DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

TRANSFER OF PROPERTY ACT, 1882

FINAL DRAFT ON

Analysis of the Doctrine of Election under the Transfer of property Act, 1882

Submitted to: Submitted by:

Mrs. Ankita Yadav Vijay Singh

Assistant Professor (Law) Enroll. No.- 170101159

V Semester
 Analysis of the Doctrine of Election under the Transfer of property Act, 1882

The transfer of property Act 1882 was intended to define and amend the existing law, and not to
introduce any principle1 It embodies principles of equity, justice and good conscience. The chief
objects of TP Act were first to bring the rules which regulate the transmission of property
between living person into harmony with the rules affecting its devolution on death and thus, to
furnish and complement the work commenced in framing the law of testamentary and intestate
succession and secondly, to complete the code of contract law so far as it relates to immovable
property2. But the doctrine of election relates to movable and immovable property. The
foundation of the doctrine of election is that the person taking a benefit under an instrument must
also bear the burden3, and that he cannot take under and against the same instrument 4. Election is
an obligation to pick between two inconsistent or alternative rights in a case where there is a
clear intention of the grantor that the grantee should nit obtain both.

Example: kahan sells his garden and Reza to Butter by one instrument. Butter only wants to
retain Reza and wants to cancel the transfer regarding garden, this is not possible. If Butter takes
Reza, it means, he has confirmed the transaction and has to take garden also.

According to section 35 of the TP Act 1882 provide that,

Rule 01: 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.

Here, need to three parties engagement i.e., real owner, transferor (not like agent), transferee.
And transferor has no right to transfer, same transaction, confers any benefit on the owner of the
property. Real owner must elect either confirm or dissent , in case of dissent , the real owner
relinquish the benefit ,transferor’s responsibility to return to the transferee, if not properly do or
dispose of the matter, transferor will be liable, and even transferee can file suit against transferor,
not against the real owner. For instances, Saidur profess to transfer a property Kahan, which is
owned by Reza, and also confers a benefit Tk. 50,000 to Reza. Here Saidur is not transferring the
Reza’s property to Kahan but simply profess which he does not own.

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

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

Gratuitous transfer that is like gift, Reza gift a piece of land to Butter, before election Reza died,
and owner of the land dissent, no possible to enter fresh transfer. In that case Reza’s
representative duty to pay the value of land to Butter.

An example of rule 01 The farm of Jaigir is the property of C and worth Tk. 1200000 A by an
instrument of gift professes to transfer it to B, giving by the same instrument Tk. 1500000 to C.
C elects to retain the farm. He forfeits the gift of Tk. 1500000.

In the same case, A dies before the Election. His representative must out of the Tk. 1500000 pay
1200000 to B.

Suppose, by a deed A gives to B a house belonging to C, and by the same instrument gives other
property belonging to himself to C. C is entitle to A’s property only upon the connection of C’s
con forming to all the provision of the instrument by renouncing the right to his own property
given In favor of B; he must consequently make his choice, or as it is technically termed “he is
put to his election”, to take either under or against the instrument, he must relinquish in favor of
B his property given to B by A; and takes the property which is given to him by A. as stated by
Lord Hather in Cooper v. Cooper5.

Rule 02: 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.

In case of the relationship between master and agent , no need to election.

Rule 03: A person taking no benefit directly under a transaction, but deriving a benefit under it
indirectly, need not elect.

Directly not benefited, indirectly benefited.

Actually getting benefited real owner’s relative, that case, no need to election. And if the owner
elect to dissent, it is not mandatory to return the benefit.

Rule 04: A person who in his one capacity takes a benefit under the transaction may in another
dissent therefrom.

5
L. R. 7 H L 53 p.69
 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.

Extra benefit (beyond the instrument) is not returnable, Particular benefit is expressed to the
property which benefit in case of dissent is returnable.

Alam transfers to Nil property X in lieu of Nil’s property which is given to Sami. Alam also
gives Nil property Y. If Nil elect to retain his own property which was given to Sami. Nil must
relinquish his claim to property X but not bound to confer property Y.

Exception 01: 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.

