Introduction

The doctrine of election is stated in transfer of property act 1882 in section 35 and
within 180-190 of Indian succession act. Election means a choice between two
alternative or conflicting rights. The doctrine of election in the context of transfer
of property is a legal principle that deals with situations where a person receives a
benefit under a will or a gift but is also faced with a choice between accepting the
benefit or rejecting it in favor of another right or property. This doctrine essentially
requires the person to make a choice between two inconsistent rights or benefits.
Granting two rights in such a way that one is higher than the other, you can choose
either of them. You cannot have both. 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..it is an important
part of the transfer of property act 1882 to resolve property conflicts among
people. 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. They have to elect for Or against the instrument. The doctrine of
election is a general legal rule that requires the recipient to choose whether the heir
wants to own someone else property and decide whether to preserve the property
or accept his intentions. The foundation of the doctrine of election is that the
person taking a benefit under an instrument must also bear the burden. Election is
an obligation to choose between two inconsistent or alternative rights in a case
where there is a clear intention of the grantor that the grantee should not enjoy
both. In other words, a person cannot take under and against one and the same
instrument.. According to section 35 of the transfer of property Act 1882 provide
that, 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 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 by the owner.
Election when necessary (section 35)

1.Concede to transfer property on which he has no rights.

2.In the same transaction, they must elect either to accept it or not, in case he
doesn’t.

3.He must release the benefits till then.

4.The benefits he had till then goes back to the transferor as if not given.

Although when benefit is transferred back, he must make some good to the
transferee at least it can be done in the following cases:

a)Where the transfer is voluntary and the Transferor had died or had become
incapable of doing a fresh transfer.

b)Transfer is for consideration.

ESSENTIALS OF DOCTRINE OF ELECTION

The real owner of the property has some rights-

1 Right to choose

2 Right to reject

3 Power to elect

4 Full disclosures of facts

5 The owner cannot enjoy both the rights he has to choose any one from two it is
an obligation on side of the owner.

6 It fully upon the discretion of the owner.

7 Whether he wants that property or not?

8 Whether he wants that benefit or not?

9 The transaction must be the same in the dealing of property.

10 In these three parties are involved [6]

11 Real owner

12 Transferor

14 Transferee

15 The person who transfers the property should be other than the owner.

Doctrine of Election:

Election means choosing between two alternative rights or inconsistent rights. If an

instrument confers two rights on a person in such a manner that one right 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. Election is an obligation, to choose
between two inconsistent or alternative rights in a case where there is a clear
intention of the grantor that the grantee should not enjoy both. The foundation of
the doctrine of election is that the person taking a benefit under an

instrument must also bear the burden. In other words, a person cannot take under
and against one and the same instrument.

For example, 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 entitled to A’s
property only upon the connection of C’s conforming to all the provisions of the
instrument by renouncing the right to his own property given in favour 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. If C elects to take under
the instrument, he must relinquish in favour of B his property given to B by A; and
takes the property which is given to him by A.

The doctrine of election may be stated in the classic words of Maitland 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. conform to all its provisions; and

c. renounce all rights that are inconsistent with it”.

The doctrine of election is based on the principle of equity that one cannot take
what is beneficial to him and disapprove that which is against him under the same
instrument. One cannot approbate and reprobate at the same time. In simple words,
where a person takes some benefit under a deed or instrument, he must also bear its
burden. The principle of the doctrine of election was explained by the House of
Lords in the leading case of Cooper vs. Cooper.

In Cooper vs. Cooper, Lord Hather explained the principle underlying the doctrine
of election

In the following words,

“…there is an obligation on him who takes benefit under a will or other to give full
effect to the 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 into full and complete force and effect.

Statutory Provision

The doctrine is dealt with under Section 35 of The Transfer of Property Act, 1882
(TPA).

Essentials of the Doctrine Under Section 35

The essentials can be enumerated as follows:

 The transferor professes to transfer property which is not his own.

  In the same transaction, benefit is conferred upon the owner of the property.
 The owner must either confirm the transfer or dissent from it.
 In case he dissents, he shall relinquish the benefit so conferred.

The benefit so relinquished reverts back to the transferor or his representative

where:

 The transfer is gratuitous and transferor before election dies, becomes

incapable of making a fresh transfer and
 The transfer is for consideration.
 Then, the disappointed transferee has to be made good (compensated) the
losses equal to the amount of property attempted to be transferred.

Transfer – Section 5 of TPA defines transfer as an act by which a living person

conveys property, in present or in future, to one or more other living persons, or to
himself, or to himself and one or more other living persons; and “to transfer
property” is to perform such act.

Transferor - A person who makes a transfer or conveyance of property.

Transferee - A person to whom a conveyance is made.

INGREDIENTS OF DOCTRINE OF ELECTION

 It is immaterial whether the transferor does not believe that the property
which he professes to transfer is his own property.
 A person who takes on benefit directly under a transaction, but derive a
benefit under it indirectly, need not elect.
 Likewise, a person who takes a benefit in one capacity may dissent
therefrom in another capacity.
  In case of dissent, only that the particular benefit is to be relinquished, any
other benefit conferred on him by the same transaction is not to be
relinquished.
 If a person accepts a benefit for 2 years (or more), there is a presumption
that he has elected in favor of the transfer.

