NATIONAL LAW INSTITUTE

UNIVERSITY,
BHOPAL

PROJECT ON

PROPERTY LAW-I

An understanding of Section 35
(Doctrine of Election)
of Transfer of property Act 1882,

SUBMITTED TO:

Mrs. Sushma Sharma

SUBMITTED BY:

Sourabh P. Ahirwar
2009 B.A. LL.B. 69
VI TRIMESTER

Table of CONTENTS
1
Introduction …3

Doctrine of Election …3

Section 35 …4

Analysis of the section …5

Position of Doctrine of Election …6

Deviation from the English Rule …7

Clause by Clause ...7-11

When Doctrine of election not available …11-13

Conclusion …14

Bibliography …15

1.Introduction:
The foundation of the doctrine of election is that the person taking a benefit under
an instrument must also bear the burden. The doctrine of election is that the exercise of
choice by a person left to himself of his own free will to do one thing or another binds
him to the choice which he has voluntarily made and is founded on the equitable doctrine

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that he who accepts benefit under an instrument or transaction of his choice must adopt
the whole of it and renounce everything inconsistent with it.
As stated by the Privy Council in Rangamma v Atchamma, a party shall not at the
same time affirm and disaffirm the same transaction – affirm it as far as it is for his
benefit disaffirm as far as it is as to his prejudice.
In this project I have tried to understand the section 35 (Doctrine of Election), here in
this project I have discussed its meaning, analysis of the section, and the different
clauses it have, its position in English Law, Mohammedan Law and in Hindu Law its
deviation from the English rule, and when the doctrine will not be available? and finally
the conclusion.

2. Doctrine of Election:
Election is defined as “choosing between two rights when there is clear intention,
expressed or implied that both are not to be enjoyed.” That he who accepts a benefit
under a deed or will must adopt the whole contents of the instrument.
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 instrument. One
cannot approbate and reprobate at the same time. In simple words, when a person takes
some benefit under a deed or instrument, he must also bear its burden.
The Doctrine of Election may be stated thus; he who accepts a benefit under a deed or
Will or other instrument must adopt the whole contents of the instruments, must conform
to all its provisions and renounce all rights that are inconsistent with it.

3. Section 35 of TPA 1882

As per section 35.Election when necessary- 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 such
transfer or to dissent from it; and in the latter case he shall relinquish the benefit so

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conferred, and the benefit so relinquished shall revert to the transferor or his
representative as if it had not been disposed of,
subject nevertheless,
Where 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, to the charges of making
good to the disappointed transferee the amount or value of the property attempted to be
transferred to him.

Exception to the last preceding four rules: - 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.
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 duty to elect and of those
circumstances which would influence the judgment of a reasonable man in making an
election, or if he waives enquiry into the circumstances.
Such knowledge or waiver shall, in the absence of evidence to the contrary, be
presumed, if the person on whom the benefit has been conferred has enjoyed it for two
years without doing any act to express dissent.
Such knowledge or waiver may be inferred from any act of his 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.

4. Analysis of the section:

Section 35 can be understood in the following way:
1) The doctrine of Election as given in section 35 applies.
2) When any person say ‘A’ when he-
a) transfers, or

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 b) proposes to transfer,
c) any property
d) movable or immovable or both,
e) that is, his own
f) to any other person-say ‘B’.
3) And,
4) At the same time.
5) In same transaction.
6) By the same deed.
7) The same person ‘A’-
a) transfers, or
b) proposes to transfer,
c) any property,
d) movable or immovable or both,
e) of that other person, ‘B’,
f) without his consent or knowledge,
g) to any third person – say ‘C’.
8) B is under a statutory obligation under this section to –
a) either accept the proposal or transfer as it is, or
b) to reject it.
9) B must the whole of the deed or must reject the whole of it. H, plainly
speaking, cannot bifurcate the proposal so as to accept one part that is
beneficial and to reject the other part that is burdensome or onerous.

5. Position of Doctrine of Election:

Hindu Law: The principle underlying this section has always been applied to Hindus
even prior to the enactment of the Act in 1882 and thereafter until the Act was amended

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in 1929 whereby the provisions of the Second Chapter which includes Section 35 were
made applicable to Hindus. In the case of Rungama v Atchama1 the Privy Council
referred to the rule that a party shall not at the same time and dis affirm the same
transaction- affirm it as far as it is for his benefit and disaffirm it as far as it is to his
prejudice.
The doctrine was directly applied in the case of Mangal Das v Runchoddas2 . In this case,
a Hindu widow, died leaving a will in respect of property which she inherited from her
husband. She bequeathed immovable property of her husband to k and gave the plaintiff,
who was a reversionary heir, a legacy of Rs. 2000. The plaintiff claimed the legacy under
the will and immovable property as heir. The court held that the doctrine of election will
be applicable here and he will have to elect one or the other.
Mohammedan law – Although the section does not apply to Mohammedan s, but still
the doctrine of election was applied by the Privy Council in the case of Sadik Hussain v
Hashim Ali3.
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. Therefore in English Law, doctrine of compensation applies in
comparison to the Indian doctrine of forfeiture. Under English Law, the person electing
against the transfer gets what remains after compensating the transferee disappointed.
Secondly no time is fixed by English Law for making an election, except when the time
is limited by the instrument itself. In Indian law, a period of one year is given for making
an election.

