SECTION 35 - DOCTRINE OF ELECTION

➢ Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent
or alternative rights or claims in case where there is clear intention that he should not enjoy both. That he
who accepts a benefit under a deed or will must adopt the whole contents of the instrument
➢ 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.
➢ Based on the principle 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.
➢ The doctrine of election may be stated in the words of Maitland as follows:

“He will accept a benefit under a deed or a Will or other instrument-

a. adopt the whole content of that instrument,

b. by conform to all its provisions, and
c. renounce all rights that are inconsistent with it.”

The rule given in section 35 can be analysed as follows:—

1. Where a person professes to transfer property which he has no right to transfer, and
 As a 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
 If he dissents from it, he shall relinquish the benefit so conferred,
 The benefit so relinquished shall revert to the transferor or his representative as if it has not been
disposed of subject nevertheless,
2. When property so reverts back and the transfer is gratuitous and the transferor has before election
died or otherwise became incapable of making a fresh transfer, and in all cases where the transfer is
for consideration, it shall be the duty of the transferor or his representatives to compensate the
disappointed transferee.

Illustration: The farm of Sultanpur is the property of C and worth Rs 800. A by an instrument of gift
professes to transfer it to B, giving by the same instrument Rs 1,000 to C. C elects to retain the farm. He
forfeits the gift of Rs 1,000.

In the same case, A dies before the election. His representative must out of the Rs 1,000 pay Rs 800 to B.
ESSENTIAL CONDITIONS TO BE FULFILLED FOR APPLYING THE DOCTRINE OF ELECTION
To apply the doctrine of election, the following five conditions should be fulfilled:

1) The transferor professes to transfer a property which he has no right to transfer. It is immaterial
whether in doing so he knows or does not know it to be not his property.

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

2) The transferor should confer a benefit out of his own property on the owner of the property which he
professes to dispose of.

The transferor in the same transaction of transfer of property confers some benefit on the owner of the
property. The owner is given some benefit in compensation of his ownership. The owner is one who is put to
election. The occasion for election arises only where a benefit is conferred directly on the owner of the
property. Where benefit is given indirectly, no duty to elect arises. For example, A professes to transfer the
property of B to C and gives Rs 10,000 to the wife of B. This is not the case of direct benefit to B and thus,
B has no duty to elect.

3) The two things viz., the transfer and conferring of the benefit must form parts 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.

An example may be taken of the early case of Muhammad Afzal v Gulam Kasim. In this case, after the death
of Nawab of Tank, the government while transferring chiefship to Nawab's eldest son, transferred some cash
allowance to the Nawab's second son. The Nawab had already transferred in his life time villages to the
second son for his maintenance. It was held by the Privy Council that since these grants (cash and villages)
came to the second son from two different sources, they were not part of the same transaction, and,
therefore, the second son was not put to election.

4) The transferee put to election should have an independent proprietary right in the property dealt with to
his detriment by the transferor. The benefit must be directly conferred upon the owner of the property e.g., A
by a deed gives B's property to C and 10,000/- to B's son- here B will not be put to election as nothing is
given to him which may be supposed to be in compensation for his loss.
5) The benefit must be conferred on him in the same capacity in which he is the owner of the property - for
example, suppose in the above example B is the guardian of his son. B may keep his own property and may
also take 10,000/- as guardian of his son.

When these conditions are fulfilled, the transferee is put to election, that is required to accept the transfer or
to reject it. The doctrine is based on the principle that a person cannot approbate or reprobate at the same
time i.e., he cannot accept and reject a single transaction.

MODE OF ELECTION
Election may be express or election is said to be 'express' where the owner of the property transferred
expresses his intention in clear and specific words. For direct election, no form is prescribed and no formula
is laid down. Anything, that conveys the intention clearly, is sufficient for the purpose. A letter, telegram, a
word spoken orally in presence and within hearing of the transferor or any other sign made or marked at the
desire of or to the understanding of transferor is enough. Where the election is made through express words
it is final and conclusive.

Where, the intention of the 'elector is to be gathered or determined by his acts and conduct, the 'election" is
said to be implied. other words, the intention is indicated not in express words but by logical inference or
association or necessary consequence, it is implied.

In case of indirect or implied election, the following three modes are given in clauses 5, 6 and 7 of Section
35 of the T.P. Act.

1. Acceptance of benefit with knowledge of duty to elect

Section 35(5) of the T.P. Act provides that "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."