If the owner does not, within a year’s time, signify to the transferor, his intention to
confirm or dissent, the transferor may require him to make an election. If he does
not comply with such requisition, he is deemed to have elected to confirm the
transfer.

Essential Conditions for Application of the Doctrine of Election

For the doctrine of election to apply, the conditions listed under must be present:

1. Firstly, the transferor must neither be the owner of the property transferred nor
‘authorized by the owner’ to transfer the property. The transferor may even believe
the property to be his own or that he is authorized to transfer it, while in reality, he
may not be;

2. Secondly, the property of the owner must be transferred to a third person

(transferee) by the transferor;

3. Thirdly, the transfer must be for some consideration.

4. Fourthly, some benefit must be conferred upon the owner;

5. Fifthly, the two transfers, namely the transfer of the owner’s property tothe
transferee and the conferment of benefit on the owner of the property,must be
accomplished through the same transaction, instrument, deed, orwill.

6. Sixthly, the owner must have propriety interest in the property;

7. Seventhly, the transferee must get the immovable or movable property

‘directly’.
B. A dies soon after, followed by B, both without making an election to affirm or
reject the benefit under the bequest. On the death of his father B, his son S would
take X as per the original transfer performed by A, and the land Y under intestacy.
He would not be obligated to elect because he is an ‘indirect’ beneficiary.

8. Eighthly, the transfer must be accepted absolutely and in its entirety asa whole
and must confirm to the provisions of the deed and renounce rights inconsistent
with it.

9. Ninthly, if the owner elects to disapprove the transfer, the benefit must revert to
the transferor, who would be responsible to make good the loss of or compensate
the disappointed transferee. If the transferor dies or becomes incapable of
transferring before the election, then his legal representative must take up the
responsibility.

Exceptions to Doctrine of Election

Where a particular benefit is expressed to be conferred on the owner of the

property which the transferor possesses to transfer, and such benefit is in lieu of
that property, if such owner claims the property, he is not bound to relinquish any
other benefit that he achieves through the same transaction.

The acceptance of the benefit by the original owner will be considered to be an

election by him to confirm the transfer, if he is aware of his duties and
responsibilities and of the circumstances that might influence a prudent
(reasonable) man into making an election.

This knowledge of the circumstances can be assumed if the person who gets the
benefit enjoys it for a period of more than two years without doing any act to
express dissent.
The transferor would ask him to elect his choice, if the original owner does not
elect his option within a year of the transfer of property. Even after the reasonable
time, if he still does not elect, the original owner shall be presumed to have elected
the validation of the property transfer as his choice.

RIGHTS OF DISAPPOINTED TRANSFEREE

When the owner of the property elect 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 entertained some hope of getting the property.
However, such disappointed transferee is not allowed to be helpless person. He has
the following rights:

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

• 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.

In context of a minor, the period of election shall be adjourned till the individual
attains majority unless he is represented by a guardian.

Modes of Election

The election by the owner can either be direct or indirect.

In direct election, one just needs to simply communicate about the elected choice
or option. Though, in case of an indirect election, the acceptance of the benefit by
the owner is subject to two conditions:

1. He has to have the knowledge of his responsibility to elect.

2. There must be proof of knowledge of circumstances which would influence the
judgment of a prudent man to make an election. [v]

The election shall be presumed when the done acts in such a manner with the
property gifted to him that it becomes impossible to return it to the original owner
in its original state.

Who Need not Elect

Section 35 provides that, a person taking no benefit directly under a transaction,

but deriving a benefit under it indirectly, need not elect. Moreover, a person who in
his one capacity takes a benefit under the transaction may in another dissent
therefrom.

Thus, an estate is settled upon A for life, and after his death, upon B. A leaves the
estate to D, and Tk. 10,000 to B, and Tk. 5,000 to C, who is B’s only child. B dies
intestate shortly after the testator, without having made an election. C takes out
administration to B’s estate, and as administrator, elects to keep the estate in
opposition to the will, and to relinquish the legacy of Tk. 10,000. C may do this,
and yet claim his legacy of Tk. 5,000 under the will.

Where Person Elects to Dissent:

Under Section 35, where the owner elects to dissent from the transfer, he shall

relinquish the benefit so transferred to him and such benefit shall revert back to the

transferor or his representative as if it had not been disposed of. When property
reverts back and

i. the transfer is gratuitous, and the transferor has, before the election, died or

otherwise become incapable of making a fresh transfer, and

ii. in all cases where the transfer is for consideration, it shall be the duty of the
transferor

or his representatives to compensate the disappointed transferee. The amount of

compensation shall be the amount or value of the property which was going to be

transferred to him, if the option has been exercised in favour of the transaction.

Time Limit for Election:

Upon the expiration of one year from the transfer, if an election has not taken
place, the transferor may compel him to make his election .If he fails to comply
with this requisition within a reasonable time, he shall be deemed to have elected
to confirm the transaction.