6. Deviation from the English Rule:

Section 35(1) lays down the principle which differs from English doctrine of election.
The English doctrine is based on compensation. Indian rule is based on forfeiture. The
result is that under English law, the refractory donee may retain the benefit and may
1
(1858) 4 Mad IA 1.
2
(1890) 14 Bom 438.
3
(1916) 38 All 627: 43 IA 212: 36 IC. 104.

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retrain the burden but he shall incur the liability to give compensation to disappointed
donee. But in India, refractory donee cannot do so. He will forfeit the benefit and liability
to compensate falls on the transferor, his heirs, or his legal representative.
Section 35 of the Transfer of Property Act lays down the provision that if the person
put to election “does not within one year after the date of the transfer signify to the
transferor, or his representative his intention to confirm or to dissent from the transfer, the
transferor or his representative may, upon the expiration of that period, require 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.” But
the English law does not provide any time within which the election should be made. The
transferee however may be called upon by the parties interested to male his election
without undue delay. The instrument may prescribe a period within which the transferee
must exercise his election but if he fails to make his election within that period, he will be
deemed to have elected against the instrument. 4 But under the Indian law, in such a case
he is deemed to have made an election to take under the instrument.

7. When Doctrine of election not available:

Doctrine of election not available to cure an illegality:

4
Dillon v parker, 5 F.R. 799 (H.L)

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 The doctrine of election cannot be restorted to in order to cure an illegality;
therefore, a gift which infringes the rule against perpetuities cannot be used to raise a case
for election.
In wollastan’s case,5 a testatrix under her marriage settlement had power to set a fund
to the children. She appointed a part of the fund to her son C for life, with remainder to
such a person and she might by will appoint. C was not in case at the time when the
power was created and therefore, the remainder after C’s life-estate was void as
contravening the rule against perpetuity. By the same Will she made a general residuary
appointment of the settled fund to her daughters to whom she bequeathed another benefit.
As the gift of the remainder to C’s testamentary appointees was void, the daughters were
not put to their election.
Not only the doctrine of election will cure an illegality, but also, an election is a
doctrine of equity, it will not be applied so as to lead to inequitable results.
Election by heir: An heir is put to election if the device is ineffectual under the local
law, and the person taking under the local law is a beneficiary under the law, and the
person taking under the local law is a beneficiary under the device. But if the lex situs
makes it impossible for the heir to carry out the provisions of the Will there is no case for
election.6
Impossibility of election: The doctrine does not apply when election is impossible as
when a married woman is restrained from alienating, for it is impossible for her to give
up property which she is restrained from alienating.7
In Cavendish v Dacre,8 a testator gave benefits to A, and by the same Will gave
benefits to A, and by the same Will gave to B chattels which are vested in trustees to be
enjoyed with a house of which A was tenant for life under a settlement. A was not put to
his election, for it was impossible for him to assign the chattels to B.
Ratification: Cases of retification must be distinguished from cases of election. For
ratification, properly speaking refers to acts done on behalf of the ratifier. The doctrine of
ratification, however, rests on the same principle that a man cannot both affirm and
5
Wollastan v King, (1869) L.R. 8 Eq. 163 followed in Cook v. Frederick, (1910) Ch. 1, 10; & A.I.R 1953
Mad. 161; A.I.R 1959 Mad. 131 (D.B)
6
Brown v Gregson, (1920) A.C. 860
7
Hamilton v Hamilton, (1892) 1 Ch.396
8
(18886) 31 Ch. D. 466

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disaffirm the same transaction. Thus when a widow who had a last estate for maintenance
granted a permanent lease, the reversioner could elect either to ratify it or to set it aside,
and it was held that he was not bound by the lease when he accepted rent for three years
in ignorance of the circumstance under which the lease was granted or the terms on
which it was held.9
A converse case is Madhu Sudan v Rooke, 10 where the reversioner accepted rent with
full knowledge that the widow had granted a putri lease and he was held to have elected
to ratify the lease.

8. Conclusion:

The doctrine of election is that the exercise of choice by a person left to himself of his
own free will to do one thing or another binds him to the choice which he has voluntarily

9
Gori Keori v Mst Raj Roop, (1925) 78 I.C. 191
10
(1898) 25 Cal. 1.

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made and is founded on the equitable doctrine that he who accepts benefit under an
instrument or transaction of his choice must adopt the whole of it and renounce
everything inconsistent with it.
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 instrument. One
cannot approbate and reprobate at the same time. In simple words, when a person takes
some benefit under a deed or instrument, he must also bear its burden.
The doctrine of election in Indian laws is different to the English laws. The English
doctrine is based on compensation. Indian rule is based on forfeiture. In Indian law there
is a time limit but in English law does not provide any time limit.
The Doctrine of Election may be stated thus; he who accepts a benefit under a deed or
Will or other instrument must adopt the whole contents of the instruments, must conform
to all its provisions and renounce all rights that are inconsistent with it.

9. BIBLIOGRAPHY

BOOKS

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  Sinha, R.K., “Transfer of Property Act, 1882”, Central Law Agency, Allahabad,
7th Ed., 2003.

 Hepburn, Samantha J., “Principles of Property Law”, Cavendish Publishing,

Sydney, 2000.

 Dukeminien, J, “Property”, 4th Edn., Aspen Publications , 1998.

 Property Law-I, Text Material for VIth Trimester

 Dr GC Bharukla, “Mulla The Transfer of Property Act 1882”, Lexis Nexis

Butterworths, 10th Ed., 2006.

WEBSITES REFERRED

www.unisa.edu.au 
www.ncmp.com
www.enrich.nic.in
www.dolr.nic.in
www.crisp.nic.in

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