BEFORE THE HON’BLE COURT OF CIVIL JUDGE, AHMADABAD

PETITIONER

NITIN………….……………………………………………

Versus

DEFENDANT

RAJIV……………….………………….………………………………………..

BEFORE SUBMISSION TO

THE HON’BLE JUDGES OF HON’BLE COURT OF CIVIL JUDGE

MEMORIAL ON BEHALF OF DEFENDANT

COUNSEL APPEARING ON BEHALF OF DEFENDANT

I
 TABLE OF CONTENTS

Sr. No. HEADING PAGE NO.

1. LIST OF ABBREVIATIONS III

2. INDEX OF AUTHORITIES IV

3. TABLE OF CASES V

4. STATEMENT OF JURISDICTION VI

5. STATEMENT OF FACTS VII

6. ISSUES RAISED VIII

7. SUMMARY OF ARGUMENTS IX

8. ARGUMENTS ADVANCED 10-24

9. PRAYER FOR RELIEF 25

MEMORIAL ON BEHALF OF DEFENDANT Page 2

 LIST OF ABBREVIATIONS

1. A.I.R All India Reporter

2. Anr. Another
3. Art. Article
4. Govt. Government

5. Ed. Edition

6. S.C.R SC Report

7. Hon’ble Honorable

8. I.L.R Indian Law Reporter

9. L.J. Law Journal

10. Ors. Others

11. P.I.L Public Interest Litigation

12. S.C.C Supreme Court Cases

13. S.C Supreme Court

14. U.O.I Union of India

15. Vol. Volume
16. Vs. Versus
17. W.P Writ Petition

MEMORIAL ON BEHALF OF DEFENDANT Page 3

 INDEX OF AUTHORITIES
 BOOKS AND COMMENTARIES
 PSA PILLAI’S, CRIMINAL LAW, 12TH ED., LEXIS NEXIS, 2016. DR. G.P.
TRIPATHY, THE TRANSFER OF PROPERTY ACT, 19TH ED., CENTRAL LAW
PUBLICATIONS, ALLAHABAD.
 JUSTICE P.S. NARAYANA, LAW OF SPECIFIC RELIEF, 6TH EDITION, ASIA
LAW HOUSE , HYDERABAD, 2007.

 DARASHAW J. VAKIL, THE TRANSFER OF PROPERTY ACT ( 2ND EDN.

WADHWA NAGPUR 2004) 334.

 BARE ACTS
 THE INDIAN CONTRACT ACT, 1872.
 THE TRANSFER OF PROPERTY ACT, 1882.

 THE SPECIFIC RELIEF ACT, 1963.

 WEBSITES
 www.scconline.com
 www.manupatra.com
 www.supremecourtcaselaw.com
 www.indiankanoon.com
 www.indianexpress.com
 www.economictimes.com
 www.indiankanoon.com
 www.judis.org

 DICTIONARIES
 BLACK’S LAW DICTIONARY, ED.8TH
 STROUD’S JUDICIAL DICTIONARY, VOLUME 4 ED.4TH
 OXFORD DICTIONARY, ED.3RD
 JUDICIAL DICTIONARY, J. L.P. SINGH & P.K. MAJUMDAR, ED. 2ND
 JUDICIAL DICTIONARY, K.J. AIYER, ED. 15TH 2010

MEMORIAL ON BEHALF OF DEFENDANT Page 4

 TABLE OF CASES

S.No. NAME OF THE CASE CITATION PAGE NO.

