researcher will also elaborate the topic with the help of landmark cases so that the rationale behind the concept of
DOCTRINE OF ELECTION will be cleared.

3. Limitation of the study :

Since the researcher is a student of law, he has access to a limited area. The researcher having read the commentary on
the IPC could understand the problem clearly but it would have been clearer if he would have read commentary of more
writers. The researcher has limited time for the project. The historical need and background is also necessary for having
a bird’s eye view of the particular topic and it gets developed only by effective and extended reading over a long period
of time. The researcher has a restricted access to the reports of the law commission where the reasons of their work I not
available. But still researcher with his hard work will manage to take out the best possible work.
4. Scope of the study.
After giving the introduction and hypothesis the researcher will do doctrinal as well as non-doctrinal research to
substantiate the hypothesis of the study. With the help of case laws ,the concept of Doctrine Of Election will be
discussed.

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4. SECTION 35 OF THE TRANSFER OF PROPERTY ACT 1882

Section 35 of Transfer of Property Act, 1882 embodies the doctrine of election 9;

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 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. 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 own capacity takes a benefit under the transaction may in another dissent there from.

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.

There is a requirement of three parties for this engagement;

The 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.

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

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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.

To illustrate this, assume 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.

A rose garden is the property of C and is worth Rs. 15,00,000 A, by instrument of gift, professes
to transfer it to B, giving by the same instrument Rs. 20,00,000 to C. C elects to retain the farm
forfeiting the gift of Rs. 20,00,000. Suppose A dies before the election. His representative must
pay Rs. 15,00,000 out of the Rs. 20,00,000 to B.

Assume, by a deed A provides for B a house having a place with C, and by a similar instrument
gives another property having a place with himself to C. C qualifies for A's property just upon
the association of C's adjusting to all the arrangement of the instrument by disavowing the
privilege to his own property given for B; he should therefore settle on his decision, or as it is
actually named "he is put to his election", to take either under or against the instrument, he
should surrender for B his property given to B by A; and takes the property which is given to
him by A. as expressed by Lord Hather in Cooper v. Cooper.

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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.

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.

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5. 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.

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

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

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

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

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

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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 of 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.

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.

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

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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 directs 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
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.

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6. MODE OF ELECTION

Modes of election

a. Implied – by conduct

b. Express – election when made in express words, it is final and conclusive.

NOTE: If a person acts through ignorance or mistake, the doctrine gives way.

Two years’ enjoyment

The presumption may be rebutted. A widow who enjoyed a provision made for her under a will
in ignorance of her right of dower was held entitled to elect after a lapse of 16 years.

Knowledge
The section permits an interference of knowledge which may be rebutted by circumstances.

Time limit for election

Upon the expiration of one year from the transfer, if an election has not taken place, the
transferor may compel him to make his election.

If he fails to comply with this requisition within a reasonable time, he shall be deemed to have
elected to confirm the transaction.

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Suspension of election
Where the done suffers from some disability by reason of infancy, lunacy and so forth, 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

Illustrations

Aman is the owner of the property worth Rs.10 lakh ,Bhanu is the transferor who has no rights
over the property, Chandan is the transferee.

Bhanu offers to Aman that if he willing to sell his property to Chandan, he will give him Rs. 15
lakh. Now Aman (real owner) can either accept the offer or receive the benefit thereof, or to
reject the whole offer.

A property worth Rs.7 lakh belongs to Ishaan. Anirudh by an instrument of gift professes to
transfer it to Ria, giving by the same instrument Rs. 10 lakh to Ishaan. Ishaan elects to retain the
farm. He forfeits the gift of Rs. 10 Lakhs.

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7. INGREDIENTS NECESSARY FOR THE DOCTRINE OF ELECTION:

Mst. Dhanpati v. Devi Prasad and others10 : Before there can be election there must be :

1. transfer of a property by a person who has no right to transfer ;

2. as part of the same transaction, he must confer some benefit on the owner of the property; and

3. such owner must elect either to confirm the transfer or to dissent from it11.

