Dr RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC SESSION:

2022-2023

PROPERTY LAW

Project on:

DOCTRINE OF ELECTION

SUBMITTED TO

DR. MANISH SINGH

ASSOCIATE PROFESSOR (LAW)

SUBMITTED BY

PRACHI PANDEY

ENROLMENT NO:- 200101171

SEC B

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ACKNOWLEDGEMENT

To begin with, I would like to convey my heartfelt gratitude and salutations to, Dr. Manish
Singh, Professor at Dr. Ram Manohar Lohiya National Law University, Lucknow. I
acknowledge his immense help granted to me for the purpose of making this project. Without
the pioneer guidance of such a preceptor, it would have been impossible and impractical to
embark on an undertaking such as this.

I would like to acknowledge the wealth of information I received from the many blogs, web
resources and online articles. The invaluable information contained in them provided the
chassis upon which further development was possible to commence. I convey my gratitude to
the various authors of the aforesaid resources along whose disseminations on the topic turned
out to be priceless

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RESEARCH METHODOLOGY
The research is strictly doctrinal, the sources being exhaustive and limited to the internet,
books, journals and newspaper articles, although reference to all of the aforementioned sources
may not be necessarily made. For the presentation of information in the correct perspective,
due care has been ensured.

ABSTRACT
This project attempts to discuss the nuances associated with various judgments and provisions
associated with the doctrine of election. It has been endeavoured to understand and
interpret section 35 of the Transfer of property act 1882. Simultaneously, the paper
highlights section 180- 190 of the Indian Succession Act. It goes on to discuss the meaning of
the doctrine, necessary ingredients, rule and exception along with case laws and also the modes
of election. The differences between the Indian Law perspective as well as the English Law
perspective are mentioned here to critically analyze the provisions i.e. Principle of forfeiture
and Principle of compensation

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 Table Of Contents

❖ Introduction
❖ Necessary ingredients for Doctrine of election
❖ Modes of Election
❖ When does a person elect to dissent?
❖ Who doesn’t have to elect?
❖ Difference between English law and Indian law perspective
❖ Exceptions to Doctrine of Election
❖ Time limit for Election
❖ Doctrine of Election Application
❖ Compensation
❖ Case Laws
❖ Conclusion

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 INTRODUCTION
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.
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.
Section 35 of the Transfer of property act deals with the Doctrine of election. It provided that
where a property is transferred to a person, then the transferee can make a choice between
whether to accept the transfer or reject it. The burden of the transfer is complimentary along
with the benefits of the transfer. In other words, enshrined in legal maxim qui approbat non
reprobate i.e. a man cannot approbate and reprobate.

In case the person upon whom a benefit us conferred rejects it, the property which was
attempted to be transferred to him will revert to the transferor and it is the transferor who will
compensate the disappointed transferee. If the transferor dies, before the transferee makes
the election, then the legal heirs of the transferor will compensate the disappointed
transferee out of the inherited assets.

The doctrine of election is universally applicable. In reference to the mode of elections, the
election by the owner can either be direct, through communication or indirect, “the acceptance
of the benefit by the original owner is subject to conditions:
1. He has a duty to elect which he must have the awareness, and
2. There must be proof of knowledge of circumstances which would influence the
judgment of a reasonable man in making an election.1
3. Acceptance for two years 2
4. Status quo cannot be restored

The doctrine of election is a general legal rule that requires the recipient to choose whether the
heir wants to own someone else’s property and decide whether to preserve the property or
accept his intentions.

Example: A promises to give B, 50 lakh but only on one condition that he will sell his house
to C, now B here has to make the election on what to do? If he takes A’s offer he will have to
give his house to C. On the other hand if he doesn’t, he won’t get 50lakh also hence he has to
make an election on what to choose. Mainland’s describes its doctrine of election as He/she
who approves a benefit under a deed/will or the other instrument, must

• Adopt all the contents of that instrument.

