Dr.

Ram Manohar Lohiya National Law

University, Lucknow

PROPERTY LAW- I

Final Draft
on
Critical Analysis of “Doctrine of Election” in the light of
Transfer of Property Act, 1882.
2021-2022

Submitted to Submitted by

Dr. Manish Singh Sir Anurag Rai

Associate Professor (Law) Roll No. 200101030

5th Sem (Batch of 2025)

1
 Acknowledgement

First and foremost, I would like to thank Dr. Manish Singh and Dr. Vikas Bhati, faculty
Property Law-1, for creating opportunities to undertake such a valuable project. They helped
me in preparing the project through their aura and by granting their precious time for
consultation, discussion and giving suggestions over this project. They had also helped me in
improving the perception regarding the study of topic in its vast resources and in broader way.
They had cleared all doubts and uncertainty towards this project. Therefore, I want to thank
them, for all their efforts and cooperation which they conferred to me.

Lastly, I want to thank my seniors and friends who helped me throughout the research
of this project.

Anurag Rai
Semester- 5th,
Section-A,
Roll No-200101030

2
 Abstract
In general connotation, the term election refers to the act of picking up or choosing. However,
in the context of Transfer of Property Act 1882, the Doctrine of Election is envisaged
under Section 35 of the Act & also under Sections 180 to 190 of the Indian Succession Act,
1925. The term “election” refers to a choice between two alternative or conflicting rights. You
can choose either of two rights that have been granted in such a way that one is superior to the
other. You can’t have it all. The applicant cannot exercise both rights; the recipient must choose
between two inconsistencies or alternative rights. Essentially, it means that the person receiving
the benefit must also bear the burden.
It is an important part of the 1882 Transfer of Property Act for resolving property disputes
among people. This principle was derived from the equity principle, which states that a person
cannot retain all of the benefits of a transaction, so he cannot keep the property and continue
to receive benefits. They must vote for or against the instrument. The doctrine of election is a
general legal rule that requires the recipient to decide whether he or she wants to own someone
else’s property and whether or not to preserve the property or accept his intentions.

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 Research Methodology

Aims and Objectives

The objective of this project is to study the concept of election, and to examine the scope of
the election, mode of election and significance of the doctrine of election. The main aim of this
project is to provide a critical analysis of the doctrine of Election.

Nature of Project

The project is descriptive as well as analytical in nature. However, the majority of the project
is descriptive in nature.

Sources of Data

In order to accomplish the objective stated above the methodology followed is of descriptive
nature based on secondary sources, i.e., books and electronic sources (internet). For critical
appraisal of laws and judicial decisions pertinent secondary sources such as books, newspapers,
magazines, and articles published in journals are consulted. The standard forms of citations and
reference are used in the work

Research Questions

(1) What constitutes election? When it is necessary?

(2) What are the exceptions to the doctrine of election? Who need not elect?
(3) What are the ingredients necessary for the doctrine of election ?

Mode of Citation:-

The project follows the uniform citation of APA 6th edition.

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 Introduction

The purpose of the Transfer of Property Act, 1882 was to define and amend existing law rather
than to introduce new principles.1 The Act is based on the principles of equity, justice, and
morality. The primary goals of the Act were to convey the rules that govern the transfer of
property between living people in accordance with the rules that govern the devolution of
property upon death. This completes and supplements the work begun in drafting the law of
testamentary and intestate succession. The second goal was to finish the Contract Law code as
it applied to immovable property.

Both movable and immovable property are covered by the Doctrine of Election. As held in
Beepathumma v. Kadambolithaya2, the foundational basis of the doctrine of election is that a
person gaining a benefit under an instrument must also bear the consequential burden 3, and that
they may not take under and against the same instrument. 4 Election is the obligation to choose
between two inconsistent or alternative rights when the grantor’s intention is that the grantee
should not receive both. If two rights are conferred on a person in such a way that one is in lieu
of the other, he is obligated to choose only one of them under any instrument.

As an example, suppose Ravi offers Shivam Rs. 10 lakhs in exchange for the transfer of his
house. Shivam can only choose one of two options: keep the money and transfer his house or
keep his plot but deny the money. He cannot have both advantages.

This project attempts to discuss the various nuances associated with the doctrine of election by
examining various landmark decisions. A special emphasis has been placed on providing a true
understanding of the required conditions for the original owner’s election to take place. The
differences between the Indian Law perspective and the English Law perspective are
highlighted through a critical examination of the provisions, namely the Principle of forfeiture
and the Principle of Compensation.