Effect of election against the transfer

Where the owner dissents from the transfer of his property –

1. He must relinquish the benefit ;

2. The benefit intended for him would then revert to the transferor.

Exception
General Rule: If a person elects against the instrument, he will forfeit the whole of the benefit
received under it.

Exception: If a person elects against the instrument , he will not forfeit the whole benefit but
only the benefit attached in lieu of the property. (Election limited to part of benefit)

10
Mst. Dhanpati v. Devi Prasad and others 1970 S.C.D. 174.
11
 Shafique Hossain, Transfer of property act, 1882

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Necessary ingredients of 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
society. 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) Contort to all its provisions; and (c) Renounce all right that is inconsistent with
it.”  

OTHER IMPORTANT CONDITIONS

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 person’s rights.

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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 property12. 

“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. Mahalaxmi13, a widow had given a gift in excess of her
powers and had then provided a will which stated that “ excluding the properties which I have
already given away, I will make the following dispositions”. The Court ordered that the plaintiff
under the will was not excluded from the election doctrine from contesting the previous gift
which wasn’t the issue of the will at all.

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

Donor’s Intention

In order to create a situation of election, it is important that the intention of the testator should be
clear with regard to disposing of the property which he does not own 14. Parol evidence is not
acceptable and thus the intention must be prima facie clear15. 

12
 Salil Paul, Mulla the Transfer of Property Act ( 9th Edn. Butterworths 2005) 249.
13
AIR 1922 Mad 357 (358) : 64 IC 481
14
Rancliffe v. Parkins 6 Dow 179
15
B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 205.

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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 elect16. 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 capacity17. 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.

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 election18.

16
G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law Publishing 2010) 744.
17
 Grissel v. Swinoe (1869) 7 Eq. 291 = 17 W.R. 438
18
Re Hancock. Hancock v. Pawson (1905) 1 Ch. 16

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8. CASE LAWS

The foundation of the doctrine of election is that person gaining benefit of an instrument must
also bear the burden, imposed thereby and that he is not allowed to take under or against the
same instrument. It is a contradiction to the general rule that one should not approbate or
reprobate.

In Cooper v. Cooper  it was decided that if the owner is allowed to retain his property, he must
give up the respective benefit conferred to him. The court observed that a person cannot
approbate and reprobate the same transaction.

The doctrine is based on intended intention to this extent that the law presumes that the author of
an instrument intended to give effect to every part of it. Of an instrument is in valid in part, what
remains is sufficient to put a person to his election if he claims a benefit under it. Muhammad
Kader Ali Fokir vs. Fakir Lakman.

The beneficiary must give effect to the instrument as a whole. White and Tudor’s Leading case
in Equity, is as follows:-

“Election is the obligation imposed upon a party by court of Equity to choose between two
inconsistent or alternative rights of climes in case where there is clear intention of the person
from who derives one that the he should not enjoy both. That he who accepts a benefit under a
deed or will must adopt the whole contents of the instrument.” 

The India courts have applied this doctrine in several cases such as Ramakottaya v.
viraghavayya,, Bhau Ram v. Baij Nath Singh and Beepathuma v. Velasari Shankaranarayana
Kadamguliaya19

19
AIR (1929) Mad 502 (f.B) l.R. 52 Md.556

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Effect of Election against transfer 16:

Where the owner dissents from the transfer of property-

(1) He must give up the benefit;

(2) The benefit intended originally for owner would then go back to the transfer.

A gives a gift to B of a property that belongs to C and by the same deed gives Rs.10,000 to C. C
does not agree to the transfer of his property to B, but cannot claim Rs.10,000 as it reverts to A.

Compensation to disappoint transferee

Where the transfer is gratuitous and the transferor has died before the election or is incapable of
making a new transfer, the case is similar to that of a will. It is accordingly governed by same
rules and the disappointed transferee can claim for compensation. In every case where he has
given consideration for the transfer which is defeated by the election, the case involves a contract
and he similarly has a consequent claim for compensation

Subject only to these claims, it is provided that the benefit that the person who being put to his
election and choosing to retain his property, declines to accept, “shall revert to the transferor or
his representative as if had not been disposed of.”