1. Abdul Satar v Shah Manilal AIR 1970 Guj. 12.

2. Bhagwandas Fatehchand Daswani & Ors v. (1932) 33 Pun LR 207
HPA International (208) DB.
3. Clough v London & North Western Rail CO. (1861-73) All ER
4. Codrinsh v Lindsay 8 CH 578.
5. Cooper v Cooper LR 6 CH. 15
6. Eldee Velvet & Silk Mills Pvt. V Anant Ram ILR (1971) 2 Delhi 249
Whig
7. Foolwanti Kunwar v Janeshwar Das ILR, 1924, 46:575
8. Harrison v Wells 1966(3) All ER 524
9. Kalyanpur Lime Workers Ltd v State of Bihar AIR 1954 SC 165-1954
SCR 958
10. Jethalal C Thakkar v R N Kapur AIR 1956 Bom 74 (76).
11. K.S. Pillai v S.S. Pillai AIR 1961 Mad 207
12. Karpagathachi v Nagarthinathacha 1965; 3:335
13. Mayait v Official Assignee (1930) 32 BOMLR 125
14. M/S New Bihar Leaves Co. & Ors v State of (1981) 1 S.C.C. 537
Bihar & Ors.
15. RC Chandiok & Anr v Chunni Lal Sabarwal AIR 1971 SC 1238
& Ors (1242, 1243)
16. Ram Kumar v Govind Lal AIR 1999 MP 271
17. Rangaumma v Atchamma 1858 4 MOO Ind APP
1:7 Suth WR 57
18. Shah Mukhan Lal v Shri Kishan Singh AIR 1970 Guj. 12

MEMORIAL ON BEHALF OF DEFENDANT Page 5

 STATEMENT OF JURISDICTION

The plaintiff has filed the present suit in the court of the Civil Judge, XYZ having jurisdiction
to entertain the present case in consonance with the provisions of section 9 of civil procedure
code, 1908.

Section 9 of the CPC reads

“Courts to try all civil suits unless barred- The Court shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
Explanation 1-
A suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to
religious rites or ceremonies.
Explanation II-
For the purposes of this section, it is immaterial whether or not any fees are attached to the
office referred to in Explanation I or whether or not such office is attached to a particular
place."

The present memorandum sets forth the facts, contentions and arguments on the
behalf of Plaintiff.

All of which is respectfully submitted.

MEMORIAL ON BEHALF OF DEFENDANT Page 6

 STATEMENT OF FACTS

1. Nitin Aggarwal (Plaintiff), aged 65 years, is the owner of two textile mills in
Ahmadabad, where he lives with his wife and sons Kunal Aggarwal.
2. Rajiv Kaul (defendant) is the supervisor or manager of one of the mills, whereas
Kunal Aggarwal is the executive chairman of both the mills.
3. On January 13, 2016, Nitin Aggarwal told Kunal that he is planning to purchase some
land to establish a new textile mill, which he again wants him to manage with Rajiv
Kaul.
4. On February 25, 2016, the plaintiff asked the defendant that whether he is interested
to sell the land to Kunal Aggarwal for 50 lacs for establishment of a new factory in
which he again will be the manager. Such offer was refused by defendant.
5. From April, 2016 onwards, there was a 5% hike in the salary of the employees,
however Rajiv got a pay hike of 20% and was now being paid Rupees 60,000 per
month.
6. On August 1, 2016, Rajiv (defendant) was given an accommodation by Plaintiff near
the mill he worked in. the defendant shifted with his family in the house.
7. Nitin did not demand and rent till October 2016, and Rajiv also did not bother to ask
anything in this regard.
8. On November 20, 2016, Nitin came to the house of Rajiv and told him that he offers
to buy his house for 50 lacs Rupees in lieu of him being transferring his land to him.
9. The defendant agreed to the offer and told the plaintiff that the land is being held by
his sister to use the property income till she remains unmarried under a written deed
from her father and the defendant has the remainder interest, which he will transfer to
the plaintiff after the sister of the defendant gets married.
10. The sister got married on November 30, 2017. On February 2018, when asked to
proceed with the transfer, Rajiv refused to execute the transfer deed.

MEMORIAL ON BEHALF OF DEFENDANT Page 7

 ISSUES RAISED

1. Whether the transfer deed was valid?

2. Whether the Plaintiff is entitled for the relief of specific performance of
contract?
3. Whether the Defendant had exercised the option of election under section 35
of transfer of property act?

