Doctrine of Election

Sec 35 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 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.

Illustration
• The farm of Sultanpur is the property of C and worth
₹800. A by an instrument of gift professes to transfer it
to B, giving by the same instrument ₹1,000 to C.
C elects to retain the farm. He forfeits the gift of
₹1,000.
• In the same case, A dies before the election. His
representative must out of the ₹1,000 pay ₹800 to B.
Election
• The foundation of the doctrine of election is that a
person taking the benefit of an instrument must also
bear the burden, and that he cannot take under and
against the same instrument. 
• It is, therefore, a branch of the general rule that no one
may approbate and reprobate.
Same Transaction
• The equity of election does not apply, unless the two
donations are part of the same transaction.
• In Muhammad Afzal v Ghulam Kasim,(1903) ILR 30 Cal 843
• Government on the death of the Nawab of Tank, when
transferring the chiefship to the eldest son, transferred a
portion of the cash allowance of the late Nawab to the
second son on whom the late Nawab had already made a
grant of two villages for maintenance.
• The Privy Council said that the second son was not put to his
election, as the two grants came from independent sources.
Revert to the Transferor
• The doctrine in India rests on forfeiture, and the
disappointed donee looks to the transferor to
compensate him by a charge on the property/benefit
that has reverted to him.
• There is no occasion for a charge if the transferor
survives and the transfer is gratuitous, for it is open to
the transferor to make a substituted gift.
Para 2
• The rule in the first paragraph of this section applies
whether the transferor does or does not believe that
which he professes the transfer to be his own.
Para wise comments (Para 2)
• The rule in the first paragraph of this section applies whether
the transferor does or does not believe that which he
professes the transfer to be his own.
• Belief of the Transferor
• The second para corresponds to section 182 of the Indian
Succession Act, 1925. The principle may refer to the implied
intention of the testator, but it is not necessary that he
should have had in mind the equitable principle of election. 
• It does not matter whether the transferor thought he had the
power to convey, or knowing the extent of his authority,
intended by an arbitrary execution of power to exceed it.
Illustration to sec 182 of ISA
• The farm of Sultanpur was the property of C. A bequeathed it to B,
giving a legacy of 1,000 rupees to C.
• C has elected to retain his farm of Sultanpur, which is worth 800
rupees.
• C forfeits his legacy of 1,000 rupees, of which 800 rupees goes to B,
and the remaining 200 rupees falls into the residuary bequest, or
devolves according to the rules of intestate succession, as the case may
be.
Para 3
• A person taking no benefit directly under a transaction,
but deriving a benefit under it indirectly, need not elect.
Para 3
• A person taking no benefit directly under a transaction,
but deriving a benefit under it indirectly, need not elect.
• Indirect Benefit
• The third para corresponds to section 184 of the Indian
Succession Act, 1925 (section 171, Indian Succession
Act, 1865).
• The section is explained by the following illustration:
• The lands of Sultanpur are settled upon C for life, and after his death
upon D, his only child. 
• A bequeaths the lands of Sultanpur to B, and 1,000 rupees to C.
• C dies intestate shortly after the testator, and without having made
any election. 
• D takes out administration to C, and as administrator elects on behalf
of C’s estate to take under the will.
• In that capacity he receives the legacy of 1,000 rupees and accounts
to B for the rents of the lands of Sultanpur which accrued after the
death of the testator and before the death of C.
• In his individual character he retains the lands of Sultanpur in
opposition to the will.
Para 4
• A person who in one capacity takes a benefit under the
transaction may in another dissent therefrom.
Para 4
• A person who in one capacity takes a benefit under the
transaction may in another dissent therefrom.
• Different Capacity
• The fourth para corresponds with the first part
of section 185 of the Indian Succession Act, 1925,
which is explained by the following illustration:
• The estate of Sultanpur is settled upon A for life, and after his
death, upon B.
• A leaves the estate of Sultanpur to D, and 2,000 rupees
to B, and 1,000 rupees 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, and as administrator elects to
keep the estate of Sultanpur in opposition to the will, and to
relinquish the legacy of 2,000 rupees. 
• C may do this, and yet claim the legacy of 1,000 rupees under
the will.
Exception to the last preceding four rules