If the donee accepts the benefit given to him by the transfer, such act on his part constitutes an election by
him. It is, therefore, essential that the acceptance of the benefit should have been made with full knowledge
of his duty to elect and of all matters connected with such benefit. If the benefit is accepted without such
knowledge, the election may be revoked by the representatives of the electing party. Similarly, if the election
is made either expressly or impliedly under a misconception or mistake of fact it is not binding and can be
revoked even by the elector himself.

2. Two years enjoyment (Presumption as to election)

According to Section 35(6) of the T.P. Act, 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. This clause corresponds to Section 188(1) of the Succession Act,
1925, which states, "Such knowledge or waiver of inquiry shall, in the absence of evidence to the contrary
be presumed if the legatee has enjoyed for two years the benefits provided for him by the will without doing
any act to express dissent. The period of two years is taken from the case of Crabtree v. Bramble, [1925 Cal.
724 (DB)]. The presumption may be rebutted.

There is presumption in form of election. If the person put to elect knows that he is under a duty he must
express dissent if he is retaining the property for the time being and is not interested in election in favour of
the proposal. If the benefit has been enjoyed for two years without doing any act to express dissent it shall
be presumed that he had the knowledge of the waived enquiry and he the document as originally proposed.

3) Status quo cannot be restored

According to Section 35(7) of the TP Act, such knowledge or waiver may be inferred from any act of his
which renders it impossible to place the person interested in the property professed to be transferred in the
same condition as if such act had not been done.

Illustration to Section 35(7) is "A transfers to B an estate to which C is entitled, and as part of the same
transaction gives C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed
the transfer of the estate to B.

This clause corresponds to Section 188(2) of the Succession Act, 1925 which provides "such knowledge or
waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the
persons interested in the subject-matter of the bequest in the same condition as if such act had not been
done."

The clause 7 of Section 35 of the T.P. Act explains another way as to how indirect election may take place if
the property is exhaustible by consumption. No period is necessary: it may be immediately so done after
transfer or at any time thereafter election in favour would be presumed. The movement consumption starts
that election in favour is presumed. The principle is that 'restitution in integrum' recognised in Section 36 of
the Specific Relief Act, 1963. which permits an inference of knowledge which may be rebutted by
circumstances.

SUSPENSION OF ELECTION
(EFFECT OF DISABILITY, ILLEGALITY, AND IMPOSSIBILITY ON THE DOCTRINE OF ELECTION)

1. Disability

Clase 9 of Section 35 of the TP Act provides that in case of disability minority the election shall be
postponed until the disability ceases, or until the election is made by sense competent authority, eg. A
guardian of a minor Section 190 of the Succession Act, 1925 also provides that "in case of disability the
election shall be postponed until the disability ceases, or until the election is made by some competent
authority" A transfer by a person under a legal disability cannot give rise to a case of election.
 2. Illegality

The doctrine of election cannot be applied in order to cure an illegality or to enable the transferor to evade
any rule of law. Therefore, a gift which infringes the rule against perpetuities cannot be used to raise a case
for election.

A purported release by a Muslim daughter, which was void under Section 6(a), cannot be saved by the
doctrine of election, for that would amount to curing a manifest illegality,

In Wollastones v. king, it was held that 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 reminder to such person as she might
by Will appoint. C was not in esse 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.

Where A confers a benefit on B and professes to transfer B's property in such a a way as to violate the rules
against perpetuity. B cannot be compelled to make an election.

Not only the doctrine of election will cure an illegality, but also an election is a doctrine of equality, it will
not be applied so as to lead to inequitable results.

3. Impossibility of election

The doctrine of election is not applicable when election is impossible. In Cavendish v. Dacre. [(1886) 31
Ch.D 466], a testator gave benefit to A, and by the same Will gave to B chattels which were vested trustees
to be enjoyed with a mansion 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 chattles to B.

In Hamilton v. Hamilton, it was observed that the doctrine of election could not apply when election was
impossible as when a married woman was restrained from anticipating, for it was impossible for her to given
up property which she was restrained from alienation.

EXCEPTIONS TO THE DOCTRINE OF ELECTION

The doctrine of election is not of an universal application and certain exceptions are there. Under the
following cases a person need not elect.

