Doctrine of Election
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?