MEMORIAL ON BEHALF OF DEFENDANT Page 8

 SUMMARY OF ARGUMENTS

1. Whether the transfer deed was valid?

The transfer deed is a valid contract under section 10, Indian contract act. It is a
contingent contract which became enforceable under section 32, Indian Contract Act, as
the specific uncertain event of the marriage of the defendant’s sister had happened. The
interest of the defendant in the property in dispute was contingent, which is transferable
in law.
2. Whether the Plaintiff is entitled for the relief of specific performance of contract?
It is humbly submitted that in the present case, the subject matter of the contract was an
immovable property, which the plaintiff wanted for establishing a new textile mill. The
plaintiff was interested in the property of the defendant, for the said purpose. The plaintiff
offered to buy the house for the defendant and his family for 50 Lakh Rupees in exchange
of his(defendant) transferring his land to the plaintiff, to which, the defendant had agreed.
The Plaintiff performed his part of the contract and bought the house for the defendant.
The defendant refused to perform his part of the contract. It is humbly submitted that the
Plaintiff is entitled to a decree of specific performance of contract under section 10, the
Specific Relief Act, 1963.
3. Whether the Defendant had exercised the option of election under section 35 of
transfer of property act?
According to the agreement, the plaintiff bought the house for the defendant, which was
accepted by him (defendant). The defendant had accepted the house and was living in it
with his family since November 2016. The defendant then refused to perform his part of
the contract. The defendant cannot approbate and reprobate the same transaction.

MEMORIAL ON BEHALF OF DEFENDANT Page 9

 ARGUMENTS ADVANCED

1. Whether the transfer deed was valid?

It is humbly submitted that the transfer deed in the present case is a valid transfer
deed.

1.1 Valid Contract

Under Section 10 of the Indian Contract Act, 1872, it is stated that – All agreements are
contracts if they are made by the free consent of parties competent to contract, for a
lawful consideration and with a lawful object, and are not hereby expressly declared to
be void.

So from this section, we can conclude the following necessary things for making an
Agreement a valid contract:

1. Competent parties
2. Free consent
3. Lawful consideration
4. Lawful object

By fulfilling these 4 necessary requirements, an agreement becomes a contract under Section

10 of the Act. Hence it can be understood that an agreement plus the essentials tabled in
Section 10 will deem the contract valid. Section 2(e) of the Act says that an Agreement is
defined as “every promise and every set of promises forming the consideration for each
other“.

When a person makes an offer to another and that offer is accepted by the other person that
offer becomes a promise and we have already discussed the definition of an agreement above.

It is humbly submitted that, in the present case, the contract between the plaintiff and the
defendant is a valid contract as it was between competent parties having free consent, for
lawful consideration (in exchange for the house bought by the plaintiff for the defendant for
50 lakh Rupees) and lawful object( the plaintiff needed the land for establishing a new textile
mill).

MEMORIAL ON BEHALF OF DEFENDANT Page 10

 1.2 Contingent contract

According to Section 31 of the Indian Contract Act, a contingent contract is one

whose performance is uncertain. The performance of the contract which comes under
this category depends on the happening or non- happening of certain uncertain-events.
On the other hand, an ordinary or absolute contract is such where performance is
certain or absolute in itself and not dependent on the happening or non-happening of
an event. A contingent contract is defined as a contract to do or not to do something,
if some event, collateral to such contract, does or does not happen .

Characteristics of a Contingent Contract

A Contingent Contract must have three essential characteristics. There are:

(1) The performance of the contract depends on the happening or non-happening of a

certain event in future. This dependence on a probable future event distinguishes a
contingent contract from an ordinary contract.

(2) This event must be uncertain, that means happening or non-happening of the future
event is not certain, i.e., it may or may not happen. If the event is hundred percent sure to
happen, and the contract in that case has to be performed any way, such a contract is not
called a contingent contract.

(3) The event must be collateral or incident to the contract.

Therefore, contracts of indemnity, guarantee and insurance are the most common instances of
a contingent contract.

Performance of a contingent contract:

According to section 32, Indian Contract Act, Where the performance of a contingent
depends on the happening of an uncertain future event, it cannot be enforced till the event
takes place. And if the happening of the event becomes impossible, such contracts become
void

In a Case 1, the law allows enforcement of contingent contract after the event upon which it
was contingent has happened.

1
. (1932) 33 Pun LR 207 (208) DB.