Some cases, law assume that election to be done, because of the owner act treated as to be
elected, although directly no election had been done i.e acceptance of benefit, no enquiry into the
circumstances. You read the document, and get the money, or you do not know to read , but get
money and reasonable person like know the fact, law assume that election had been done and 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 02: 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.

Two or more years, if the owner consumes the benefit without dissent, that case election would
be exclusion. Suppose, Mr. kahan is owner of a piece of land, Reza transfer the land to Butter
Tk.200000.By showing the document Kahan and consuming the benefit two years, this case
election would be exclusion. It is the exception of rule 04.

Exception 03: 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.

It is not possible to return the property, i.e mine property consumed. For example, Amir transfers
to saidur an estate to which Reza is entitled, and as part of the same transaction gives Reza a
coal-mine. Reza takes possession of the mine and exhausts it. He has thereby confirmed the
transfer of the estate to Amir.

Exception 04: if he does not one year after the date of transfer signify to the transferor or his
representative his intention to confirm or to dissent from the transfer, the transferor or his
representative may upon the expiration of that period, require him to make his election and, if he
does not comply with such requisition within a reasonable time after he has received it, he shall
be deemed to have elected to confirm the transfer.
 Essential ingredients for the Doctrine of Election

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 election does
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 different society6.

The doctrine of election may be stated in the classic words of Maitland 7 as 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.

Case Law
The foundation of the doctrine of election is that person taking the benefit of an instrument must
also bear the burden, imposed thereby and that he cannot take under against the same instrument.
It is a breach to the general rule that no one may approbate or reprobate. Cooper v Cooper 8 it is
held if the owner is entitled to retain his property so that he must relinquish the benefit so
conferred to him. It 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. There is an obligation on him who takes
a benefit under a will or other instrument intended to give full effect to that instrument under
which it was beyond the power of the donor or settler to dispose on him who takes the benefit,
the obligation of carrying the instrument into full and complete force and effect. Of an

6
Shafique Hossain, Transfer of property act, 1882, 1 st edition, p.40
7
Maitland’s Lectures on Equity-Lecture 18
8
L.R.7 H L 53 p.69
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 Hakim9

The beneficiary must give effect to the instrument as a whole.

The foundation of the doctrine of election is that a person taking the benefit under an instrument
must also bear the burden imposed by it and that he cannot take under against the same
instrument. It is, therefore, a reach of the general rule that no one may approbate or reprobate.
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.

The same principle is stated in White and Tudor’s Leading case in Equity10, 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. In Ramakottaya v. viraghavayya, 11 it
was observed that a person cannot approbate and reprobate the same transaction the supreme
court has also considered the doctrine in Bhau Ram v. Baij Nath Singh 12 and Beepathuma v.
Velasari Shankaranarayana Kadamguliaya13.

Effect of election against transfer14:

Where the owner dissents from the transfer of property-

(1) He must relinquish the benefit;

(2) The benefit intended for him would then revert to the transfer.

K gives a gift to M of a property which belongs to N and by the same deed gives Rs.5, 000 to N.
dose not agree to the transfer of his property to M, he cannot claim Rs.5, 000 which reverts to K.

Compensation to disappoint transferee15:

Where the transfer is gratuitous and the transferor has before the election died or incapable of
making a fresh transfer, the case is closely analogous to that of a will; it is accordingly governed
9
PLR 1956 Dacca 370
10
8DLR 112 (120re-h)
11
AIR (1929) Mad 502 (f.B) l.R. 52 Md.556
12
AIR (1961) S.c 241; (1962)1s.R.358
13
AIR (1965) s.C. 241; (1964)5
14
Skula Dr. S.N, Transfer of property Act, 24 th ed; Allahabad law agency, p.86
15
Shukla Dr. S.N, Transfer of property Act, 24 th ed; Allahabad law agency, p.86
by same rules and the disappointed transferee has a claim for compensation. And in every case
where he has given consideration for the transfer which is defeated by the election, the matter is
one of contract and he similarly has a consequent claim for compensation. Subject only to these
claims, it is provided that the benefit which the person who being put to his election and
preferring to retain his own property, declines to accept “shall revert to the transferor or his
representative as if had not been disposed of.”

