The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this Code, the thing of which there may be ownership is called property. The property laws in India haven’t drastically changed and deviated from the natural course of customs & traditions. As a further means of constructing a better ground for these laws, the Transfer of Property Act (“TPA”) was framed. It didn’t intend to add new laws but add and amend the existing ones. A huge influence of English Law is present in the framing of the same. Many Rules or Doctrines which have been included in TPA, 1882 are a result of English Law influence. The Doctrine of Election is one such rule. Section 35 of TPA embodies this rule. This doctrine is based on the principle of equity.
The Doctrine of Election was enunciated by the House of Lords in the Case Cooper vs. Cooper . 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 ‘Ker vs Wauchope stating that,
“It is against equity that any one should take against a man’s will and also under it. This rests on no artificial rule, but on plain fair dealing. If any one 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.”
The case of Codrington v. Codrington elucidated the following principle further,
“By the well-settled doctrine which is termed in the Scotch Law the doctrine of ‘approbate’ and ‘reprobate’ and in our Courts more commonly the doctrine of ‘election’ where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time conforming to all its provisions and renouncing every right inconsistent with them.”
Section 35 of TPA lays down clear provisions on the rule of election. As per this section the following situations are discerned:
(i) Where a person transfers a property but not his own property,
(ii) where as a result of this transfer, the transferor confers certain benefits upon the owner of the property and,
(iii) where in the same transaction the transfer of property and conferring of the benefit forms takes place.
For example, A transfers agricultural land which belongs to C worth Rs.8,000/- to B and provides in the same deed Rs.10.000/- to C. C may elect or as is technically termed “he is put to his election” to either retain the property himself or to have Rs.10,000/-. If he elects to have the property, he will have to relinquish Rs. 10,000/-.
The exception to the Doctrine of election is that if the owner of property is entitled to any benefit occurring in lieu of the property the transferor is transferring and if he elects to retain the property he will have to relinquish that particular benefit. If any other benefit occurs in the same transaction he is not bound to relinquish that benefit.
Mode of Election
The intention to express his decision lies with the owner of the property. He may accede or dissent from accruing the benefit. He may do so in clear expression or through his conduct i.e., express or implied.
(i) When the owner expresses his decision through clear expression and words, the election can be said to be conclusive;
(ii) When the decision can also be inferred from the conduct of the owner, e.g. if the owner uses the benefit for more than two years, it is implication of his assent to accrue the benefit or if he exhausts the benefit, it can be said, since he has made it impossible to put the parties in a position same as before, so he has elected to have the benefit;
(iii) When a period of one year has passed and the owner of the property has not been elected, the transferor can require the owner to do the same. If the owner after such requisition doesn’t choose within a reasonable time, it is inferred that he has elected in favour of the benefit.
(iv) When at the time of transfer, the owner is legally disabled i.e minority or lunacy, the election has to be suspended until the owner is in a position to elect or a legal guardian on behalf of the owner elects.
Where person elects against transfer
Under Section 35 of TPA, if the owner of the property elects against the transfer, he will have to forfeit the benefit “conferred” on him which will revert back to the transferor. When property reverts back and
- The transfer is gratuitous, and the transfer has, before the election, died or otherwise become incapable of making a fresh transfer, and
- In all cases where the transfer is for consideration. It shall be the duty of the transferor or his representative 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.
Rights of Disappointed Transferee
When the owner of the property elects against the transfer, the transferee does not get the property he expected to have. Leading to this disappointment, he is not allowed to be a helpless person and is entitled to few rights :
- where the transfer is gratuitous and the transferor dies or becomes incapable and,
ii where the transfer is for consideration, the transferee is entitled to a reasonable compensation( the amount of the property which was professed to be transferred) from the transferor or his representative.
For example, the Amata land whose market value is Rs.20,000, is the property of X. Y professes to transfer that property to Z by an instrument. The benefit of this instrument worth Rs. 22,000/- will go to X. X elects against the transfer and forfeits the benefit. The benefit will go back to Y or his representatives. If Y dies before X makes election then the representatives will have to pay the amount of the property professed i.e. Rs. 20,000/- to Z.
Time Limit for Election
If the owner of the property does not elect with or against the transfer within the period of 1 year, the transferor or his representatives can require him to elect. Even after doing so, the owner fails to elect either by expression or conduct, the transferor can presume after a reasonable time, the owner has elected with transfer.
Position Under Various Laws
The Doctrine of Election has always been in application for Hindus. The principle that a person cannot affirm and disaffirm with the same facts according to his whim and to his own prejudices. The same has been reiterated in the case of Rungamma vs Atchamma.
In the case of Sadik Husain vs Hashim Ali, Doctrine of Election was applied to Muslims as well.
Under English law, the doctrine of election is rather different than to what is its application to other laws. Here, if the owner of the property chooses to elect against the transfer, the benefit from the transaction does not revert to the transferor. The owner retains the benefit but in turn, compensates the disappointed transferee with the amount equal to the value of the property. The transferor and his representatives are liable to pay nothing.
Paru Kutty Amma & Ors. v, Cheetah Navoth Lakshmi Amma
In this case the Doctrine of Election was explained explicitly and with clarity, “The essence of the doctrine therefore is that a person cannot affirm and at the same time dissent from the same document, accept one part and reject the other, receive the benefit provided and refuse to give full effect to it. It is not a principle which is peculiar to English or Scottish or any other law but is based on a rule of justice that a person shall not at the same time affirm & disaffirm the same transaction affirming to the extent of the benefit provided and disaffirming in so far as it is to his prejudice. The affirmation and disaffirmation must be with reference to the same transaction or instrument.”
Dr. Aloys Wobben v. Yogesh Mehra & Ors. (2012)
A clear explanation as to the operation of Doctrine of Election was made in through the following statement, “In all cases to which the doctrine of election applies the elector has the choice of two rights, either of which he is at liberty to exercise, but not both. The rights between which he has a choice must be mutually exclusive. Obviously there can be no election, choosing one course to the exclusion of another, when in fact there is only one course to take or where the two courses are such that the adoption of one of them does not necessarily indicate a final intention to abandon the other.”
The Doctrine of Election is based on the principle that you cannot blow hot and cold from the same breath. In any circumstances, you are given two conflicting or alternative rights. You cannot choose both of them and benefit in any circumstance instead take on the burden which comes out of your election. It is a rule of the estoppel. The spine of this Doctrine are principles of equity.
 L.R 7, H.L. 53 at p.69.
 1819 1 Bligh 1 (B).
 1878 LR 7 HI, 854, 861 (D).
 Dr. Avatar Singh, Textbook on the Transfer of Property Act 91, 4th (New Delhi: Universal Law Publishing CO. Pvt. Ltd, 4th edn., 2014) .
 (1858) 4 Moo Ind App 1:7 Suth Wr 57.
 (1916) 38 All 627; 36 IC 104.
 AIR 1954 Mad 556.
BY MUSKAN SHARMA | GLA UNIVERSITY