MEMORIAL ON BEHALF OF DEFENDANT Page 11

In Bhagwandas Fatechand Daswani and others v. H.P.A. International,2 An agreement
was entered into by plaintiff with second defendant for purchase of immovable property in
which he had life interest and others who are not parties to agreement had reversionary
interest. As per clause in agreement second defendant, at his own cost and expenses, should
obtain sanction of High Court in respect of entire interest of property inclusive of
reversionary interest of remainder men - Agreement further provides that in event, sanction is
not granted by court then agreement shall stand cancelled. It was held that the Contract is
Contingent Contract, All Contingent Contracts are conditional and nature of condition
renders contract contingent. In Contingent Contract, enforceability depends upon an uncertain
future event and it cannot be enforced until that event has happened and once such uncertain
event occurs, the contract can be enforced.

In a Case3, there was an agreement for sale of land. The vendor was in possession of Surat
Akaun. Application was made for title. It was held that it was a conditional sale to be
completed when the vendor’s application was approved by the state. The contract is clearly
enforceable in law.

In Jethalal C Thakkar v. R.N. Kapur4, it was held a conditional obligation is a quasi-

obligation consisting a chance of or possibility that a real obligation may already exist or may
come into existence in the future. The fulfillment of the condition is the transformation of that
potentiality into actuality.

1.3 Contingent interest

Contingent Interest (Section 21)

Where, on a transfer of property, an interest therein is created in favour of a person to take
effect only on the Happening of a Specified Uncertain Event, or if a specified uncertain
event shall not happen, such person thereby acquires a Contingent Interest in the property.
Such interest becomes a vested interest, in the former case, on the happening of the event, in
the latter, when the Happening of the Event becomes Impossible.

2
. O.S.A. No. 202 of 1988. D/d. 24.4.2001
3
. (1976) 2 Malayan LJ 64 (65).
4
. AIR 1956 Bom 74 (76).

MEMORIAL ON BEHALF OF DEFENDANT Page 12

Exception : Where, under a transfer of property, a person becomes entitled to an interest
therein upon attaining a particular age, and the transferor also gives to him absolutely the
income to arise from such interest before he reaches that age, or directs the income or so
much thereof as may be necessary to be applied for his benefit, such interest is not
contingent.

A Contingent Interest is one in which neither any Proprietary Interest nor a right of
enjoyment is given at present, but both depend upon Future Uncertain Events.

Three Characteristics of Contingent Interest :

1. Its dependent upon the Fulfillment of condition.

2. If the Transferee dies before obtaining possession, the Contingent Interest fails and
the property Reverts to the Transferor.

3. It is Transferable. It is quite different from a mere chance ( spes succession). A

contingent interest not being a mere possibility is a well recognized form of property
which is capable of being transferred. Such a transfer would effectually pass to the
transferee all the interest which the transferor possessed when the contingency
happened and the interest vested in possession.

Difference between Spes Successionis and contingent interest.

While Spes Successionis cannot be transferred, contingent interest is transferable. “A
contingent interest is something quite different from mere possibility of a like nature of an
heir apparent succeeding to the estate, or the chance of a relation obtaining a legacy, and also
something quite different from mere right to sue. It is well ascertained form of property.

Contingent ownership is based not upon the mere possibility of future acquisition but upon
the present existence of an incomplete title. The distinction between contingent interest and
spes successionis may be understood by the following illustrations :
(i) A, a Hindu owing separate property, died leaving a widow B and a brother C. C has
simply a chance of becoming the owner of A's estate.
(ii) A, a Hindu, owing separate property makes settlement of his property to his wife B for
life and then to his son, if he should have one, and in default of a son of C. C's interest is

MEMORIAL ON BEHALF OF DEFENDANT Page 13

contingent and is transferable. His contingent interest is something more than a simple chance
of becoming the owner of it. He has an interest contingent on A having no son.5

Where an estate is conveyed to A until he shall marry and after that event to B, B’s
interest in the transfer is contingent because it depends upon a condition precedent, viz.
the marriage of A, an event which may or may not happen. B has at present no
proprietary interest in the estate, and he cannot alienate it. But as soon as A marries,
the contingent interest of B becomes a vested interest. In a contingent interest, the
transfer is not complete until the specified event happens or does not happen.6

In Foolwanti Kunwar v. Janeshwar Das7, The possibilities referred to in the clause(a) of

section 6, Transfer of property Act, are bare possibilities and not possibilities coupled with an
interest such as contingent remainders and future interest.

