A PROJECT REPORT ON

CRITICAL ANALYSIS OF RULE OF

ELECTION

Submitted by,
Rishabh singh,
Roll no-201290
Sec-B
Sem-3rd
1

CERTIFICATE
I, MrRISHABH with Reg.No201290 Of IIIrd Semester has
prepared the project on Analysis of rule of election
In partial fulfilment of his/her semester course in the subject Transfer of
property
during the academic year 2013-14 under my supervision and guidance.

Signature of faculty

ACKNOWLEDEGEMENT
I, Rishabh would like to take this opportunity to thank Dr Laxmi Priya (transfer of property
faculty) for helping and guiding me in completing my project.
I would also like to thank our Vice-Chancellor, Prof .R.G.B. Bhagvath Kumar and our
Registrar, Prof.P.Sudhakar, for giving me this opportunity to do a detailed study on the rule of
election.
Lastly I would like to thank my friends for their efficient help and co-operation in helping me
complete my project work

INDEX
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DOCTRINE OF ELECTION
MODES OF ELECTIONCONDITIONS FOR APPLICATION OF DOCTRINE OF ELECTION
METHOD OF ELECTION
RULE MAY BE EXCLUDED BY THE EXPRESS TERMS IN THE
TRANSFER
RULES OF ELECTION
PERSON TAKING UNDER TWO CAPACITIES
PRESUMPTION OF ELECTION FROM TWO YEARS ENJOYMENT
IMPOSSIBILITY OF RESTORING STATUS QUO
ELECTION BY A PERSON UNDER A DISABILITY
TRANSFERORS DISABILITY AND ELECTION
ELECTION UNDER POWER OF APPOINTMENT
RATIFICATION IS NOT ELECTION
DIFFERENCE BETWEEN THE ENGLISH LAW AND SEC 35,
TRANSFER OF PROPERTY ACT
CONCLUSION
BIBLIOGRAPHY

A CRITICAL ANALYSIS ON THE RULE OF

ELECTION

DOCTRINE OF ELECTION- the doctrine of election is embodied in India in Sec.35

of the Transfer of Property Act. It is also stated in Sec 180 to 190 of the Indian Succession
Act.

RULE OF ELECTION The rule of election says that when a person professes to
transfer property which he has no right to transfer, and as a 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.1
The Doctrine Of Election is based on Equitable Principle under which a person may not be
allowed to approve that part of an instrument which is beneficial to him and disapprove its
that part which goes against him. No one can approbate and reprobate at the same time which
means where a person takes some benefit under a deed or instrument, he must also bear its
burden. This Equity is applied to every species of instrument whether deed or will and to
every kind of property movable or immovable.
Sec 35 of the Act makes following provisions in respect of the rule of electioni) Where a person professes to transfer a property which may or may not be his own.
ii) In lieu of the transfer, the transferor obtains certain benefits upon the owner of the
property.
iii) The two things i.e. transfer of property and conferring of the benefit from part of the same
instrument.
Then, the owner of property is bound to elect either to take the benefit and transfer his
property or to retain his property and give up the benefit.

Benefit conferred on the owner of property1 A.I.R commentaries , the transfer of property,manohar and chitaley
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The transferor must confer any benefit on the owner of property. The word owner in this
section has a very wide meaning. It includes a person having vested interest as well as
contingent interest and also a person who has even reversionary or remote interest in the
property. It is the owner of the property who is put to election of the property. Therefore, he
must be given some benefit in compensation for his ownership of the property.

Part of the same transactionThe rule of election takes place only when the transfer and the benefit form part of the
same transaction. Here same transaction is meant that the transfer of property is to be made
evidently only in lieu of the benefit. Thus where the benefit and transfer are
interdependent and inseparable, they form part of the same transaction.

Owners duty to electIf a property is professed to be transferred and in the same transaction some benefit is given
to the owner of property, then such owner is under a duty to elect. By his election he may
either accept the instrument with all its contents or reject it altogether. He has no option to
accept only the beneficial part of instrument. Where he elects to accept the instrument, he is
entitled to get the benefit, but he is bound to transfer his property. If he elects to reject the
instrument he cannot claim benefit, but he may retain his property.

MODES OF ELECTIONa) Express

b) Implied.
a) Express- The owner may express his intention in clear and specific words. Where election
is express, it is final and conclusive.
b) Implied- Election is implied when the owner of property being aware of his duty to elect
and having full knowledge of the circumstances accepts the benefit. Such election would
mean that he has chosen in favour of the transaction.

