Chapter 1-

INTRODUCTIONThe doctrine of election is stated in Sec. 35 of the Transfer of Property Act alongside Section

180 to 190 of the Indian Succession Act.

It states that when a party transfers a property over which he does not hold any right of transfer

and entailed in that transaction is the benefit conferred upon the original owner of the property,

such title-holder must elect his option to either validate such transfer of property or reject it;

upon rejection, the benefit shall be relinquished back to the transferor subject nevertheless:

“Where the transfer has been through gratuitous means and the transferor has become

incapable of making a new transfer.

In all cases where the transfer is for consideration”.1

An illustration to further explain:

A owns a property that is worth Rs 800. B professes to transfer the same to C through the

Rs1000 instrument to A. But the A, the owner opts/elects to retain his property and thus, forfeits

the gift of Rs 1000.2

1 Section 35, The Transfer of Property Act, 1882

2 G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law Publishing 2010).

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Chapter 2-

HISTORY AND ORIGIN OF DOCTRINE OF ELECTIONThe idea that God does what He wants, and that what He does is true and right because He does

it, is foundational to the understanding of everything in Scripture, including the doctrine of

election.  

In the broad sense, election refers to the fact that God chooses (or elects) to do everything that

He does in whatever way He best sees fit. When He acts, He does so only because He willfully

and independently chooses to act. According to His own nature, predetermined plan, and good

pleasure, He decides to do whatever He desires, without pressure or constraint from any outside

influence.

The foundation of Election is that a person taking the benefit of an instrument must also bear the

burden.

Election means choosing between two inconsistent or alternative rights. Under any instrument if

two rights are conferred on a person in such a manner that one right is lieu of the  other, he is

bound to elect only one of them.

It’s a famous proverb in English that ‘one cannot eat the cake and have it too’ which relates to

the fact that if given a choice, an individual can either opt for the choice or relinquish it.

However both the options cannot be exercised at the same time. The same concept is more or

else ingrained in the Indian legal system in as much as the Transfer of Property Act incorporates

the Doctrine of Election which has been consistently apply to imply that benefit under one option

can alone be exercised by an individual.

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2.1 BASED ON A MAXIM:

“Allegans Contraria Non Est Audiendus”

Legal maxim and Latin for “one making contradictory statements, is not to be heard”. It is a

principle of good faith that a person should not be allowed to testify hot and cold at different

times about the same event, denying today, affirming tomorrow. It is a concept of common sense

and used to bring cross examination to an abrupt end.

Such a principle has its basis in common sense and common justice, and whether it is called

‘estoppel’, or by establishment of the truth would injure him. An intent to deceive or defraud is,

however, not necessary. The principle is yet another instance of the protection which law accords

to the faith and confidence that a party may reasonably place in another, which constitutes one of

the most important aspects of the principle of good faith.

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Chapter 3-

THE DOCTRINE OF ELECTION – IN THE LIGHT OF TRANSFER OF PROPERTY ACT, 1882The Doctrine of Election is one of the most important areas of the law relating to transfer

of property. Section 35 of the Transfer of Property Act deals with this doctrine. The primary

element in the doctrine of election is the presence of choice. The foundation of Election is that a

person taking the benefit of an instrument must also bear the burden.3 Generally, Election means

choosing between two inconsistent or alternative rights. Under any instrument if two rights are

conferred on a person in such a manner that one right is lieu of the other, he is bound to elect

only one of them. In Beepathumma v/s Kadambolithaya SC4 held that – A person cannot take

under and against the same instrument. Means he can approbate and reprobate at the same time.

Example-Abu Bakar offer 1,00,000 to Joy in lieu of transfer his house, So, Joy can elect only

one, either he can retain the money and transfer his house or deny the money, he cannot enjoy

the both. Section 35 of the Transfer of Property Act embodied the doctrine of election.

According to the section 35 where a person ---

i) Professes to transfer property which he has no right to transfer, and

ii) As part of the same transaction, confers any benefit on the owner of the property,

such owner must elect either to confirm the transfer or to dissent from it .5

 If he dissents from it,-

a) he must relinquish the benefit so conferred ; and 

b) The benefit so relinquished reverts to the transferor or his representative as if it

had not been disposed of.

