RULE OF ELECTION

SECTION 35
INTRODUCTION
Election means choosing between two alternative rights or inconsistent rights. If an
instrument confers two rights on a person in such a manner that one right is in lieu of the
other, that person can choose or elect only one of them. A person cannot take under and
against the same instrument. 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.
For example, By a deed X (transferor) gives to Y (transferee) a farmhouse belonging to Z
(owner), and by the same deed gives a factory belonging to himself (X) to Z. Now, Z is put
to election that means Z has to choose whether he wants to take the factory of X by giving
his farmhouse to Y or not. In this case, Z is entitled to X’s factory only when he conforms to
all the provisions of the deed by renouncing his rights in the farmhouse and by giving it to Y.
CONCEPT OF RULE OF ELECTION
The concept of Election is based upon these doctrines- The doctrine of approbate
and reprobate (to accept and reject) in common parlance can be understood to signify
the proverb that ‘you can’t eat your cake and have it too!’. It traces its roots to laws
of Scotland and is essentially a principle of equity. It is further based on the rule of
estoppel.
Lord Atkin’s remarks on the doctrine of approbate and reprobate has been quoted in
many a judgement. He observed that this doctrine applies in a situation when a
person has to make a choice between two rights but he cannot choose both. If he
chooses one between the two, then cannot afterwards choose to assert the other.
Lord Blackburn observed on similar lines that when a man has to choose one or the
other of two inconsistent things and when he has made his election, there cannot be a
retraction from the option so chosen.
CONTD.
The Doctrine of Election finds mention in section 35 of the Transfer of Property Act, 1882 as
well as under sections 180 to 190 of the Indian Succession Act, 1925. While the provisions of the
Indian Succession Act relate to the doctrine of election in respect of bequest of will, that of the
Transfer of Property Act is concerned with the transfer of property by a person or a party who is
not the ‘owner’ or does not hold the right to transfer the (movable or immovable) property in
question. The word ‘election’ here refers to making a choice between two distinct rights or lines of
conduct.