Requisition to electThis is a special procedure for expediting election. After the expiry of one year, if owner of
property does not elect, i.e. neither confirms nor dissents from the transfer, the transferee may
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require him to make such election. And if he does not elect, within a reasonable time after
such requisition he is deemed to have elected in favour of the transfer.

Suspension of electionWhere at the time of transfer, the elector is legally disabled; the election is postponed until
such disability ceases or until the election is made on behalf by a competent authority, e.g. his guardian. Legal disability may be minority or lunacy of the elector. Thus, his duty to elect
is suspended during his minority or lunacy unless the election is made by his legal guardian.

Election against transferThe 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.
However, he can claim any other benefit which is given to him independently of the transfer
under the same instrument. As an instance, 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.
The Doctrine of Election is based on the rule in Cooper vs. Cooper.
COOPER V COOPER
X gave a certain property to trustees on trust to sell it after his widows death and to hold the
sale proceeds in trust for his children in such form as his widow shall appoint before a certain
fixed period. The widow executed a deed before the expiration of the fixed period directing
the proceeds to be divided equally among the three sons A, B and C. later she made a will by
which she gave the property to A, the eldest son; and a legacy of her own property to the
other two sons, B and C and to the sons of B. B predeceased the testatrix. The appointment
under the will was inoperative, inter alia, as the will took effect long after the date fixed for
the appointment. A brought the action to compel C and the sons of B to elect between their
claims under the deed of appointment and under the will. It was held that since the testatrix
was not the owner of the property, her attempt to dispose of it by her will when she has no
longer a disposing power over it raised a case of election against the persons who, taking

under her will, had an interest in that property. Lord Hatherley explained the principle
underlying the doctrine of election thus:
there is a n 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 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.
If a person transfers some property which he has no right to transfer, and the same
transaction confers any benefit on the owner of the property, such owner must elect either to
confirm such transfer or reject it. If he rejects the transfer, he shall relinquish the benefit
conferred upon him and the property will revert back to himself or his representative as if it
had not been disposed of.

CONDITIONS FOR APPLICATION OF DOCTRINE OF ELECTION:

The following are the essentials for the application of the Doctrine of Election:
1. The transferor should dispose of the property in which he has no right to transfer.
2. The transferor must confer a benefit to the real owner of the property.
3. Both the benefits conferred and the transfer made must be part of the same transaction or
document.
4. The owner is now given a choice of election either to accept the benefit and allow the
transfer or to reject both.
E.g.:A transfer B's property worth Rs.100 without his consent or knowledge to C and in the
same transaction, A gives Rs.1000 to B.
The basic of this doctrine is that a person who gets the benefits must also bear the burden.
Generally, the benefit is greater in value than the burden. The benefit should be express and
particular. It must be in the same transaction. The silence of the transferee for two years
shows the acceptance of benefit and approval of the transfer of his property to a third person.
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The transfer and benefit should be gratuitous without money. If the transferor has died or has
become incapable of making a fresh transfer before such election, then the subsequent
election by owner of the property is void. The Doctrine of Election only applies when the two
donations are part of the same transaction.

METHOD OF ELECTION:
Election must be divided into two categories:
1. Direct Election or
2. Indirect Election.

1. Direct Election:
There is no prescribed form. A letter, telegram, oral words of transferor or any other sign by
the person which conveys the intention of the transferor is enough.

2. Indirect Election:
There are three types of Indirect Election.
They are:1. Acceptance of benefit without knowledge of duty to elect
2. Enjoyment for two years and
3. Status quo cannot be restored.

1. Acceptance of benefit without knowledge of duty to elect:

If the donee accepts the benefit conferred upon him by the transfer, then such acceptance on
his part constitutes election by him. But the acceptance must be made with full knowledge of
his duty to elect and all matters about such benefits.
If the donee accepts the benefits without knowledge, then the representatives of the donee
may revoke the election. If the election is made under mistake of fact, it may be revoked by
the elector or his representatives. But if the donee wilfully abstains from inquiring into the
circumstances under which the benefit is conferred upon him and makes an election, such an
election is binding on him and his representatives.