In Karpagathachi v. Nagarthinathacha8, The present interest of a widow in the property

inherited by her from her husband can be transferred along with the incidental right of
succeeding to the entire estate of her husband on the death of her co widow. With reference to
contingent interest the judicial committee said "It is something quite different from a mere
possibility of alike nature of an heir apparent succeeding to the estate or the chance of a
relation obtaining a legacy and also something quite different from a mere right to sue. It is a
well ascertained form of property-- It certainly has been transferred in this country for
generations -- in respect of which it is quite possible to raise money and to dispose of it in
any way the beneficiary chooses."

Mayait v. Official Assignee,9 the contingent interest which the children took, whether they
took it under the first, second and third schedules or under the fourth schedule, was
something quite different from a mere possibility of a like nature of an heir-apparent
succeeding to the estate, or the chance of a relation obtaining a legacy, and also something
quite different from a mere right to sue. It is a well ascertained form of property- it certainly
has been transferred in this country for generations-in respect of which it is quite possible to
raise money and to dispose of it any way that the beneficiary chooses.

5
. http://mayank-lawnotes.blogspot.com/2007/01/transfer-of-property.html
6
. Dr. G.P. Tripathy, The Transfer of Property Act, 19th Ed., central law publications, Allahabad.
7
. ILR, 1924, 46:575
8
. 1965; 3:335
9
. (1930) 32 BOMLR 125

MEMORIAL ON BEHALF OF DEFENDANT Page 14

It is humbly submitted that, In the present case, the defendant Rajiv had a contingent
interest in property in dispute which was to be vested in him after the marriage of his
sister. The transfer of such contingent interest was valid as contingent interests are
transferable. The transfer was complete when the interest became vested after the
marriage of the sister of the defendant.

1.4 Transfer contingent on happening of a specified uncertain event

According to Section 23, Transfer of property Act,—Where, on a transfer of property, an

interest therein is to accrue to a specified person if a specified uncertain event shall happen,
and no time is mentioned for the occurrence of that event, the interest fails unless such event
happens before, or at the same time as, the intermediate or precedent interest ceases to exist.

It is humbly submitted that, in the present case, the transfer of the property in dispute
was depended on the contingency of the sister of the defendant getting married. The
sister of the defendant got married on 30th November, 2017 and thus the specified
uncertain event happened and the transfer became absolute.

MEMORIAL ON BEHALF OF DEFENDANT Page 15

 2. Whether the Plaintiff is entitled for the relief of specific performance of
contract?

Section 10 of the Specific Relief Act, 1963, states “Cases in which specific performance of
contract is enforceable.

Except as otherwise provided in this Chapter, the specific performance of any contract may,
in the discretion of the court, be enforced-
(a) when there exists no standard for ascertaining actual damage caused by the non-
performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non-
performance would not afford adequate relief.

Explanation: Unless and until the contrary is proved, the court shall presume—
(i) that the breach of a contract to transfer immovable property cannot be adequately
relieved by compensation in money; and
(ii) ….

(a)…..
(b)…..”

According to Section 10 of Specific Relief Act 1963 in the following conditions

specific performance of the contract is enforceable10:
 When there exist no standard for ascertaining actual damage: It is the situation in
which the plaintiff is unable to determine the amount of loss suffered by him. Where the
damage caused by the breach of contract is ascertainable then the remedy of specific
performance is not available to the plaintiff. For example, a person enters into a contract
for the purchase of a painting of dead painter which is only one in the market and its
value is unascertainable then he is entitled to the same.
 When compensation of money is not adequate relief: In following cases compensation
of money would not provide adequate relief:
1. Where the subject matter of the contract is an immovable property.
2. Where the subject matter of the contract is movable property and,

10
. Justice P.S. Narayana, Law of specific relief, 6th edition, Asia Law House ,Hyderabad, 2007

MEMORIAL ON BEHALF OF DEFENDANT Page 16

3. Such property or goods are not an ordinary article of commerce i.e. which could be sold
or purchased in the market.
4. The article is of special value or interest to the plaintiff.
5. The article is of such nature that is not easily available in the market.
6. The property or goods held by the defendant as an agent or trustee of the plaintiff.

