"The Foundation of doctrine of Election is that no one can approbate and reprobate at the same time". Comment upon this statement with appropriate illustrations and judicial decisions if any.

Question: "The Foundation of doctrine of Election is that no one can approbate and reprobate at the same time". Comment upon this statement with appropriate illustrations and judicial decisions if any. [UPJS 1983, 1999, BJS 2018, Punj JS 2019]

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Answer

The word ‘election’ refers to making a choice between two distinct rights or lines of conduct. The law of estoppel underpins the doctrine of election. It is based on the concept that one cannot approbate (approve) and reprobate (disapprove) at the same time. The doctrine is a type of equitable estoppel known as estoppel in pais (or equitable estoppel).

In the case, C. Beepathumma v. Velasari Shankaranarayana Kadambolithaya, AIR 1965 SC 241, the principle in White and Tudor’s Leading Case in Equity was stated:

“Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is the clear intention of the person from whom he derives one that he should not enjoy both… That he who accepts a benefit under a deed or Will must adopt the whole contents of the instrument.”

The Doctrine of Election is mentioned in section 35 of the Transfer of Property Act, of 1882. Section 35 of the Transfer of Property Act bestows on the true owner two alternatives with respect to it, viz., to authorize the transferor to defer from it. In the event that the owner differs or rejects such transfer, he must give up all benefits created by such transfer.

In other words, the owner must abandon the benefits and return them to the transferor (who may give them back to the disappointed transferee). More precisely, if the owner enjoys a certain benefit, he or she must also bear its burden. The doctrine is in line with the law of equity, as per which, the owner cannot enjoy both the benefit as well as the property in question, since it would be unjust to the transferee.

The doctrine is implicit in the legal maxim, ‘Allegans Contraria Non-Est Audiendus’, which simply means that a person putting forward contradictory statements in the same event shall not be heard.

Another maxim which corresponds with the doctrine is ‘quod approbo non reprobo’, which literally means that no one can approbate and reprobate, that is to say, no one can accept and reject the same deed/ instrument.

The principle of the doctrine of election was expounded by the House of Lords in the landmark case of Cooper v. Coope, L.R 7, H.L. 53 at p. 69., Lord Heather explained the principle underlying the doctrine of election in the following words:-

“ …. there is an obligation on him who takes a benefit under a will or other instrument to offer full effect thereto instrument under which he takes a benefit; and if it’s found that instrument purports to affect something which it had been beyond the facility of the donor or settlor to eliminate, but to which effect is often given by the concurrence of him who receives a benefit under an equivalent instrument, the law will impose on him who takes the benefit the requirement of carrying the instrument into full and complete force and effect .”

It means that if an owner elects to both approve (and enjoy benefits) and disapprove (retain the property) the transfer, he shall not be heard, since that would be unfair and unjust to the rights of other parties.

For example, A transfers his house to B, by a gift and in the same gift deed asks B to transfer his shop to C. B may elect to accept the transfer or reject the transfer. If B accepts the transfer, he will get a house but in that case, he will also have to transfer the shop to C