DOCTRINE OF ELECTION : 35

1. INTRODUCTION
Section 35 incorporates the doctrine of election. Election means choosing
between two inconsistent or alternative rights. Under any instrument if two rights
are conferred on a person in such a manner that one right is in lieu of the other,
he is bound to elect (choose) only one of them. A person cannot take under and
against the same instrument. Thus, where some money is gifted to A and in lieu of
it A is required to transfer his house to B then A would not be allowed to retain
his house and also take the gift. He cannot enjoy both. A will have to choose

(i) either taking of the gift in which case he must transfer his house to B or

(ii) retain his house in which case he must relinquish the benefit of gift. In the
language of law, A shall be put to election. The doctrine of election is based on
equitable principle under which a person may not be allowed to approve that part
of an instrument which is beneficial to him and disapprove its that part which
goes against him. No one can approbate and reprobate at the same time. In other
words, where a person takes some benefit under a deed or instrument, he must
also bear its burden.

Section 35 of the Act makes following provisions in respect of the rule of election:

i) Where a person professes to transfer a property not his own,

ii) an, in lieu of this transfer the transferor confers certain benefits upon the
owner of the property and,

iii) the two things i.e. transfer of property and conferring of the benefit forms part
of the same instrument.
Then, the owner of property is bound to elect (choose) either to take the benefit
and transfer his property or to retain his property and gift up the benefit.

2. Analysis of Section 35
Section 35 may be read as given below for clarity:

i) The Doctrine of Election as given in Section35 applies

ii) When any person say 'A' when he;

a) transfers, or

b) proposes to transfer,

c) any property,

d) movable or immovable both,

e) that is, his own,

f) to any other person : say ‘B’

iii) And,

iv) At the same time.

v) In same transaction

vi) By the same deed

vii) The same person ‘A’-

a) transfer, or
b) proposes to transfer,
c) any property,
d) movable or immovable or both,
e) of that other person, 'B"
 f) without his consent or knowledge,
g) to any third person say 'C'

viii) B is under a statutory obligation under this section to –

a) either accept the proposal or transfer as it is, or

b) to reject it.

ix) B must accept the whole of the deed or must reject the whole of it. He plainly
speaking cannot bifurcate the proposal so as to accept one part that is beneficial
and to reject the other part, that is burdensome or onerous.

3. SCOPE OF SECTION 35
Section 35 of the Act embodies a principle of highest equity, and as such it applies
to all persons irrespective of their personal laws. The principle is not peculiar to
English law alone but is common to all laws which are based on the rules of
justice. It was, therefore, often applied by the Privy Council to the Indian cases
even before the passing of the Transfer of Property Act, 1882. It applies to all
kinds of property, vested, contingent, reversionary and remote as well as
immediate interests, whether movable or immovable. There is no distinction for
the purpose of this principle between personal estate and real estate, between
specific and residuary legatees and next-of-kin of an estate.

4. Transferor Professes to Transfer Property not his

own
Section 35 applies where a person professes to transfer the property of another
person. Professes' means purports or makes contract. Since such person is not
owner, he cannot transfer that property. But, he can contract or make
arrangement for transfer of property which he does not own. For example A may
profess to transfer a property to B which is owned by C and also confer on Ca
benefit of Rs. 1,000/-. In this contract A is not transferring C's property, he is
simply professing (contracting) to transfer a property which he does not own.
Therefore, A is not transferor. But, for the sake of convenience, hereinafter A may
be called as a 'transferor'. However, it is not necessary that transferor should
mention it in specific words that he is professing to transfer a property not his
won. This is inferred by the Court from the facts of a particular case and from the
language used in the instrument.

5. Benefit conferred on the owner of Property

The transferor must confer any benefit on the owner of property. It may be noted
that the would 'owner' in this section has a very wide meaning, 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. It is the owner of
property who is put to election. Therefore, he must be given some 'benefit' in
compensation of his 'ownership' in the property.

To attract the applicant of

this rule there must be two sets or rights; one the right of ownership and the
other a benefit given under the instrument. In other words, the occasion for
election arises only where benefit is directly conferred on the owner of property.
Where benefit is given to the owner otherwise than for transferring property or is
given to him indirectly, there is no case for election. For example, A professes to
transfer C's property to B and gives Rs. 5,000/- to wife of C. This is not direct
benefit to C and therefore C has no duty to elect.