1 (Shukla S. N transfer of property act 24 the edition edited by Dp Ghousal reprint 2007). 1
2 (Section 188(1) of the Indian Succession Act)

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 • Accord to all its provisions.
• Cede all rights that are inconsonant.
The Necessary ingredients for the Doctrine of Election3:

• The person transferring the property should transferor should not be the owner
of the property.
• The person transferring must at the same time and in the same instrument, grant
some of his own property to the owner of the property.
• Both the transfers must be made in the same transaction i.e. Transfer of the
property of the owner to the transferee and conferring the benefit on the owner
of the property. The doctrine of election is not applicable if the transfers are
made by virtue of two separate instruments.
• It is required that the owner has a proprietary interest in the property. A person
being a creditor is uncommitted in the election as he merely has a personal right
to be paid by the debtor.
• The owner is not put to election who does not receive direct benefit under the
transaction, but gets some benefit under it indirectly.
• The question of election does not arise when the benefit is received by a person
in a different capacity. For example, a person can accept legacy for an estate, at
the same time in his personal competence, he could retain the property.
Although when benefit is transferred back, he must make some good to the transferee at least
it can be done in the following cases:

• Where the transfer is voluntary and the Transferor had died or had become incapable
of doing a fresh transfer.
• Transfer is for consideration.

Example: The farmhouse at Udaipur is a property of C. A by gift means promises to give B

1,00,000. He accepts it although C now wants to retain his farmhouse and A forfeits his gift.
In such a course of action B died, now his representative must pay C 1,00,000.

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

3 Shafique Hossain, Transfer of property act, 1882, 1st edition, p.40

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The election shall be presumed when the donee 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.

Difference between English Law and the Indian Law Perspective-

The English law depends upon the principle of compensation which states that if the original
owner does not validate the transfer, he will be able to retain the property and also the benefit
accrued, subject to compensation provided to the donee, to the extent to which he had suffered
a loss.

But in the Indian law, this doctrine is affected by the principle of forfeiture which says that if
the real owner does not confirm the transfer, the donee incurs a forfeiture of the granted benefit
which goes back to the transferor.4

Who doesn’t have to elect?

The person who indirectly derives benefits from the transactions and not directly according to
section 35 does not need to elect.

Example:: A promises to give B 1000 given if his son buys C’s house for 1200, Nowhere n’s
son doesn’t have to elect as it is B who will have to make the decision on what to do.

When does a person elect to dissent?

According to section 35 If the owner decides not to approve the transfer, he will surrender the
transferred service to him and this service will be returned to the transferor or his representative
as if he had not been released. Following could take place:

• The transfer is voluntary and the Transferor had died or had become incapable of
doing a fresh transfer.
• In all cases where the transfer must be checked, it is the responsibility of the
transferor or his representative to compensate disappointed buyers. The
compensation amount is the amount or value of the property that will be transferred
if the option.

Exceptions to the Doctrine of Election

As explained through the sec.35 of TP Act that if any person in the time of transfer the
property to another person and make a beneficiary clause for transferee after accepting the
transfer. Than the transferee can deny the transferor can accept the transfer and enjoy the
beneficiary clause. But there is a certain exception regarding this rule that if the transferee

4 G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law Publishing 2010) 740.

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does not give his or her express consent or conclusive decision than in the certain situation is
will be introduced as he or she is accepted the transfer, those are:
1. If the transferee full enjoy the beneficiary clause mention in the transfer or
where transferee enjoyed the full benefit, then it will be considered as an
acceptance by the transferee.
2. If the transferee after one year did not give any consent regarding the transfer
of property than transferee is bound to give his or her reply. If he or she did not
do that then it will consider that he give the assent for the transfer.
3. The duty of election will be suspended in disability cases like minority, lunacy.
Unless the transfer is made by their guardian.
4. If the transferor at the time of making transfer makes a beneficiary clause and
an independent beneficiary clause. So, if the transferee did not give assent for
the transaction then also he or she will get the independent beneficiary clause.

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.

Time limit for election

According to section 35, when the owner of the property within one year after the date of
transfer signifies to either transferor or his representative. Even if they know the expiration
period and even after knowing from their representatives does not make a decision they are
deemed to have elected to confirm the election if they don’t reply after the period is over.

Election by a disabled person, a disabled person cannot do election until and unless:

• His disability ceases.

• Someone else on his behalf makes election who is not disabled.

Doctrine of election application

Hindu law

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This principle has always been applied to Hindus. According to Rungamma v Atchamma, the
privy council made a rule that a person cannot accept and reject according to him. One cannot
accept until he gains from it and stop accepting it until prejudiced.

Compensation

The estimated cost of the property which is to be transferred to the transferee is the approximate
value of the compensation that he will receive. But in case of immovable properties, the issue
of changing value of the properties according to the lapse of time arises. Thus, this valuation
needs to take place at the time of the instrument coming into force rather than at the time of
election5

Case Laws

1. Codrington v Lindsay6 states that the doctrine of election is based on the principle of

equity. One cannot approbate and reprobate at the same time. In layman’s terms, where

a person takes some pleasure or advantage under a deed or instrument, he must also

bear its burden.

