Doctrine of election

Property Law · Unit II · Topic 6 of 21 · 6 min read

Why a person who takes a benefit under an instrument must accept the whole of it, the essentials of election under section 35, the consequences of confirming or dissenting, and how election is made expressly or by conduct.

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On this page

1. Origin
2. Section 35: the rule
3. Essentials
4. Further rules in section 35
5. How election is made
6. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The idea in one line. A person cannot approve and reject the same instrument. If a transferor, by one transaction, gives away property belonging to B and also gives B a benefit, B must choose: keep the benefit and let his property go, or keep his property and give up the benefit. That choice is election, and it was a 10-mark question in January 2026.

1. Origin

The doctrine comes from equity. In Cooper v. Cooper (1874), the House of Lords described it as resting on the principle that a person who takes a benefit under an instrument must also bear the burden it imposes, and must not take under it and against it at once. Section 35 enacts that rule for India. It applies equally to wills through sections 180 to 190 of the Indian Succession Act, 1925.

2. Section 35: the rule

Section 35 provides that 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 the transfer or to dissent from it. In the latter case he must relinquish the benefit so conferred, and the benefit reverts 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 died before the election or has 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.

The main illustration: the farm of Sultanpur is the property of C and worth Rs. 800. A, by an instrument of gift, professes to transfer it to B, giving by the same instrument Rs. 1,000 to C. C elects to retain the farm. He forfeits the gift of Rs. 1,000. In the same case A dies before the election; his representative must, out of the Rs. 1,000, pay Rs. 800 to B.

3. Essentials

The transferor deals with property that is not his. He “professes” to transfer the property of another.
The owner is given a benefit by the transferor, out of the transferor's own property.
Both happen in the same transaction. If the benefit is given by a separate deed, there is no election.
The benefit is taken directly. A person taking no benefit directly under the transaction, but deriving a benefit under it indirectly, need not elect.
The owner is competent to elect. If he is under a disability, the election is postponed until the disability ceases, or is made by a competent authority (for a minor, the court).

4. Further rules in section 35

Different capacities. A person who in one capacity takes a benefit under the transaction may in another capacity dissent from it. A trustee may reject a transfer of trust property while personally keeping a benefit given to him.
Benefit in lieu. Where a particular benefit is expressed to be conferred on the owner in lieu of the property, and he claims the property, he must give up that particular benefit only, not any other benefit conferred by the same transaction.

5. How election is made

Express election. The owner states in words, to the transferor or his representative, that he confirms or dissents.

Implied election. Acceptance of the benefit is an election to confirm the transfer, if the owner is aware of his duty to elect and of the circumstances that would influence a reasonable man in making the election, or if he waives inquiry into them. The section adds three presumptions:

Two years' enjoyment. Knowledge or waiver is presumed, until the contrary is shown, if the owner has enjoyed the benefit for two years without doing any act to express dissent.
Irreversible act. Knowledge or waiver may be inferred from any act of his that makes it impossible to place the persons interested in the same position as if the act had not been done. Illustration: A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B.
Notice to elect. If the owner does not, within one year after the date of the transfer, signify his intention to confirm or dissent, the transferor or his representatives may require him to make the election. If he does not comply within a reasonable time after receiving the requisition, he is deemed to have elected to confirm.

Trap: dissent is not forfeiture of everything. If the owner dissents, he keeps his own property and gives up the benefit, but the benefit does not simply go back to the transferor. It is first charged with compensating the disappointed transferee (always where the transfer was for consideration, and in a gift where the transferor has died or cannot make a fresh transfer). Only the balance reverts.

6. Problem

A, by a single registered gift deed, gives his own shop worth Rs. 10 lakh to C and gives C's house, worth Rs. 8 lakh, to B. A dies a month later. C wants to keep both the shop and his house. Advise C.

Issue. Whether C must elect between the shop and his house, and what happens if he dissents.

Law. Section 35: where a person professes to transfer the property of another and in the same transaction confers a benefit on the owner, the owner must elect to confirm or dissent. On dissent he relinquishes the benefit, which, if the transfer is gratuitous and the transferor has died, is charged with making good to the disappointed transferee the value of the property attempted to be transferred.

Application. A had no right to transfer C's house. In the same deed he gave C a benefit out of his own property. C takes the shop directly. All the essentials are present, so C must elect; he cannot keep both. If he confirms, B gets the house and C keeps the shop. If he dissents, he keeps the house, but must give up the shop. Because the gift was gratuitous and A has died, the shop is charged with paying B Rs. 8 lakh, the value of the house; the balance of Rs. 2 lakh goes to A's estate.

Conclusion. C must choose. Taking possession of the shop and dealing with it as owner for two years, or selling it, would be treated as an election to confirm.

How this is examined

“Explain the doctrine of election with illustrations” (January 2026, 10 marks). Write the basis of the doctrine, the text of section 35, the Sultanpur illustration, the essentials, the rules on capacity and benefit in lieu, express and implied election with the two-year and one-year rules, and the coal-mine illustration. A problem like the one above is often set; work out the money figures.

Now try the real questions: Property Law past question papers.