1
Tajjo Bibi v Bhagwan (1899) ILR 16 ALL 205.
2
Beepathumma v Kadambolithaya A.I.R.(1965)S.C.241.
3
Codrington v Lindsey 1873 ch 578.
4
Dillon v Parkar (1818) 1 swan 359, p.394.

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 Doctrine of Election

Choosing between two alternative rights or inconsistent rights is what election entails. If an
instrument grants a person two rights, one of which is in lieu of the other, that person can
choose or elect only one of them. A person cannot take under and against the same instrument
at the same time.5

Election is an obligation to choose between two inconsistent or alternative rights when the
grantor expressly states that the grantee should not have both.

The doctrine of election is based on the idea that the person who benefits from an instrument
must also bear the burden. In other words, a person cannot take under and against the same
instrument at the same time.

Assume, for example, that X gives to Y a house belonging to Z in a deed, and that X also gives
to Z other property belonging to himself in the same instrument. Z is entitled to X’s property
only if he complies with all of the provisions of the instrument by waiving his right to his own
property in favour of Y; he must thus make his choice, or as it is technically termed “he is put
to his election”, to take either under or against the instrument. If Z chooses to take under the
instrument, he must relinquish his property given to Y by X in favour of Y and take the property
given to him by X.6

In the classic words of Maitland, “He who accepts a benefit under a deed, will, or another
instrument, must:-

a) adopt the entire contents of that instrument;

b) conform to all its provisions; and
c) renounce all rights that are inconsistent with it.”

The doctrine of election is founded on the principle of equity, which states that one cannot take
what is beneficial to him while disapproving of what is detrimental to him under the same
instrument. It is impossible to approve and reprobate at the same time. In other words, if a
person receives some benefit from a deed or instrument, he must also bear its burden. 7

5
C. Beepathuma v. Velasari Shankarnarayana Kadambolithya, AIR 1965 SC 241.
6
Saxena, P. P., Dr. (2021). Property Law (3rd ed.). Gurgaon, Haryana: LexisNexis.
7
Codrington v. Lindsay, (1873) 8 Ch 578.

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The principle of the doctrine of election was explained by the House of Lords in the leading
case of Cooper vs. Cooper.

In Cooper v. Cooper8, Lord Hather explained the principle underlying the doctrine of election
in the following words, “…. there is an obligation on him who takes a benefit under a will or
other instrument to give full effect to that instrument under which he takes a benefit ; and if it
be found that 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 .”

Section 35 of the Transfer of Property Act, 1882

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

Election when necessary:- “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.”9

Rules for Election

Rule 1:- When a person professes to transfer property that he has no right to transfer, thereby
conferring some benefit on the actual owner of the property, the actual owner must choose
whether to confirm the transfer or to dissent from it. In the event of dissent, he must relinquish
the benefit conferred, which will be returned to the transferor or his representative as if it had
not been disposed of.

8
L.R 7, H.L. 53 at p. 69.
9
§35.The Transfer of Property Act.1882.

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This engagement necessitates the participation of three parties:-

1) The Real Owner:- The true owner of the property must choose whether to accept or
reject the transfer. If he chooses to oppose the transfer, the true owner must forego the
benefit.
2) Transferor:- A The party transferring the property has no right to transfer anything else
in the same transaction. The benefit is conferred on the owner of the property by the
transferor.
3) Transferee:- It is the responsibility of the transferor to return to the transferee. If it is
not done correctly or the matter is not properly disposed of, the transferor will be held
accountable. The transferee has the option of filing a lawsuit against the transferor
rather than the real owner.

Assume Jack claims to be transferring a property owned by Jill to Jones. Jill receives a benefit
of Rs. 1,000,000 from him. In this case, Jack is not transferring Jill’s property to Jones, but
rather professes ownership of property that he does not own.

When the transfer is gratuitous and the transferor dies or becomes otherwise incapable of
making a new transfer before the election, and when the transfer is for consideration,
relinquishing 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.

One example of a gratuitous transfer is a gift. Edward receives a house as a gift from Sam. Sam
dies before the election, and the owner of the house expresses his displeasure. It is not possible
to make a new transfer. It is Sam's representative’s responsibility to pay the house’s value to
Edward.

