Critical Exploration “The Doctrine of Election”

In the light of Transfer of Property Act-1882

The 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.1 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 SC2 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 can not 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 .3
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 .

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 ---

1
Codrington vs Lindsay 1873, 8 ch 578
2
A.I.R.(1965)S.C.241
3
Mst.Dhanpatti vs. Devi Prasad and others ,(1970)S.C.D 174
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.

Critically analysis 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 its 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 Cooper4, Held that the Doctrine of Election, applies on every instrument and every
type of property movable or immovable .

Essential ingredients for the Doctrine of Election

Those are the essential ingredients for this doctrine :-
1) The transferor must not be owner of the property which he transfers .
2) The transferor must at the same time grant some property , in the same instrument , out of his
own , to the owner of property .
3) 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 .
4) 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 .
5) The owner taking no benefit under a transaction directly , but diverting a benefit under it
indirectly , is not put to election .
6) Question of election does not arise when benefit is given to a person in a different capacity .5

4
L.R.7,H.L 53 at page 69
5
Safique hossain, Transfer of property act 1882, 1 st edition in April 2010, p.40
The conditions necessary for the Application of the doctrine of
election:
* 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 kasim 6In 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 gives
1000 tk to Mamun’s Son so Mamun will not be put to election although he gets benefit
indirectly.

* Doctrine of election section 35 first part always applicable for transferor:

Whether transferor believe him as a real owner or not of transfer property the first part of this
section always applicable for him.

Exception to the last preceding doctrine :

6
1903 ILR 30
 * 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.7

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.8

Illustration: Joy transfer a property Firoz which is owned by Abu Bakar and gives benefit Abu
Bakar at the same instrument. Now Abu Bakar accept benefit 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 for two years 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.9

* 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.10

7
Section 35,Transfer of property act [iv of 1882]
8
ibid
9
Indian succession act 1925 section 188[1]
10
Section 35,Transfer of property act [iv of 1882]
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.11

* 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.12

11
ibid
12
Shukla Dr.S.N. Transfer of property act,24th edition:2002,reprint 2010.page 87.