• Where a particular benefit is expressed to be conferred on the

owner of the property which the transferor professes to transfer,
and such benefit is expressed to be in lieu of that property, if
such owner claims the property, he must relinquish the
particular benefit, but he is not bound to relinquish any other
benefit conferred upon him by the same transaction.
• Acceptance of the benefit by the person on whom it is conferred
constitutes an election by him to confirm the transfer, if he is
aware of his duty to elect and of those circumstances which
would influence the judgment of a reasonable man in making an
election, or if he waives inquiry into the circumstances.
• Such knowledge or waiver shall, in the absence of
evidence to the contrary, be presumed, if the person on
whom the benefit has been conferred has enjoyed it for
two years without doing any act to express dissent.
• Such knowledge or waiver may be inferred from any act
of his which renders it impossible to place the persons
interested in the property professed to be transferred in
the same condition as if such act had not been done.
Illustration
• A transfers to B an estate to which C is entitled, and as part of the
same transaction gives C a coal-mine. C takes possession of the mine
and exhausts it. He has thereby confirmed the transfer of the estate
to B.
• If he does not within one year after the date of the transfer signify to
the transferor or his representatives his intention to confirm or to
dissent from the transfer, the transferor or his representatives may,
upon the expiration of that period, require him to make his election;
and if he does not comply with such requisition within a reasonable
time after he has received it, he shall be deemed to have elected to
confirm the transfer.
• In case of disability, the election shall be postponed until the disability
ceases, or until the election is made by some competent authority.
Par 1 of Exception
The exception corresponds to the second part of 
section 186 of the Indian Succession Act, 1925, where it is explained by
the following illustration:
Under A’s marriage settlement, his wife is entitled, if she survives him,
to the enjoyment of the estate of Sultanpur during her life. 
A, by his will bequeaths to his wife an annuity of 200 rupees during her
life, in lieu of interest in the estate of Sultanpur, which estate he
bequeaths to his son.
He also gives his wife a legacy of 1,000 rupees.
The widow elects to take what she is entitled to under the settlement.
She is bound to relinquish the annuity but not the legacy of 1,000
rupees.
Para 2 of Exception
• This para corresponds to section 187 of the Indian Succession
Act, 1925, which is explained by the following illustrations:
• (i) A is the owner of an estate called Sultanpur Khurd, and has
a life interest in another estate called Sultanpur Buzurg to
which upon his death his son B will be absolutely entitled.
• The will of A gives the estate of Sultanpur Khurd to B, and the
estate of Sultanpur Buzurg to C.
• B, in ignorance of his own right to the estate of Sultanpur
Buzurg, allows C to take possession of it, and enters into
possession of the estate of Sultanpur Khurd. 
• B has not confirmed the bequest of Sultanpur Buzurg to C.
Para 3 of Exception (Enjoyment of two
years)
• This para corresponds to section 188(1) of the Indian
Succession Act, 1925.
• 188. Circumstances in which knowledge or waiver is presumed or
inferred.—(1) Such knowledge or waiver of inquiry shall, in the
absence of evidence to the contrary, be presumed if the legatee has
enjoyed for two years the benefits provided for him by the Will
without doing any act to express dissent.
Para 4 of Exception (Status Quo cannot be Restored)