3 Codrington vs Lindsay 1873, 8 ch 578

4 A.I.R.(1965)S.C.2415  Mst. Dhanpatti vs. Devi Prasad and others ,(1970)S.C.D 174

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However, when such benefit reverts back to the transferor , it is subject to the charge of making

good to the disappointed transferee the amount or value of the property attempted to be

transferred in two cases , namely ---

i) where the transfer is gratuitous, and the transferor has, before election, died or

otherwise become incapable of making a fresh transfer; and

ii) where the transfer is for consideration.

3.1 CRITICALLY ANALYSING THE DOCTRINE OF ELECTION

This doctrine is based on equitable principle under which a person may not be allowed to

approve that of an instrument which is beneficial to him and disapprove it’s that part which goes

against him. Means no one can approbate and reprobate at the same time. Because 8 DLR 112

Case , It was held that a person accept benefit and at the same time to decline the burden is to

frustrate the intention of the donor and for this the law presumes that the author of an instrument

intended to give effect to every part of it.

 In Cooper v/s Cooper6, Held that the Doctrine of Election, applies on every instrument and

every type of property movable or immovable.

3.2 ESSENTIAL INGREDIENTS FOR THE DOCTRINE OF ELECTION

The doctrine of election is based on the principle of equity.

These are the essential ingredients for this doctrine:-

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, in 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 in the same transaction.

Question of election does not arise if the two transfers are made by virtue of two separate

instruments.

6 L.R.7,H.L 53 at page 69

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5) The owner must have proprietary interest in the property; a creditor is not put to election

as he has only a personal right to be paid by the debtor.

6) The owner taking no benefit under a transaction directly, but diverting a benefit under it

indirectly, is not put to election.

7) Question of election does not arise when benefit is given to a person in a different

capacity.7

3.3 MODE OF ELECTION

Election must be divided into two:

1. Direct Election or

2. Indirect Election.

1. Direct Election:

There is no prescribed form. A letter, telegram, oral words of transferor or any other sign by the

person which conveys the intention of the transferor is enough.

2. Indirect Election:

There are three types of Indirect Election.

They are:-

1. Acceptance of benefit without knowledge of duty to elect

2. Enjoyment for two years and

3. Status quo cannot be restored.

1. Acceptance of benefit without knowledge of duty to elect:

If the donee accepts the benefit conferred upon him by the transfer, then such acceptance on his

part constitutes election by him. But the acceptance must be made with full knowledge of his

duty to elect and all matters about such benefits.

If the donee accepts the benefits without knowledge, then the representatives of the donee may

revoke the election. If the election is made under mistake of fact, it may be revoked by the

elector or his representatives. But if the donee willfully abstains from inquring into the 7  Safique hossain, Transfer of property act 1882, 1st edition in April 2010, p.40

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circumstances under which the benefit is conferred upon him and makes an election, such an

election is binding on him and his representatives.

2. Enjoyment for two years: [ Section 188(1) of the Indian Succession Act ]

If a person who has to elect knows that he is under a duty to elect, he must express his dissent, if

he retains the property for some time and not interested to elect in favour of the proposal. If he

keeps the property for two years, without expressing that he is not in favour of the election, then

it is presumed that the person so retaining the property is doing so with knowledge and

acceptance of the document.

3. Status quo cannot be restored:

In the case of property which is exhaustible by consumption or use, if he once starts consuming

the property, election in his favour is persumed. No period of consumption is necessary for this

presumption.

Chapter 4-

UNDERSTANDING THE PRINCIPLE

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In simple words, a person utilizing the benefits of an instrument also has to carry the burden

attached. This doctrine is founded upon a model wherein a person persuades another to act in a

manner to his prejudice and derives any advantage from that, then he cannot turn around and

claim that he was not liable to perform his part as it was void.8 This doctrine is universal and is

applicable to Hindus, Muslims as well as Christians.

