INTRODUCTION

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

Section 180 to 190 of the Indian Succession 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.

In all cases where the transfer is for consideration”.[i]

An illustration to further explain :

A owns a property that is worth Rs 800. B professes to transfer the same to C

through the Rs1000 instrument to A. But the A, the owner opts/elects to retain his

property and thus, forfeits the gift of Rs 1000.[ii]

EXCEPTIONS

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.[iii]

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. [iv]

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.[v]

In context of a minor, the period of election shall be stalled till the individual attains

majority unless he is represented by a guardian[vi].

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.[vii] 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.[viii] Thus, it is a general rule

that a person cannot approbate and reprobate[ix]. Also, the election is confined to

the case of a gift or Will[x] and does not apply in case of a legal remedy[xi].

Conditions precedent for equity of election[xii]:

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.

OTHER IMPORTANT CONDITIONSProprietary 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.[xiii]

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. [xiv]

“As part of the same transaction”[xv]

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[xvi], 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[xvii] 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. [xviii] Parol evidence is not acceptable and thus the intention must be prima

facie clear. [xix] [xx]

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.[xxi] 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.”[xxii]

Difference in Capacity

An individual can in one capacity utilize a benefit while can dissent or reject that

benefit in another capacity[xxiii]. 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.[xxiv]

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 : [xxv]

Enjoyment for two years of the benefit by the person on whom it is conferred with

any dissent.[xxvi]”

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.[xxvii]

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.

[xxviii]

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[xxix].

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 is 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.

Edited by Hariharan Kumar

[i] Section 35, The Transfer of Property Act, 1882

[ii] G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law Publishing

2010).

[iii] ibid

[iv] ibid

[v] Salil Paul, Mulla the Transfer of Property Act ( 9th Edn. Butterworths 2005)

[vi] ibid

[vii] Darashaw J. Vakil, The Transfer of Property Act ( 2nd Edn. Wadhwa Nagpur

2004) 334.

[viii] Ibid.

[ix] Beepathuma ( C ) v. VS Kadambolithiya [1964] 5SCR 836,850, AIR 1965 SC

241; Codrington v. Codrington (1857) 7 HL 854, 861.

[x] Nihar v. Anath Nath, AIR 1956 Pat 223 (226) (DB) : 1956 BLJR 177.

[xi] Ibid.

[xii] Dhanpatti v. Devi Prasad 1970 (3) SCC 776 (778)

[xiii] Mst Dhanpatti v. Devi Prasad (1970) 3 SCC 779; Mohomed Ali v Nissar Ali

(1927) 109 IC 835, AIR 1928 Oudh 67, 82

[xiv] Salil Paul, Mulla the Transfer of Property Act ( 9th Edn. Butterworths 2005) 249.

[xv] B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 204.

[xvi] AIR 1922 Mad 357 (358) : 64 IC 481

[xvii] 36 MLJ 507; 49 IC 527

[xviii] Rancliffe v. Parkins 6 Dow 179

[xix] Stratton v Best 1 Ves 185

[xx] B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 205.

[xxi] G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law

Publishing 2010) 744.

[xxii] ibid

[xxiii] Grissel v. Swinoe (1869) 7 Eq. 291 = 17 W.R. 438

[xxiv] G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law

Publishing 2010) 744.

[xxv] B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 206.

[xxvi] Spread v. Webster, (1974) 2 Ves. 367 ; 30 ER 676

[xxvii] .B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 207.

[xxviii] G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law

Publishing 2010) 740.

[xxix] Re Hancock. Hancock v. Pawson (1905) 1 Ch. 16