Introduction
The law of estoppel underpins the doctrine of election. It is based on the concept that one cannot approbate (approve) and reprobate (disapprove) at the same time[1]. The doctrine is a type of equitable estoppel known as estoppel in pais (or equitable estoppel).[2] 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. In the case, C. Beepathumma v. Velasari Shankaranarayana Kadambolithaya[3], the principle in White and Tudor’s Leading Case in Equity was stated:
“Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is the clear intention of the person from whom he derives one that he should not enjoy both… That he who accepts a benefit under a deed or Will must adopt the whole contents of the instrument.”
Section 35 of the Transfer of Property Act bestows on the true owner two alternatives with respect to it, viz., to either authorize the transferor to defer from it. In the event where the owner differs or rejects such transfer, he must give up all benefits created by such transfer. In other words, the owner must abandon the benefits and return them to the transferor (who may give them back to the disappointed transferee). More precisely, if the owner enjoys a certain benefit, he or she must also bear its burden.[4] The doctrine is in line with the law of equity, as per which, the owner cannot enjoy both the benefit as well as the property in question, since it would be unjust to the transferee.
The doctrine is implicit in the legal maxim, ‘Allegans Contraria Non-Est Audiendus’, which simply means that a person putting forward contradictory statements in the same event shall not be heard.[5] Here, it means that if an owner elects to both approve (and enjoy benefits) and disapprove (retain the property) the transfer, he shall not be heard, since that would be unfair and unjust to the rights of other parties. Another maxim which corresponds with the doctrine is ‘quod approbo non reprobo’, which literally means that non-one can approbate and reprobate, that is to say, no one can accept and reject the same deed/ instrument.
The principle of the doctrine of election was expounded by the House of Lords in the landmark case of Cooper vs. Cooper[6]. Lord Heather explained the principle underlying the doctrine of election in the words[7],
“ …. there is an obligation on him who takes a benefit under a will or other instrument to offer full effect thereto instrument under which he takes a benefit; and if it’s found that instrument purports to affect something which it had been beyond the facility of the donor or settlor to eliminate, but to which effect is often given by the concurrence of him who receives a benefit under an equivalent instrument, the law will impose on him who takes the benefit the requirement of carrying the instrument into full and complete force and effect .”
The principle simply meant that someone who enjoys a benefit must comply with the requirements of the instrument, a deed or will. As a whole, the doctrine of election may be re-stated in the characteristic words of Frederic William Maitland, the modern father of English legal history as under:[8]
“He who accepts a benefit under a deed or will or another instrument, must.
- adopt the whole contents of that instrument;
- conform to all its provisions; and
- renounce all rights that are inconsistent with it.”
Illustration: A property worth Rs. 13,00,00,000 belonging to Z is transferred by X to Y for Rs. 31,00,00,000. X, in the deed, confers the benefit of Rs 31,00,00,000 on Z. Z elects to retain the property. Hence, Z must relinquish the benefit so conferred.
Applicability in Indian and English Law
In India, the doctrine is applicable to all and was extended to Hindus in the case, Rungamma v. Atchamma[9], and Muslims in the case, Sadik Husain v. Hashim Ali[10]. There is a slight variation in the application of the doctrine in English Law. As per English Law, the benefit of the transaction does not revert to the transferor if the property owner chooses to opt-out of the transfer. The owner keeps the benefit but compensates the disappointed transferee with an amount equivalent to the property’s worth. The transferor and his representatives are not liable to compensate the transferee.
Essential Conditions for Application of the Doctrine of Election
For the doctrine of election to apply, the conditions listed under must be present:
1. 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;
2. Secondly, the property of the owner must be transferred to a third person (transferee) by the transferor;
3. Thirdly, the transfer must be for some consideration.
4. Fourthly, some benefit must be conferred upon the owner;
5. 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.
6. Sixthly, the owner must have propriety interest in the property;
7. Seventhly, the transferee must get the immovable or movable property ‘directly’. In the case, Valliammai v. Nagappa[11], 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.[12]
8. 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.[13] The same was reiterated in the case, Beepathuma v. Kadambolithay[14]. The precedent for the principle was established in the case, Codrington v. Codrington[15] by Lord Cairns L.C.
9. 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.
Exceptions to the Rule and Presumptions as to Election
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: Shyam has a life interest in a property, and absolute interest upon Shyam’s death, lies with Gyan. Shyam, who has no authority to transfer the property, transfers it to a third person, Vyas, while conferring a benefit of Rs. 10,00,000 on Gyan, and additionally, Rs. 2,00,000 to Gyan’s son, Paras. Here, if Gyan 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.
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 favour of the transferee.
3. Doctrine doesn’t apply where Conduct is in favour 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.
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.
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 favour 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.
Rights of Disappointed Transferee
The transferee is the so-called ‘disappointed transferee’ when the owner elects to differ 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:
- When the transfer is gratuitous (a gift);
- When the transferor has died before the election;
- When the transferor has become incapable of making a fresh transfer before the concerned transfer; and
- When the transfer is in lieu of consideration.
Conclusion
To summarize, the election is a requirement to choose between two incompatible or alternative rights where the transferor clearly intends that the owner should not have both. The notion of election is based on the idea that the individual who receives a benefit from an instrument must also face the burden. To put it another way, a person cannot play both with and against the same instrument.
Frequently Asked Questions (FAQs) on Doctrine of Election
When does the Doctrine of Election apply?
The doctrine of Election applies when the vital conditions as set out in the case, Dhanpati v. Devi Prasad and Ors. are duly satisfied. These conditions are as follows:
• The transferor must agree to transfer property on which he does not hold any rights.
• The transferor must agree to give a benefit to the property holder.
• The owner must either confirm or differ from the transaction.
What are the modes of election under section 35 of the TPA?
Section 35 of the TPA, 1882 allows two modes of Election, namely
Express, i.e., by conclusive words, and
Implied, i.e., by conduct, expiration of time limit, etc.
[1]Codrington v. Lindsay,(1873) 8 Ch 578. ; R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC 683
[2] See Union of India v. N. Murugesan, ICL 2021 (10) SC 552
[3]AIR 1965 SC 241.
[4]See Mohd. Kader Ali Fakir v. Lukman Hakim, (1956) 8 DLR 112.
[5]Allegans Contraraia Non Est Audiendus, available at: https://bnblegal.com/allegans-contraria-non-est-audiendus/#:~:text=The%20legal%20maxim%20’Allegans%20Contraria,is%20not%20to%20be%20heard.&text=In%20simple%20terms%2C%20the%20maxim,that%20shall%20not%20be%20allowed. (last visited on December 9, 2021).
[6]L.R 7, H.L. 53 at p. 69.
[7]What is Doctrine of election?, available at: https://lawtimesjournal.in/what-is-doctrine-of-election/ (Last visited on December 9, 2021).
[8]Doctrine of Election, available at: https://www.lawctopus.com/academike/doctrine-election-2/ (Last visited on December 9, 2021).
[9](1858) 4 Moo Ind App 1:7 SuthWr 57.
[10](1916) 38 All 627; 36 IC 104.
[11]AIR 1967 SC 1153
[12] Poonam Pradhan Saxena, Property Law (LexisNexis, Gurgaon, 3rd ed., 2020).
[13]Whether a person can accept benefit under an instrument and repudiate its other provisions?, available at: https://www.lawweb.in/2015/03/whether-person-can-accept-benefit-under.html (last visited on December 9, 2021).
[14]AIR 1965 SC 241.
[15] [1875] LR 7 HL 854.
[16] AIR 1970 SCD 174.