2. Enjoyment for two years: [Section 188(1) of the Indian Succession Act]
If a person who has to elect knows that he is under a duty to elect, he must express his
dissent, if he retains the property for some time and not interested to elect in favour of the
proposal. If he keeps the property for two years, without expressing that he is not in favour of
the election, then it is presumed that the person so retaining the property is doing so with
knowledge and acceptance of the document.
3. Status quo cannot be restored:
In the case of property which is exhaustible by consumption or use, if he once starts
consuming the property, election in his favour is presumed. No period of consumption is
necessary for this presumption.

PROPERTY TRANSFERRED MUST BELONG TO ANOTHER

No case of election would arise unless the property transferred is one which the transferor has
no right to transfer. If the transferor had a right to transfer the property, the property will pass
to the transferee independent of any election by the person to whom the benefit is given by
the same instrument.as has been observed in Wollaston vs king, it is necessary for the
application of the doctrine of election that there should be a claim under the instrument and
also a claim dehors the instrument. Where a person claims only under an instrument the fact
that he is claiming under several clauses of the same instrument will not raise a question of
election. No question of election arises where a limited owner inherited certain property from
her husband and donated the same absolutely to her arise as a condition requisite to be
fulfilled. However, where the testator by his last will had cancelled the previous settlement
which was acted upon in favour of his sons J and M and bequeathed some properties
including items given to M by settlement to J, J would be put to election either to take under
settlement or will.

PROFESSES TO TRANSFER PROPERTY

The second essential is that the transferor should have professed to transfer property, which
as a fact, did not belong to him. Surrender by a Hindu widow to her immediate heirs is not a
transfer of property; the section has no application to such cases.
A person is prima facie presumed to have transferred only what is his own, and not what
belongs to other person. Where ,therefore, a property does not, in fact, belong to a person, his
intention to transfer it must be clear and manifest on the face of the deed of transfer. Such
10

intention may be expressed in clear terms, or if it is implied in the terms of deed, it must be so
plain by demonstration and by implication that it should appear utterly improbable that the
transferor could mean anything otherwise the use of general words will raise no case of
election and particularly so, where the transferor has a partial interest in the property
transferred, as the general words apply equally to his own interest and do not imply an
intention to dispose of any other property than his own. But where the transferor is a coowner and transfers whole of the property specifically conferring some benefit upon the co
owner the necessary intention is clear from the deed the co- owner is put to election.
It is not necessary that the transferor should intend to put the party to election. Such an
intention presumes the knowledge of the equitable doctrine of election on the part of the
transferor which is usually absent. The intention which the court requires to give property
which the transferor has no right to give and to give benefit to the person who is the owner of
the property. Once these two intentions are clear from the deed, the court draws the
conclusion that there should be an election.
The onus of providing that there is such an intention rests on those who contend for a case of
election. But where the intention is clear on the face of the deed to pass the whole property
and thus to raise a case of election, the burden of proving that the transferor meant to transfer
only what was left with him and not more, lies on those who oppose election. The intention
of the transferor must, however, appear on the face of the deed.no extrinsic evidence, dehors
the deed is admissible to show that the transferor had an intention to pass what was not his
and thus to raise a question of election.

CONFERS ANY BENEFIT ON THE OWNER

The doctrine of election does not apply unless a benefit is conferred on the owner of the
property which is professed to be
Example a person A had a power to appoint property X to his child B who was also entitled
to it in default of appointment. A appointed a portion of the property X to B and the reminder
to C who was not an object of the power. A did not give any of his own property to B. it was
held that the appointment on Cs favour was invalid as he was not an object of the power, and
that as no part of As own property was given to B, the latter was not under a duty to elect.
The Lord Chancellor observed: in all cases there must be some free disposable property given
to the person which can be made compensation for what the testator takes away.
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AS PART OF SAME TRANSACTION

The operation of this section is extremely limited to cases where a person professes to
transfer property which he has no right to transfer and as part of the same transaction confers
a benefit upon the owner of the property so transferred. In other words the section is
applicable only where the benefit and the burden come directly from the same source or the
same transaction. If the property belonging to a third person is disposed of by one transaction
and a benefit is conferred on him by another transaction both being independent of each
other, such person is not bound to elect. Thus, where a Hindu widow gave away some
immovable property in excess of her power of transfer, by a gift deed, and by a will executed
later on, she conferred on her reversionary some other benefit and it was found that the gift
was not subject of the will.
In Sardar Muhammad afzal khan v.Nnawab ghulam kasim khan, X granted Y, his second son,
a village for maintenance. after the death of X the government also granted Y, a portion of the
cash allowance allowed to his father X. the question arose whether Y could be put to election
in respect could arise as the grants were independent and derived from different sources.