In Eldee Velvet And Silk Mills Pvt. V Anant Ram Whig11, There was an agreement of sale
of leasehold rights purchased at Government auction with term that the sale will be
completed after obtaining necessary permission from the government. It was held that the
agreement could be specifically enforced under Specific Relief Act an O21, R35, CPC.

In R. C. Chandiok & Anr vs Chuni Lal Sabharwal & Ors12, R. having imperfect title
agreeing to sell his leasehold right in plot to A. there was a condition of lease requiring R to
obtain sanction of authority of transfer- R forfeited earnest money and cancelled contract
without applying for sanction. A filed suit for specific performance. A was willing and ready
to perform his part of contract. It was held that on facts A was entitled to decree for specific
performance.

13
In Ram Karan v. Govind Lal, there was an agreement for the sale of agricultural land.
The buyer has paid full sale consideration to the seller, but the seller even then avoided
executing the sale deed as per the agreement. The buyer brought an action for the specific
performance of the contract, viz., he prayed for a direction to the seller to execute the sale
deed. It was held that the case was covered by section 10(b) of the Specific relief Act, i.e.,
payment of compensation in money would not afford adequate relief, i.e., payment of
compensation in money would not afford adequate relief, and, therefore, the seller was
directed to specifically perform the contract by executing sale deed in favour of the buyer.

Section 13 in The Specific Relief Act, 1963

(1) Where a person contracts to sell or let certain immovable property having no title or only
an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has
the following rights, namely:—

11
. ILR (1971) 2 Delhi 249.
12
. AIR 1971 SC 1238 (1242, 1243).
13
. AIR 1999 MP 271.

MEMORIAL ON BEHALF OF DEFENDANT Page 17

(a) if the vendor or lessor has subsequently to the contract acquired any interest in the
property, the purchaser or lessee may compel him to make good the contract out of such
interest;

(b) where the concurrence of other persons is necessary for validating the title, and they are
bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel
him to procure such concurrence, and when a conveyance by other persons is necessary to
validate the title and they are bound to convey at the request of the vendor or lessor, the
purchaser or lessee may compel him to procure such conveyance;

(c) where the vendor professes to sell unencumbered property, but the property is mortgaged
for an amount not exceeding the purchase money and the vendor has in fact only a right to
redeem it, the purchaser may compel him to redeem the mortgage and to obtain a valid
discharge, and, where necessary, also a conveyance from the mortgagee;

(d) where the vendor or lessor sues for specific performance of the contract and the suit is
dismissed on the ground of his want of title or imperfect title, the defendant has a right to a
return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for
such deposit, interest and costs on the interest, if any, of the vendor or lessor in the property
which is the subject-matter of the contract.

(2) …

In Abdul Satar v. Shah Manilal,14 the defendant was competent to enter into an agreement
but was unable to transfer in view of certain statutory restrictions, the plaintiff can compel the
defendant to make good the contract after such property is restored to the defendant. The
court held in this aspect:

‘’ We have already found that the defendant was competent to pass any such
agreement and bind himself and that it was valid. That right of the defendant to fulfil the
contract, or of the plaintiff to enforce that contract had merely remained suspended till such
time that the property came back to him. On his getting back the property he was bound to
make good the contract. ‘’

14
. AIR 1970 Guj. 12.

MEMORIAL ON BEHALF OF DEFENDANT Page 18

In Kalyanpur Lime Workers ltd v State of Bihar,15 the government agreed to let the lease
of the hills to kalyanpur lime workers ltd, but the lease could not be executed as the forfeiture
of the lease of a previous lessee was held invalid by the court. When the lease of the previous
lessee expired, Kalyanpur works Ltd, wanted the execution of the lease for a period during
which the lease to it would have continued if it had been granted in 1934. It was held, that
where a person contracts to sell or let certain property having only imperfect title thereto if
the vendor or lessor has subsequently to the sale or lease acquired any interest in the property,
the purchaser or the lessee may compel him to make good the contract out of such interest.

