DOCTRINE OF ELECTION (S.

35)
This doctrine is applicable in those cases where a property is transferred by someone who has
no authority to transfer the same. But in the same transaction, he is offering some benefit to the
real owner. Here the real owner is put to election.
Most part of Property law is based on justice, equity, and equitable principles are applicable
here. This doctrine makes the person who is the real owner to elect in case some other person
who has no authority to transfer, but he has transferred the property to some other person, and
in the same transfer, he has also conferred some benefit to the real owner. The real owner is
now put to the election- whether he chooses to go forward with the transfer or he wants to elect
against the transfer. So, either he has to take the benefit as conferred to leave the property that
he has or if he chooses to take the property that he has, then he has to relinquish the benefit so
conferred.
Read S.35.
Election is an obligation to choose between 2 inconsistent or two alternate rights. If there is a
clear intention of the grantor, the grantee cannot enjoy both and has to choose one.
➢ Cooper v. Cooper (House of Lords)
House of Lords laid down the principle of equity, subject to which this section proceeds. It said
that if the instrument’s purpose is to deal with something which is beyond the power of the
settler to dispose of but to which effect may be given by the concurrence of him who receives
the benefits under the same instrument, then the law will impose upon him who takes the
advantage—the obligation to carrying the device into total and complete force and effect.
Maitland (author and lawyer) said- He who excepts the benefit under a deed or will or another
instrument must
1. adopt the full contents of the instrument.
2. Conform to all its provisions
3. Renounce all rights that are inconsistent with it.
Can say this - you cannot take under the instrument and against the instrument at the same time.
You cannot approbate and reprobate at the same time. You cannot blow hot and cold in the
same breath.
So, the principle of equity applies, and it says that you cannot pick and choose, and thus the
instrument must be adopted. And must do all things in power so that the instrument will come
into force.
S.35, for example- Someone transfers the property which he has no right to transfer, and under
the same transaction, he confers some benefit on the owner. Then the owner is bound to elect
between the 2- either go with the transfer and take the benefit or choose the property and let go
of the benefit. Cannot enjoy both.
There are exceptions to the doctrine and also presumptions, and presumption, where the law
will presume that even if nothing has been said by the owner but whether he has been elected
or not elected.
ANALYSIS OF S.35
1. The transferor must profess to transfer the property which he has no right to transfer.
Here, it is immaterial whether he knows or doesn’t know the property to be his own.
So, the one transferring the property can be in misconception that the property belongs
to him, or it is clear that it does not belong to him; in both cases, the section applies.
2. He must confer a benefit on the owner, whose property he purposed to transfer to
another person.
3. These 2 things (transfer plus providing benefits) must form part of the same transaction;
otherwise, the owner is not put to the election.
4. The benefit must be directly conferred upon the person whose property is purposed to
be transferred.
Suppose a property is transferred from B to C by A and confers the benefit on B’s son.
Here B cannot be put to the election because the benefit is not being directly conferred
upon B. But B’s son can enjoy the benefits so conferred. There can be a situation where
if B’s son is a minor, then b, as his guardian, can take the property.
5. The benefit must be conferred on the owner in the same capacity in which he is the
owner. So, if B is the guardian of his minor son, B may keep the property and keep the
benefits so conferred.
Suppose A gifts 1 lac rupees to B’s son and, in the same transaction, transfers the
property belonging to B to C. Here, B as a guardian is not put to an election because
the benefit and transfer relating to another person. He is getting the benefit as guardian
of the son and not in the capacity of an owner.
Illustration- where whether the benefit is conferred directly or indirectly then what effect does
it have-
Suppose some land is settled between C for life and after his death to D, where D is the only
child of C. Now A- a person who has no authority to transfer the property, bequeaths the land
belonging to B to C to D. In the same transaction, A confers a benefit of 5 lacs to C. Now, C
dies intestate and without making election. D-as the only child takes administration of the
property becomes the administrator. Now here, D has 2 capacities-
1. As the only child of C- he retains the property that belongs to C because he is the only
heir
2. As the administrator of C- elects to get under the will, that is, the 5 lac rupees so
transferred. And he can pay B whatever rent is accrued after the death of A and before
the death of C.
