The Doctrine of Election: INTRODUCTION
Election is an obligation, to choose between two inconsistent or alternative rights in a case where there is a clear intention of the ‘grantor’ that the ‘grantee’ should not enjoy both. The foundation of the doctrine of election is that the person taking a benefit under an instrument must also bear the burden.
In other words, a person cannot take under and against one and the same instrument. Suppose, by a deed A gives to B a house belonging to C, and by the same instrument gives another property belonging to himself to C.
C is entitled to A’s property only upon the condition of C’s conforming to all the provisions of the instrument by renouncing the right to his own property given in favor of B; he must consequently make his choice, or as it is technically termed “he is put to his election”, to take either under or against the instrument. If C elects to take under the instrument, he must relinquish in favor of B his property given to B by A; and takes the property which is given to him by A.
Principle underlying Doctrine of Election:
Allegans contraria non est audiendus meaning, he is not to be heard who alleges things contradictory to each other.
Further this principle was explained by Lord Hather in Cooper v. Cooper  :
“If it is found that the instrument purports to deal with something which it was beyond the power of the donor or settlor 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 of election may be stated in the words of Maitland as follows: “He who accepts a benefit under a deed or will or another instrument must,
(a) adopt the whole contents of that instruments;
(b) conform to all its provision; and
(c) renounce all rights that are inconsistent with it.”
The same principle is stated in White and Tudor’s leading case Equity, as follows:
“Election is the obligation imposed upon a party by Courts of Equity to choose between two inconsistent or alternative rights of claims in a case where there is a clear intention of the person from whom one derives that he should not enjoy both. That he who accepts a benefit under a deed or will adopt the whole contents of the instrument.”
Section 35 of Transfer of Property 1882 act reads:
Election when necessary
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 the 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.
Essential conditions for the application of the doctrine of election are as follows:-
- The transferor must not be the owner of the property that he transfers.
- The transferor must transfer the property of the 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 the property.
- The two transfers i.e. transfer of the property of the owner to the transferee and conferment of benefit on the owner of the property must be made by the same transaction. The question of election does not arise if the two transfers are made through two separate instruments.
- 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 elect.
- The question of election does not arise when the benefit is given to a person in a different capacity.
- The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of gift professes to transfer it to B, giving by the same instrument Rs. 1,000 to C. C
- elects to retain the farm. He forfeits the gift of Rs. 1,000.
- In the same case, A dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B.
- 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 one capacity takes a benefit under the transaction may in another dissent therefrom.
Effect of election against the transfer.- Where the owner dissents from the transfer of his property-
(i) he must relinquish the benefit;
(ii) the benefit intended for him would then revert to the transferor.
For instance: A gives a gift to C of a property that belongs to B and by the same deed gives Rs. 42000 to B. If B does not agree to the transfer of his property to C, he cannot claim Rs. 42000, which reverts to A.
Exceptions to Section 35:
- 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 inquiry 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 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.
- A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B.
- 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.
Know about Classification of property under Hindu Law
Application of Doctrine of Election:
Under Hindu Law:
The principle underlying the doctrine of election has always been applied to Hindus. In the case of Rungamma v. Atchamma, 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.
Under Muslim Law:
In the case of Sadik Hussain v. Hashim Ali, the Privy Council applied the doctrine of election to Muslims also.
Under English Law:
In this respect of the doctrine of election, the English Law is different because there the done 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.
Mode of election: Election may be expressed or implied by conduct. Where the election is made in expressed words, it is final and conclusive. Where, however, it is not so made, but the transferee (1) being aware of his duty to elect, and (2) having full knowledge of such matters as the value of properties, accepts the benefit given to him by the transaction, such action on his part constitutes and election in favour of the transaction. Hence it follows that if a person acts through ignorance or mistake, the doctrine gives it away.
The Indian Courts have applied this doctrine in several cases. In Ramakottaya v. Viraghavayya, it was observed that a person cannot approbate doctrine in Bhau Ram v. Baij Nath Singh, and Beepathuma v.Velasari Shankarnarayana Kadamguliyaya .
Mst. Dhanpatti v. Devi Prasad and others :
The law pertaining to election is set out in section 35(1) of the Transfer of Property Act 1882. Before there can be an election there must be (a) transfer of 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.
In the instant case, the plaintiff did not base their claim either on the ground of election or on estoppel. They sued solely on the basis of their title founded on the gift deed. No issue as regards election or estoppel was framed nor any contention in that regard urged in the trial court, or in first Appellate Court.
The contention based on the doctrine of election appeared to have been raised for the first time in the High Court. Therefore, there was absolutely no basis for the finding reached by the High court that the appellant had elected to accept half the suit property absolutely in lieu of her right to succeed to the estate as the heir on the death of her mother.