Disability:

In case of Disability, it is mentioned that the election shall be postponed until the disability
ceases, or until the election is made by some competent authority. A minor’s election may be
postponed until he reaches age of majority, or his guardian may elect for him20 .

20
 Bharuka Dr.GC, Mulla The transfer of property Act 1882,10th ed; p.242

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English Law and Indian Law

The English law relies on the principle of compensation which implies that if the first proprietor
does not approve the exchange, he can keep the property and furthermore the benefit collected,
subject to compensation gave to the donee, to the degree of the property he had languished a
misfortune over.

Yet, in the Indian law setting, this doctrine is impacted by the guideline of forfeiture which
expresses that if the first proprietor does not approve the exchange, the donee causes a forfeiture
of the gave benefit which backpedals to the transferor.

Mohamedan law;

The doctrine of election was applied to Mohamadens by the Privy council in the case of Sadik
GHusain v Hasbim Ali(1916)21

Election limited to part of benefit:-

The fifth paragraph states an exception to the general rule in case a person elects against the
instrument, he will thereby forfeit the benefit received under it.

18 Bharuka Dr.GC, Mulla The transfer of property Act 1882,10th ed; p.242 19 Bharuka Dr.GC,
Mulla The transfer of property Act 1882, 10th ed; p.243 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:

As stated in these paragraphs, 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

21
 Bharuka Dr.GC, Mulla The transfer of property Act 1882,10th ed;

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(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 transaction 22 .

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

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 rules:

(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.

Part of the same transition23:

This Doctrine may only be applied when the transfer and the benefit conferred are a part of and form the
same transaction. This means that the benefit and transition are interdependent and inseparable as they
form part of the same transition.

Mohammad Afzal vs. Ghulam Kasim: Upon the death of Nawab of Tank, the Government transferred the
chiefship to the eldest son and also transferred a portion of cash allowance to the younger son who had
previously made a grant of two villages for maintenance. It was held by the Privy Council that the

22
Shukla Dr. S.N, Transfer of property Act, 24th ed; Allahabad law agency
23
 B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 204.

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younger son had not put his election as the two grants were received separately from independent sources
and not in the same transaction. 

Frequently Asked Questions

1. What is doctrine of election in transfer to property Act, 1882?

Section 35 of transfer to property Act, 1882 incorporates the Doctrine of election. The
foundation of the doctrine of election is that person taking the benefit of an instrument must also
bear its burden .It is a breach to the general rule that one cannot blow hot and cold at the same
time. The law presumes that the author of the instrument intends to give effect to every part of it.
There is an obligation on him who takes benefit under a will or other instrument intended to give
full effect to that instrument.

2. Is doctrine of election based on principle of equity?

Yes , the doctrine of election is a common law rule of equity that requires that if a testator
attempts to dispose of property belonging to someone else and also makes a devise to that
person, the beneficiary must choose between either keeping the property or accepting the devise.
The principle is stated in White and Tudor’s Leading case in Equity: Election is the obligation
imposed upon a party by court of Equity to choose between two inconsistent rights in case where
there is clear intention of the person from who derives one that the he should not enjoy both.
That he who accepts a benefit under a deed or will must adopt the whole contents of the
instrument.

3. What are the rights available 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:

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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 considerarion, 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.

4. What are the exceptions to the doctrine of election?

Following are the exceptions to the doctrine of election:

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

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

3. Knowledge of the circumstances can be assumed if the person who gains the benefit enjoys it
for a period of more than two years.

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

5. Where the done suffers from some disability by reason of infancy, lunacy and so forth, 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

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9. CONCLUSION

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

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

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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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10. BIBLIOGRAPHY

Books Referred

 G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law Publishing 2010)
744.
 B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 205.
 R K Sinha, Transfer of Property Act(17th edn Acad Law House) 2019

Website referred

 lawtimesjournal.in/doctrine-of-election/
 academia.edu/22304035/Doctrine_of_Election_under_the_Transfer_of_Property_Act_18
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 slideshare.net/PratishthaMajumdar/meaning-and-essentials-of-doctrine-of-election
 lawctopus.com/academike/doctrine-election/
 lawnotesindus.blogspot.com/2019/01/doctrine-of-election_26.html

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