C owns a rose garden worth Rs. 15,00,000 in value. A, using a gift instrument, professes to
transfer it to B, while giving Rs. 20,00,000 to C using the same instrument. C chooses to keep
the farm, foregoing the Rs. 20,000 gifts.

Assume A passes away before the election. His representative is required to pay Rs. 15,00,000
of the Rs. 20,00,000 to B.

Assume that A provides for B a house with a place with C in a deed, and that C receives another
property with a place with himself in a similar instrument. C qualifies for A’s property simply
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

8
instrument, he should surrender for B his property given to B by A; and takes the property…as
Lord Hather stated in Cooper v. Cooper 10.

Rule 2:- The section’s rule concerns whether or not the transferor believes the property he is
attempting to transfer is his own. There is no need for election in a master-agent scenario.

Rule 3: - A person who receives an indirect benefit rather than a direct benefit from a
transaction is not required to elect. If the real owner’s relative receives a benefit, they are not
required to elect. If the owner chooses to dissent, the benefit does not have to be forfeited.

Rule 4:- A person who receives a benefit from a transaction in his capacity may dissent in
another.

Exceptions to the Rules

When a specific benefit is conveyed to the real owner in lieu of his property that the transferor
professes to transfer, and the owner decides to claim the property, the benefit must be returned.
He is not required, however, to relinquish any other additional benefit conferred upon him,
even if it was obtained through the same transaction.

Extra benefits that are not part of the instrument are not to be returned. In the event of dissent,
a specific benefit stated to be received upon transfer of the property is returnable.

Exception 1:- Acceptance of the benefit by the owner upon whom it is conferred implies his
election to confirm the transfer. It is confirmed if he is aware of his duty to elect and of the
circumstances that would influence a reasonable man's decision to vote, or if he waives inquiry
into the circumstances.

In a few cases, the law presumes that an election has occurred because the owner acts as if he
has elected, despite the fact that no direct election has occurred. Acceptance of benefit, no
inquiry into the circumstances, reading the document and receiving the money, or receiving
the money without the ability to read are all examples of this. Because a reasonable person
would be aware of the facts, the law presumes that the election was made, and there is no way
to reject the contract.

10
L. R. 7 H L 53 p.69.

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For example, Reza transfers a property Kahan owned by Saidur and benefits Saidur using the
same instrument. Now, Saidur accepts Reza’s benefit without confirming his election, and he
also waives an investigation into the circumstances. In this case, the court will assume that he
approved the transaction and chose to benefit from it.

Exception 2:- Without contradicting evidence, such knowledge or waiver shall be presumed if
the person who received the benefit has enjoyed it for more than two years without acting to
express dissent.

Election would be assumed if the owner consumed the benefit without dissent for more than
two years. The result of the election would be exclusion.

Exception 3:- Such knowledge or waiver may be inferred from any act that renders it
impossible to place the party interested in the property purportedly transferred in the original
condition as if such act had not occurred.

It is not possible to return the property, such as consumption of mining land.

Exception 4:- If he does not notify the transferor or his representative of his intention to
confirm or dissent from the transfer within one year of the transfer date, the transferor or his
representative may, after the expiration of that period, compel him to make his choice. If he
does not comply with such requisition within a reasonable period of time after receiving it, it
is assumed that he has chosen to confirm the transfer.

Ingredients Necessary for the Doctrine of Election 11

1) The transferor must not be the owner of the property being transferred.
2) In the same instrument, the transferor must grant some of his own property to the owner
of property.
3) The two transfers must occur in the same transaction: the transfer of the owner’s
property to the transferee and the conferral of the benefit on the owner of property. If

11Jawed, A. W., & Gorai, S. (2020, June). Doctrine of Election – Transfer of property Act (section 35).
Retrieved September 14, 2021, from https://www.lawcolumn.in/doctrine-of-election-transfer-of-property-
act/#:~:text=The%20Necessary%20ingredients%20for%20the%20Doctrine%20of%20Election%3A,the%20ow
ner%20of%20the%20property.

10
 the two transfers are made by means of two distinct instruments, the doctrine of election
is inapplicable.
4) The owner must have a proprietary interest in the property. A creditor has no say in the
election because he only has a personal right to be paid by the debtor.
5) The owner who does not receive a direct benefit from the transaction but does receive
a benefit from it indirectly is not put to election.
6) The issue of election does not arise when a person receives a benefit from a different
society.