Suspension of election

Where the done suffers from some disability by reason of infancy, lunacy and so
forth, the

election shall be postponed until the disability ceases or until the election is made
by some competent authority, e.g. , a guardian of a minor

Illustrations

1. Aman is the owner of the property worth Rs.10 lakh, Bhanu is the transferor
who has no rights over the property, Chandan is the transferee.

Bhanu offers to Aman that if he willing to sell his property to Chandan, he will
give him Rs. 15

lakhs. Now Aman (real owner) can either accept the offer and receive the benefit
thereof, or to reject the whole offer.

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 to the transfer
to the same instrument. For example, where a person is given two benefits X and Y
under an instrument but only X has been 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.

Application of Doctrine of Election:

Hindu Law:

The principle underlying this section has always been applied to Hindus. In the
case of Rungamma v. Atchamma, 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 Ali, 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.

Difference between English law and Bangladeshi Law:

There is difference between English and Bangladeshi law regarding the doctrine of
election. Main points of difference are as follows:

1. English law applies the principle of compensation while the Bangladeshi law
adopts the rule of forfeiture.

2. English law does not specify any time within which election is to be made.
Bangladeshi law specified one-year time within which owner of the property is to
elect whether he confirms the transfer or dissents from it. If the owner does not
comply with such requisition, he is to be deemed to have elected to confirm the
transfer.

Essential Conditions for Application of this Doctrine:

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

1. The transferor must not be owner of the property which he transfers.

2. The transferor must transfer the property of other (owner) to a third person.

3. The transferor must at the same time grant some property, by the same
instrument,

out of his own, to the owner of property.

4. 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 by the same
transaction. Question of election does not arise if the two transfers are made
through two separate instruments.

5. The owner must have proprietary interest in the property.

6. The owner taking no benefit under a transaction directly, but diverting a benefit
under it indirectly, need not to elect.

7. Question of election does not arise when benefit is given to a person in a

different capacity.

Section 35 determines

The reception of the service by the person to whom the service is available is a
decision by that person to confirm the transfer if they know the service. The
obligation to choose and know circumstances that will affect the judgment of
reasonable people in the election, or it refuses to adapt to the Situation. Knowledge
or rejection is assumed if the opposite evidence is not available, if the person
providing the service has used it for two years without taking action to explain
their disagreement. Section 35 also determines this knowledge or rejection can be
inferred from any action by that person, so that it is not possible to place people
who are interested in the property, which is believed to be transferred, in the same
conditions as if the action was not carried out.

Presumption as Election:

Whether the benefit conferred on the owner (elector) was accepted with the
knowledge of the circumstances is a question of fact subject to the following rules:

 If the elector has been enjoying the benefit conferred on him for two years
without doing any act to express dissent, it shall be presumed that he was
aware and had the knowledge or he waived the inquiry.

 If the elector has done any act which renders it impossible to place the
person interested in the property professed to be transferred in the same
condition as if such act had not been done.

 If an election has not taken place by the elector, the transferor may compel
the elector to make his election. If the elector fails to comply with this
requisition within a reasonable time, he shall be deemed to have elected to
confirm the transaction.

 If the elector suffers from some disabilities such as lunacy, infancy etc then
the election shall be postponed until the disability ceases to exist or until the
election is done by some competent authority.

Case Law

In Muhammad Kader Ali Fakir v. Fakir Lakman Hakim, (PLR 1956 Dacca 370),
the doctrine of election was explained by the Court. The Court explained that, “the
foundation of the doctrine of election is that a person taking the benefit of an
instrument must also bear the burden, imposed thereby and that he cannot take
under and against the same instrument. It is a breach to the general rule that no one
may approbate or reprobate. 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 of, but to which effect
can be given by the concurrence of him who receives the 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. If an instrument is
invalid in part what remains is sufficient to put a person to his election if he claims
a benefit under it”.

COOPER VS. COOPER

This case was given by Lord Heather who explains the principle of the doctrine of
election. That there is always an obligation on side of the person who has taken the
benefit with their own consent or will, and if it is false or misrepresented then there
is the power to the donor to reject it or dispose of it. And same with those who are
going to take that instrument. In this case, it was said one who takes benefit he also
has some obligations in it.

CODRINGTON V. CODRINGTON

In this case, also the doctrine has been exercised and said when there is a choice to
the owner with his will whether to elect or reject if for the benefit he accepts then
automatically this instrument has to adopt by another person and in the same
transaction. The owner has to leave all his rights in the instrument. [9]

This doctrine applies when there is a conflict between two rights and one has to
choose one right over another, and when he chooses by his own will he has
accepted both benefits and obligation.
CONCLUSION

Here, I want to conclude that Section 35 of the Transfer of Property Ac, 1882
explains the concept of the Doctrine of Election. This project tries to deal with the
various nuances involved in the doctrine through the usage of various landmark
judgments. Section 35 of the transfer of property Act 1882 provide that, 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 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. Election is an obligation to choose between two
inconsistent or alternative rights in a case where there is a clear intention of the
grantor that the grantee should not enjoy both. The foundation of the doctrine of
election is that the person taking a benefit under an instrument must also bear the
burden. In other words, a person cannot take under and against one and the same
instrument.

The End