So, there is no law that can compel D to choose because the benefit is not conferred upon him
directly.
Illustration- There is one estate of property that is settled upon A for life and after his death to
B. A who has a life interest does not generally have the right to transfer the property. And
without those circumstances existing in which he has the right to transfer, he transferred the
estate to D, conferred a benefit of 2 lacs to B, and in the same transaction conferred 1 lac to C-
who is B’s only child. Suppose B dies intestate and without making an election. After his death,
C now has to elect. Here, C takes the property as a legal heir and not as an administrator. In his
individual capacity, this 1 lac is conferred upon C directly, so under the will he can claim the
legacy of 1 lac. And as administrator of property, he elects to keep the estate, but relinquish the
2 lac which has been transferred. C can retain the legacy as transferred directly but as
administrator, he must choose between estate and benefit of 2 lacs. He elects to choose the
property and keep the 1 lac rupees. But he will have to relinquish the legacy of 2 lacs as
transferred to B.
Illustration (from succession act. The 2 laws are analogous)- where the outcome of the whole
transaction may also change depending upon the type of transfer. Suppose A who is the
widow of H. After death of H, A has the property of H in her possession. A executes a will and
transfers the property of H in her possession to D and conferred a benefit of 1 lac to C. here, C
and D are reversioners (each entitled to half of the property) of H. (a widow in Hindu Law has
limited interest in the property and after death the property is to go to C and D). Here, the
transaction is by way of will where the land in possession of A is given to D and 1 lac given to
C. This will will come into operation after the death of A. Now suppose A dies. Then C’s half
share is given to D. C had been given 1 lac in lieu. Then C will be put to election whether he
chooses to retain half of the property or whether he chooses to take 1 lac.
Now suppose in the same transaction, this whole transaction is a gift. So, A transferred the
property by way of gift to D and by way of gift- 1 lac conferred on C. Again, C is put to election
because his half of property is given to D. Now C can take under the gift and still not put to
election because the gift takes place immediately and will comes into effect only when the
widow dies. So, here C can take under the gift there is no question of election at the time
because he has no right to transfer half of the share because C’s half share is the right of the
reversioner and right of reversioner is spes successionis. So, when the 1 lac is gifted to C, he
has no property to be transferred and when after the death of A, he gets the property as
reversioner, at that time no benefit is conferred on him. Therefore, here he can choose to take
one half of property also and 1 lac also because there is no question of election in this case.
So the effects and outcomes in case of will and in case of gifts- are totally different.
What is the effect of election against the transfer?
If one goes by the transfer, then that is fine but if the person who is put to election dissents
from the transfer then he must relinquish all the benefits that he received. So, if this person put
to election if chooses against the transfer he must relinquish the benefit. And this benefit will
revert to the transferor or testator or the representatives in case the transferor died.
(In English Law, even if a person chooses to elect against the transfer, the transaction still takes
place and the only thing he has to do is to make compensation to the disappointed transferee.)
What about the transferee then?
Normally he would have been waiting for some transfer. To avoid any confusion, in the whole
transaction one is the testator or transferor (the one who transfers the estate), owner (who
receives the benefits) and the transferee (who receives the estate). I f the person chooses to
elect against the transfer then there remains a transferee who gets nothing because the benefits
so conferred will get reverted back to the transferor. So, in case the testator is still alive and he
wants to give something to the transferee, he can always make a subsequent transfer.
But what will happen in case the transferor died or become incapable of making a fresh
transfer?