The Latin maxim “quod approbo non reprobo” means that ‘no one can approbate and
reprobate.’ In other words, a person cannot accept a thing and reject another in the same
instrument. This maxim is one of the underlying principles of doctrine of election. The Courts of
Equity in England followed the legal maxim ‘Allegans contraria non est audiendus’ which
means ‘he is not to be heard who alleges things contradictory to each other.’ For the first time,
doctrine of election was elaborately explained by Lord Heather in the case of Cooper v Cooper .
CONTD.
The principle of the doctrine of election was explained by the House of Lords in
the leading case of Cooper vs. Cooper, L.R 7, H.L. 53 at p. 69 -
In this case Lord Heather explained the principle underlying the doctrine of
election in the following words, “ …. there is an obligation on him who takes a
benefit under a will or other instrument to give full effect to that instrument
under which he takes a benefit ; and if it be found that 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.”
CONTD.
The doctrine of election may be stated in the classic words of Maitland as follows-
“He who accepts a benefit under a deed or will or other instrument, must-
a. adopt the whole contents of that instrument;
b. conform to all its provisions; and
c. renounce all rights that are inconsistent with it”.
The doctrine of election is based on the principle of equity that one cannot take
what is beneficial to him and disapprove that which is against him under the same
instrument. One cannot approbate and reprobate at the same time. In simple words,
where a person takes some benefit under a deed or instrument, he must also bear its
burden.
CONTD.
In the case of Mst. Dhanpatti v Devi Prasad and others [1970] the essential conditions
for the doctrine of election were observed by the court.
The essential conditions for the applicability of the doctrine of election are as
follows:
The transferor must profess to transfer a property which he has no right to transfer;
The transferor must confer a benefit on the owner whose property he intends to transfer
to another person;
The transfer and the conferring of benefit must constitute parts of the same transaction;
The benefit must be directly conferred on the owner of the property;
The benefit must be conferred on him in the same capacity in which he is the owner of
the property;
ELECTION WHEN NECESSARY (SECTION 35)
According to Section 35 of the Transfer of Property Act, 1882, 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 the transfer or to dissent from it.
If he dissents from it-
 he must relinquish the benefit so conferred ; and
 the benefit so relinquished reverts to the transferor or his representative as if it
had not been disposed of.
CONTD.
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 following cases, namely -
Where the transfer is gratuitous;
Where the transferor has before the transfer of property died;
Where the transferor has before the transfer of property become incapable of making
a fresh transfer;
Where in the all cases the transfer of property is for consideration.
In the first three cases the case is closely similar to will and in the last case the matter is one
of contract and the transferee has a consequent claim for compensation. Where the elector has
preferred to retain his own property and declined to accept the benefit conferred upon him,
the benefit shall return back to the transferor and if the transferor dies, his legal
representatives will get the benefit back.
WHO NEED NOT ELECT
Section 35 provides that, a person taking no benefit directly under a
transaction, but deriving a benefit under it indirectly, need not elect.
Moreover, a person who in his one capacity takes a benefit under the transaction
may in another dissent therefrom.
A person taking no benefit directly under a transaction but deriving a benefit
under it indirectly need not elect. For instance, A gives a house X to B for life,
and after his death, to B’s son S absolutely. He subsequently, makes a Will by
which he gives X to C and another property Y to B. Shortly thereafter A dies and
then B dies without making the election to either confirm or reject the benefit
under the bequest. His son S would now take X as per the original transfer
executed by A and would take the land Y under intestacy on the death of his father
B. As he is an indirect beneficiary, he would not be required to put to election.”
WHERE PERSON ELECTS TO DISSENT
Under Section 35, where the owner elects to dissent from the transfer, he shall relinquish
the benefit so transferred to him and such benefit shall revert back to the transferor or his
representative as if it had not been disposed of. When property reverts back and 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, it shall be the duty of the transferor or his representatives to
compensate the disappointed transferee. The amount of compensation shall be the
amount or value of the property which was going to be transferred to him, if the option
has been exercised in favor of the transaction.
Illustration- 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.
EXCEPTIONS TO THE RULE AND PRESUMPTIONS AS TO ELECTION
Section 35 provides that, 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.
There are some notable exceptions to the applicability of the doctrine of election. These are as
follows:
1. Other benefits may not be relinquished:
The owner, if dissents from the transfer, is not bound to relinquish or give up any ‘other’ benefit
conferred upon him as part of the same transaction.
Illustration: A has a life interest in a property, and absolute interest upon A’s death, lies with B. A,
who has no authority to transfer the property, transfers it to a third person, C, while conferring a
benefit of Rs. 10,00,000 on B, and additionally, Rs. 2,00,000 to B’s son, D. Here, if B elects to
reject the transfer, he shall give up Rs 10,00,000 given in lieu of the property, but his son can keep
Rs. 2,00,000 as it was ‘other’ benefit, which was not given in lieu of the property.
KNOWLEDGE OR WAIVER WHEN PRESUMED AND INFERRED
2. Election may be Express or Implied:
Acceptance of transfer by the owner may be express or implied, i.e., capable of being
determined by the owner’s conduct. Moreover, if the owner does an act with renders it
impossible to restore or return the benefit, then the election is automatically confirmed in
favor of the transferee.
3. Doctrine doesn’t apply where Conduct is in favor of election or there is failure to
enquire despite ‘knowledge’ of Election:
From the above point, it can be inferred that if the owner is aware and knows that he
needs to elect to approve or disapprove, yet he conducts in a way to accept the benefit or
waives his right to enquire into the transfer, the transfer is said to be approved impliedly.
CONTD.
4. Enjoyment of benefit for 2 years:
If there is no evidence to suggest that the owner’s intention was to defer from the
transfer, and the owner has not shown any signs to defer from it, and has rather,
enjoyed the benefit for 2 years or more, he or she is said to approve the transfer.
5. Reprobation made ‘impossible’:
If the owner acts or makes use of the benefit in a way that renders it impossible
to restore the same conditions as before the transaction to the transferee, the
transfer is said to be confirmed.
CONTD.
6. Intentional neglection to Elect within the stipulated time (1 year) or
reasonable time:
If even after 1 year from the date of transfer, the owner doesn’t show his
acceptance or refusal to the transfer, the transferor (or his or her representative)
after the expiry of 1 year, require him to elect. However, if the owner yet doesn’t
elect within a reasonable period of time, he is deemed to have accepted the
election in favor of the transferee.
7. Election after Disability ceases or on behalf of the Owner:
It must be noted that if the owner has become disabled by reason of being a
minor, lunatic etc., he may be required to elect after the disability concludes, or
election may be made on behalf of him, by a competent authority, e.g., the
guardian.
ELECTION AGAINST TRANSFER
The owner of property whose duty is to make election has freedom to elect either
for the transfer or against it. Where he elects against it i.e., dissents from the
professed transfer, he forfeits his claim to the ‘benefit’ conferred on him. The
benefit so conferred reverts back to the transferor or his representative. However,
he can claim any other benefit which is given to him independently to the
transfer to the same instrument.
For example, where a person is given two benefits X and Y under an instrument
but only X has been given in lieu of property then, if he elects against the
transfer, he forfeits only benefit X. But he is entitled to claim benefit Y.
RIGHTS OF DISAPPOINTED TRANSFEREE