1. Indirect benefit - No election needed

As provided in sub-section (3) of Section 35 of the T.P. Act, a person taking no benefit directly under a
transaction, but deriving a benefit under it indirectly, need not elect. The occasion for election arises where a
benefit is directly conferred upon the owner of the property. Consequently, there would be no need for
election where such owner derives a benefit under the transaction indirectly. The principle of the rule is that
a devisee or a donce who claims derivatively through another does not take under the deed and is not
therefore, bound by the equity attaching thereto. This rule corresponds to Section 184 of the Succession Act,
1925.

2. Different capacity - No election needed

As provided in sub-section (4) of Section 35 of the T.P. Act, a person who in his one capacity takes a benefit
under the transaction may in another dissent therefrom. Where a person holds two capacities e.g., individual
and vicarious, he may accept the benefit in one and dissent therefrom in the other. The vicarious capacity
may be one as a guardian, a trustee, an administrator or an executor No question of election can arise merely
because owing to certain circumstances, the two capacities have temporarily merged in one person. This rule
corresponds to Section 185 of the Succession Act, 1925.

3. Additional or extra benefit - No election needed

According to the exception to the last preceding four rules provided in Section 35 of the TP Act i.e., sub-
sections (1) to (4) of Section 35 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. Where such a case occurs, the
refractory donee need not occupy a different capacity nor need the benefit be given to him indirectly. He
occupies one and the same individual position. The only peculiarity of such a case is that the transferor by
the same transaction and under the same instrument confers on the owner of the property two kinds of
benefits, one in lieu of his property which the transferor transfers to someone else, and the other as a pure
and simple benefit, by way of gift as it were without any condition at all. Both these benefits are regarded as
independent of each other. Hence no election arises. This exception corresponds to Section 186 of the
Succession Act, 1925.

4. When not aware of his duty to elect - No election needed

As provided in sub-section (5) of Section 35 of the T.P. Act, where the person requires to elect is not aware
of his duty to elect, he need not elect.

5. Impossibility of election- No election needed

When the election is impossible, no election needed as the rule of election is not applicable.

In Cooper v. Cooper, [1874 IR 7 HL 531 Mr. Cooper acquired some property. He wrote a Will: "After my
death, and before the death of my wife, the property shall be sold and the sale proceeds shall be kept under
the trust. After my wife's death, the sale proceeds shall be distributed among our three sons. I have given the
authority to my wife to execute a deed in distributing the sale proceeds among the three sons before time."
Mr. Cooper died. After him, within the stipulated time, Mrs. Cooper executed a deed, under the Deed of
Appointment, dividing the sale proceeds equally among the three sons-S1. S2 and S3. After that, S2 died.
Thereafter Mrs Cooper executed the Will. In her Will, she had given all her own property to S3 and to the
son of S2 and then the entire sale proceeds of the property of late Cooper to S1. S3. The sons of S2 did not
accept this re-division. S1 requested that S3 and the sons of S2 to elect as per the Will of Mrs. Cooper, and
also brought a suit for specific performance, against S3 and the sons of S2.

In this case. Lord Huterley explained the principle underlying the doctrine of election thus: "The main
principle was never disputed that there is an obligationon him who takes a benefit under 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 was beyond the power of the donor or settlor to dispose
of, but to which effect can be given by the concurrence of whom who receives the benefit under the same
instrument, the law will impose on him who takes the obligation of carrying the instrument into full and
complete force and effect."

Lord Cairns observed, "While in some cases the testator may actually intend to put the recipient to his
election, the doctrine of election applies irrespective of the testator's actual intention, save that it will not
apply where there is a clear contrary intention. The rule was not based either on the testator's intention as
expressed or on his presumed intention. This view, that the doctrineis based on intention, cannot therefore
stand.

The House of Lords held that since the testatrix was not the owner of the property, her attempt to dispose of
it by her Will when she had no longer a disposing power over it raised a case of election against the persons
who, taking under her Will, had an interest in that property.

Paru Kutty Amma & Ors. v. Cheetah Navoth Lakshmi Amma

In this case the Doctrine of Election was explained explicitly and with clarity, “The essence of the doctrine
therefore is that a person cannot affirm and at the same time dissent from the same document, accept one
part and reject the other, receive the benefit provided and refuse to give full effect to it. It is not a principle
which is peculiar to English or Scottish or any other law but is based on a rule of justice that a person shall
not at the same time affirm & disaffirm the same transaction affirming to the extent of the benefit provided
and disaffirming in so far as it is to his prejudice. The affirmation and disaffirmation must be with reference
to the same transaction or instrument.”