2.

Doctrine of election: Where a donor A gives his own property to B and in the same
instrument claim falsely to give B’s property to C, B will be put to an election, either accept the
benefit granted to him by the donor and give away his own property to C or retain his own
property and refuse to accept the property of A on condition. But B cannot retain his property
and at the same time take the property of A.
The doctrine of equitable election have two different ways to be applied in cases and
circumstances such the election of legal proceedings and a election between properties. In the
doctrine of equitable election of properties, the applicability of the maxim is where the person
who gives his own property to another person while at the same time, had claimed to give the
other person’s property to a third party, and it is usually happened when the person who gives his
own property had made a mistake. In this equitable doctrine, a person cannot accept and reject
the same instrument.1 In Malaysia, according to Section 35 of the Transfer of Property Act 1882,
it is provided that where a person professes to transfer property which he has no right to transfer
and such part is the same transaction which confers any benefit on the owner of the property, the
owner must elect either to confirm such transfer or to dissent from it. In the latter situation, he
shall relinquish the benefit conferred, and the benefit relinquished shall revert to the transferor or
his representative as if it had not been disposed of , nevertheless, where the transfer is gratuitous,
the transferor has, before the election died, or otherwise, become incapable of making a fresh
transfer and in circumstances 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. It means that person may not take benefit and reject a connected trouble or,
choose between parts of a single transaction. The “election” part is where B will have to choose
between taking A’s property in full or called taking under the instrument or keeping his own
property which is taking against the instrument. 2 If B is taking under the instrument and took A’s
property, he then has an equitable duty to hand his own property to C. Conversely, if B is taking
against the instrument and keeping his own property, he is required to compensate C for the
disappointment out of A’s property suffered by C.3 So, B has to give up A’s property. Choice
made by B who is the beneficiary as to which property, is the reason that B’s election is said to
be election of distinct properties. Usually, the doctrine of election will require the condition that
the testator must intentionally arrange the property. The property must also belong to someone
other than the testator but the testator made it by mistake to claim the property towards the third
party, and also the will must advise the other property to its actual owner.
In the case of TAN KOK SIANG V TASIK KEMUNTING SDN BHD4, the appellant and the
respondent had two contracts, the first being an oral contract between the two parties where the
appellant was employed as project manager for a housing project and the second being a sale and
purchase agreement between the parties for the purchase of one unit of terrace house by the
appellant. The respondent claimed that it had advanced the sum of RM500,000 as consideration
for the employment contract in the form of a discount for the purchase of the house by the
appellant. The appellant had resigned before the project was completed and his letter of
resignation was accepted by the respondent's CEO. Problem arose when the respondent's CEO
asked for the refund of the said RM500,000 discount together with interest because the appellant
1
Birmigham v Kirwan [1805] 2 Sch & Lef 444
2
John McGhee (ed), Snell’s Equity (Sweet & Maxwell, 32nd ed, 2010) 141 [6-013] ff (‘Snell’s Equity’)
3
Lissenden v Bosch [1940] AC 412
4
2018 6 MLJ 652
had resigned prematurely. On appeal, the respondent's claim was dismissed and allowing the
appellant's counterclaim, the appellant's promise to stay until the end of the project was not a
term which was fundamental to the root of the employment contract. What was fundamental
were the significant responsibilities that the appellant was entrusted with and which he had
attended to successfully. It was apparent that the appellant's decision to leave was due to the
respondent's own breach in not paying the agreed amount of RM1m after the appellant had
substantially and successfully performed his duties. As a party in breach, the respondent was not
entitled to terminate the contract and to a refund of the advance. Where that right properly exists
in law and on the facts, the innocent party can elect to either terminate or rescind or, carry on
with the contract. The common law doctrine of election applies.
In the case of SISTEM LINGKARAN LEBUHRAYA KAJANG SDN BHD V ORCHARD
CIRCLE SDN BHD & ORS5, Orchard Circle Sdn Bhd owned two parcels of land which it
intended to develop into a commercial centre. Orchard Circle then discovered that part of the
lands had been acquired by the authority for the purpose of building a highway in the Kajang
area, known as the SILK Highway. This led to Orchard Circle making various enquiries from the
relevant authorities as to the status of the acquisition in terms of compensation. The land
administrator awarded Orchard Circle nominal compensation of RM1 for surrendering a portion
of the lands to the state authority and at the second land enquiry, Orchard Circle argued that it
had never surrendered any part of its lands to the state authority. The land administrator rejected
awarded Orchard Circle nominal compensation of RM1 and awarded RM514,948 as
compensation for the balance of the acquired land which was not surrendered. It was submitted
that Orchard Circle had the opportunity to appeal against the decision of the judge when he
refused to grant a declaration that the acquisition exercise is null and void and had in fact
remitted the land inquiry for further continued hearing before the land administrator. The
doctrines of estoppel and res judicata operated to bar Orchard Circle from re-ventilating the issue
of the lapsed Form D. It was not just and equitable to allow Orchard Circle to ventilate that issue
in the second judicial review application. In this case, a party to an action has at least two
alternative and mutually exclusive courses open to him. If by words or conduct he elects to
pursue one of them and thereby leads his opponent to believe that he has abandoned the other, he
may be precluded from later changing course. The doctrine of election was applied to the law of
estoppel.
In the case of TETUAN THESELIM MOHD SAHAL & CO & OOR V TAN BOON HUAT &
ANOR6, the respondents appointed the appellant to prepare a sale and purchase agreement for
the purchase of a property located in Kota Damansara. After the appellant obtained the consent
to transfer the property, the respondents were informed of the completion and extended
completion dates of the SPA. However, the respondents had failed to secure a bank loan to pay
the balance purchase price within the stipulated time period to complete the SPA. The vendor
refused to grant any further extension of time to the respondents and terminated the SPA and
forfeited the respondents' deposit of RM190,000. Consequently, the respondents filed an action
alleging negligence on the part of the appellants. On appeal, the respondents submitted that they
were deprived of the opportunity to terminate the SPA by the failure of the appellants to
terminate the SPA as instructed by the respondents. The appellants disputed the failure by the
appellants to advise the respondents about the progress of the transaction and that the appellants
5
2018 2 MLJ 243
6
[2017] 4 MLJ 207
could not proceed with the loan documentation unless instructed by the respondents' financiers.
It was held on appeal that the respondents were estopped from alleging that the appellants were
negligent for not complying with their instructions to terminate the SPA. The respondents were
approbating and reprobating in adopting such an approach which the law does not permit. A
person cannot say at one time that a transaction is valid and thereby obtain some advantage, to
which he could only be entitled on the footing that that it is valid, and then say it is void for the
purposes of securing some other advantage. That is to approbate and reprobate the transaction.
The doctrine of election applied where it is not confined to instruments.

REFERENCES

https://www-lexisnexis-com.libproxy.unisza.edu.my/my/academic/

McGhee, J., ( 2018) Trusts, Wills and Probate Libr, Trusts Law, Sweet & Maxwell. 33rd Edition,
4th Supplement.