SUCH OWNER MUST ELECT

It is clear that, a person needs to be the owner of the property professed to be disposed of by
the transferor; he is under no obligation to elect. Thus where a person calls upon an heir to
pass property which belongs to him only in the character of his heir and not otherwise he is
calling upon his heir to convey what belongs to himself and not what belongs to the heir.
There will be no election in such a case even if the heir receives any other benefit under the
will and the property will pass from the heir because of the intention expressed in the will and
not by election. Similarly where a Hindu testator disposed of by his will certain ornaments
described as my own and my wifes ornaments and it was found that he had other
ornaments worn by her over which he had a disposing power, it was held that the said words
did not include the wifes stridhan ornaments and that therefore she was not put to election
as regards her srtidhan ornaments and other benefit under the will.
The ownership referred in this section is the ownership at the time when the liability to elect
arises. A person sought to be put to election must be the owner of the property at the time.
When the obligation to elect arises. If he is not the owner at the time he cannot be put to his
election merely because he receives a benefit under the transfer. Even an acquisition of
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interest in the property by him after the time will be of no avail, because the equities of the
parties to election must be determined according to the state of circumstances existing when
the duty to elect arises.

SHALL REVERT TO THE TRANSFEROR

The person on whom the benefit id conferred does not, by his dissent from the transfer, forfeit
in its entirely the benefit conferred on him but only to the extent necessary to compensate the
disappointed transferee.

CHARGE IN FAVOUR OF THE DISAPOINTED DONEE

The remedy of the disappointed transferee for compensation is against the owner of the
property transferred. The extent of the compensation to be received by the disappointed
donee is the amount or the value of the property that is attempted to be transferred to him
under the deed. The date at which the amount of compensation is to be ascertained is the date
on which the liability to elect arises and not the date on which the election is actually made.
Thus where a party taking under a will elected to take against the will after about 2 years after
the death of the testator, it was held that the amount of compensation was to be ascertained as
the date of the testators death and not as the date of actual election.

RULE MAY BE EXCLUDED BY THE EXPRESS TERMS IN THE

TRANSFER
The section does not state in terms that the rule is subject to the expression of a contrary
intention. It is conceived that its operation may be excluded by express terms in the transfer
showing a contrary intention. The exception shows that the transfer can by appropriate
expression of intention, limit the operation of rule to a particular benefit conferred.

ELECTION BY A PARTY BINDS HIS REPRESENTATIVES BUT NOT

OTHERS.
An election when made by a party is binding not only on himself but also on his
representatives. But apart from his representatives, an election by one person is not binding
13

on any other person. Thus, where there are several persons interested as co- owners in the
property disposed of by the transferor and all of them receive benefit under the transfer, every
one of them has a separate right of election

RULE CANNOT BE APPLIED TO CURE AN ILLEGALITY.

The rule of election cannot be so applied as to enable the transfer to evade any rule of law.
The doctrine of election cannot be restored to in order to cure an illegality; therefore, a gift
which infringes the rule against perpetuities cannot be used to raise a case for election.

ELECTION

AGAINST

TRANSFER

DOES

NOT

RENDER

CANCELLATION NECESSARY
The fact that the owner of the property transferred elects to dissent from it does not render it
necessary that the document of transfer should be cancelled.

DOES OR DOES NOT BELIEVE

If the transferor professes to transfer property which, as a matter of fact, does not belong to
him, confers a benefit on the owner of the property, a case of election will be raised,
irrespective of the question whether the transferor believed that the property was or was not
his own.

NO ELECTION WHERE THE BENEFIT IS DERIVED INDIRECTLY

A person is not put to his election merely because he receives a benefit under a transfer but
because the benefit he takes is accompanied by an obligation to give effect to the other part of
the transfer by parting his own estate.

PERSON TAKING UNDER TWO CAPACITIES

Where a person holds two capacities he may accept the benefit in one and dissent there from
in other. No question of election can arise merely because owing to certain circumstances,the
two capacities have temporarily merged into one person.
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BENEFIT EXPRESSED TO BE IN LIEU OF THE PROPERTY

TRANSFER- EXCEPTION
If a benefit under an instrument is expressed to be in lieu of the property which the transferor
professes to transfer, and the owner of such property claims to retain it, he must relinquish the
particular benefit, but he is not bound to give up any other benefit conferred upon him by the
same transaction.

