Transfer of Property Act (TPA)
Election and Estoppel: Two Doctrines That Stop a Person Blowing Hot and Cold
Both doctrines prevent a party taking inconsistent positions, and they are often treated as the same idea. They are not. Election under section 35 arises from an instrument: a person who takes a benefit under it must give effect to the whole of it, and if he refuses he must give up the benefit. Estoppel arises from a representation: a person who has led another to believe a state of facts and to act on it may not afterwards deny it. One rests on the presumed intention of the author of the instrument; the other rests on the conduct of the party and the detriment of the person who relied on it.
1. The Two Doctrines
Where each is found Election — section 35 of the Transfer of Property Act. Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers a benefit on the owner of that property, the owner must elect either to confirm the transfer or to dissent from it; and if he dissents he must relinquish the benefit, which then reverts to the transferor, subject in the cases the section names to a charge for compensating the disappointed transferee. The maxim is qui approbat non reprobat. Estoppel — the rule of the law of evidence. Where one person has by his declaration, act or omission intentionally caused or permitted another to believe a thing to be true and to act upon that belief, neither he nor his representative may be allowed to deny the truth of that thing in any suit or proceeding between them. The rule was section 115 of the Indian Evidence Act, 1872, and has been carried into the Bharatiya Sakshya Adhiniyam, 2023. |
2. The Comparison
Point | Election | Estoppel |
|---|---|---|
Its source | An instrument which confers a benefit and purports to transfer the property of the person benefited | A representation by words or conduct, or an omission where there was a duty to speak |
Its foundation | The presumed intention of the author of the instrument, that his arrangement should work as a whole | The detriment of the person who acted on the representation |
Its nature | A rule of substantive law, worked out in the Transfer of Property Act | A rule of evidence, which precludes a party from denying what he represented |
What it requires of the party | That he choose — confirm the transfer and keep the benefit, or dissent and give it up | Nothing; it simply prevents him from asserting the contrary of his representation |
Is there an option? | Yes — election is by definition a choice between two courses | No — the preclusion operates whether he likes it or not |
Knowledge | The owner must know of his right to elect; knowledge is presumed after two years' enjoyment without dissent, and after one year from the transfer he may be put to a requisition, to be answered within a reasonable time | The representation must have been such as to induce belief; the representor's knowledge is relevant to whether he intended it to be acted upon |
Compensation | On dissent, the relinquished benefit is charged with compensating the disappointed transferee in the cases the section specifies | No question of compensation arises; the doctrine gives a defence, not a fund |
Effect on property | The owner's property may pass, if he elects to confirm; or he keeps it and loses the benefit | No property passes; the representor is merely unable to deny what he said |
Where it is dealt with | Section 35, Transfer of Property Act | The law of evidence, and, in the property context, sections 41 and 43 of the Act |
3. Where They Meet, and Where They Part
- Both prevent inconsistency. A person may not approbate and reprobate under an instrument, and may not assert the contrary of what he has led another to believe.
- But election needs no representation. The owner in an election case has said nothing to anybody; he is put to his choice by the terms of an instrument another person has made.
- And estoppel needs no benefit. The representor may have gained nothing at all; what matters is that the other party acted to his detriment.
- Election can move property. If the owner elects to confirm, his property passes to the transferee. An estoppel moves nothing — which is exactly why section 43, which does move property, had to be enacted as a statutory rule rather than left to the general doctrine.
- And election is confined to one transaction. The benefit and the purported transfer must be parts of the same transaction, whereas an estoppel may arise from conduct across any number of dealings.
4. Election Compared With the Estoppel Provisions of the Act
Election — s. 35 | Feeding the grant — s. 43 | Ostensible owner — s. 41 | |
|---|---|---|---|
What triggers it | A benefit conferred on the owner by the same instrument that purports to transfer his property | A fraudulent or erroneous representation of authority to transfer | The real owner's consent to another appearing as owner |
Who is bound | The owner of the property purportedly transferred | The transferor, when he afterwards acquires the interest | The real owner, against an honest purchaser |
What the other party gets | Either the property, or compensation out of the relinquished benefit | The after-acquired interest, at his option | The property, free of the real owner's claim |
Its character | A choice imposed on the owner | A statutory estoppel with substantive effect | A statutory estoppel by holding out |
5. Worked Contrasts
The facts | Which doctrine, and the result |
|---|---|
A, by one instrument, purports to give C's farm to B and gives ₹1,000 to C | Election. C must choose: keep the farm and forfeit the ₹1,000, or take the money and let the farm go — and where the transfer was for consideration, or the gratuitous transferor has died, the relinquished benefit compensates B |
B tells C he owns land he does not own, and sells it to C; B later inherits it | Estoppel, in its statutory form — section 43. C may require the transfer to operate on the interest B has acquired |
A allows B to appear as owner, and B sells to C, who takes care and acts honestly | Estoppel by holding out — section 41. A cannot set up his secret title against C |
C takes the ₹1,000 under A's instrument, in full knowledge, and then sues to recover his farm | Election bars him. Having taken the benefit with knowledge, he has confirmed the transfer |
C takes a benefit indirectly under the transaction, but nothing is conferred on him by the instrument | No election. A person taking no benefit directly under the transaction need not elect |
6. Landmark Cases
📖 Cooper v. Cooper, (1874) LR 7 HL 53 Held: The foundation of the doctrine of election was stated: 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, that his disposition should take effect as a whole. 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 examined: 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. The doctrine applies only where the benefit and the purported transfer are parts of one transaction. Ratio: Election requires one transaction containing both the purported transfer and the benefit conferred on the owner. |
📖 Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847 Held: Section 43 is a rule of estoppel, and it operates in a field different from the substantive prohibitions of the Act. Being a statutory provision, it can give a transferee an interest in property where a bare estoppel, which merely precludes denial, could not. Ratio: The difference in kind between a rule of evidence and a statutory rule that moves property. |
7. Related Topics and Provisions
- Doctrine of Election, Section 35 — the essentials, compensation and the presumptions
- Section 43 vs Estoppel — the companion comparison
- Section 41, TPA — estoppel by holding out, and the ostensible owner
- Section 115, Indian Evidence Act, 1872, carried into the Bharatiya Sakshya Adhiniyam, 2023
- Onerous Gifts, Section 127 — election in the law of gifts
- Sections 180 to 190, Indian Succession Act, 1925 — election in the testamentary context