Doctrine of Election

Doctrine of Election is defined under The Transfer of

Property Act (TPA), 1882 under section 35 which says,
Under any instrument such as Bills of
Exchange, will or deed which grants two rights to an
individual which are conflicting in nature or one right is in
lieu of the other, that person can only choose one of them
and has to let the other right forgo. The recipient shall have
to decide between the two inconsistent rights and thus,
cannot have both.
This rule also has to stand under sections 180-190 of The
Indian Succession Act.
The Doctrine of Election in the words of Maitland, He
who receives a benefit under a deed/will or another
instrument is obligated to;
(a.) espouse the complete contents of that instruments;
(b.) comply to all the provisions of such instrument; &
(c.) relinquish all rights that are incompatible with the
instrument.
The doctrine of election is predicated on the princilple of equity that one
cannot take what’s beneficial to him and disapprove that which is against
him under an equivalent instrument. One cannot approbate and reprobate
at an equivalent time.

Codrington v Lindsay[1875] LR 7 HL 85
It was stated that the doctrine of election is based on the principle of equity. One
cannot approbate and reprobate at the same time. In layman’s terms, where a person
takes some pleasure or advantage under a deed or instrument, he must also bear its
burden.
Kader Ali Fakir V. Lukman Hakim
anyone who uses any legal benefit must also carry the burden with it and once the
instrument is executed he shall have no option other than following the principles of
the instrument.
Conditions to be followed before the election
Dhanpati vs. Devi Prasad and others (1970) (3) SCC 776

 A person having no right to transfer the property.

 He has to transfer some profit to the owner of the property as part
of the same transaction.
 The owner must either elect to confirm the transfer or dissent from
it.
Essential conditions for application of the doctrine of election
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.
5.Question of election does not arise if the two transfers are made through two
separate instruments,
6.The owner must have proprietary interest in the property,
7.The owner taking no benefit under a transaction directly, but diverting a benefit
under it directly, need not to elect.
8.Question of election does not arise when benefit is given to a person in a different
capacity.
 Modes of doctrine of election
• Direct Election: – There is no prescribed form. A letter, telegram,
oral words of the transferor or any other indication by the person
that states the transferor’s intention is sufficient.
• Indirect Election: – There are three types of indirect elections: –
o Acceptance of benefits without knowledge of duty for election
o Enjoy for two years and
o The status quo cannot be restored.
In case the person upon whom a benefit was conferred rejects it, the
property which was attempted to be transferred to him will revert to
the transferor and it is the transferor who will compensate
the disappointed transferee. If the transferor dies, before the
transferee makes the election, then the legal heirs of the transferor
will compensate the disappointed transferee out if the inherited assets.
And the compensation is made using the Estimated cost of the
property which is attempted to be transferred towards the transferee is
the approximation of the compensation that he shall receive.
However, in context of immovable properties, there arises the issue of
changing value of the property according to the lapse of time. Thus,
this valuation is to take place at the date of the instrument becoming
operational rather than at the time of election.
Exceptions to the doctrine of election
• If the transferee fully enjoys the beneficiary clause mention in the transfer or where
transferee enjoyed the full benefit, then it will be considered as an acceptance by the
transferee.
• If the transferee after one year did not give any consent regarding the transfer of property
than transferee is bound to give his or her reply. If he or she did not do that then it will
consider that he gives the assent for the transfer.
• The duty of election will be suspended in disability cases like minority, lunacy. Unless
the transfer is made by their guardian.
• If the transferor at the time of making transfer makes a beneficiary clause and an
independent beneficiary clause. So, if the transferee did not give assent for the
transaction then also, he or she will get the independent beneficiary clause.
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