TRANSFER OF PROPERTY

DOCTRINE OF ELECTION

INTRODUCTION
The concept of election, as elucidated in the Transfer of Property Act of 1882 and the Indian Succession
Act, constitutes a fundamental cornerstone in the realm of property law in India. In essence, election in
this context denotes the necessity for an individual to make a deliberate choice when confronted with
two inconsistent or alternative rights granted under a legal instrument. This doctrine presumes that
when such a situation arises, the party in question cannot simultaneously benefit from both options.
Instead, they are compelled to opt for one, thus triggering what is termed as "election" in legal parlance.
This pivotal doctrine assumes paramount importance within the framework of the Transfer of Property
Act of 1882, where it plays a critical role in resolving property disputes among citizens. In this
introduction, we shall delve deeper into the doctrine of election, exploring its implications, applications,
and the fundamental principle that underlies it: the irrevocable choice that must be made when
presented with conflicting rights and remedies.
DOCTRINE OF ELECTION
Section 35 of the Transfer of Property Act, 1882, introduces the concept of "election." When someone
attempts to transfer property they don't legally own and simultaneously confers a benefit on the
property owner, the owner must decide whether to accept or reject the transfer. If rejected, the benefit
is forfeited, and the transfer is nullified. There's an exception when the transfer is without consideration,
and the transferor passes away or becomes incapable before the owner decides; in such cases, the
disappointed transferee must compensate for the intended property value. This doctrine of election
aims to ensure fair and equitable property transactions.
Illustration:
A owns a property that is worth Rs 800. B professes to transfer the same to C through the Rs1000
instrument to A. But A, the owner opts/elects to retain his property and thus, forfeits the gift of Rs 1000.
APPLICABILITY
Doctrine Being General and universal, is applicable to Hindus, Muslim as well as Christians.
In the case of Sadik Hussain v. Hashim Ali, the Privy Council applied this doctrine to Muslims also.
PRINCIPLE ESTABLISHING THE DOCTRINE OF ELECTION
The doctrine of election is founded on the principle encapsulated by the Latin maxim "quod approbo
non reprobo," which asserts that one cannot simultaneously approve and disapprove of something. This
principle underscores the impossibility of applying the same standard to accept one thing while rejecting
another. Additionally, in England, Equity courts upheld the legal principle of "Allegans contraria non est
audiendus," which means that individuals making contradictory claims should not be entertained or
considered.
Cooper v Cooper (1874)
Lord Hather introduced the concept in this case, emphasizing that if a person benefits from an
instrument exceeding the donor's authority, they must fully implement it. To be valid, the person
making the choice must understand all relevant rights. Only one election is allowed, and once made, it
cannot be changed if multiple options are available.
Codrington v. Lindsay (1873)
the doctrine states that one can't accept the beneficial part of an instrument and reject the unfavorable
part. It's based on the principle "qui approbat non reprobate," meaning you can't approve and
disapprove at the same time.
CONDITIONS PRECEDENT FOR EQUITY OF ELECTION:
Section 35 of the Act makes following provisions in respect to the rule of election:
1. A transfer of property by a person who has no right to transfer
A person who is not the owner has no right to transfer but can contract or make arrangement for the
transfer of that property.
2. The transferor must confer any benefit on the owner. Where benefit is given to the owner
otherwise than for transferring property or is given to him indirectly, there is no case for
election.
Illustration: A professes to transfer C’s property to B and gives Rs. 5000/- to wife of C. This is not direct
benefit to C and there C has no duty to elect.
3. Part of the same transaction:
The rule of election operates only when the transfer and benefit form part of the same transaction. Thus
where benefit and transfer are interdependent and inseperable, they form the part of the same
transaction.
Ramayya v Mahalaxmi (1922)
In this case, it was held that there is no election if transfer and benefit are not the part of same
transaction.
The two things, i.e., transfer of property and conferring of the benefit forms part of the same
instrument. Then, the owner of property is bound to elect; either to take the benefit and transfer his
property or to retain his property and give up the benefit.
Illustration:
By a deed, A transfers 5 acres of land to B which A will get through partition in the future. B in return
gives A Rs. 2 lacs in advance. In the present time that 5 acres of land belongs to A’s father and A does
not own the property yet. Now, A’s father is put to an election whether he wants to keep the Rs. 2 lacs
and give the land to B or not. Whether A does or does not believe that which he professes to transfer to
be his own is immaterial.
OWNER’S DUTY TO ELECT:
The operative part of Section 35 is that if a property is professed to be transferred and in the same
transaction some benefit is given to the owner of property then such owner is under a duty to elect. By
his election he may either accept the instrument with all its content or reject it altogether. He has no
option to accept only the beneficial part of the instrument.
Illustration:
Where a person has to act in two different capacities; one as individual (owner) and the other vicariously
as a guardian or trustee, he may accept the benefit in one capacity and reject the other part of
instrument in another capacity.
MODE OF ELECTION
Election may be expressed or implied. It is a question of intention of the owner of property who is given
the benefit. He may express his intention in clear or specific words or imply it by his acts or conduct.
Implied Election: Implied election is when the owner of the property (donee)
1. Being aware of his duty to elect
2. Having full knowledge of the circumstances, accepts the benefit
Such election would mean that he has chosen in favour of the transaction
In the following circumstances, there is presumption that he has knowingly accepted the benefit:
1. Where the owner has enjoyed the benefit for the two years without doing any act of refusal or
dissent of the transaction
2. Where the owner of property exhausts or consumes the benefit. Thus, whether he has done
some act which renders it impossible to place the parties (interested in the property) in the
same condition as before, this too gives presumption of his election for accepting the benefit,
Illustration:
A transfer to B an estate owned by C and as part of the same transaction gives to C a Coal Mine. C does
not elect in express words but takes possession of the Coal-mine and exhausts it. C is presumed to have
elected to take the benefit and thereby transfer his property to B. This is so, because if C now dissents
the transaction it would not be possible for him to place (A and C) in the position prior to his exhausting
the said Coal-Mine.
REQUISITION TO ELECT
This is a special procedure for expediting election. After the expiry of one year, if the owner of property
does not elect (neither confirms nor dissents the transfer), the transferee may require him to make such
election. And, if he does not elect within reasonable time after such requisition, he is deemed to have
elected in favour of the transfer.
SUSPENSION OF ELECTION:
Where at the time of transfer, the elector (owner of the property ) is legally disabled, the election is
postponed or suspended until such disability ceases or until the election is made on his behalf by a
competent authority (his guardian). Legal Disability may be minority or lunacy of the elector.
RIGHTS OF DISAPPOINTED TRANSFEREE
The transferee is the so-called ‘disappointed transferee’ when the owner elects against the transfer. This
renders the transferee helpless and disappointed.
Indian Law:
In Indian law, a disappointed transferee is entitled to reasonable compensation when a transfer is either
a gift (gratuitous) or made in exchange for consideration, regardless of whether the transferor is alive or
deceased.
“Reasonable compensation” means Equivalent to the value of property professed to be transferred.
English Law
In English law, if the owner rejects a transfer, the benefits don't go back to the transferor. The owner
can choose to keep some or all of the benefits but may have to compensate the disappointed
transferee. The compensation responsibility falls on the owner, not the transferor or their
representatives.
Illustration:
A transfers B's estate worth Rs. 1500 to C as a part of same transaction A confers benefit of Rs. 2000 on
B.