• para corresponds with section 188(2) of the Indian

Succession Act, 1925.
• Where pervious position can not be maintained the
election is deemed to be exercised
• Illustration
• A bequeaths to B an estate to which C is entitled, and to C a coal mine.
C takes possession of the mine and exhausts it. He has thereby
confirmed the bequest of the estate to B.
English law of Election
• Under English law, where the election is against the instrument, the benefit does not
revert to the transferor.
• The owner of property while rejecting the transfer may insist upon taking also the
benefit conferred on him.
• He is, therefore, called a refractory donee or a rebullians donee.
• But, such refractory donee takes the benefit subject to a charge compensate the
disappointed transferee; the transferor or his representatives are not liable to
compensate him.
• Thus, in the illustration of sultanpur, the owner of property C while electing against the
transfer, would take also the benefit of Rs. 1000/-. But, C would be liable to give Rs.
800/- to B, the disappointed transferee.
• A or his representatives are not liable to compensate B.
Apportionment (Sec 36 and 37)
• Apportionment means distribution of a common fund between two or
more claimants
• In a transfer of property, the transferee gets the property with all
incidental benefits, produce or income
• Where the property yields some periodical income, there must be
specific mention of what portion of its income remains with the
transferor and what goes to transferee and from which particular date.
• Apportionment by Time (Sec 36)
• Apportionment by Estate (Sec 37)
[s. 36] Apportionment of periodical payments on determination of
interest of person entitled

• In the absence of a contract or local usage to the

contrary, all rents, annuities, pensions, dividends and
other periodical payments in the nature of income shall,
upon the transfer of the interest of the person entitled
to receive such payments, be deemed, as between the
transferor and the transferee, to accrue due from day to
day, and to be apportionable accordingly, but to be
payable on the days appointed for the payment thereof.
• Section 36 provides that in a transfer of property all rents, annuities,
dividends and other periodical payments in the nature of income shall
be deemed to accrue from day to day and be apportionable
accordingly.
• Thus, as between transferor and transferee, the periodical income
which the property yields, is to be distributed between transferor and
transferee at fixed date on the basis of its accrual on each date.
• The rule in the section has no application when parties are
governed by their contract or there is a law or local usage to the
contrary.
Example
• A's house is on rent of Rs. 300/- payable at the end of each month.
• A sells this house to B on 15th April.
• Thus B became owner of the house with effect from April 15.
• A the seller is entitled to get Rs. 140/- as rent for 14 days and B the
purchaser shall get Rs. 160/- as rent for 16 days out of Rs. 300/- which
is rent for the whole month.
• But tenant shall pay the rent only at the end of the month
 [s. 37] Apportionment of benefit of
obligation on severance
• When, in consequence of a transfer, property is divided and held
in several shares, and thereupon the benefit of any obligation
relating to the property as a whole passes from one to several
owners of the property, the corresponding duty shall, in the
absence of a contract, to the contrary amongst the owners, be
performed in favour of each of such owners in proportion to the
value of his share in the property, provided that the duty can be
severed and that the severance does not substantially increase
the burden of the obligation; but if the duty cannot be severed, or
if the severance would substantially increase the burden of the
obligation the duties shall be performed for the benefit of such
one of the several owners as they shall jointly designate for that
purpose :
• Provided that no person on whom the burden of the
obligation lies shall be answerable for failure to
discharge it in manner provided by this section, unless
and until he has had reasonable notice of the
severance.
• Nothing in this section applies to leases for agricultural
purposes unless and until the Local Government by
notification in the Official Gazette so directs.
Illustration
• (a) A sells to B, C and D a house situated in a village
and leased to E at an annual rent of Rs 30 and delivery
of one fat sheep, B having provided half the purchase-
money and C and D one quarter each. 
• E, having notice of this, must pay Rs 15 to B, Rs 7.50
to C, and Rs 7.50 to D, and must deliver the sheep
according to the joint direction of B, C and D.
• Performance of duty on apportionment of estate when
as a consequence of transfer a property
• (1)is divided and held in several shares and
• (2)therefore passes from one to several owners
• The corresponding duty shall be performed
• in favour of each such owner
• in proportion to the value of his share.
• Provided :
• (a) Duty can be secured
• (b) Severance does not substantially increase the burden of
the obligation.
• Otherwise:
• (c)for the benefit of such one of the several owners as they
shall jointly designate for that purpose.
• Provided further :
• No person shall be liable for failure to discharge such duty
unless he has had reasonable notice of the severance.
Exceptions
• The section has also no application—
• (1)When there is a contract contrary to that specified in
this rule amongst the co-owners.
• (2)To agricultural leases excluded by para 3 of this
section.
• (3)To transfers by operation of law or by or in execution
of a decree or order of a Court of competent jurisdiction
• Thank You