Valliammai v. Nagappa, AIR 1967 SC

A testator purported to bequeath a joint family property to his coparcener. The
coparcener was otherwise under Hindu law entitled to that property. The
Supreme Court held that the coparcener cannot be said to have derived any
benefit under the will and is not put to election.

6. Part of Same Transaction

The rule of election operates only when the 'transfer' and 'benefit form part of
transaction. By same transaction is meant that the transfer of property is to be
made evidently only in lieu of the benefit. Thus where the 'benefit and 'transfer'
are interdependent and inseparable, they form part of the same transaction.
There is no election if the two are independent transactions. However, it is not
necessary that these two transactions are provided on one instrument. It is
possible that two separate instruments may be executed to carry out one and the
same transaction. Similarly, it is also possible that there is only one instrument
containing two separate and independent transactions.

7. Owner's Duty to Elect

The operative part of Section 35 is that if a property is professed to be transferred
and in the same transaction some benefit is given to the owner of property then
such owner is under a duty to elect. By his election he may either accept the
instruments with its all contents or reject it altogether. He has no option to accept
only the beneficial part of instrument. Where he elects to accept the instrument,
he is entitled to get the benefit; but he is bound to transfer his property. If he
elects to reject the instrument he cannot claim benefit; but he may retain his
property.

8. Mode of Election
Election may be express or implied. It is a question of intention of the owner of
property who is given the benefit. He may express his intention in clear and
specific words. Where election is express, it is final and conclusive. The intention
of the owner may also be inferred from his acts or conduct. This is implied
election.

9. Implied Election
Election is implied when the owner of property (donee) (a) being aware of his
duty to elect and (b) having full knowledge of the circumstances, accepts the
benefit. Such election would mean that he has chosen in favour of the
transaction. In other words, where the owner knowingly accepts the benefit, it
amounts to his election in favour of the transaction. In the following
circumstances, there is presumption that he has knowingly accepted the benefit:

i) Where the owner has enjoyed the benefit for two years without doing any act
or refusal or dissent of the transaction or; Where he enjoyed the benefit actually
for two years it is presumed that he has waived from enquiry. However, this
presumption may be rebutted on the ground that he had no knowledge of the
transaction and he enjoyed the benefit innocently. On such proof the person
(owner) is permitted to make a fresh election.

ii) Where the owner of property exhausts or consumes the benefit. Thus where he
has done some act which renders it impossible to the same condition a before,
this too gives presumption of his election for accepting the 'benefit. For instance,
A transfer to B an estate owned by C and as part of the same transaction gives to
C a Coal-mine. C does not elect in express words but takes possession of the Coal-
mine and exhausts it C is presumed fo have elected to take the benefit and
thereby transfer his property to B. This is so, because if C now dissents the
transaction it would not be possible for him to place of the parties (A and C) in the
position prior to his exhausting the said Coal-mine.
10. Requisition to Elect
This is special procedure for expediting election. After the expiry of one years, if
owner of property does not elect i.e. neither confirm nor dissents the transfer,
the transferee may require him to make such election. And, if he does not elect,
within a reasonable time after such requisition, he is deemed to have elected in
favour of the transfer.

11. Suspension of Election

Where at the time of transfer the elector (i.e. owner of property) is legally
disabled, the election is postponed until such disability ceases or until the election
is made on his behalf by a competent authority, e.g. his guardian. Legal disability
may be minority or lunacy of the elector. Thus, his duty to elect is suspended
during his minority or lunacy unless the election is made by his legal guardian.

12. Election against Transfer

The owner of property whose duty is to make election has freedom to elect either
for the transfer or against it. Where he elects against it i.e. dissents from the
professed transfer, he forfeits his claim to the 'benefit conferred on him. The
benefit so conferred reverts back to the transferor or his representative.
However, he can claim any other benefit which is given to him independently of
the transfer under the same instrument. For example, where a person is given
two benefits X and Y under an instrument but only X has given in lieu of property
then, if he elects against the transfer he forfeits only benefit X. But he is entitled
to claim benefit Y.
13. Rights of 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. He
becomes disappointed as he must have had some hope of getting the property.
However, such disappointed transferee is not allowed to be a helpless person. He
has following rights:

i) Where the transfer is gratuitous i.e. without consideration and the transferor
dies or becomes incapable of making fresh transfer and,

ii) Where transfer is with consideration, whether he is alive or dead at the time of
election, the transferee is entitled to get a reasonable compensation from the
transferor or his representative. Reasonable compensation means compensation
equal to the value of property professed to be transferred. ii) If the transferor is
alive capable of making fresh transfer and transfer was free and without
consideration, nobody is under any obligation to compensate the disappointed
transferee.

