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Doctrine of Election

The document discusses the doctrine of election, which provides that a person who accepts benefits under an instrument must also adopt all its provisions and renounce inconsistent rights. It defines key terms, provides examples, and outlines essential conditions for the doctrine's application such as the transferor transferring another's property while granting their own benefit to the owner.

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911 views22 pages

Doctrine of Election

The document discusses the doctrine of election, which provides that a person who accepts benefits under an instrument must also adopt all its provisions and renounce inconsistent rights. It defines key terms, provides examples, and outlines essential conditions for the doctrine's application such as the transferor transferring another's property while granting their own benefit to the owner.

Uploaded by

UMANG COMPUTERS
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Doctrine of Election

General Meaning
• 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.
Both benefit are not allowed
• 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.
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 favor 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
favor of B his property given to B by A; and takes the
property which is given to him by A.
According to Maitland
• 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-
a. adopt the whole contents of that
instrument;
b. conform to all its provisions; and
c. renounce all rights that are inconsistent
with it”.
One cannot approbate and reprobate at the
same time
• 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.
Cooper v. Cooper
• In this 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 settler 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 ”.
Doctrine of Election Under Section 35 of the
Transfer of Property Act, 1882
• According to Section 35 of the Transfer of Property Act,
1882, 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
the transfer or to dissent from it.
• If he dissents from it-
• he must relinquish the benefit so conferred ; and
• the benefit so relinquished reverts to the transferor or his
representative as if it had not been disposed of.
when such benefit reverts back
• 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-
• where the transfer is gratuitous , and the
transferor has , before election , died or otherwise
become incapable of making a fresh transfer ; and
• where the transfer is for consideration.
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 there from.
Illustration
• Where, an estate is settled upon A for life, and after
his death, upon B. A leaves the estate to D, and Rs.
10,000 to B, and Rs. 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 Rs. 10,000. C may do
this, and yet claim his legacy of Rs. 5,000 under the
will.
Where Person Elects to Dissent
• 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
• 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,
• 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 favor of the transaction.
Illustration
• The farm of Ulipur is the property of C and
worth Rs. 800. A by an instrument of gift
professes to transfer it to B, giving by the same
instrument Rs. 1,000 to C. C elects to retain
the farm. He forfeits the gift of Rs. 1,000.
Exception to the Rule of Election
• 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.
What Constitutes Election?

• If a person accepts such benefit for two years, it is to be


assumed that he has elected in favor 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-
1. duty to elect and,
2. of those circumstances which would influence the
judgment of a reasonable man in making an election, or
3. if he waives enquiry into the circumstances.
Knowledge 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.
Essential Conditions for Application of this
Doctrine
• Essential conditions for application of this
doctrine are as follows-
• The transferor must not be owner of the property
which he transfers.
• The transferor must transfer the property of other
owner to a third person.
• The transferor must at the same time grant some
property, by the same instrument, out of his own,
to the owner of property.
Contd...
• 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.
•  
• The owner must have proprietary interest in the property.
•  
• The owner taking no benefit under a transaction directly, but diverting
a benefit under it indirectly, need not to elect.
•  
• Question of election does not arise when benefit is given to a person
in a different capacity.
Case
• Mumbai International Airport Pvt. Ltd., Vs. M/S Golden Chariot Airport & Anr, Civil Appeal
No. 8201 of 2010 (Arising out of Special Leave Petition (C) No.6556/09), on 22 September,
2010.
• Apex Court explained the ‘Doctrine of Election‘.
• The relevant paragraphs of this ruling Mumbai International Airport Pvt. Ltd (Supra) are
extracted
• infra.
• 53. Now the question is whether the contesting respondent on a complete volte-face of its previous
• stand can urge its case of irrevocable licence before the Estate Officer and now before this Court?
• 54. The answer has to be firmly in the negative. Is an action at law a game of chess? Can a litigant
• change and choose its stand to suit its convenience and prolong a civil litigation on such
prevaricated
• pleas?
• 55. The common law doctrine prohibiting approbation and reprobation is a facet of the law of
• estoppels and well established in our jurisprudence also.

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