The transferee is the so-called ‘disappointed transferee’ when the owner elects to
dissent from the transfer. This renders the transferee helpless and disappointed. As a
result, the law of equity shields the rights of the transferee, thereby, requires
compensation to be made. The transferee is entitled to reasonable compensation from the
transferor or his representative (equivalent to the value of the property purportedly
transferred). In the following cases, the transferee is entitled to compensation:
1.When the transfer is gratuitous (a gift);
2.When the transferor has died before the election;
3.When the transferor has become incapable of making a fresh transfer before the
concerned transfer; and
4.When the transfer is in lieu of consideration.
APPLICATION OF DOCTRINE OF ELECTION
Hindu Law: The principle underlying this section 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.
Muslim Law: In the case of Sadik Hussain v. Hashim Ali, the Privy Council
applied this doctrine to Muslims also.
English Law: Under English Law, a transferee by electing against the transfer
does not lose his benefit but he becomes bound to make compensation out of it to
the disappointed person.
ESSENTIAL CONDITIONS FOR APPLICATION OF THIS DOCTRINE
For the doctrine of election to apply, the conditions listed under must be present:
Firstly, the transferor must neither be the owner of the property transferred nor
‘authorized by the owner’ to transfer the property. The transferor may even believe the
property to be his own or that he is authorized to transfer it, while in reality, he may not
be;
Secondly, the property of the owner must be transferred to a third person (transferee)
by the transferor;
Thirdly, the transfer must be for some consideration.
Fourthly, some benefit must be conferred upon the owner;
Fifthly, the two transfers, namely the transfer of the owner’s property to the transferee
and the conferment of benefit on the owner of the property, must be accomplished
through the same transaction, instrument, deed, or will.
CONTD.
Sixthly, the owner must have propriety interest in the property;
Seventhly, the transferee must get the immovable or movable
property ‘directly’.
In the case, Valliammai v. Nagappa, it was noted that if the transferee gets an
‘indirect’ benefit, the election does not apply. For example, A gives B a house X
for life, and after his death, B’s son S receives it absolutely. He then writes a Will
in which he leaves X to C and another property, Y, to B. A dies soon after,
followed by B, both without making an election to affirm or reject the benefit
under the bequest. On the death of his father B, his son S would take X as per the
original transfer performed by A, and the land Y under intestacy. He would not be
obligated to elect because he is an ‘indirect’ beneficiary
CONTD.
Eighthly, the transfer must be accepted absolutely and in its entirety as a
whole and must confirm to the provisions of the deed and renounce rights
inconsistent with it. The same was reiterated in the case, Beepathuma v.
Kadambolithay. The precedent for the principle was established in the
case, Codrington v. Codrington by Lord Cairns L.C.
Ninthly, if the owner elects to disapprove the transfer, the benefit must revert
to the transferor, who would be responsible to make good the loss of or
compensate the disappointed transferee. If the transferor dies or becomes
incapable of transferring before the election, then his legal representative must
take up the responsibility.
CASE
In Muhammad Kader Ali Fakir v. Fakir Lakman Hakim, (PLR 1956 Dacca 370),
the doctrine of election was explained by the Court. The Court explained that, “the
foundation of the doctrine of election is that a person taking the benefit of an instrument
must also bear the burden, imposed thereby and that he cannot take under and against
the same instrument. It is a breach to the general rule that no one may approbate or
reprobate. The doctrine is based on intended intention to this extent that the law
presumes that the author of an instrument intended to give effect to every part of it.
There is an obligation on him who takes a benefit under a will or other instrument
intended to give full effect to that instrument under which it was beyond the power of
the donor or settler to dispose of, but to which effect can be given by the concurrence of
him who receives the 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. If an instrument is invalid in part what remains is sufficient to put a
person to his election if he claims a benefit under it”.
NAGUBAI AMMAL V. B. SHAMA RAO, AIR 1956 SC 593
The plaintiff alleged that certain proceedings in a suit filed earlier were collusive. He
adduced evidence in proof of these allegations, persuaded the court to give findings to that
effect, and consequently obtained a decree on the basis of that finding. It was argued by the
defendants that he could not be permitted to change his stance and plead in the present case
that the proceedings earlier were not collusive and succeed on it. The defendants by relying
on an English decision Verschures Creameries Ltd. v. Hull and Netherlands Steamship
Company Ltd., put forth the argument that one cannot approbate and reprobate.
In Verschures Creameries Ltd. v. Hull and Netherlands Steamship Company Ltd.  an agent
delivered goods to the customer in contravention of the instructions given to him by the
principal. Initially a suit was filed against the purchaser to recover the price of goods. A
decree was obtained and another suit was filed subsequently against the agent for damages.
The King’s Bench held that such an action was barred. It held that when on the same facts, a
person has the right to claim one of two reliefs and with full knowledge he elects to claim one
and obtains it, it is not open to him to go back on his election and claim the alternative relief. 
CONTD.
In this case however, it was held that the plaintiff obtained no advantage against the appellants by
pleading in the succeeding suit that the proceedings in the preceding one were collusive. The plaintiffs
did acquire rights to the suit properties by acting on those pleadings. There was no election, because the
only relief which the plaintiff claimed in the subsequent suit that he was entitled to the suit properties.
Only, the ground on which that relief is claimed is different and, it is true, inconsistent. But the
principle of election does not forbid it, and there being no question of estoppel, the plea that the
proceedings in the former suit are not collusive was available to the plaintiff.
It is pertinent to note the difference between the doctrines of approbate and reprobate and res
judicata which was explained in a decision of the Bombay High Court in Yamunabai Purushottam
Deogirikar v. Mathurabhai Nilkanth Choudhuri. It held that for the doctrine of res judicata to apply
in a case, the proceedings thereunder attain finality and the same set of facts cannot be contested again
between the same parties. It binds the parties and the parties operating in any subsequent suit between
them. The doctrine of res judicata is a rule of procedure. It acts as a fetter on the judicial determination
and operates against the courts to take up the same facts. Doctrines under the estoppel operate against
the parties to a lis to plead or prove a particular set of facts contradictory to one another. 
CAUVERY COFFEE TRADERS V. HORNOR RESOURCES
(INTERNATIONAL) CO. LTD.
In this case a purchase agreement was executed between the applicants and the respondents. The
goods in respect of the agreement were dispatched to the respondents and the payment was made
in full to the applicants. The final settlement amount of US $1.5 million had been received by
them applicants. Despite the final settlement, the applicants had repeatedly been sending
reminders to the respondents to make good the balance payment under the said purchase contract,
but no payment had been made. The respondents averred that the amount was accepted
erroneously. Pursuant to the arbitration clause in the purchase agreement, the applicants filed an
application for the appointment of an arbitrator for the dispute before the Supreme Court. 

