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Doctrine of Election


The doctrine of election was enunciated by the House of Lords in the leading case Cooper Vs. Cooper. It states that 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. If the transferor has transferred some thing which was beyond his power but to which effect could be given by the consent of the transferee, the law provides that the person who takes the benefit must also take the obligations thereof. This principle is embodied in section.35 of T.P.Act.

Statutory Provision

Section 35 of the Transfer of Property Act, 1882:-

It subsumes the Doctrine of election along with Sections 180-190 of the Indian Succession Act 1925.

Election means choosing between two alternative rights. If two rights are endowed on a person under any instrument in such a manner that one right is more preferable than the other, he is bound to elect or choose only one of them.

Theme behind Section 35

Allegans contraria non est audiendus : He is not to be heard who alleges things contradictory to each other.

This doctrine is universal in nature and is applicable to Hindus, Muslims, Christians. This doctrine consists of the principle of a person exercising a choice out of his own free will to do one thing and is founded on the equitable doctrine that he who accepts the benefit under an instrument or transaction of its choice must adopt the whole of it or renounce everything.

This principle was determined in the case of Codrington v Codrington1).

Essential Conditions

From the case of Dhanpati v. Devi Prasad and others 2), it was determined that before election following conditions must be fulfilled-

  1. A person having no right to transfer, transferring property.
  2. He must transfer some benefit on the owner of the property, as part of the same transaction.
  3. The owner must elect either to confirm the transfer or to dissent from it.

Transferor Professes to Transfer Property not his Own

The section begins with the statement that “where a person professes to transfer property not his own”. The word “professes” means purports, claims or acknowledges. Such a person is not the owner of the property, therefore, he cannot transfer the property but he can make arrangements for the transfer of the property which he does not own. If the property is such that the transferor can transfer it, then it will pass to the transferee without any election by the person who is given a benefit by the same instrument. The necessary condition for the application of this doctrine is that there should be a claim under the instrument and also a claim dehors the instrument.

It is not necessary that the transferor should mention it that he is transferring the property which is not his own. The knowledge of the fact that the transferor has no authority to transfer the property is immaterial for the applicability of doctrine of election. The second paragraph of the section says that the rule will apply whether the transferor does or does not believe that which he professes to transfer to be his own. In a case, A being entitled to one share of a house, transferred the entire house to B and conferred a benefit on the owner of the other share of the house. It was held that the transferor intended to give the whole house, it is immaterial from what cause this intention proceeded, whether he forgot or misunderstood his rights.

Part of the Same Transaction

It is necessary for making the rule of election to operate that both the transfer and benefit form part of the same transaction. Benefit must be given in lieu of transfer. Benefit and transfer must be inseparable and interdependent. Where they are independent of each other they will not be considered as parts of the same transaction.

Owner of Property must Elect

The next requirement of his section is that the owner of the property must elect either to confirm such transfer or to dissent from it. He may either accept the instrument with all its contents or reject it altogether. Where he accepts the instrument he becomes entitled to the benefit but he becomes bound to transfer the property. If he does not accept the instrument, he retains the property and the benefit is not conferred on him.The person electing must be the “owner” of the property. The word “owner” has been used in a very wide sense in this section. It includes not only those who have vested interest but also those who have contingent, reversionary and remote interest in the property.

The third paragraph of the section says that a person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect. This means that the benefit must be given directly to the owner in lieu of transfer of his property. For example, if the lands of Sultanpur are settled upon C for life and after his death upon D,his only child. A bequeaths the land of Sultanpur to B and 1000 rupees to C. C dies intestate after the testator without making any election. D takes out administration to C and as administrator elects on behalf C's estate to take under the Will. In that capacity he retains the legacy of Rs 1,000 and accounts to B for the rents of land of Sultanpur which accrued after the death of the testator and before the death of C.

The fourth paragraph of the section says that a person who in his own capacity takes a benefit under the transaction may in another capacity dissent therefrom.

Effect of election against the transfer

Where the owner dissents from the transfer of his property –

  1. He must forgo the benefit
  2. The benefit contemplated for him would then go back to the transferor.

Modes of Election

The election by the owner can either be direct or indirect.

In direct election, one just needs to simply communicate about the elected choice or option. Though, in case of an indirect election, the acceptance of the benefit by the owner is subject to two conditions:

  1. He has to have the knowledge of his responsibility to elect.
  2. There must be proof of knowledge of circumstances which would influence the judgment of a prudent man to make an election.

The election shall be presumed when the donee acts in such a manner with the property gifted to him that it becomes impossible to return it to the original owner in its original state.

Time Limit for Election

Time limit for the election has been prescribed by the ninth paragraph of the section. The owner of the property has to signify his confirmation or dissent from the transfer within one year after the date of transfer. This section says that if the owner of the property does not, within one year after the date of transfer, signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representatives may require him to make his election after the expiration of that period. But 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

Where the person making election suffers from some disability, the tenth paragraph of the section provides that in such a case, the election shall be postponed until the disability ceases or until the election is made by some competent authority on his behalf.


Where a particular benefit is expressed to be conferred on the owner of the property which the transferor possesses to transfer, and such benefit is in lieu of that property, if such owner claims the property, he is not bound to relinquish any other benefit that he achieves through the same transaction.

The acceptance of the benefit by the original owner will be considered to be an election by him to confirm the transfer, if he is aware of his duties and responsibilities and of the circumstances that might influence a prudent (reasonable) man into making an election.

This knowledge of the circumstances can be assumed if the person who gets the benefit enjoys it for a period of more than two years without doing any act to express dissent.

The transferor would ask him to elect his choice, if the original owner does not elect his option within a year of the transfer of property. Even after the reasonable time, if he still does not elect, the original owner shall be presumed to have elected the validation of the property transfer as his choice.

In context of a minor, the period of election shall be adjourned till the individual attains majority unless he is represented by a guardian.

Indian Succession Act

As stated above sections 180 to 190 of the Indian Succession Act, 1925 contain the rule of election as applied to Wills. Section 182 contains certain illustrations which are important from the point of view of the rule election.

They are given below:—

  1. The farm of Sultanpur was the property of C. A bequeathed it to B, giving a legacy of 1,000 rupees to C. C has elected to retain his farm of Sultanpur, which is worth 800 rupees. C forfeits his legacy of 1,000 rupees, of which 800 rupees goes to B, and the remaining 200 rupees falls into the residuary bequest, or devolves according to the rules of intestate succession, as the case may be.
  2. A bequeaths an estate to B in case B's elder brother (who is married and has children) shall leave no issue living at his death. A also bequeaths to C a jewel, which belongs to B. B must elect to give up the jewel or to lose the estate.
  3. A bequeaths to B 1,000 rupees, and to C an estate which will, under a.settlement, belong to B if his elder brother (who is married and has children) shall leave no issue living at his death. B must elect to give up the estate or to lose the legacy.
  4. A, a person of the age of 18, domiciled in India but owning real property in England, to which C is heir at law, bequeaths a legacy to C and, subject thereto, devises and bequeaths to B “all my property whatsoever and wheresoever”, and dies under 21. The real property in England does not pass by the Will. C may claim his legacy without giving up the real property in England.
1857 7 HL 854, 861
1970 (3) SCC 776

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