ACCEPTANCE AND BENEFIT

The election contemplated by this section is a conscious choice by the owner between two
inconsistent rights. The section provides that the acceptance of the benefit will operate as an
election only if

The owner is aware of his duty to elect, and

He is aware, of all those circumstances which would influence the judgement of a
reasonable man in making the election.

If the done accepts the benefit given to him by the transferor, such act on his part constitutes
an election by him. It is therefore, essential that the acceptance of the benefit should have
been made with full knowledge of his duty to elect and of all matters connected with such
benefit. If the benefit is accepted without such knowledge, the election may be revoked by
the representative of the electing party.2Similarly if the election is made either expressly or
impliedly under a misconception or mistake or mistake of fact it is not binding and can be
evoked by the elector himself.3

PRESUMPTION OF ELECTION FROM TWO YEARS ENJOYMENT

There is a presumption in form of election. if the person put to elect knows that he is under a
duty to elect, he must express dissent if he is retaining the property for the time being and is
not interested in election in favour of the proposal. If one keeps the property for two years
2 Kidney v Coussuraker, 12 ves 136
3 Tribhowandas v smith, 20 Bom.316
15

from the day it is conveyed to him and says nothing to explain the conduct otherwise, the law
leaves everybody to presume that the person so retaining the property for such duration is
doing so under belief that it is his own and he accepts the document as originally proposed.

IMPOSSIBILITY OF RESTORING STATUS QUO

This clause explains another way as to how indirect election may take place. If the property is
exhaustible by consumption, the moment its consumption starts, the election in favour is
presumed. The case of coal mine is very typical example. The moment excavation starts and
even few chucks of coal are dug out the coal mine begins to exhaust. In these cases no period
is necessary. It may be immediately so done after the transfer or at any time thereafter. But
election in favour would be presumed.

TIME LIMIT FOR ELECTION

If the donee is fully aware of his duty to elect and other circumstances connected therewith,
does not elect either way, for as long as one year from the date of the transfer, Section 35(8)
says that in such a case the transfer does not lapse, but the transferor or his representative
may call upon him to elect.

ELECTION BY A PERSON UNDER A DISABILITY

This paragraph provides that where the donee suffers from some disability, i.e. minority, the
election shall be made by some competent authority, e.g. a guardian of a minor. A transfer by
a person under a legal disability cannot give rise to a case of election. 4 When there is no
evidence to show that on transfer of minors property they were benefited by the transfers and
the transaction was declared void in the eye of law, there is no transaction at all. Therefore the
question of return of any benefit will not rise at all. The principle of election has no
application in such cases.

TRANSFERORS DISABILITY AND ELECTION

The doctrine of election presupposes that the transferor is legally competent to transfer, but
that what he transfers is not his property. Thus, the basic of the rule is not the personal
4 (1970) 1 S.C.W.R. 403 : A.I.R. 1967 S.C. 1153
16

disability of the transferor but the general inability which precludes everyone from disposing
of what does not belong to him. A transfers, therefore by a person who is under a legal
disability cannot give rise to a case of election.
But the doctrine of election is no bar to its being enforced where alienation is void, the
principle being that exercise of a choice by a person of his own freewill to do a thing or
another, binds him to the choice voluntarily made and is no bar on the equitable doctrine that
he who accepts the benefit under an instrument by his own choice must accept the whole and
renounce anything inconsistent with it.

ELECTION UNDER POWER OF APPOINTMENT

The words transfer of property include the appointment of property to a person in the exercise
of a power of appointment where, therefore, the donee of a power to appoint a property to a
particular person exercises the power in favour of a stranger and grants, as a part of the same
transaction, a benefit to the person entitled in default of a stranger and grants, as a part of the
same transaction, a benefit to the person entitled in default of the appointment, a case for
election arises and the latter is bound to elect. The material fact necessary to give rise to
election is the failure of the appointment made by the donee of the power. This failure may be
due even to the fact that the power itself does not exist. But if the failure is due to the fact that
appointment is in contravention of a rule of law it has been held that it does not give rise to an
election. The reason is that the rule of election is a rule of equity and cannot be applied to
evade the rules of law.
There is also another exception to the general rule. Where an absolute appointment is made in
favour of the object of the power and a direction or a condition is superadded to the effect
that the property shall be settled upon a trust in favour of certain other persons, and such
direction is not invalid in itself but is the one which the law in its ordinary course will allow,
a question of election may arise when the object of the power is also granted by a benefit by
the donee of the power.

