Doctrine of Election

Rule

Election means a choice between two inconsistent rights. Under S.35, where a person professes to transfer property he has no right to transfer, and in the same transaction gives a benefit to the owner of that property, the owner must elect. He may confirm the transfer (lose the property and keep the benefit) or dissent from it (keep the property and give up the benefit).

The maxim is qui approbat non reprobat: one who accepts cannot reject. A person cannot take the benefit of a transaction and refuse its burden.

The flowchart shows the choice.

flowchart TD
    A(["A transfers B's property to C"])
    A --> B["Same transaction: A confers benefit X on B"]
    B --> C{"B must elect"}
    C -->|Confirm transfer| D["B accepts benefit X; B loses property to C"]
    C -->|Dissent from transfer| E["B keeps property; B forfeits benefit X"]
    E --> F["Benefit X reverts to A, charged with compensating C where S.35 requires"]

Requirements

The two options

What happens to the benefit on dissent

If the owner dissents, he must give up the benefit, and it reverts to the transferor as if it had not been given. It is charged with compensating the disappointed transferee for the value of the property he was to get in two cases: where the transfer was for consideration, and where it was gratuitous and the transferor died or became incapable of making a fresh transfer before the election.

Illustration to S.35: C's farm is worth Rs.800. A gifts it to B and by the same deed gives C Rs.1,000. C keeps the farm and forfeits the Rs.1,000. If A has died before the election, A's representative must pay B Rs.800 out of the Rs.1,000.

Exception: benefit "in lieu of" the property

Where a particular benefit is expressly given in lieu of the owner's property, an owner who claims his property gives up only that particular benefit, not any other benefit under the same transaction.

Illustrations

1. The basic case

• Facts: By one deed A transfers B's plot Whiteacre to C and gives Rs.5 lakhs to B.
• Result: B must elect. He may keep the Rs.5 lakhs and let Whiteacre go to C, or keep Whiteacre and give up the Rs.5 lakhs.
• Why: S.35 does not let B keep both.

2. Election under a will

• Facts: A father's will gives his son Ravi's own flat to his daughter and gives Ravi Rs.10 lakhs.
• Result: Ravi must elect: take the Rs.10 lakhs and let the flat go, or keep the flat and give up the legacy.
• Why: The same principle applies to wills (S.180 to S.190, Indian Succession Act).

3. Election by conduct

• Facts: Knowing that A's deed transfers his land to X, B takes the Rs.3 lakhs given to him by the same deed and spends it over 3 years without protest.
• Result: B has confirmed the transfer. X keeps the land.
• Why: Acceptance of the benefit with knowledge is an election to confirm, and knowledge is presumed after 2 years' enjoyment.

4. Acceptance in ignorance

• Facts: Ravi, aged 19 and without legal advice, takes his legacy without knowing that the will also disposed of his house.
• Result: His acceptance is not a binding election. He may still dissent once he learns the facts.
• Why: Acceptance binds only if the owner knows of his duty to elect and the relevant circumstances.

5. Minor owner

• Facts: A's deed transfers 14-year-old B's property to C and gives B Rs.2 lakhs.
• Result: B cannot be made to elect while he is a minor. He elects on attaining majority.
• Why: In case of disability, election is postponed until it ends (S.35).

6. No benefit to the owner

• Facts: A transfers B's house to C and gives B nothing.
• Result: No election arises. B keeps his house and C gets nothing.
• Why: S.35 needs a benefit to the owner in the same transaction. A could not transfer what he did not own.

Key Cases

Valliammai Achi v Nagappa Chettiar AIR 1967 SC 1153

• Facts: A Hindu father's will dealt with joint family property, and his son, who was a coparcener in that property, took probate as executor.
• Held: Taking probate was not an election. Election arises only where a legatee takes a benefit he could not claim apart from the will and must choose between it and his own property.
• Principle: The doctrine applies only when the instrument gives the owner a real benefit to which he had no independent right.

Distinctions

Recall Check

1. What does the doctrine of election require the true owner to choose between?
2. What happens to the benefit if the owner elects to dissent from the transfer?
3. Under what circumstances can acceptance of a benefit NOT constitute election?
4. When is knowledge of the duty to elect presumed?

Flashcards