"The foundation of the doctrine of election is that a person taking the benefit of any instrument must also bear the burden."

Question: "The foundation of the doctrine of election is that a person taking the benefit of any instrument must also bear the burden." [JJS 2017]

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Answer

Election means choosing between two alternative rights. If two rights are endowed on a person under any instrument in such a manner that one right is preferable to the other, he is bound to elect or choose only one. Section 35 of the Transfer of Property Act, 1882 deals with the Doctrine of election. It subsumes the Doctrine of election along with Sections 180-190 of the Indian Succession Act 1925.

Section 35: Important Aspects

Allegans contraria non est audiend: he is not to be heard who alleges things contradictory to each other.

This doctrine is universal and applies to Hindus, Muslims, and Christians. This doctrine consists of the principle of a person exercising a choice out of his own free will to do one thing and is founded on the equitable doctrine that he who accepts the benefit under an instrument or transaction of his choice must adopt the whole of it or renounce everything. This principle was determined in the case of Codrington v. Codrington, (1857) 7 HL 854, 861.

The Court explained the doctrine of election in the case of Muhannad Kader Ali Fakir v. Fakir Lakman Hakim, (PLR 1956 Dacca 370). The Hon’ble Court made some important observations, as detailed below:

a. The foundation of the doctrine of election is that a person taking the benefit imposed thereby and that he cannot take under and against the same instrument.

b. It is a breach of the general rule that no one may approbate or reprobe.

c. The doctrine is based on intended intention to this extent that the law presumes that the author of an instrument intended to give effect to every part of it.

d. There is an obligation on him who takes a benefit under a will or other instrument intended to give full effect to that instrument under which it was beyond the power of the donor or settler to dispose of, but to which effect can be given by the concurrence of him who receives the benefit under the same instrument, the law will impose on him who takes the benefit, the obligation of accruing the instrument into full and complete force and effect.

e. If an instrument is invalid in part what remains is sufficient to put a person to his election if he claims a benefit under it.