Illustration
The farm of Sultanpur is the property of C and its market value is Rs. 800/-. A by
an instrument professes to transfer it to B giving by the same instrument a benefit
of Rs. 1,000/- to C. C elects against the transfer and decides to retain his farm. C
forfeit the benefit of Rs. 1,000/- which reverts back to A or his representatives.
Now, if A dies before C makes election, his representatives must compensate
B(disappointed transferee) by giving B Rs. 800/- out of Rs. 1,000/-
 Mumbai International Airport v/s
M/S Golden Chariot Airport & Anr.
(2010) 10 SCC 422

 The relevant facts of the case are that :

 M/s Golden Chariot Airport (hereinafter referred to as "the contesting respondent")
succeeded in a tendering process for running a deluxe grade-I restaurant, covering a space
of about 5000 sq. ft., in the car park zone in front of Terminal 1A of the Mumbai Airport.
Pursuant to the said bid of the contesting respondent, a Licence Agreement dated 16.1.96,
was entered into between the Airport Authority of India (AAI) and the contesting
respondent.
 Some of the clauses of the said Licence Agreement are relevant as one of the arguments
advanced by the contesting respondent, before the Estate Officer, the High Court and this
Court is that the licence is irrevocable. It has also been urged by the contesting
respondent, that apart from the Licence Agreement, there has been an oral extension of
the licence and the contesting respondent was assured that it is irrevocable, and on the
basis of such assurance, it has invested considerable money in building the restaurant.
 From the first clause of the Licence Agreement it is clear that the licence is valid for a
period of three years, from 27.11.95 to 26.11.98. Apart from the first clause, there are
several other clauses in the licence, in the General Terms and Conditions, which are a
part of the Licence Agreement
 The clause 29 says, “The provision of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 and the rules framed thereunder which are now in force or which
may hereafter came into force shall be applicable for all matters provided in the said
Act."
 It is clear that the provisions of the Public Premises (Eviction of Unauthorized
Occupants) Act, 1971 and the Rules framed thereunder have been made applicable to the
Licence Agreement. It is not in dispute that after the initial grant of the said license, the
same was, under request of the contesting respondent, extended up to 26.5.2000. Before
the extended period could expire, a notice dated 4.5.2000 was sent by the Senior
Commercial Manager on behalf of AAI to the contesting respondent, requesting it to
vacate and hand over physical possession of the licensed premises on expiry of the
extended licence on 26.5.2000.

