INTRODUCTION

TITLE
DOCTRINE OF ELECTION (SECTION 35)

SUBMITTED BY
KSHITIJ KATIYAR
CLASS: B.COM.LLB. (HONS)
SEMESTER: 5
OF
FACULTY OF LAW
DR. SHAKUNTALA MISRA NATIONAL REHABILATION
UNIVERSITY

IN
JANUARY, 2021

UNDER THE GUIDENCE OF

MR. BHANU PRATAP SINGH
OF
LAW FACULTY
DR. SHAKUNTALA MISRA NATIONAL REHABILATION
UNIVERSITY

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 ANNEXURE

1. INTRODUCTION

2. ACKNOWLEDGEMENT

3. INDEX

4. CONTENT

5. BIBLIOGRAPHY

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 ACKNOWLEDGEMENT
I would like to express my special thanks and gratitude to my teacher MR.
BHANU PRATAP SINGH who gave the golden opportunity to do this
wonderful project on the topic SECTION 35 DOCTRINE OF ELECTION,
which also helped me in doing lots of research about the topic due to which, I
came across various new aspects about the topic. I am very much thankful to
him.
Secondly I want to thank my parents and my friends who supported me a lot
and helped me in completing this assignment within limited time frame.

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 INDEX

SR. NUMBER PARTICULSRS PAGE

NUMBER

1 ABSTRACT 5

2 SECTION 35 5-7

3 DOCTRINE OF ELECTION 7

4 ESSENTIAL CONDITIONS FOR 8-9

TRANSFER

5 OWNER’S DUTY TO ELECT 9-10

6 MODES OF ELECTIONS AND 10-11

EXCEPTIONS

7 RIGHT OF DISAPPOINTED 11
TRANSFEREE AND SUSPENSION
OF ELECTION
8 CONCLUSION 12

9 BIBLIOGRAPHY 13

ABSTRACT:-
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The doctrine of election is stated in transfer of property act 1882 in section 35 and within
180-190 of Indian succession act. 1

Election means a choice between two alternative or conflicting rights. Granting two rights in
such a way that one is higher than the other, you can choose either of them. The applicant
cannot use both, the recipient must choose between two inconsistencies or alternative rights.
Basically it means that the person taking the benefit should also bear the burden.2

This principle was derived from the equity principle where a person cannot retain all the
benefits of a transaction thus, he cannot keep the property and get benefits still.

It is an important part of the transfer of property act 1882 to resolve property conflicts among
people.

Election means choosing between two alternative rights. If two rights are endowed on a
person under any instrument in such a manner that one right is more preferable than the other,
he is bound to elect or choose only one of them.

If an instrument confers two rights on an individual in such a fashion that one right is in lieu
of the opposite, that person can choose or elect only one of them. A person cannot take under
and against an equivalent instrument.

SECTION 35 OF TRANSFER OF PROPERTY ACT

1882:-
Election when necessary.3—

Where a person professes to transfer property which he has no right to transfer, and as part of
the same transaction confers any benefit on the owner of the property, such owner must elect
either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish
the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his
representative as if it had not been disposed of,

Subject nevertheless,

Where the transfer is gratuitous, and the transferor has, before the election, died or otherwise
become incapable of making a fresh transfer,
1
blog.ipleaders.in/doctrine-of-election-and-its-incorporation
2
blog.ipleaders.in/doctrine-of-election-and-its-incorporation
3
Transfer of property act ,1882

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And in all cases where the transfer is for consideration,

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

Illustrations:

The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of gift
professes to transfer it to B, giving by the same instrument Rs. 1,000 to C. C elects to retain
the farm. He forfeits the gift of Rs. 1,000. In the same case, A dies before the election. His
representative must out of the Rs. 1,000 pay Rs. 800 to B.

The rule in the first paragraph of this section applies whether the transferor does or does not
believe that which he professes to transfer to be his own.

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

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

Exception to the last preceding four rules.—

Where a particular benefit is expressed to be conferred on the owner of the property which
the transferor professes to transfer, and such benefit is expressed to be in lieu of that property,
if such owner claims the property, he must relinquish the particular benefit, but he is not
bound to relinquish any other benefit conferred upon him by the same transaction.