It is humbly submitted that in the present case, the subject matter of the contract was
an immovable property, which the plaintiff wanted for establishing a new textile mill.

The plaintiff was interested in the property of the defendant, for the said purpose, since
February, 2016, and in order to convince the defendant, the plaintiff –

 gave him(defendant) a 20% hike in salary,

 offered that the defendant will be the manager of the said new textile mill,

 And gave accommodation to the defendant, where he( defendant) lived with his
family without paying any rent since August,2016

In November, 2016, the plaintiff offered to buy the house for the defendant and his
family for 50 Lakh Rupees in exchange of his(defendant) transferring his land to
the plaintiff, to which, the defendant had agreed.

The Plaintiff performed his part of the contract and bought the house for the
defendant, in which the defendant is currently staying with his family. The
defendant refused to perform his part of the contract.

The property in dispute is clearly of special interest to the Plaintiff and thus, the
plaintiff seeks specific performance of contract.

15
. AIR 1954 SC 165-1954 SCR 958.

MEMORIAL ON BEHALF OF DEFENDANT Page 19

 3. Whether the Defendant had exercised the option of election under section 35 of
transfer of property act?

3.1 Doctrine of Election:

In Cooper v Cooper16 , The doctrine of election may be stated, as follows, he who accepts a
benefit under a deed or will or other instrument must adopt the whole contents of the
instruments, must confirm to all its provisions and renounce all rights that are inconsistent
with it. This principle is often put in another form that a person cannot approbate and
reprobate the same transaction.

In Codrinsh v Lindsay17, The foundation of the doctrine of the election is that the person
taking a benefit under an instrument must also bear the burden. In other words, he cannot take
under and against one and the same instruments.

In K.S. Pillai v S.S. Pillai18, “The doctrine of election is 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
the benefit under an instrument or transaction of his choice must adopt the whole of it and
renounce everything in consistent with it. The fact that the alienation is as such void is no bar
to the applicability of doctrine of election which is rested on equitable principle.”

It is humbly submitted that in the present case, there was an agreement between the parties
that - the plaintiff will buy the house for the defendant for 50 Lakh Rupees in lieu of the
defendant transferring his land to the plaintiff for the purpose of establishing a new textile
mill on that land.

According to the agreement, the plaintiff bought the house for the defendant, which was
accepted by him (defendant). The defendant then denied transfer of his land to the plaintiff as
per the contract.

The defendant cannot take the benefit and deny to bear the burden under the terms of the
agreement.

16
. LR 6 CH. 15.
17
. 8 CH 578.
18
. AIR 1961 Mad 207.

MEMORIAL ON BEHALF OF DEFENDANT Page 20

3.2 Essentials for election under section 35, Transfer of property act:

If a person transfers some property which he has no right to transfer, and the same transaction
confers any benefit on the owner of the property, such owner must elect either to confirm
such transfer or reject it. If he rejects the transfer, he shall relinquish the benefit conferred
upon him and the property will revert back to himself or his representative as if it had not
been disposed of.

Conditions for application of the Doctrine of Election :

The following are the essentials for the application of the Doctrine of Election:

1. The transferor should dispose of the property in which he has no right to transfer.

2. The transferor must confer a benefit to the real owner of the property.

3. Both the benefits conferred and the transfer made must be part of the same transaction or
document.

4. The owner is now given a choice of election either to accept the benefit and allow the
transfer or to reject both.

The basic of this doctrine is that a person who gets the benefits must also bear the burden.
Generally, the benefit is greater in value than the burden. The benefit should be express and
particular. It must be in the same transaction. The silence of the transferee for two years
shows the acceptance of benefit and approval of the transfer of his property to a third person.

The 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”.

MEMORIAL ON BEHALF OF DEFENDANT Page 21

EXCEPTIONS

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.

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 the circumstances
that might influence a prudent man into making an election.

This knowledge of the circumstances can be assumed if the person who gains the benefit
enjoys it for a period of more than two years.

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 the reasonable time, if
he still does not also still elect, the original owner shall be assumed to have elected the
validation of the property transfer as his choice.