 Historical Background of case before it reached to Hon'ble Supreme

Court
 Instead of doing so, the contesting respondent filed, on 15.5.2000, a suit in the Bombay
City Civil Court being suit No. 3050/2000, praying for cancelling the notice dated
4.5.2000 and for permanent injunction restraining AAI from evicting, demolishing, or
removing the restaurant premises of the contesting respondent without adopting the due
process of law. In the said suit, the contesting respondent prayed for a declaration that the
AAI has granted an irrevocable licence and AAI has no right to terminate, cancel or
revoke the licence.
 On such suit being filed, the Bombay City Civil Court returned the plaint under Order VII
Rule 10 of Civil Procedure Code (for short "CPC"), inter alia, on the ground that the City
Civil Court does not have the pecuniary jurisdiction to hear the case in view of the
declaration prayed for.
 Aggrieved by the said Order, the contesting respondent preferred an appeal before the
Bombay High Court. When the said appeal came up for hearing on 12.7.01, it was
represented by the contesting respondent that they will drop the prayer in Clause (a) of
the plaint, which is the prayer for the declaration that the licence is irrevocable. On such
stand being taken by the contesting respondent before the Bombay High Court, there was
a consensus between the parties, and the High Court was pleased to pass the ordered the
matter is question is remitted back to the City Civil Court, Bombay granting liberty to the
Plaintiff to move proper application for amendment of the plaint so as to enable him to
delete prayer clause (a), and other pleadings raised in support thereof in the plaint.
 In view of the aforesaid Order of the High Court, the matter was remanded to the
Bombay City Civil Court. The City Civil Court decreed the suit by a judgment dated
11.2.04. In the said judgment, the Bombay City Civil Court held that both parties had
agreed to submit themselves to the provisions of the Public Premises (Eviction of
Unauthorized Occupants) Act, 1971 (hereinafter referred to as the 1971 Act) and Rules
framed thereunder. The Court thus held that the AAI were bound to follow the due
process of law for evicting the contesting respondent from the suit premises, as given
under the 1971 Act.
 Accordingly, proceedings were initiated before the Estate Officer on 27.09.04.
 On 13.11.04, the contesting respondent addressed a letter to AAI for extension of licence
with respect to the licensed premises till AAI required it for airport development
purposes. On 18.03.05, the Estate Officer heard the case of the contesting respondent and
rejected the same.
 Aggrieved, the contesting respondent filed a writ petition before the Bombay High Court.
On 30.06.05, the Bombay High Court dismissed the writ petition by passing the
following order:
"Allowed to withdraw the liberty to make a fresh application which
shall be decided, in accordance with law. All questions, including the questions of
tenability, are left open."
 On 7.3.06, the Estate Officer passed a detailed Order, holding inter alia that the
contesting respondent was in unauthorized occupation of the licensed premises, which
was a public premises and it was liable to be evicted from the said premises
under Section 5 of the 1971 Act with effect from 27.05.2000.
 Aggrieved thereby, the contesting respondent filed an appeal under Section 9 of the 1971
Act before the Bombay City Civil Court, which was dismissed by the Bombay City Civil
Court on 24.7.2008.
 In  between 2003 to 2006, Union of India, through its Ministry of Civil Aviation, came
out with a policy for privatization of airports. Resultantly, the Airports Authority of India
Act, 1991 was amended by the Airports Authority of India (Amendment) Act, 2003.
Accordingly, Mumbai international airport private ltd. (MIA) was incorporated.
 On 4.04.06, MIA entered into an Operation, Management and Development Agreement
(OMDA) whereby AAI granted MIA the exclusive right and authority of Mumbai Airport
for 30 years.
 In 2007, MIA took out a Chamber Summons before the Bombay City Civil Court for
impleading itself as a party in the appeal filed by the contesting respondent. The appeal of
the contesting respondent and the Chamber Summons of MIA were heard by the Bombay
City Civil Court. By its Order dated 24.07.08, the Bombay City Civil Court dismissed the
appeal of the contesting respondent and allowed the Chamber Summons of MIA.
 Then, the contesting respondent filed a writ petition in the Bombay High Court, without
making MIA a party.
 The Bombay High Court passed the impugned Order on 4.03.09 whereby it allowed the
writ petition and set aside the judgment of the Bombay City Civil Court dated 24.07.08.
The High Court held that the order of the Estate Officer Mr. Kaushal was null and void.
The High Court thus remanded the matter to the Estate Officer for a fresh decision in
accordance with law.
 After the impugned Order of the High Court dated 4.3.09, whereby the matter was
remanded to the Estate Officer, hearing took place on 14.5.09 by the new Estate Officer
Mr. Y. Kumaraswamy. Hearings before Mr. Kumaraswamy were adjourned as by
17.3.09, challenging the order of the High Court dated 4.3.09, an SLP was filed by MIA,
and soon thereafter, another SLP challenging the same order of the High Court was filed
by AAI on 28.3.09.

 Both aforesaid SPLs, now converted into appleals

 Supreme Court directed the parties to appear before the Estate Officer on 17.2.10, with a
request that the Estate Officer was to fix a date of hearing and then to hear the parties and
pass an appropriate Order in accordance with law.
 On 29.4.10, the Estate Officer, after hearing the parties, passed a final order directing the
contesting respondent to vacate the premises. It also directed the contesting respondent to
pay damages for unauthorized occupation of the premises by payment of compensation
and municipal taxes.
 Aggrieved by the said Order, the contesting respondent filed a miscellaneous appeal
before the Bombay City Civil Court, challenging the abovementioned Order of the Estate
Officer.
 Court directs that the appeal which has been filed by the respondent before the Principal
Judge, City Civil Court, Mumbai be transferred to this Court.
 The contesting responded first contended that there was an oral assurance for an
extension of the licence to the extent that it will be an irrevocable licence. Relying on
such oral extension, the contesting respondent made substantial investment for
constructing the restaurant. The second contention was that the licence was irrevocable.
The third contention was that the Estate Officer did not give the contesting respondent a
proper hearing.
 Supreme Court held that :
 First contention
 The case of the contesting respondent before all the forums is that though the licence
period commenced on and from 27.11.95, the restaurant was made operational on 1.1.97.
The initial period of licence was upto 26.11.98. Therefore, on its own showing, the
contesting respondent completed the construction of the restaurant by 1.1.97, which was
well within the initial licence period, which was upto 26.11.98. Admittedly thereafter,
there have been two extensions of the licence period upto 26.5.2000. Therefore, the
construction having been completed and the restaurant being operational by 1.1.97, there
is no occasion for the contesting respondent to urge that it invested money in the
construction of the restaurant on the oral assurance by the officers of the AAI about
extension of the licence so as to make it irrevocable.
 In fact no oral assurance of extension of licence is contemplated in the facts of this case.
Such a contention is wholly misconceived.