Disability:

The last para of transfer of property Act, 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 his majority, or his guardian may elect for him16.

English Law: English law applies the doctrine of compensation. There is no fixed time for
making an election and no return extra benefit.

Mohamedan law;

The doctrine of election was applied to Mohamadens by the Privy council in the case of Sadik
GHusain v Hasbim Ali(1916)17

Where election limited to part of benefit:-

The fifth paragraph provides an exception to the general rule that if a person elects against the
instrument, he will forfeit the whole of the benefit received under it. Suppose, A transfers a
property k 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 property K, then if B elects to retain K,
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 K.

Mode of election

16
Bharuka Dr.GC, Mulla The transfer of property Act 1882,10 th ed; p.242
17
Bharuka Dr.GC, Mulla The transfer of property Act 1882, 10 th ed; p.243
According to the term of these paragraphs, election may be expressed or implied by conduct.
Where, the election is made in express words, it is final and conclusive. Where, however, it is
not so made, but the transferee

(1) being aware of his duty to elect, and

(2) having a full knowledge of such matters as the value of properties, accepts the benefit given
to him by the transaction, such action on his part constitutes an election in favor of the
transaction18.

Hence it follows that if a person’s act through ignorance or mistake, the doctrine gives way.

Presumption as election:-

The question as to whether the benefit was accepted with the knowledge of the circumstances
would be a question of fact subject to the following rules19:

(a) If the benefit has been enjoyed for two years or more without doing any act to express
dissent, it shall be presumed that he had the knowledge or he waived enquiry.

(b) Impossible for real owner to back the previous position.

Warning the real owner after certain period:

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.

Part of the same transition

This Doctrine only applicable when transfer and benefit a part form the same transaction. Means
the benefit and transition are interdependent and inseparable they form part of the same
transition.

Mohammad Afzal vs. Ghulam kasim20In this case After the death of Nawab of tank Government
transferring the chiefship to the eldest son and transfer a portion of cash allowance of the later
son who have already made a grant of two village of maintenance. So the Privy Council held that
second son was not put his election as the two grants came from independent source and not
same transaction.
18
Shukla Dr. S.N, Transfer of property Act, 24 th ed; Allahabad law agency, p.86
19
Shukla Dr. S.N, Transfer of Property Act, 24 th ed; Allahabad law agency, p.87
20
1903 ILR30
 Conclusion:
Section 35 of the transfer of property Act 1882 provided that a person professes to transfer
property which he has no right, without informing the real owner. In that case transferor come to
the real owner to seek the dispose of it, the owner wish whether it grant or not. That means he
has right to exercise the doctrine of election either confirm or dissent. In case of dissent,
responsibility goes to the transferor and no possible to new fresh transfer, back the money or the
consideration value. If it is gratuitous like gift, pay the property value and even the election
before the transferor died, his representative pay whole or exact value. In case transferor or his
representative fails to pay or give the property, he claimed against transferor party, not against
the real owner. According to section 35 of TP act 1882, have some rule for making election. The
owner gets a particular benefit with referring the contract and when dissent, he back the benefit,
but he gets extra benefit beyond the instrument, it is not returnable. Having some exception
treated as confirming by the owner such as acceptance of benefit by showing document or
reasonable person can understand the matter, enjoy the benefit two years or more without
dissent, impossible for the real owner to back the previous position like consume the gold mine,
after one year getting notice from the transferor and prescriptive time limitation overcome, then
the court assume that owner grant the contract. Any person disqualify for the election shall be
postpone until the disability ceases or until the election is made by some competent authority
like minor, lunacy, infancy.

BIBLIOGRAPHY

1. Shukla Dr. S.N, The Transfer of Property Act : 24th Ed: Allahabad Law Agency.
2. Islam Aminur, The Transfer of Property Act, 1882: 1st Ed: Sufi Prokashoni.

3. Mulla, DF. (2006). Transfer of the Property Act 1882, New Delhi: LexisNexis.

4. Raju Molla, Comparative & Legal analysis os the Transfer of property Act

4. http://en.wikipedia.org/wiki/The Transfer of Property Act, 1882/Doctrine of Election

Shaeique Hossain, Transfer of property Act 1882, 1st edition, p.40