Section 35 of the Transfer of Property Act, 1882 incorporates the Doctrine of election alongside Section 180-190 of the Indian Succession Act 1925.
Election simply means choosing between two alternative rights or inconsistent rights. Under any instrument if two rights are conferred on a person in such a manner that one right is in lieu of the other, he is bound to elect (choose) only one of them.
One cannot take under and against the same instrument.
Principle Underlying the Doctrine of Election
Allegans contraria non est audiendus : he is not to be heard who alleges things contradictory to each other.
In Cooper v. Cooper, Lord Hather explained the principle underlying the doctrine of election in the following words,
“…there is an obligation on him who takes benefit under a will or other instrument to give full effect to the instrument under which he takes benefit ; and if it is found out that instrument purports to deal with something which it was beyond the power of the donor to dispose of , but to which effect can be given by the concurrence of him who receives a benefit under the same instrument, the law will impose on him who takes the benefit the obligation of carrying the instrument into full and complete force and effect .”
The doctrine was directly applied in the case of Mangaldas v Runchhoddas.
The doctrine was applied by the Privy Council in the case of Sadik Hussain v Hashim Ali.
In this respect the English law is different because there the donee electing against the instrument does not incur a forfeiture of the benefit conferred on him by it , but is merely bound to make compensation out of it to the person disappointed by his election.
Section 35 of Transfer of Property Act, 1882 reads:
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 such transfer or to dissent from it; and in the latter case he shall relinquish benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject 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 attempted to be transferred to him. 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. A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect. A person who in his own capacity takes a benefit under the transaction may in another dissent there from.
Exception to the last preceding four rules–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.
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.
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.
Such knowledge of 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.
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.
In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority.
Analysis of the Section
Mst. Dhanpati v. Devi Prasad and others : Before there can be election there must be :
1. transfer of a property by a person who has no right to transfer ;
2. as part of the same transaction, he must confer some benefit on the owner of the property; and
3. such owner must elect either to confirm the transfer or to dissent from it.
Effect of election against the transfer
Where the owner dissents from the transfer of his property –
1. He must relinquish the benefit ;
2. The benefit intended for him would then revert to the transferor.
General Rule : If a person elects against the instrument, he will forfeit the whole of the benefit received under it.
Exception : If a person elects against the instrument , he will not forfeit the whole benefit but only the benefit attached in lieu of the property. (Election limited to part of benefit)
Mode of election
a. Implied – by conduct
b. Express – election when made in express words, it is final and conclusive.
NOTE: If a person acts through ignorance or mistake, the doctrine gives way.
Two years’ enjoyment
The presumption may be rebutted. A widow who enjoyed a provision made for her under a will in ignorance of her right of dower was held entitled to elect after a lapse of 16 years.
The section permits an interference of knowledge which may be rebutted by circumstances.
Time limit for election
Upon the expiration of one year from the transfer, if an election has not taken place, the transferor may compel him to make his election .
If he fails to comply with this requisition within a reasonable time, he shall be deemed to have elected to confirm the transaction.
Suspension of election
Where the done suffers from some 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, e.g. , a guardian of a minor
- Aman is the owner of the property worth Rs.10 lakh ,Bhanu is the transferor who has no rights over the property, Chandan is the transferee.
Bhanu offers to Aman that if he willing to sell his property to Chandan, he will give him Rs. 15 lakh. Now Aman (real owner) can either accept the offer and receive the benefit thereof, or to reject the whole offer.
A property worth Rs.7 lakh belongs to Ishaan. Anirudh by an instrument of gift professes to transfer it to Ria, giving by the same instrument Rs. 10 lakh to Ishaan. Ishaan elects to retain the farm. He forfeits the gift of Rs. 10 Lakhs.
Frequently Asked Questions
1. What is doctrine of election in transfer to property Act, 1882?
Section 35 of transfer to property Act, 1882 incorporates the Doctrine of election. The foundation of the doctrine of election is that person taking the benefit of an instrument must also bear its burden .It is a breach to the general rule that one cannot blow hot and cold at the same time. The law presumes that the author of the instrument intends to give effect to every part of it. There is an obligation on him who takes benefit under a will or other instrument intended to give full effect to that instrument.
2. Is doctrine of election based on principle of equity?
Yes , the doctrine of election is a common law rule of equity that requires that if a testator attempts to dispose of property belonging to someone else and also makes a devise to that person, the beneficiary must choose between either keeping the property or accepting the devise. The principle is stated in White and Tudor’s Leading case in Equity : Election is the obligation imposed upon a party by court of Equity to choose between two inconsistent rights in case where there is clear intention of the person from who derives one that the he should not enjoy both. That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument.
3. What are the rights available to Disappointed transferee?
When the owner of property elects against the transfer, the transferee to whom the property was professed to be transferred, cannot get the property. The transferee becomes disappointed. However, he has following rights:
a. Where the transfer is gratuitous ( without consideration) and the transferor has before the election died or otherwise become incapable of making a fresh transfer,
b. Where transfer is with considerarion, the disappointed transferee has a claim for reasonable compensation from the transferor .. Reasonable compensation means compensation equal to the value of property professed to be transferred.
4. What are the exceptions to the doctrine of election?
Following are the exceptions to the doctrine of election:
1. When the owner who is considering the election between retaining the property and accepting a particular benefit, chooses the former, he is not bound to relinquish any extraneous benefit that he gains through the transaction.
2. The acceptance of the benefit by the original owner shall be deemed to be as election by him to validate the transfer, if he is aware of his responsibilities and circumstances that might influence a prudent man into making an election.
3. Knowledge of the circumstances can be assumed if the person who gains the benefit enjoys it for a period of more than two years.
4. If the original owner does not elect his option within a year of the transfer of property, the transferor would require him to elect his choice. Even after a reasonable time, if he still does not also elect, the original owner shall be assumed to have elected the validation of the property transfer as his choice.
5. Where the done suffers from some 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, e.g. , a guardian of a minor
5. What are the essential conditions for application of this doctrine?
The Essential conditions for application of this doctrine are as follows:
Mst. Dhanpati v. Devi Prasad and others : Before there can be election there must be:
a. a transfer of a property by a person who has no right to transfer ;
b. as a part of the same transaction, he must confer some benefit on the owner of the property; and
c. such owner must elect either to confirm such transfer or to dissent from it.
Edited by Parul Soni
Approved & Published – Sakshi Raje
 Beepathumma v. S.V. Kadambolithaya , AIR 1965 SC 241.
Cooper v. Cooper (1874) 7 HL 53.
Mangaldas v Runchhoddas (1890) ILR 14 Bom 438.
 Sadik Hussain v. Hashim Ali (1916) ILR 38 All 627.
Mst. Dhanpati v. Devi Prasad and others 1970 S.C.D. 174.
 Sopwith v. Maughan (1861) 30 Beav 235.
 Muhammad Kader Ali Fakir vs. Fakir Lakman Hakim PLR 1956 Dacca 370.
PLR 1956 Dacca 370.
Mst. Dhanpati v. Devi Prasad and others1970 S.C.D. 174.