The Doctrine of Election under Transfer of Property act 1882

The Doctrine of Election under Transfer of Property act 1882


The doctrine of election is stated in Transfer of Property Act and within section 180-190 of Indian Succession Act. A person when given a choice between two alternative, or conflicting rights, he is supposed to choose anyone, that means, he elects. But what are the essential elements on which the person will elect or how will he elect, and several other questions come in mind. Hence, with this article we will learn the concept of the principle of Doctrine of Election, essential elements, exceptions, modes of election, compensation, presumption, etc. with case laws.

Keywords: Doctrine of Election, Essential Elements, Exception, Compensation, Presumption


The very first question comes in mind, “What is Election?”

When a person is given two alternative or conflicting rights, i.e., one right is lieu of another, he makes a choice. This process of making a choice is called Election.

Let us take a look on a case law:

Cooper v. Cooper

The Doctrine of Election was explained by the House of Lords during this leading case.

Lord Hather explained the principle within the following words:

“ …. 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 are 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 .”


“qui approbate non probate”- A person cannot approbate and reprobate simultaneously.


It reads:

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.

Let us understand this with an illustration:

An owner ‘C’ owns a property worth Rs 10,000.

‘A’ is a transferor, professes to transfer C’s property to ‘B’. ‘B’ is the transferee.

Here, C shall elect between the property and the benefit. Both the choices are conflicting to each other. So, it is mandatory to choose one.

C can either confirm or dissent.

If C elects to retain, he forfeits the gift of Rs 15,000.

In the same case, if A dies before the election, B gets the payment back equal to the value of the property, i.e., Rs 10,000 of Rs 15,000.


We can also explain it in the classic words of Maitland as:

“Any person who accepts a benefit under a will or a deed or any other instrument, must-

  • Espouse the whole content of the instrument
  • Obey all its provisions: and
  • Repudiate all rights that are inconsistent with it”


  • The transferor must profess to transfer which he has no right to transfer. It is immaterial whether in doing so, he knows or does not know it to be his own property.
  • A benefit must be conferred on the owner by the transferor whose property he professes to transfer to the transferee.
  • Transferring of the property and conferring of the benefit must be the parts of the same transaction.
  • The benefit to be conferred to the owner must be direct.
  • The benefit to be conferred should be in the capacity equal to the property to which he is the owner.


Mst. Dhanpatti v. Devi Prasad and others

The law in concern to election is set out in section 35(1) of the Transfer of Property Act. Before there must be:

  1. A transfer of property by a person who has no right to transfer.
  2. Some benefit must be conferred to the owner as a part of the same transaction.
  • Such owner must elect either to confirm or dissent.

If the owner dissents:

  1. He must give up the benefit.
  2. The benefit intended for him would be then reverted to the transferor.

However, it subjects to the change of making good to disappointment of the transferee. The amount or value of the property attempted to be transferred in following two cases:

  1. Where the transfer is unwarranted, and the transferor has died before the election or otherwise becomes incapable of making a fresh transfer,
  2. Where the transfer is for remuneration.

It shall be the duty of the transferor to compensate disappointed transferee and the amount of the compensation must be equal to the value of the property if the option has been exercised in favor of the transaction.


If the owner claims the property which was professed to be transferred to a transferee and a particular benefit has already been conferred to him by the transferor, the owner is bound to relinquish that particular conferred benefit, because the benefit is lieu to the property, but he is not bound to relinquish any other benefit conferred upon him by the same transaction.


There are two modes of election:

  1. Express
  2. Implied

The person with the choice of election can either express it directly in words which is final and conclusive, or the transferee being aware of his duty to elect and having full knowledge of the value of the property and accepts the benefit given to him, such action on his part constitutes a default election in the favour of the transaction and the election becomes implied.

In the case of implied election, there are certain presumptions. It follows that if a person acts through ignorance or mistake, the circumstances would be a question of fact subject to the following rules:

  1. If the benefit has been enjoyed without expressing dissent, it shall be presumed that he had the knowledge, and he waived the enquiry.
  2. If he renders it impossible to place the person interested in the property professed to be transferred in the same condition as if such act has never been done.


Upon expiration of one year from the transfer of the benefit to owner, the transferor may compel him to make an election and if he fails to comply with the demand within a reasonable time, he shall be claimed to have confirmed the transaction in the election by default.


In the case of disability, by any reason, such as, infancy, lunacy, etc., the election shall be held suspended until the disability ceases or until the election made by some competent authority, like the guardian of a minor.


Election is choosing between two alternative choices, so as the principle of Doctrine of Election states. A person cannot be benefited by both the choices. Both the choices be lieu to one another. The Doctrine of election resolves all the conflicts arising with the exception, requisition, and suspension of the election.

Author: APURVA .,
3rd Year, Fairfield Institute of Management and Technology, GGSIPU

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