 Second contention
 The very idea of a licence being irrevocable is a bit of a contradiction in terms. Whether a
contractual licence is revocable or not, would obviously depend on the express terms of
the contract. A contractual licence is normally revocable, except in certain circumstances
that are expressly provided for in the Indian Easement Act, 1882.
 The stand of the contesting respondent that its licence is irrevocable as it has invested
money in the premises and made construction is directly contrary to the stand which it
took before the Bombay High Court and which was recorded in the High Court's Order
dated 12.7.01. It may be noted that when the City Civil Court returned the plaint filed by
the contesting respondent it came up in appeal against the said Order before the Bombay
High Court, it expressly gave up its claim of irrevocable licence in order to revive the
suit. On such stand being taken, the High Court remanded the suit for trial before the City
Civil Court. It is therefore clear that the contesting respondent has taken a stand before a
Court of Law and also got the benefit as a result of taking such stand in as much as it got
the suit revived and tried and got the benefit of an interim order in the said proceedings. 
 Now the question is whether the contesting respondent on a complete volte-face of its
previous stand can urge its case of irrevocable licence before the Estate Officer and now
before this Court?
 Can a litigant change and choose its stand to suit its convenience and prolong a civil
litigation on such prevaricated pleas?
 The common law doctrine prohibiting approbation and reprobation is a facet of the
law of estoppel and well established in our jurisprudence also.
 In Tinkler vs. Hilder (1849) 4 Exch 187, Parke, B., stated that where a party had received
a benefit under an Order, it could not claim that it was valid for one purpose and invalid
for another.
 Supreme Court also does not find any merit in the plea of discrimination raised by the
contesting respondent, by contending that cases of other licensees have been extended
whereas in its case, the licence has not been extended. Such a plea is not factually correct
 in as much as the licence of the contesting respondent was also extended twice. We have
already discussed that the contesting respondent has no right in law, to get its licence
extended. Therefore, one cannot have a plea of negative equality under Article 14.

 Third contention
 Now the last point that remains is the authority of Mr. K.K Gupta to function as an Estate
Officer. This is a point more of desperation than of substance.
 Under Section 3 of the 1971 Act, the Central Government's power to appoint an Estate
Officer is provided.
 From the compilation of notifications that have been filed in this case by the learned
Attorney General, appearing for AAI, it transpires that the Ministry of Civil Aviation and
Tourism, Department of Civil Aviation, issued a notification dated 1.7.97, appointing
several persons as Estate Officers for the purpose of the 1971 Act. That notification was
published in the Official Gazette.
 It is not in dispute that Mr. K.K. Gupta, who functioned as an Estate Officer and decided
the case of the contesting respondent, was promoted and brought to Mumbai as Deputy
General Manager (Land Management). This is admitted in the affidavit of the contesting
respondent. Therefore, Mr. K.K. Gupta by virtue of his designation as Deputy General
Manager (Land Management) discharged his function as a valid Estate Officer.
 This Court even acting as an Appellate Authority does not discern any error in the Order
dated 29.4.10 of the Estate Officer. The appeal filed by the contesting respondent before
the City Civil Court, Mumbai and transferred to this Court is therefore dismissed.
 The Supreme Court held that the contesting respondent has blown hot and cold by taking
inconsistent stand, and has therefore prolonged several proceedings for more than a
decade and dismissed its appeal with costs assessed at Rs.5,00,000/- to be paid by the
contesting respondent in favour of the Supreme Court Mediation Center within a period
of two months from date
 The civil appeals filed by Airport Authority of India and Mumbai International Airport
are allowed. All interim orders are vacated.