Applicability of Doctrine of Election

It applies to people governed by Hindu and Mohammedan law. It is applicable to both movable
and immovable property. The doctrine of election is based on the equitable principle that if a
person persuades another to act in a way that benefits him, he cannot then claim that he was
not obligated to perform his part because it was void. It applies when a seller or transferor of
property tries to profit from his own mistake12. This principle does not need to be ratified 13. It
is applicable in cases of gift or will, but it does not generally apply in cases of legal remedy14.

➢ Hindu Law:- The principle underlying this section has always been applied to Hindus.
In the case of Rungamma v. Atchamma 15, the Privy Council referred to the rule that a
party shall not at the same time affirm and disaffirm the same transaction-affirm it as
far as it is for his benefit and disaffirm it as far as it is to his prejudice.
➢ Muslim Law:- In the case of Sadik Hussain v. Hashim Ali16, the Privy Council applied
this doctrine to Muslims also.
➢ English Law:- Under English Law, a transferee by electing against the transfer does not
lose his benefit but he becomes bound to make compensation out of it to the
disappointed person.

The Doctrine of Election is recognized in Section 35 of the Transfer of Property Act. It applies
when a person claims to be transferring property that he does not have the legal right to transfer.

12
Prashant Ramchandra Deshpande v Maruti Balaram Haibatti, 1995 Supp (2) SCC 539 (541).
13
K. Shanmugham Pillai v S. Shanumugham Pillai, AIR 1968 Mad 207.
14
Nihar v Anath Nath, AIR 1956 Pat 223 (226) (DB).
15
(1858) 4 Moo Ind App 1: 7 Suth WR 57.
16
(1916) 38 All 627; 36 IC 104.

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Similarly, “a species of estoppel has arisen which appears to be intermediate between estoppel
by record and estoppel in pais”, based on the principle that a person may not approbate and
reprobate.

The principle that a person may not approve and reprobate expresses two propositions:-

(1) that the person in question, having a choice between two courses of conduct, is to be
treated as having made an election from which he cannot resile; and
(2) that he will not be regarded, in general, as having been elected unless he has taken a
benefit under or arising out of the course of conduct that he first pursued and with
which his subsequent conduct is inconsistent. 17

Essential Conditions for Application of this Doctrine

Essential conditions for application of this doctrine are as follows:-

1. The transferor cannot be the owner of the property being transferred.

2. The transferor must transfer another person’s (owner’s) property to a third party.
3. The transferor must also grant some property to the owner of property by the same
instrument and out of his own funds.
4. The two transfers, namely the transfer of the owner’s property to the transferee and the
conferment of benefit on the owner of property, must occur in the same transaction. If
the two transfers are made using separate instruments, there is no need for an election.
5. The property’s owner must have a proprietary interest in it.
6. The owner who does not directly benefit from a transaction but indirectly benefits from
it does not need to elect.
7. When a benefit is given to a person in a different capacity, the question of election does
not arise.

17 Prashant Ramchandra Deshpande v Maruti Balaram Haibatti 1995 Supp (2) SCC 539 (541).

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 Mode of Election

Elections can be either direct or indirect. There is no prescribed form or formula for direct
election. Anything that clearly conveys the intention is sufficient for the purpose. A letter,
telegram, a word spoken orally in the transferor’s presence and within hearing range, or any
other sign made or marked at the transferor’s desire or understanding is sufficient. In the event
of an indirect election, Section 35, clauses 5, 6, and 7 provide for the three modes listed below.

(1) Acceptance of benefit while being aware of the duty to elect [Clause (5)]-
Presumption of election.- If the donee accepts the benefit provided by the transferor,
this acts as an election on his part. As a result, it is critical that the acceptance of the
benefit be made with full knowledge of his duty to elect and of all matters related to
such benefit. If the benefit is accepted without such knowledge, the representative of
the electing party may revoke the election. Similarly, if the election is made expressly
or implicitly based on a misunderstanding or error of fact, it is not binding and can be
revoked even by the elector himself. If, on the other hand, the donee wilfully refrains
from inquiring and thus waives an inquiry into the circumstances under which a benefit
is conferred upon him and makes an election, that election is binding on him and his
representatives.
(2) Two year’s enjoyment- Election presumed [Clause (6)]- The provision is equivalent
to Section 188(1) of the Indian Succession Act of 1925. The period of two years is taken
from the case of Crabtree v. Bramble. 18
The presumption can be disproved. Presumption exists in the form of election. If the
person put to vote is aware that he has a duty to vote, he must express his dissatisfaction
if he intends to keep the property for the time being and is not interested in voting in
favour of the proposal. If a person keeps the property for two years from the day it is
conveyed to him and says nothing to explain the behaviour otherwise, the law presumes
that the person is doing so under the mistaken belief that it is his own and accepts the
document as originally proposed.
(3) Status quo cannot be restored-Election presumed [Clause (7)]- This provision is
equivalent to Section 188(2) of the Indian Succession Act of 1925. The Illustration to
Section 35 explains it thoroughly (7). Section 36 of the Specific Relief Act recognizes
the principle of restitutio in integrum. The section allows for inferences of knowledge

