LAW OF PROPERTY

PROJECT ON

“DOCTRINE OF ELECTION-
SECTION 35”

SUBMITTED TO: SUBMITTED BY:

Dr. Rajinder Kaur Akash Negi
Professor 05/15, B.A.LL.B.
VII Semester, Sec- A

UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY
CHANDIGARH
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 ACKNOWLEDGEMENT
I want to thanks, first and foremost my Professor Rajinder
Kaur for her guidance, support and help anytime when I required. I
thank her for such a co-operative nature.

Further, I want to thanks my friends who supported me &

helped me in making the things required accessible to me.

Akash Negi
05/15, Semester VII
B.A.LL.B. Sec- A

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 TABLE OF CONTENTS

S.NO. PARTICULARS PAGE NO

01 Table of cases 4
02 Introduction 5-6
03 Election When Necessary (Sec- 35) 6-7
04 What Constitutes Election 8
05 Exceptions to the Doctrine of Election 8-10
06 Rights of Disappointed Transferee 11
07 Application of Doctrine 11-12
08 Essential Condition for Application of Law 12
09 Case Law (Muhammad Kader Ali Fakir v. Fakir Lakman Hakim) 13
10 Bibliography/Webliography 14

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 TABLE OF CASES

1. Cooper v. Cooper, L.R 7, H.L. 53.

2. Muhammad Kader Ali Fakir v. Fakir Lakman Hakim, PLR 1956 Dacca 370.

3. Rungamma v. Atchamma, (1858) 4 Moo Ind App 1: 7 Suth WR 57.

4. Sadik Hussain v. Hashim Ali, (1916) 38 All 627.

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 INTRODUCTION
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.1

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.2

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.3

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-

(i) adopt the whole contents of that instrument;

(ii) conform to all its provisions; and

(iii) renounce all rights that are inconsistent with it”.

1
C. Beepathuma v. Velasari Shankarnarayana Kadambolithya, AIR 1965 SC 241.
2
Shukla S.N, Transfer of Property Act, 24th Edition (2002) Reprint 2007, Revised by D.P Ghoshal, Allahabad Law
Agency, Faridabad (Haryana) 2007, p. 84.
3
Ibid.

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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.4

The principle of the doctrine of election was explained by the House of Lords in
the leading case of Cooper vs. Cooper.

In Cooper v. Cooper,5 Lord Hather explained the principle underlying the doctrine
of election in the following words,

“ …. there is an obligation on him who takes a benefit under a will or other

instrument to give full effect to that instrument under which he takes a benefit ; and
if it be found that instrument purports to deal with something which it was beyond
the power of the donor or settlor 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 .”

Section 35 of the Transfer of Property Act, 1882 embodied the doctrine of election.

Election When Necessary (Section 35):

According to Section 35 of the Transfer of Property Act, 1882, where a person:

(i) professes to transfer property which he has no right to transfer , and

(ii) as part of the same transaction, confers any benefit on the owner of the
property, such owner must elect either to confirm the transfer or to
dissent from it.

4
Codrington v. Lindsay, (1873) 8 Ch 578.
5
L.R 7, H.L. 53 at p. 69.

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If he dissents from it:

(i) he must relinquish the benefit so conferred; and

(ii) the benefit so relinquished reverts to the transferor or his representative as if

it had not been disposed of.

However, when such benefit reverts back to the transferor, it is subject to the
charge of making good to the disappointed transferee the amount or value of the
property attempted to be transferred in two cases, namely:

(i) the transfer is gratuitous , and the transferor has , before election , died or
otherwise become incapable of making a fresh transfer ; and
(ii) Where the transfer is for consideration.

Illustration:

The farm of Udaipur is the property of C and worth Tk. 800. A by an

instrument of gift professes to transfer it to B, giving by the same instrument
Tk. 1,000 to C. C elects to retain the farm. He forfeits the gift of Tk. 1,000.

In the same case, A dies before the election. His representative must out of the
Tk. 1,000 pay (Tk.) 800 to B.

Benefit Conferred on the Owner of the Property:

The transferor must confer any benefit on the owner of property. The word
‘owner’ in this section has a very wide meaning. It includes a person having
vested interest as well as contingent interest and also a person has even
reversionary or remote interest in the property.6

It is the owner of property who is put to election. Therefore he must be given

benefit in compensation for hid ownership of the property. To attract the
application of this rule there must be two sets of right; one the right of
ownership and the other a benefit given under the instrument.

6
Cooper v. Cooper, (1874) 7 HL 53; Dhanpatti v. Devi Praad, (1970) 3 SCC 776.

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What Constitutes Election?
If a person accepts such benefit for two years, it is to be assumed that he has
elected in favour of the transfer.

Section 35 provides that, 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-

(i) duty to elect and

(ii) of those circumstances which would influence the judgment of a

reasonable man in making an election, or

➢ if he waives enquiry into the circumstances.

Exception to the Doctrine of Election under Section 35:

Section 35 provides that, 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.
Mode of Election: Election may be express or implied. It is a question of
intention of the owner of the property who is given the benefit. He may
express his intention in clear and specific words. Where election is express,
it is final and conclusive. The intention of the owner may also be inferred
from his acts or conduct. This is implied election.

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.

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 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 Dissent7:

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.

Illustration:

➢ The farm of Udaipur is the property of C and worth Tk. 800. A by an

instrument of gift professes to transfer it to B, giving by the same instrument
Tk. 1,000 to C. C elects to retain the farm. He forfeits the gift of Tk. 1,000.

7
Dr. Avtar Singh, Textbook on The Transfer of Property Act, 4th Edition (New Delhi: Universal Law Publishing C.
Pvt. Ltd, 2014), p. 91.

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Knowledge or Waiver when Presumed and Inferred:
Section 35 provides that, knowledge or waiver shall be presumed, in the
absence of evidence to the contrary, if the person on whom the benefit has been
conferred has enjoyed it for two (2) years without doing any act to express
dissent.

Section 35 also provides that, such knowledge or waiver may be inferred from
any act of such person 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.

Time Limit for Election:

Section 35 says that, if the owner of the property does not within one (1) 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.

Election by the Person under Disability:

Section 35 provides that, where the person making election suffers from some
disability, the election shall be postponed until-

➢ the disability ceases or

➢ the election is made by some competent authority on his behalf.

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Rights of Disappointed Transferee:
When the owner of the property elects against the transfer, the transferee to who
the property was professed to be transferred, cannot get the property. He becomes
the disappointed as he must have entertained some hoping of getting the property.
However, such disappointed transferee is not allowed to be a helpless person. He
has the following rights.

(i) Where the transfer is gratuitous (without consideration) and the transferor
dies or becomes incapable of making fresh transfer,
(ii) Where transferor 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.

Application of Doctrine of Election:

• Hindu Law:

The principle underlying this section has always been applied to Hindus. In the
case of Rungamma v. Atchamma8, 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 Ali9, 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.

8 (1858) 4 Moo Ind App 1: 7 Suth WR 57.

9 (1916) 38 All 627; 36 IC 104.

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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.

In Muhammad Kader Ali Fakir v. Fakir Lakman Hakim,10 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. 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”
10
PLR 1956 Dacca 370.

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 BIBLIOGRAPHY/WEBIOGRAPHY

1. The Transfer of Property Act, Dr. R. K. Sinha,

Central Law Agency, 2010.
2. The Transfer of Property Act, Dr. S. N. Shukla,
Allahabad Law Agency, 2008.

1. https://www.lawctopus.com/academike/doctrine-
election/
2. https://www.academia.edu/22304035/Doctrine_of_El
ection_under_the_Transfer_of_Property_Act_1882

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