Acceptance of the benefit by the person on whom it is conferred constitutes an election by

him to confirm the transfer, if he is aware of his duty to elect and of those circumstances
which would influence the judgment of a reasonable man in making an election, or if he
waives enquiry into the circumstances.

Such knowledge or waiver shall, in the absence of evidence to the contrary, be presumed, if
the person on whom the benefit has been conferred has enjoyed it for two years without doing
any act to express dissent.

Such knowledge or waiver may be inferred from any act of his which renders it impossible to
place the persons interested in the property professed to be transferred in the same condition
as if such act had not been done.

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 Illustration

A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a
coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the
transfer of the estate to B.

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

In case of disability, the election shall be postponed until the disability ceases, or until the
election is made by some competent authority.

DOCTRINE OF ELECTION:-

Section 35 incorporates 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 choose only one
of them. A person cannot take under and against the same instrument. 4

LORD HATHER said, “If it is found that the 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 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 effect.”

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.5

ESSENTIAL CONDITIONS OF THE TRANSFER:-

1. Where a person professes to transfer a property not his own.

4
Beepathumma v S.V.Kadambolithaya, AIR 1965 SC 241
5
Cooper v Cooper 1874

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 2. Instead of this transfer the transferor confers certain benefits upon the owner of the
property.
3. The two things i.e. transfer of property and conferring of the benefit form part of same
instrument or same transaction.

Transferor professes to transfer property not of his own

This doctrine or section 35 applies when a person professes to transfer the property of another
person. Professes means purports or makes contract. Since such person is not owner of the
property, hence he has no right to transfer the same. But he can contract or make arrangement
for such a transfer of property.

For example: A profess to transfer a property to B, whose owner is C and also confers a
benefit of rupee 1000 to C. Here A is not transferring C’s property, he is simply contracting
to transfer a property which he does not own. Therefore A is not transferor but only for
convenience A is considered as transferor here. It is also inferred by the court that it is not
necessary that transferor should mention in specific words that he is not the owner of the
property but only professing or contracting for transfer of property.

Benefits conferred by the Owner of the property:

The transferor must confer any benefit on the owner of the property. The meaning of the
word owner in this section is very vast. It includes a person having vested interest as well as
contingent interest and also a person who has even reversionary or remote interest in the
property.6 It is the owner of the property who is putto election. Therefore, he must be given
some benefits in compensation against ownership of the property. The most essential
condition is that the benefits conferred on the owner of the property must be direct as in
case of indirect benefits conferred to him, he lose the right to elect.

For example: A professes to transfer C’s property to B and gives Rs. 5000 to wife of C. This
is not a direct benefit to C and therefore C has no duty to elect.

CASE LAW: Vallaimmai v. Nagappa7

A testator purported to bequeath (leaves) a joint family property to a coparcener. The

coparcener was otherwise under Hindu law entitled to that property. The Supreme Court held

6
Cooper v Cooper 1874
7
AIR 1967 SC 1153

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that the coparcener could not be said to have derived any benefits under the will and was not
put to election.

Part of the same transaction:-

The rule of election operates only when two things i.e. transfer of property and benefit
conferred to the owner of the property are part of a same transaction. It means that transfer of
property is to be made evidently only in lieu of the benefit. Hence both the things are
inseparable and interdependent on each other, they form part of same transaction. The main
object of the doctrine fails if both the things are independent of each other or part of different
transactions. The instrument used in the transaction need not to be same for both things.

CASE LAW: - Muhammad Afzal v. Gulam Kasim8

After death of Nawab of Tank the government while transferring chiefship to the eldest son
of Nawab, transferred some cash allowance to his second son also. In his lifetime he had
already granted two villages to the second son for his maintenance. The Privy Council held
that since the two grants (cash by government and villages by his father) came to the second
son from two different sources i.e. from different transaction. The second son was not put to
election.

Other elements of the doctrine are as follows:

OWNER’s Duty to elect9: - The executive or operative part of section 35 is that if any
property is contracted to be transferred and in the same transaction some benefit are given to
the owner of the property then such owner is bound or under the duty to elect whether he
confirms the transfer or dissents it. By his election he may either accept or reject the
instruments with its all content altogether. He had no option to accept only the beneficial
part of the instrument. Where he elects to accept the instrument, he is entitled to get benefit
but he is bound to transfer the property. If he rejects the instrument he cannot claim the
benefit but can retain the property. The duty to elect arises on when person works in a same
capacity i.e. he is a person who gets benefit and also owns the property.