RATIFICATION IS NOT ELECTION

Cases of ratification must be distinguished from cases of election. For ratification, properly
speaking refers to acts done on behalf of the ratifier. If done without the authority of the
17

principal, may elect either to ratify or to disown them. The doctrine of ratification however,
however, rests on the same principle that a man cannot both affirm and disaffirm the same
transaction. Thus, when a widow who had a life estate for maintenance granted a permanent
lease, the reversioner could elect either to ratify it or to set aside, and it was held that he was
not bound by lease when he accepted rent for three years in ignorance of the circumstance
under which the lease was granted or the terms on which it was held.
DIFFERENCE BETWEEN THE ENGLISH LAW AND SEC 35, TRANSFER OF
PROPERTY ACT
1. Election to affirm the instrument: no difference: the difference between the English
law and the doctrine of election embodied in the Transfer of Property and Indian
Succession Acts may be noted. When the true owner of the property elects to affirm
the instrument and to take under it, there is no difficulty. He retains the benefits
conferred upon him by the instrument and conveys his own property to the person to
whom it was given by that instrument. On this point there is no difference between the
English Law and the Indian.
2. Election against the instrument: when the done dissents from the instrument and
chooses to retain his own property contrary to the dispositions therein, there is a
significant difference between the English and the Indian doctrines in working out the
rights of the parties.
HOW THE QUESTION OF ELECTION ARISES: The question that arises when the
election is against the instrument is whether the refractory done should take nothing at all
under the instrument wholly forfeiting his rights thereunder or should be allowed to take the
benefit under the instrument on condition that he gives compensation to the disappointed
done, to the extent of the value of the property ineffectually attempted to be transferred to the
latter. This question assumes importance when the property of the refractory done which the
transferor sought to give the disappointed donee is not as valuable as the benefits conferred
on its owner under the instrument.

CONCLUSION
18

The general principle of election is wider than the doctrine embodied in Section 35 of the
Transfer of Property Act. The section in terms seems to apply only when the transferor
disposed of anothers property and confers on that other some benefit out of his own property.
The general principle of election is wider than this. It applies also to a case where a person
deals with his own property but owing to a personal disability, his disposition is not effectual.
The disposition may be ineffectual because of some disabilities such as infancy or coverture.
Such a disposition may be part of a transaction which cannot be set aside in toto and under
which some benefit is conferred upon the person whose disposition is ineffectual owing to his
personal incapacity. In such a case when the disability ceases an occasion for election arises
and if the benefits are sought to be received under the transaction, it will have to be
confirmed in toto. The doctrine does not apply if the benefits conferred are subject to a
restraint on anticipation. In Re, Vardons trusts 5, a marriage settlement settled a fund for the
separate use of the wife for life with restraint on anticipation and contained a covenant by the
wife to settle her future property. The covenant of the wife was invalid as she was an infant. It
was held that the wife could not be compelled to elect between her after-acquired property
and her interest under the settled fund but was entitled to retain both. This was because the
restraint on anticipation was indicative of an intention that she should not be put to her
election.
The doctrine of election was applied to Hindus even prior to the enactment of the act in 1882
and thereafter until the act was amended in 1929 whereby the provisions of the second
chapter which includes Section 35 were made applicable to Hindus. In Mangaldas v
Ranchordas, D, a Hindu widow, died leaving a Will in respect of property which she had
inherited from her husband. She bequeathed rs. 2000 at a legacy to the plaintiff and K were
the heirs of her husband. The plaintiff sued for the legacy under the will as well as half of the
immovable property as heir. It was held that the plaintiff must be put to his election either to
take the one or the other.
Although this section does not apply to Mohammedans, the doctrine of election was applied
by the Privy Council in the case of Sadik Husain v Hashim Ali.

BIBLIOGRAPHY
5 (1885)31 ch.276; Smith vs. Lucas (1881)18 Ch.D.531
19

 DR G.P. Tripathi, The Transfer of Property Act, 16th edition, Central Law
Publications, 2009.
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