18
1925 Cal.724 (D.B.).

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 that can be refuted by circumstances. This clause explains another way in which an
indirect election can occur. If the property is exhaustible by consumption, the election
in favour is assumed the moment consumption begins. The coal mine case is a typical
example. The coal mine begins to exhaust as soon as excavation begins and even a few
chunks of coal are dug out. There is no need for a period in these cases.

Momentous case laws advocating The doctrine of Election

1) Muhammad Kader Ali Fakir v. Fakir Lakman Hakim19 (1956).

The basis of the doctrine of choice is that the person who uses the instrument must also
bear the burden imposed in this way and that he cannot carry under and against the
same instrument. This is a violation of general rules that cannot be accepted or rejected
by anyone. This doctrine is based on the fictional intent of this ether that the law
implies that the author of the instrument intends to manifest any part of it. There is an
obligation for anyone using a will or other instrument to make that instrument fully
effective, which donors or settlers cannot have. However, what effect can be obtained
from his agreement that has received compensation based on the same instrument? The
law will apply to the applicant’s obligation to use the instrument in full force and effect.
If the tool is partially invalid, the rest is enough to place someone to vote if they say
so.
2) Dhanpati v. Devi Prasad and others20 (1970).
In this case, court held that it was determined that the following conditions must be
followed before the election: –
a) A person having no right to transfer the property.
b) He has to transfer some profit to the owner of the property as part of the same
transaction.
c) The owner must either elect to confirm the transfer or dissent from it.

3) Andhra Pradesh Financial Corporation v. Gar Re-rolling Mills 21 (1994).

19
PLR 1956 Dacca 370.
20
(1970) (3) SCC 776.
21
1994 (2) SCC 647.

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 The Supreme Court held that: “The Doctrine of Election clearly suggests that when
two remedies are available for the same relief, the party to whom the said remedies
are available has the option to elect either of them, but that doctrine would not apply
to cases where the ambit and scope of the two remedies is essentially different...”
4) National Insurance Company v. Mastan & Anr.22 (2006) .
IA No.12638/2010 in CS(OS) No.1963/2009 Page 4 spelt out what is the rule, in the
following terms: “A party to a lis, having regard to the different provisions of the two
Acts cannot enforce liabilities of the insurer under both the Acts. He has to elect for
one.... The ‘doctrine of election’ is a branch of ‘rule of estoppel’, in terms whereof a
person may be precluded by his actions or conduct or silence when it is his duty to
speak, from asserting a right which he otherwise would have had.
The doctrine of election postulates that when two remedies are available for the same
relief, the aggrieved party has the option to elect either of them but not both. .Although
there are certain exceptions to the same rule but the same has no application in the
instant case.”
5) Bhagwat Sharan v. Purushottam23 (2020)
The Hon’ble Supreme Court has held that that a party cannot be permitted to approbate
and reprobate at the same time. This principle is based on the principle of doctrine of
election. In respect of Wills, this doctrine has been held to mean that a person who
takes benefit of a portion of the Will cannot challenge the remaining portion of the
Will.

22
2006 (2) SCC 641.
23
2020 SCC OnLine SC 348.

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 Critical Analysis

The Doctrine of Election was enunciated by the House of Lords in the case of Cooper vs.
Cooper24. In this case the Doctrine has been explained as follows,

“….. there is an obligation on him who takes the benefit under a will or other instrument to
give full effect to that 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 effect.”

The Doctrine of Election is clearly based on the idea that one cannot benefit from something
which he may choose to deny i.e., approbate and reprobate in the same matter. The same
principle was laid down in the case of Ker vs Wauchope25 stating that,

“It is against equity that anyone should take against a man’s will and also under it. This rests
on no artificial rule, but on plain fair dealing. If anyone has the right by law to take a share of
a testator’s estate, which the testator has not given but has otherwise disposed of, that person
takes it against the will and cannot go on to found on the will and claim its benefits.”