MODE OF ELECTION: - Election can be both expressed and implied. It is question of

intension of owner of the property who is given benefit.
8
(1903) 30 Cal. 843
9
Page 143 The Transfer of Property Act By- Dr. RK Sinha

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He may express his own thoughts and ideas through clear and specific words i.e. expressed
election which is final and conclusive in nature.

The intension of the owner may also be inferred from his act or conduct, this is implied
election.

IMPLIED ELECTION (Exception of Section 35)

Election is said to be implied where the owner of the property accepts the benefit, it amount
to his election in the favour of the transaction. There are certain circumstances where, there is
the presumption that owner has knowingly accepted the benefit.

1. Where in case the owner enjoyed the benefit for two year without any act of refusal or
dissent of the transaction. However this presumption can be revoked on the ground
that he had no knowledge of the transaction and enjoyed the benefit innocently.
2. Where the owner of the property exhaust or consumes the benefit or he has made
situation impossible to be brought as it was before.
Example: A transfer B an estate owned by C and as a part of the transaction gives to C
a coal mine. C does not elect in express words but take possession and exhaust it. Cis
presumed to have elected to take benefit and hence transfer his property to B. As now
if he dissents it would be impossible for C to return the coal mine in earlier condition.

REQUISITON TO ELECT10 (Exception of Section 35)

This special procedure for election to be done. After the expiry of one year, if the owner of
the property does not elect, the transferee may require him to make such election. And if he
does not elect, within a reasonable time after such requisition or demand, he is deemed to
have elected in favour of the transfer.

ELECTION AGAINST TRANSFER (Exception of Section 35)

It is the duty of the owner of the property to elect either for the transfer or against the
transfer. When he dissents the transfer, he also forfeits the benefits conferred on him. The
benefit conferred on the owner reverts back to the transferor of his representative after
rejection of the transfer. However the owner can claim any other benefit which was given
to him independently of the transfer under same transaction.

10
Page 144 The Transfer of Property Act By- Dr. RK Sinha

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RIHGTS OF DISPPAOINTFD TRANFERRE
When the owner of property elects against the transfer, the transferee whom the property was
promised, cannot get the property. Such transferee become disappointed as he must have
entertained some hope of getting the property. But such transferee is not left disappointed
certain rights are provided for him:

1. When the transfer is gratuitous i.e. without any consideration and the transferor dies
or become incapable of making a fresh transfer.
2. When the transfer is with consideration, whether dead or alive at time of election, the
transferee is entitled to get “reasonable compensation” from the transferor or his
representative for not receiving the property promised.

Example: The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument
of gift professes to transfer it to B, giving by the same instrument Rs. 1,000 to C. C elects to
retain the farm. He forfeits the gift of Rs. 1,000 which revert back to A. In the same case, A
dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B
(Disappointed transferee).

SUSPENSION OF ELECTION

In case where the elector (owner of the property) is legally disabled, the election shall be
postponed until the disability ceases, or until the election is made by some competent
authority.

Conclusion
There is a famous proverb related to this doctrine “no one can blow hot and cold at the same
time”. Election is choosing between two alternatives or conflicting rights. By giving two
rights so that one is higher than the other, elector can choose one of them. Elector cannot
have both. The elector cannot use both, the owner must choose between alternative rights.

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Basically, this means that the owner of the property must also bear the burden, he cannot only
confirm for beneficial part of the transaction. Being derived from the equity principle which
clearly states that a person cannot have benefited from both the sides. This doctrine has been
successful and many poverty conflicts can be resolved using it.

BIBLIOGRAPHY

BOOKS: THE TRANSFEROF PROPERTY ACT

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 - BY Dr. R.K. Sinha

WEBSITES:
 WWW.LEGALSERVICEINDIA.COM
 www.ijlmh.com
 https://blog.ipleaders.in/doctrine-of-election-and-its-incorporation
 http://lawtimesjournal.in/what-is-doctrine-of-election/

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