In that case there are 2 scenarios-
1. Where the transfer is gratuitous and the transferor has died or become incapable of
making a fresh transfer before the election takes place. Here there is one disappointed
transferee who has a compensation claim. There must be compensation to the
disappointed transferee. And it will be paid by the legal representatives to the transferor,
who will get back the property. The reason for this is- that it is suggested that since this
whole transaction is very closely representing the will of the testator it must be
honored and therefore the disappointed transferee will have to get the compensation.
Example- The property of X is transferred to Y and it is worth 2 lacs. In the same
transaction 3 lacs is granted to X. Now, X chooses to elect against the transfer. This
benefit so conferred will revert back to his representatives along with the property. Out
of this amount they must pay the 2 lacs to the disappointed transferee because this is
akin to the will which must be honored. Therefore, the legal heirs of the transferor must
honor this whole will and must pay the compensation to the disappointed transferee,
provided that the transfer is gratuitous and the election has not taken place and the
transferor died.
2. If this whole transaction is for consideration but it is defeated by election but again
transferee has claim for compensation because in that case it will be akin to a contract
and makes it a stricter right which is to be given effect to because the transferee has
paid some consideration for that purpose.
In English Law, the benefit so conferred is not forfeited but the donee is bound to make
compensation. In Indian cases, the benefit so conferred is forfeited, will revert back to the
transferor or his legal representatives and then they must pay the compensation to the
transferee.
This law provides for an exception and it provides that in case a person elects against the
instrument or against the transfer then the benefit conferred on him will be forfeited. Exception
is that if suppose under a transaction there are certain benefits conferred, one benefit conferred
is specifically in lieu of the property so transferred and the person chooses to elect against the
transfer only that benefit will be forfeited in lieu of which the property is transferred.
Example- A transfers the property X to C and confers certain benefits (a,b,c) to the owner B,
specifically stating that benefit-‘c’ is conferred in lieu of property X. B chooses to elect against
the transfer. Then only that benefit- ‘c’ will be forfeited which is in lieu of property X. other
benefits- ‘a’ and ‘b’ will not get forfeited and will go to B.
MODES OF ELECTION
1. EXPRESS- Where the person expressly confirms the whole transaction in written or
expressed.
2. IMPLIED- When the conduct shows that he has accepted the whole transaction.
But the law requires that the owner must accept the benefit given to him while being aware of
his duty to elect and having full knowledge of circumstances which would influence the
judgment of reasonable man in making an election.
If a person is aware of the duty to elect but he has a misconception as to what is the value of
the property. Then it will be deemed as if no election is made. And he may again be asked to
elect after the full facts are within his knowledge.
Suppose- A is the life estate holder of a property and he makes a perpetual lease to B. C is the
reversioner of A and when property gets to C after death of A, he accepted rent from B for 3
years. But C was not aware about the terms of lease and does not know that between A and B
a lease so executed was a perpetual lease. Here, C would not be held to have impliedly elected
to confirm the lease. Because this fact is not within his knowledge that the lease so granted to
B is a perpetual lease.
If there is a question that whether the benefit so accepted was with the knowledge of
circumstances, then it would be a question of fact to be proved in the court. But certain
presumptions apply.
PRESUMPTION
There are presumptions, presumptions which are rebuttable.
That if the benefit is enjoyed for 2 years without doing any express act of dissent, it will
be presumed that either he has the knowledge of the circumstances or has waived
inquiry. This is rebuttable. So, the person can prove that though he enjoyed it for 2 years
but either I had no knowledge or I had no information about election and that I have not
waived the inquiry.
Suppose he does any act which render it impossible for the person to interest in the
property to be put in the same place as he had been before and again in that case, it is
presumed that, the person has the knowledge that he is put to election and that he has
knowledge of circumstances.
So restriction may be like- suppose a property is transferred to some person conferring
benefit on the owner and here the person to whom the property is transferred exhausts
the whole property (a coal mine and he exhausts the whole coal mine) then it is
presumed that he has confirmed the whole transaction with the knowledge of all the
facts and circumstances.