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. 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. Thus, it is a general rule that a person cannot approbate and reprobate 26. Also, the election
is confined to the case of a gift or Will27 and does not apply in case of a legal remedy.

24
L.R 7, H.L. 53 at p.69.
25
1819 1 Bligh 1 (B).
26
Beepathuma ( C ) v. Kadambolithiya , AIR 1965 SC 241; Codrington v. Codrington (1857) 7 HL 854, 861.
27
Nihar v. Anath Nath, AIR 1956 Pat 223 (226) (DB).

16
• The Transfer of Property Act, 1882 was intended to define and amend the existing law,
and not to introduce any principle. It embodies principle of equity, justice, and good
conscience.

• The chief objects of TPA 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 complete 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 property. 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 burden, and that he cannot take under and against the
same instrument.

• Election is an obligation to pick between two inconsistent or alternation rights in a case

where there is a clear intention of the grantor that the grantee should not obtain both.

17
 Conclusion

Section 35 of the Transfer of Property Act of 1882 states that if a person professes to transfer
property over which he has no right without informing the owner, he must approach the owner
to seek its disposal. It is up to the owner to decide whether or not to allow it. This implies that
he has the right to use the doctrine of election during a transaction to either confirm or dissent.

When the owner chooses to dissent, it is the transferor’s responsibility to return the money or
consideration value if a new transfer is not possible. If it is a gratuitous transfer, such as a gift,
he must pay the property value, and even if the transferor dies before making the election, his
representative must pay the entire or exact value. In the event that the transferor or his
representative fails to pay or deliver the property, the claim would be made against the
transferor rather than the true owner.

The rules for making an election are set out in Section 35 of the Transfer of Property Act of
1882. When the owner accepts the transfer, he receives some direct, specific benefit, and if he
dissents, he must return the benefit. If he receives an indirect, extra benefit that is separate and
apart from the instrument, he does not have to give it up. An exception to this is when the owner
implies confirmation by accepting the benefit, displaying some required document, or
demonstrating a reasonable person B’s understanding of the matter. It is impossible for the
owner to return to his original position if he has enjoyed the benefit for more than two years
without dissent. The court automatically assumes that the owner accepted the transfer one year
after receiving a notice from the transferor and the expiration of the prescriptive time limit. If
a person is disqualified from running for office, the election will be postponed until either the
disability ends or the election is made by a competent authority, as in the case of
disqualification due to the party being a minor, insane, or infancy.

18
 Bibliography

Books:-

(1) Saxena, P. P., Dr. (2021). Property Law (3rd ed.). Gurgaon, Haryana: LexisNexis.
(2) Mulla, D. F., Bharuka, G. C., & Bharuka, D. (2018). The transfer of property act 1882.
Gurgaon: LexisNexis Butterworths Wadhwa.
(3) Singh, A., Dr., & Kaur, H., Dr. (2019). Textbook on The Transfer of Property Act (6th
ed.). Universal Law Publishing.
(4) Sinha, R., Dr. (2019). The Transfer of Property Act (20th ed.). Allahabad: Central Law
Agency.

List of Statutes:-

(1) Transfer of Property Act, 1882.

(2) Indian Succession Act, 1925.

Articles/Journals:

(1) Wayal, P. R.. Doctrine of Election. Jus Corpus Law Journal, 1, Retrieved September
15, 2021, from https://www.juscorpus.com/wpcontent/uploads/2021/05/39.-Payal-
Ramesh-Wayal.pdf.
(2) Ahuja, U. (2019, July). Doctrine of Election. Retrieved September 16, 2021, from
https://lawtimesjournal.in/doctrine-of-election/.
(3) Jawed, A. W., & Gorai, S. (2020, June). Doctrine of Election – Transfer of property
Act (section 35). Retrieved Sept. 14, 2021,from https://www.lawcolumn.in/doctrine-
of-election-transfer-of-property-act/
(4) Rai, D. (2020, July). Doctrine of Election and its Incorporation. Retrieved Sept.
07,2021,from https://blog.ipleaders.in/doctrine-of-election-and-its-incorporation/amp/.
(5) Doctrine of Election | Section 35 of Transfer of Property. (2021, January). Retrieved
September 15, 2021, from https://lawlegum.com/doctrine-of-election-section-35-of-
tpa/.

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