So, this doctrine contains the principle that the exercise of a 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 that he who accepts benefit under an instrument

or transaction of his choice must adopt the whole of it or renounce everything inconsistent with

it.9 Thus, it is a general rule that a person cannot approbate and reprobate.10 Also, the election is

confined to the case of a gift or Will11 and does not apply in case of a legal remedy.12

4.1 CONDITIONS PRECEDENT FOR EQUITY OF ELECTION13

The conditions necessary for the Application of the doctrine of election:

8 Darashaw J. Vakil, The Transfer of Property Act ( 2nd Edn. Wadhwa Nagpur 2004) 334.

9 Ibid.

10 Beepathuma ( C ) v. VS Kadambolithiya [1964] 5SCR 836,850, AIR 1965 SC 241; Codrington v. Codrington (1857) 7 HL 854, 861.

11 Nihar v. Anath Nath, AIR 1956 Pat 223 (226) (DB) : 1956 BLJR 177.

12 Ibid.

13 Dhanpatti v. Devi Prasad 1970 (3) SCC 776 (778)

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When a person professes to transfer a property not his own

Professes means to purports or make contract, for a property which is not his own but he can

make contract for the same. Example- Sheila mam profess to transfer a property Joy, which

is owned by Abu Bakar, and also confers a benefit 50,000 tk to Abu Bakar. Here Mam is not

transferring the Abu Bakar’s Property to Joy but simply profess which she does not own.

Part of the same transition

This Doctrine only applicable when transfer and benefit a part form the same transition.

Means the benefit and transition are interdependent and inseparable they form part of the

same transition. Mohammad Afzal vs. Ghulam kasim14 In this case:

After the death of Nawab of tank Government transferring the chiefship to the eldest son and

transfer a portion of cash allowance of the later son who have already made a grant of two

village of maintenance. So the Privy Council held that second son was not put his election as

the two grants came from independent source and not same transaction.

Benefit directly confer to the owner of the property

The Doctrine only applicable when the real owners of the property directly accept the

benefit. But if The owner taking no benefit under a transaction directly, diverting a benefit

under it indirectly, is not put to election. Example- suppose, Abu Bakar by a deed makes a

gift Mamun’s property to Shamim and gives1000 tk to Mamun’s Son so Mamun will not

be put to election although he gets benefit indirectly.

Such owner must elect either to confirm such transfer or to dissent from it

Such owner must elect either to confirm the transfer or to dissent from it . If he dissents from

it ,-

14 1903 ILR 30

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a) he must relinquish the benefit so conferred ; and

b) the benefit so relinquished reverts to the transferor or his representative as if it had not

been disposed of .

However , when such benefit reverts back to the transferor , it is subject to the charge of making

good to the disappointed transferee the amount or value of the property attempted to be

transferred in two cases , namely ---

i) where the transfer is gratuitous , and the transferor has , before election , died or

otherwise become incapable of making a fresh transfer ; and

ii) where the transfer is for consideration .

The doctrine of election may be illustrated by the following example:

Let us suppose that one farm of Sultanpur is the property of C and worth `800 /- . A, professes to

transfer that farm of Sultanpur upon which he has no right to transfer. And by an instrument of

gift , professes to transfer it to B , giving by the same instrument ` 1,000 /- to C .  C, the owner of

the farm of Sultanpur, is to elect either to confirm the transfer or to dissent from it. Here, C elects

to retain the farm or dissents from the transfer. C, then forfeits the gift of ` 1,000 /- . In the same

case, A dies before the election. The representatives of A must, out of the ` 1,000 /- pay 800 /- to

B to make good to the disappointed transferee the amount or value of the property attempted to

be transferred.

4.2 AMOUNT OF COMPENSATION

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.