Under Indian law if B has to reject the transfer he will have to forfeit benefit of Rs. 2000 which reverts
back to A. It is duty of A or his legal representatives (if A dies before such election) to compensate C
(disappointed transferee) by giving him Rs. 1500.
However, under English law owner B need not to forfeit the benefit conferred upon him but he will be
liable to pay Rs. 1500 to C (disappointed transferee) and no liability will be on the transferor A.
CONCLUSION:
Election, within the context of the Transfer of Property Act, pertains to individuals facing choices
between conflicting rights, often in scenarios involving inheritance or property transfers. This legal
principle ensures that one cannot reap the benefits of a situation while simultaneously disowning its
associated responsibilities or conditions. Failing to make a clear choice may result in legal disputes and
complexities. The Doctrine of Election mandates that a person must either accept the property with its
conditions or reject it, and this concept isn't exclusive to wills and inheritance but extends to various
property transactions such as gifts and trusts. Legal advice is essential in such situations, given the
intricacies and potential legal consequences.
REFERENCES:
Books:
Bare Act of TRANSFER OF PROPERTY ACT
R.K.SINHA, TRANSFER OF PROPERTY ACT, CENTRAL LAW AGENCY, 10 TH EDITION, ALLAHABAD
Websites:
Lawctopus
Legal Service India
Indian Kanoon