doctrine of election

SECTION - 35: ElLECTION
WHEN NECESSARY, THE

TRANSFER OF PROPERTY
ACT, 1882
Where a person
"Professes to transfer property which

he has no right to transfer, and
"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.
If he dissents from it
"He must relinquish the benefit so

conferred and
" The benefit so relinquished reverts to

the transferor or his representative as
if it had not been dispose 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
attemptedto be transferred in two cases,
namely
Where the transfer is gratuitous, and
the transferor has, before election,
died or otherwise become incapable
of making a fresh transfer and
Where the transfer is for
consideration.
INGREDIENTS OF DOCTRINE
OF ELECTION
" It is immaterial whether the
transferor does not believe that the
property which he professes to
transfer is his own property.
" A person who takes on benefit
directly under a transaction, but
derive a benefit under it indirectly,
need not elect.
" Likewise, a person who takes a
benefit in one capacity may dissent
therefrom in another capacity.
" In case of dissent, only that the
particular benefit is to be
relinguished, any other benefit
conferred on him by the same
transaction is not to be relinquished.
" If aperson accepts a benefit for 2
years (or more), there is a
presumption that he has elected in
favor of the transfer.
If the owner does not, within a year's
time, signify to the transferor, his
intentionto confirm or dissent, the
transferor may require him to make
an election. If he does not comply
with such requisition, he is deemed to
have elected to confirm the transfer.
CONDITIONS FOR
APPLICABILITY OF THIS
DOCTRINE
" The transferor must not be owner of

the property which he transfers.
The transferor must transfer the
property of other (owner) to a third
person.
"The transferor must at the same time
grant some property, by the same
instrument, out of his own, to the
owner of property.
The two transfers i.e. transfer of the
property of ownerto the transferee
and conferment of benefit on the
election does not arise if the the two
transfers are made through two
separate instructions.
The owner must have proprietary
interest in the property.
"The owner taking no benefit under a
transaction directly, but diverting a
benefit under it indirectly, need not to
elect.
Question of election does not arise
when benefit is givento a person in a
different capacity.
RULES OF THE D0CTRINE
RULE 1:
Where a person professes to transfer

property which he has no right to
transfer, and as part of the same
transactionconfers any benefit on the
owner must elect either to confirm
such transfer or to dissent from it.
" If he dissents, he shall
relinquish the benefit so
conferred, and the benefit so
relinquish shall revert to the
transferor or his
representative as if it had not
been disDose of. subiect
nevertheless.
"Where the transfer is gratuitous, and
the transferor has, before the
election,died or otherwise become
incapable of making a fresh transfer
and in all cases where the transfer is
for consideration.
" To the charge of making good
to the disappointed transferee
the amount or value of the
property amounts to be
transferred to him.
RULE 2:
The rule in the first paragraph of this section,

applies whether the transferor does or does
not believe that which he professes to
transfer to be his own.
(in case of relationship between master and

agent, no need to elect is there.)
RULE 3:
Aperson taking no benefit directly under a

transaction, but deriving a benefit under it
indirectly, need not elect.
(directly not benefited, indirectly benefited.

As. getting henefit from real owner's relative.
As,getting benefit from real owner's relative,
in that case, no need to election, and if the
owner elect to dissent, it is not mandatory to
return the benefit.)
RULE 4:
Aperson who in his one capacity takes a

benefit under the transaction may in another
dissent therefrom.
EXCEPTIONS TO THE RULES

. 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 claimed the
property, he must relinquish the particular
benefit, but he is not bound to relinquish any
other benefit conferred upon him by
same transaction.
I.IF REAL OWNER ACCEPT THE BENEFIT

BEFORE CONFIRM ELECTION AND WAIVES
ENQUIRY INTO THE CIRCUMSTANCES
Acceptance of the benefit by the personon
whom it Iconferred 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 waiver enquiry into the
circumstances.
II, 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 beenconferred has enjoyment it for two
years without doing any act to express
dissent according to Indian Succession Act,
1925 section 188, it was presumed that he
approved the transfer and need not apply
the doctrine of election.
IV. IMPOSSIBLE FOR REAL OWNER TO BACK

THE PREVIOUSPOSITION
Such knowledge or waiver may be inferred

from any act of his which renders it
impossible to place the persons interested in
the pronertv professed to be transferred in
the property professed to be transferred in
the same conditions as if such act had not
been done.
V. 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
representative may, upon the expiration of
that period, required 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 toconfirm the transfer.
VI. SUSPENSION OF ELECTION
Incase 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.
DIFFERENCE BETWEEN
ENGLISH AND INDIAN LAW
ENGLISH LAW
" The doctrine of compensation

applies.
" There is no fixed time for making an
election.
INDIAN LAW
" Thedoctrine of forfeiture applies.

" A period of one year is prescribed for
making an election.
APPLICABILITY UNDER
DIFFERENT LAWS
HINDULAW
The principle underlying this section has

always been applied to Hindus.
Case: Rungamma VAtchamma
The privy councilreferred to the rule that a

party shall not at the same time affirm and
disaffirm the same transaction- affirm it as
far as it is for his benefit and disaffirm it as
far as it is to his prejudice.
MUSLIM LAW
Case: Sadik Hussain V Hashim Ali
ThePrivy Council applied thisdoctrine to

The PrivyCouncil applied this doctrine to
Muslims also.
ENGLISH LAW
Under English law, a transferee by electing

against the transfer does not lose his benefit
but he becomes bound to make
compensation out of it to the disappointed
person.
RELEVANT CASE TO
DOCTRINE OF ELECTION
Case: Muhannad Kader Ali Fakir V Fakir
Lakman Hakim (PLR 1956 Dacca 370)
The doctrine of election was explained by the

Court. The Court explained that,
"The foundation of the doctrine of

election is that a person taking the
benefit imposed thereby and that he
cannot take under and against the
same instrument.
" It is a breach to the general rule that
no one may approbate or reprobe.
doctrine is based on intended

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SECTION - 35: ElLECTION

WHEN NECESSARY, THE

"Professes to transfer property which

"He must relinquish the benefit so

" The benefit so relinquished reverts to

However, when such benefit reverts back to

" The transferor must not be owner of

RULES OF THE D0CTRINE

Where a person professes to transfer

The rule in the first paragraph of this section,

(in case of relationship between master and

Aperson taking no benefit directly under a

(directly not benefited, indirectly benefited.

Aperson who in his one capacity takes a

EXCEPTIONS TO THE RULES

Where a particular benefit is expressed to be

I.IF REAL OWNER ACCEPT THE BENEFIT

II, TWO YEARS ENJOYMENT

Such knowledge or waiver shall, in the

IV. IMPOSSIBLE FOR REAL OWNER TO BACK

Such knowledge or waiver may be inferred

V. WARNING THE REAL OWNER AFTER CERTAIN

If he does not within one year after the date

VI. SUSPENSION OF ELECTION

Incase of disability by reason of infancy,

" The doctrine of compensation

" Thedoctrine of forfeiture applies.

The principle underlying this section has

Case: Rungamma VAtchamma

The privy councilreferred to the rule that a

Case: Sadik Hussain V Hashim Ali

ThePrivy Council applied thisdoctrine to

Under English law, a transferee by electing

The doctrine of election was explained by the

"The foundation of the doctrine of

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