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Thus, this valuation is to take place at the date of the instrument becoming operational rather

than at the time of election15

4.3 RULES WHICH FORMS TO THE EXPLANATION OF DOCTRINE OF

ELECTION

Donor’s Intention

In order to create a situation of election, it is important that the intention of the testator should be

clear with regard to disposing of the property which he does not own.16 Parol evidence is not

acceptable and thus the intention must be prima facie clear.17 18

Indirect Benefit

The benefit that the original owner is conferred with has to be direct in nature and if indirect, he

does not need to elect.19 This principle is explained in Section 184 of Indian Succession Act,

1925 and states that “when the devisee who claims derivatively through another does not take

under the deed, and is not bound by the equity attaching thereto.”20

Difference in Capacity

An individual can in one capacity utilize a benefit while can dissent or reject that benefit in

another capacity21. It means to explain that it is possible to facilitate two roles of an individual

wherein he can for example, accept legacy for an estate while in his personal competence, he

could retain the property.22

15 Re Hancock. Hancock v. Pawson (1905) 1 Ch. 16

16  Rancliffe v. Parkins 6 Dow 179

17 Stratton v Best 1 Ves 185

18 B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 205.

19 G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law Publishing 2010) 744.20 ibid21 Grissel v. Swinoe (1869) 7 Eq. 291 = 17 W.R. 438

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4.4 EXCEPTIONS TO THE DOCTRINE OF ELECTION

Real owner is not bound to confer any other benefit of a particular transaction:

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.23

 Illustration: Joy transfers to Mamun property X in lieu of Mamun’s property which is given to

Shamim. Joy also gives Mamun property Y. If Mamun elect to retain his own property which

was given to Shamim. Now Mamun must relinquish his claim to property X but not bound to

confer property Y.

If real owner accept the benefit before confirm election and waives enquiry into the

circumstances:

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.24 

Illustration: Joy transfer a property Firoz which is owned by Abu Bakar and gives benefit Abu

Bakar at the same instrument. Now Abu Bakar accepts benefits from Joy without confirm

election and he also waives enquiry into the circumstances. So in this situation court presume

that he approved the transaction and take benefit as election.

Two years Enjoyment:

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 fortwo years

22 G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law Publishing 2010) 744.

23 Section 35,Transfer of property act [iv of 1882]24  ibid

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without doing any act to express dissent according to Indian succession act 1925 section 188[1]

it was presumed that he approved the transfer and need not apply the doctrine of election.25

Impossible for real owner to back the previous position:

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.26

Illustration: Tuli transfers to Joy an estate to which Abu Bakar is entitled, and as part of the same

transaction gives Abu Bakar a coal-mine. Abu Bakar takes possession of the mine and exhausts

it. He has thereby confirmed the transfer of the estate to Tuli.

Warning the real owner after certain period:

If he does not within one year after the date of the transfer signify to the transferor or his

representatives his intention to confirm or to dissent from the transfer, the transferor or his

representative may, upon the expiration of that period, require him 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.27

Suspension of election:

In case of disability by reason of infancy, lunacy, and so forth, the election shall be postponed

until the disability ceases, or until the election is made by some competent authority.28

4.5 DIFFERENCE BETWEEN ENGLISH LAW AND THE INDIAN LAW

PERSPECTIVE REGARDING THE DOCTRINE OF ELECTION

25  Indian succession act 1925 section 188[1]

26  Section 35,Transfer of property act [iv of 1882]

27  ibid

28  Shukla Dr.S.N. Transfer of property act, 24th edition:2002, reprint 2010.page 87.

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1. English law applies the principle of compensation while the Indian law adopts the rule of

forfeiture:

The English law depends upon the principle of compensation which means that if the

original owner does not choose to validate the transfer, he can keep the property and also

the benefit accrued, subject to compensation provided to the donee, to the extent of the

property he had suffered a loss for.

But in the Indian law context, this doctrine is influenced by the principle of forfeiture

which states that if the original owner does not choose to validate the transfer, the donee

incurs a forfeiture of the conferred benefit which goes back to the transferor.29

2. English law does not specify any time within which election is to be made .Indian law

specified one year time within which owner of the property is to elect whether he

confirms the transfer or dissents from it .If the owner does not comply with such

requisition, he is to be deemed to have elected to confirm the transfer.

Chapter 5-

RECENT CASE & RELATION OF DOCTRINE WITH OTHER SECTION OF THE ACT

29 G.C.V SubbaRao, Law of Transfer of Property (4th edn, Universal Law Publishing 2010) 740.

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5.1 MOST LEADING AND RECENT CASE WITH REFERENCE TO

DOCTRINE OF ELECTION

The Supreme Court in a recent decision, in Mumbai International Airport Pvt. Ltd. Vs.

