Transfer of Property Act (TPA)
Doctrine of Election under Section 35: Principle, Essentials, Compensation and the Presumptions
A man cannot take under an instrument and against it at the same time. If a transferor purports to give away property belonging to somebody else, and in the same breath confers a benefit on that owner, the owner must choose: keep his own property and give up the benefit, or keep the benefit and let his property go. That is the doctrine of election, expressed in the maxim qui approbat non reprobat — he who accepts must not reject — and worked out in section 35 with a careful set of rules about compensation, presumptions and disability.
Figure 1: The two courses open to the owner, the three essentials, and the rules that surround the choice
1. The Principle
The foundation of the doctrine A person taking a benefit under an instrument must adopt the whole of it, conforming to all its provisions and renouncing every right inconsistent with it. He may not approbate and reprobate — accept the part that favours him and reject the part that does not. The principle is one of equity rather than of contract, and it rests on the presumed intention of the transferor: he meant his arrangement to work as a whole, and the owner is not to defeat it while pocketing what it gave him. |
2. The Section
Section 35, TPA — the substance 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 that property, that owner must elect either to confirm the transfer or to dissent from it. If he dissents, he must relinquish the benefit conferred on him, and the benefit so relinquished reverts to the transferor or his representative as if it had not been disposed of — subject, 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. |
3. The Three Essentials
- The transferor professes to transfer property he has no right to transfer. He must purport to deal with property that is not his; a transfer of his own property raises no question of election.
- He confers a benefit on the owner of that property. The benefit must be given to the very person whose property he has purported to transfer.
- Both form part of the same transaction. The transfer and the benefit must be parts of one instrument or one arrangement; two separate transactions raise no election.
4. The Act's Illustration
The farm of Sultanpur The farm of Sultanpur is the property of C and worth ₹800. A, by an instrument of gift, professes to transfer it to B, giving by the same instrument ₹1,000 to C. C elects to retain the farm. He forfeits the gift of ₹1,000. In the same case, A dies before the election. His representative must, out of the ₹1,000, pay ₹800 to B — the value of the property C has kept. |
5. When Compensation Is Payable
The transaction | Position on the owner's dissent |
|---|---|
The transfer was for consideration | The relinquished benefit is charged with making good to the disappointed transferee the amount or value of the property attempted to be transferred |
The transfer was gratuitous, and the transferor is alive and capable of making a fresh transfer | No charge for compensation — the benefit simply reverts to the transferor, who may provide for the transferee himself |
The transfer was gratuitous, and the transferor has died or become incapable before the election | The charge for compensation applies, since the transferor can no longer put matters right |
6. The Mode and the Presumptions
- Election may be express or implied. Acceptance of the benefit, with knowledge of the circumstances and of his own duty to elect, amounts to confirmation.
- Knowledge is essential. An owner who takes the benefit in ignorance of his right to elect has not elected; the doctrine presupposes an informed choice.
- The two-year presumption. Where he has enjoyed the benefit for two years without doing any act to express dissent, knowledge of the circumstances is presumed.
- The one-year step, and then the requisition. If the owner does not, within one year after the date of the transfer, signify to the transferor or his representatives his intention to confirm or to dissent, they may on the expiry of that year require him to make his election; and if he does not comply with that requisition within a reasonable time after receiving it, he is deemed to have elected to confirm the transfer.
- Disability postpones the election. Where the owner is under disability — minority or unsoundness of mind — the election is postponed until the disability ceases, or until the election is made by some competent authority on his behalf.
7. Direct and Indirect Benefit
Two refinements in the section are frequently tested.
- A person taking no benefit directly under the transaction, but deriving a benefit under it indirectly, need not elect. The doctrine binds only the person on whom the instrument itself confers something.
- A person who in one capacity takes a benefit under the transaction may in another capacity dissent from it. A man who takes as a trustee, say, is not thereby precluded from asserting his own personal title.
8. Election under the Act and under the Succession Act
Section 35, TPA | Sections 180 to 190, Indian Succession Act, 1925 | |
|---|---|---|
Instrument | A transfer inter vivos | A will |
Underlying principle | The same — qui approbat non reprobat | The same |
Compensation | Payable in the cases set out in the section, out of the relinquished benefit | The Succession Act contains its own, and broadly similar, provisions |
Presumptions | Two years' enjoyment; failure to answer a requisition | The Succession Act makes its own provision as to knowledge and time |
9. Points That Decide Problems
- Identify the owner. Election binds only the person whose property was purported to be transferred and on whom a benefit was conferred.
- Look for one transaction. If the benefit came from a separate instrument, there is nothing to elect between.
- Ask whether he knew. Enjoyment in ignorance is not election, unless the two-year presumption applies.
- Work out the compensation. On dissent, was the transfer for consideration, or gratuitous with a dead or incapable transferor? If so, the disappointed transferee is paid out of the benefit relinquished.
Retention aid He may keep his farm or keep the money, but not both. And when he keeps the farm, the money he gives up pays the disappointed transferee — in every case where the transfer was for value, and where a gratuitous transferor is dead or incapable. |
10. Landmark Cases
📖 Cooper v. Cooper, (1874) LR 7 HL 53 Held: The foundation of the doctrine of election is that a person who takes a benefit under an instrument must give full effect to that instrument under which he takes a benefit; he cannot take the benefit and at the same time defeat the provision which operates against him. The obligation rests on the presumed intention of the author of the instrument. Ratio: He who accepts a benefit under an instrument must adopt the whole of it, and renounce every right inconsistent with it. |
📖 Dhanpati v. Devi Prasad, (1970) 3 SCC 776 Held: The conditions of election were considered: the transferor must profess to transfer property which is not his, and must by the same transaction confer a benefit on the owner of that property; the owner must then elect, and he cannot approbate and reprobate. Ratio: The doctrine applies only where the benefit and the purported transfer form parts of one transaction. |
11. Related Topics and Provisions
- Conditional Transfers, Sections 25 to 34 — the block that precedes section 35
- Apportionment, Sections 36 and 37 — the provisions that follow it
- Section 43, TPA — feeding the grant by estoppel, where a transferor without title later acquires it
- Section 41, TPA — the ostensible owner, another provision about transfers by a person who is not the true owner
- Sections 180 to 190, Indian Succession Act, 1925 — election in the testamentary context
- Cooper v. Cooper (1874) LR 7 HL 53 — the classic statement of the equitable principle