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

UNDERSTANDING THE PRINCIPLE

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.19

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. 20

19
. Darashaw J. Vakil, The Transfer of Property Act ( 2nd Edn. Wadhwa Nagpur 2004) 334
20
. ibid

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Modes of Election

The election by the owner can either be direct or indirect. In direct election, it is simply
through communication about the elected choice or option. Though, in case of an indirect
election, “the acceptance of the benefit by the original owner is subject to two conditions:

1. He has to be aware of his duty to elect, and

2. There must be proof of knowledge of circumstances which would influence the

judgment of a reasonable man in making an election21 :

Enjoyment for two years of the benefit by the person on whom it is conferred with any
dissent.”

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.

It is humbly submitted that in the present case, there was an agreement between the
parties that - the plaintiff will buy the house for the defendant for 50 Lakh Rupees in
lieu of the defendant transferring his land to the plaintiff for the purpose of establishing
a new textile mill on that land.

According to the agreement, the plaintiff bought the house for the defendant, which was
accepted by him (defendant). The defendant had accepted the house and was living in it
with his family since November 2016.

The defendant had full knowledge that he had the duty to elect and he accepted the
benefit (house for 50 Lakh rupees) given to him by the plaintiff with full knowledge.
The defendant then denied transfer of his land to the plaintiff as per the contract.

The defendant cannot take the benefit and deny to bear the burden under the terms of
the agreement.

In the case of Rungamma v. Atchamma22 , the Privy council referred 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.

21
. B.B Mitra, Transfer of Property Act (18th edn, Kamal Law House 2007) 206
22
. 1858 4 MOO Ind APP 1:7 Suth WR 57

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In Clough v. London and North Western Rail Co.23,it was held , “ if a man once
determines his election, it shall be determined forever”. In the said case, the question was
whether in a contract of fraud, whether the person on whom the fraud was practiced had
elected to avoid the contract or not. The court held, that as long as such party made no
election, it retained the right determine it either way, subject to the fact that an innocent third
party must not have acquired an interest in the property while the former party is deliberating.
If a third party has acquired such an interest, the party who was deliberating will lose its right
to rescind the contract. Once such party makes its election, it is bound to its election forever.

In Harrison v. Wells24, the doctrine of election was explained by lord justice Salmon by
holding “it is founded on the consideration, that it would be unjust to allow the man who has
taken full advantage of a lease to come forward and seek to evade his obligations under the
lease by denying that the purported landlord was the landlord.”

In M/s New Bihar Biri Leaves Co. & Ors V. state of Bihar & Ors 25, the court observed
that it is a fundamental principle of general application that if a person of his own accord,
accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere
to and abide by some of the terms of the contract which proved advantageous to him and
repudiate the other tems of the same contract which might be disadvantageous to him. The
Maxim, qui Approbat non reprobate (one who approbates cannot reprobate) applies in our
laws too.

In Shah Mukhun Lal v. Shri Kishan Singh26, it was held that, The doctrine of election,
which is the principle of highest equity, applies to all kinds of property, vested, contingent,
reversionary and remote as well as well as immediate interests, whether movable or
immovable.

23
. (1861-73) All ER
24
. 1966(3) All ER 524
25
. (1981) 1 S.C.C. 537.
26
. 12 M.I.A. 157

MEMORIAL ON BEHALF OF DEFENDANT Page 24

 PRAYER

Wherefore, in the light of the fact used, issue raised, arguments advanced and the authorities
cited, it is most humbly and respectfully prayed that this Hon’ble court may be pleased to
adjudge and declare that:

1. That the suit of the plaintiff for possession by way of specific performance of
contract be decreed in favour of the plaintiff by directing the defendant to
execute the transfer deed in favor of the plaintiff.
2. That costs of litigation be awarded in favor of the plaintiff.

According to what is just and good, it is an appeal of the counsel to Hon’ble Court to adjudge
the above prayers, and grant any other relief which the Hon’ble Court may be pleased to
grant and as deemed fit in the interest of justice, equity and Good Conscience.

All of which respectfully submitted

For the act of kindness, the Plaintiff shall be duty bound forever.

All of which is most humbly prayed

(Counsel for the Plaintiff)

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