Golden Chariot Airport,30 on 22 September, 2010 has briefly examined the 'Doctrine of

Election' and the common law doctrine of prohibiting 'approbation' and 'reprobation' as

enshrined in the latin maxim qui approbat non reprobat (one who approbates cannot reprobate).

The relevant extracts from the judgment are reproduced herein below:

Now the question is whether the contesting respondent on a complete volte-face of its previous

stand can urge its case of irrevocable licence before the Estate Officer and now before this

Court? 

The answer has to be firmly in the negative. Is an action at law a game of chess? Can a litigant

change and choose its stand to suit its convenience and prolong a civil litigation on such

prevaricated pleas?

The common law doctrine prohibiting approbation and reprobation is a facet of the law of

estoppel and well established in our jurisprudence also.

The relevant facts of the case are that M/s Golden Chariot Airport (hereinafter referred to as "the

contesting respondent") succeeded in a tendering process for running a deluxe grade-I restaurant,

covering a space of about 5000 sq. ft., in the car park zone in front of Terminal 1A of the

Mumbai Airport. Pursuant to the said bid of the contesting respondent, a Licence Agreement

dated 16.1.96, was entered into between the Airport Authority of India (hereinafter AAI) and the

contesting respondent.

Doctrine of election Estoppel - Approbate and reprobate - Impermissibility - Imposition of

exemplary costs for - Held, litigant cannot change and choose its stand to suit to his convenience

- In present case, respondent having elected to give up plea of irrevocability of licence and taking

advantage on that basis, held, cannot be permitted to disown his stand by raising same plea again

- It is amply demonstrated that respondent has blown hot and cold by taking inconsistent stands,

and has therefore prolonged several proceedings for more than a decade - It did not pursue its

proceedings honestly in different fora and its conduct is far from satisfactory - By taking such

30 (2010) 10 SCC 422-C

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pleas, respondent has succeeded in enjoying possession of premises concerned for 10 years

beyond expiry of its licence - Hence, exemplary costs of Rs 5 lakhs awarded against respondent,

5.2 DOCTRINE OF ELECTION WITH RELATION TO SECTION 127 OF

THE ACT

Section 127 of the Transfer of Property Act also contains the doctrine of election or the onerous

gifts also put the donee for election on the principle that he who wants the roses must not fear the

thorns.

Section 127 says that where a gift is in the form of a single transfer to the same person of several

things, of which one is, and the others are not, burdened by an obligation, the donee can take

nothing by the gift unless he accepts it fully.

CONCLUSIONSection 35 of the Transfer of Property Ac, 1882 explains the concept of the Doctrine of Election.

This project tries to deal with the various nuances involved in the doctrine through the usage of

various landmark judgments. Herein, special emphasis has been placed upon providing a clear

understanding of the conditions necessary for the election by the original owner to take place.

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The differences between the Indian Law perspective as well as the English Law perspective are

brought out through critical analysis of the provisions i.e.  Principle of forfeiture and Principle of

compensation. Various aspects such as Proprietary Interest, Compensation estimated, indirect

benefit, the intention of the donor etc have been dealt and explained for the enhanced

understanding over the model of Doctrine of Election.

RFERENCES

Bibliography:

G.C.V. Subbarao, Transfer of Property Act (C. Subbiah Chetty & Co., 15 ed., 2005).

The Transfer of Property Act, 1882.

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Vepa P. Sarathi, Transfer of Property Act (Eastern Book Company, 5 ed., 2004).

Dr. Avtar Singh, Textbook on Transfer of Property Act, (Universal Law rd Publishing

Co. Pvt. Ltd., 3 ed., 2012)

Richard A. Posner, "Gratuitous Promises in Economics and Law", Journal of Legal

Studies 6 (1977): 411-26.

Webliography:

Mihir Naniwadekar, "When doctrine of election is applicable", available on myLaw.net at

http://mylaw.net/Article/When_doctrine_of _election_applicable/.

http://kanwarn.wordpress.com/2010/08/27/introduction-to-transfer-ofproperty-act-1882/

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