2. Mohd. Kader Ali fakir V lukman hakim7

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.

3. Dr Ally’s Wobben V Shri Yogesh Mehra and ors on 6 December 2010

The Supreme Court, in National Insurance Company v. Masan & Anr8 spelt out what is
the rule, in the following terms:

5 Re Hancock. Hancock v. Pawson (1905) 1 Ch. 16

6 Codrington v Lindsay (1873) 8 Ch 578
7 [1956] PLR Dacca 370
8 2006 (2) SCC 641 IA

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“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.”

4. Cooper v. Cooper
The case of “Cooper V. Cooper” is one of the landmark decisions which describes the
principles of Doctrine of Election:

Facts of Cooper V. Cooper:

1. Vera and Harold Cooper were married in 1933. They had two children. Due to
legal separation, there was a property settlement agreement, and though this
agreement Vera took the family home and automobile and Harold took tools
and shop equipment.
2. The main thing is that in the name of Harold, four policies were there where
Vera was beneficiary. Subsequently, the decree of divorce was a grant by the
court.
3. After that, Vera married one Alves, and Harold married Ida. After the
remarriage of Harold changed the beneficiary of the three equitable policies
from Vera to Ida. One of the policy, which was left signed by Vera but not
signed by Harold. And subsequently, Harold has died.
Issues:
1. Whether vera and his children have a vested interest over the property?
Judgment:
Vera had no interest in the policies at the date of Harold’s death, because Harold’s obligation
for her support, under the terms of the divorce decree, terminated upon her remarriage; and that
the interest of the children in the estate of their father is limited to the amount necessary for
their support measured by the provisions of the divorce decree prior to reaching their majority

5. Baisakhi Ram Binjhwar vs South Eastern Coalfields Ltd on 11 September, 2017

The observations of Scrutton, L.J. are as follows:

“A plaintiff is not permitted to ‘approbate and reprobate’. The phrase is apparently borrowed
from the Scotch law, where it is used to express the principle embodied in our doctrine of
election-namely, that no party can accept and reject the same instrument: Ker v. Wauchope
(1819) 1 Blight 1 (21) (E): Douglas- Menzies v. Umphelby 1908 AC 224 (232) (F). The
doctrine of election is not however confined to instruments. A person cannot say at one time
that a transaction is valid and thereby obtain some advantage, to which he could only be entitled
on the footing that it is valid, and then turn round and say it is void for the purpose of securing
some other advantage. That is to approbate and reprobate the transaction. “Hence it is proved
that the doctrine of election is based on the principle of Estoppel.

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 Conclusion
The doctrine of election may be a common-law rule of equity that needs that if a testator
attempts to eliminate property belonging to somebody else and also makes a device thereto
person, the beneficiary must choose from either keeping the property or accepting the device.
Thus, Section 35 provides that, a person taking no benefit directly under a transaction, but
deriving a benefit under it indirectly, need not elect. Moreover, an individual who in his one
capacity takes a benefit under the transaction may in another dissent therefrom. This article
deals with the various gradations involved in the doctrine through the usage of various
landmark judgments. A special emphasis has been conferred upon the conditions necessary for
the election by the original owner. The differences between the Indian Law perspective as well
as the English Law perspective are mentioned here to critically analyse the provisions i.e.
Principle of forfeiture and Principle of compensation. 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.

REFRENCES

❖ BOOKS

Saxena, P.P. (2017) Property law. Gurgaon, Haryana, India: LexisNexis.

Singh, A. (2016) Textbook on the transfer of property act. Universal Law Publishing.

❖ WEBSITES

Admin (2021) Doctrine of election: Section 35 of transfer of Property, Law Legum. Available
at: https://lawlegum.com/doctrine-of-election-section-35-of-
tpa/#:~:text=Doctrine%20of%20election%20is%20incorporated%20under%20section
%2035,which%20is%20against%20him%20under%20the%20same%20instrument.
(Accessed: November 20, 2022).

Dethe, Ivan, P.D. and Zeeshan (2015) Doctrine of election, Academike. Available at:
https://www.lawctopus.com/academike/doctrine-election/ (Accessed: November 20,
2022).

LawBhoomi (2022) Doctrine of election under transfer of property act, LawBhoomi.

Available at: https://lawbhoomi.com/doctrine-of-election-under-transfer-of-property-act
(Accessed: November 20, 2022).

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