Cooper v. Cooper 
The parties had been married for 26 years. Over a two year period, they negotiated a separation agreement which gave the wife one-half of the husband’s military pension; virtually all of the matrimonial assets, including the home; and fixed-term spousal support for six years from the date of the agreement at an amount equal to 40 percent of the husband’s employment income.
Following the separation, the wife continued to operate a llama farm at a deficit each year, using up some of her capital and all of her income. After the fixed-term spousal support ended, she applied to set aside the agreement and sought indefinite spousal support on the basis that the agreement did not meet the objectives of the Divorce Act when negotiated because self-sufficiency was not an attainable goal within the time allowed.
The husband had remarried and his new wife was seriously ill and unable to work other than minimally. In anticipation of the end of his support obligation, they had adopted a child.
The Corollary Relief Judgment incorporating the terms of the separation agreement is granted; the agreement is upheld. Instead of embarking upon a career or undertaking retraining to be in a position to eventually pay some of her living expenses during the 8.5 years that she was receiving spousal support, the wife chose to become a hobby farmer and pursue a passion which she knew, or ought to have known, would not contribute to her financial well-being.
The wife had received over two-thirds of the parties’ assets and at the time that the agreement was made, financial independence to the standard that prevailed during the marriage was a realistic and attainable goal with a combination of investment and employment income.
Further sections 180-190 of the Indian Succession Act 1956 deal with the concept of ‘Election’. They are discussed below:
- Section 180 Circumstances in which election takes place—Where a person, by his will, professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefit which may have been provided for him by the Will.
- Section 181 Devolution of interest relinquished by owner- An interest relinquished in the circumstances stated in section 180 shall devolve as if it had not been disposed of by the will in favor of the legatee, subject, nevertheless, to the charge of making good to the disappointed legatee the amount or value of the gift attempted to be given to him by the will.
- Section 182 Testator’s belief as to his ownership immaterial- The provisions of sections 180 and 181 apply whether the testator does or does not believe that which he professes to dispose of by his will to be his own.
- 183. Bequest for man’s benefit how regarded for purpose of election- A bequest for a person’s benefit is, for the purpose of the election, the same thing as a bequest made to himself.
- Section 184 Person deriving benefit indirectly not put to election- A person taking no benefit directly under a will, but deriving a benefit under it indirectly, is not put to his election.
- Section of 185 Person taking in individual capacity under will may in other character elect to take in opposition– A person who in his individual capacity takes a benefit under a will may, in another character, elect to take in opposition to the will.
- Section 186 Exception to provisions of last six sections– Notwithstanding anything contained in sections 180 to 185, where a particular gift is expressed in the will to be in lieu of something belonging to the legatee, which is also in terms disposed of by the will, then, if the legatee claims that thing, he must relinquish the particular gift, but he is not bound to relinquish any other benefit given to him by the will.
- Section 187 When acceptance of benefit given by will constitutes election to take under will- Acceptance of a benefit given by a will constitutes an election by the legatee to take under the will, if he had knowledge of his right to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances.
- Section 188 Circumstances in which knowledge or waiver is presumed or inferred- Such knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the will without doing any act to express dissent.Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the persons interested in the subject-matter of the bequest in the same condition as if such act had not been done.
- Section 189 When testator’s representatives may call upon legatee to elect- If the legatee does not, within one year after the death of the testator, signify to the testator’s representatives his intention to confirm or to dissent from the will, the representatives shall, 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 will.
- Section 190 Postponement of election in case of disability- In case of disability the election shall be postponed until the disability ceases, or until the election is made by some competent authority.
Section 35 of the Transfer of Property Act, 1882 explains the concept of the Doctrine of Election. Doctrine of Election 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 titleholder must elect his opinion to either validate such transfer of property or reject it; upon rejection, the benefit shall be relinquished back to the transferor.
If it is gratuitous like a gift, pay the property value, and even the election before the transferor died, his representative pay whole or exact value. In case the transferor or his representative fails to pay or give the property, he claimed against the transferor party, not against the real owner. There are certain rules for making the election that is compulsory to follow, otherwise this process of electing will not take place.
However, there are certain exceptions to the rule; for instance: time limit for election,
If the owner of the property does not within one (1) year after the date of the transfer signifies to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representatives 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. Even though The Indian Succession Act 1956’s Section 180-190 deals with the concept of election.
This article is written by Kush Bhardwaj and edited by Rupreet Kaur Dhariwal.
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 L.R.7, H.L 53 a p.69
 Vol. 1, 8th Ed.pp.444
 (1858) 4 Moo Ind App 1: 7 Suth WR 57.
 (1916) 38 All 627; 36 IC 104.
 AIR (1929) Mad. 502 (F.B) L.R 52 Mad. 556
 AIR (1961) SC 1327; (1962) 1 S.C.R 358
 AIR (1965) S.C. 241 : (1964) 5 S.C.R 836
 1970 S.C.D 174.
 L.R. 7, H.L. 53 a p.69