The court held that:

the transaction stood concluded between the parties after extensive and exhaustive bilateral
deliberations with a clear intention to bring about a quietus to the dispute and that the intent and
conduct of the parties squarely point to the fact that they wanted to put an end to the dispute and
not to carry it further;
CONTD.
by relying on its decision in N. Gosain v. Yashpal Dhir, no party can accept and reject the same
instrument and a person cannot state at one time that a transaction is valid, obtain an advantage
thereunder and then turn round and say it is void for the purpose of securing some other
advantage;

when one accepts the benefits of a contract or conveyance or an order, he is estopped to deny the
validity or binding effect on him of such contract or conveyance or order. This rule is applied to
do equity, however, it must not be applied in a manner as to violate the principles of right and
good conscience;

a person may be precluded by his actions or conduct or silence when it is his duty to speak, from
asserting a right which he otherwise would have had; as per the facts and circumstances of the
case, the applicants could not take a complete somersault and agitate the issue that the offer
made by the respondents had erroneously been accepted.
CONCLUSION
Section 35 of the Transfer Of Property Act is related to the Doctrine of Election which says when
the person holds any benefit from an instrument or property they have both benefits and
obligation to. This Doctrine is also applicable to Hindus, Muslims, and Christians also. This is
totally based on the principle of equity. In this, it is especially emphasized in the rights of the real
owner who has to choose between two rights or we can say has the power to choose, reject, or
elect an instrument. In the laws whether it is Indian law or English, they both are similar as in
both the provisions compensation is there and forfeiture is also. And the whole transaction to
adopt or to accept needs to be done in the same transaction. The election is in hands of the real
owner. And the owner has full right whether to reject or elect which part with his own will
without any influence by the other person. But there should be ownership of the property. This is
based on equity which means the beneficiary needs to choose between two right whether to keep
it or whether to accept it. Because the person cannot enjoy both the rights equally, one has to
select with the clear intention of what he wants and what he wants to do.