DR.

RAM MAHOHAR LOHIYA NATIONAL LAW

UNIVERSITY

Propert law- I

MEANING OF SAME TRANSACTION UNDER SECTION 35 OF TRANSFER

OF PROPERTY ACT, 1882

SUBMITTED TO :
DR. RADHESHYAM PRASAD

SUBMITTED BY:
SUMIT GEHLOT

ASSITANT PROFESSOR (LAW)

ROLL No. : 145

DR.. RAM MANOHAR LOHIYA

SECTION : B

NATIONAL LAW UNIVERSITY

SEMESTER : V

SIGNATURE OF PROFESSOR

SIGNATURE OF STUDENT

SAME TRANSACTION UNDER SECTION 35 OF TPA, 1882

INTRODUCTION
The concept of Same Transaction is embodied as one of the most important
ingredient of the doctrine of election. It generally connotes that the doctrine of
election to be executed is that the benefit conferred upon the original owner should be
as part of the same contract by which he transfers the property over which he holds no
right to transfer. Further, it says that the equity of election does not apply, unless the
two donations are part of the same transaction, for if the two are independent, the one
which is in the power of the transferor will stand, while the other will fail.
CHAPTERISATION
Doctrine of Election
It states that when a party transfers a property over which he does not hold any right of
transfer and entailed in that transaction is the benefit conferred upon the original owner
of the property, such title-holder must elect his option to either validate such transfer of
property or reject it; upon rejection, the benefit shall be relinquished back to the
transferor subject nevertheless:
i.

Where the transfer has been through gratuitous means and the transferor has
become incapable of making a new transfer.

ii.

In all cases where the transfer is for consideration.

Exception to doctrine of election
Where a particular benefit is expressed to be conferred on the owner of the property
which the transferor professes to transfer and such benefit is expressed to be in lieu
of that property, if such owner claims the property, he must relinquish the particular
benefit. However, he is not bound to relinquish any other benefit conferred upon
him by the same transaction.
Part of the same transaction
It is necessary for making the rule of election to operate that both the transfer and
benefit form part of the same transaction. Benefit must be given in lieu of transfer.
Benefit and transfer must be inseparable and interdependent. Where they are
independent of each other they will not be considered as parts of the same transaction.

 Consequences of not being in same transaction

The doctrine of election only comes into picture if, the transaction has been done in a
same contract by which he transfers the property over which he holds no right to
transfer. Otherwise, the doctrine does not apply and the one which is in the power of
the transferor will stand, while the other will fail.
CASES REFERRED
Ammalu Achi v Ponammal (1919) Mad WN 144
A person who was managing the properties of the daughter of his deceased brother,
died leaving a will bequeathing a portion of it to B. It was held that the doctrine of
election did apply for the niece. The court held in this case that different nature of two
properties is not a bar to election by the owner
Muhammad Afzal v Ghulam Kasim (1903) ILR 30 Cal 843
In this case, after the death of Nawab of tank, the government while transferring
chiefship to Nawabs eldest son, transferred some cash allowance to the Nawabs
second son. The Nawab had already transferred in his life time villages to the second
son for his maintenance. It was held by the Privy Council that since these grants (cash
and villages) came to second son from two different sources, they were not part of the
same transaction, and, therefore, the second son was not put to election.
Ramayyar v Mahalaxmi AIR 1922 Mad 357
The facts of the case are, A gives house X to B for life, and after his death, to Bs son S
absolutely. He subsequently, makes a will by which he gives X to C and another
property Y to B. Shortly thereafter A dies and then B dies without making the election
to either confirm or reject the benefit under the bequest. His sons, would now take X as
per the original transfer executed by A and would take the land Y under intestacy on the
death of his father B. As he is an indirect beneficiary, he would not be required to put to
election. It was held by madras High Court that a person taking no benefit directly
under a transaction but deriving a benefit under it indirectly, need to elect.
Codrington v Codrington (1875) 7 HL 854

In this case the doctrine of election has been defined that is a man is not at liberty to
take under a deed or Will and at the same time to dispute the operation of that deed or
Will in other respects, but there is no authority whatever for saying that a person who
accepts the benefit under a Will is precluded from disputing some transaction in which
the testator was engaged long before his death which is not the subject of the Will at all.
All that the testator says here is excluding the properties which I have already given
away (a term which includes the gift to the first defendant), I will make the following
dispositions.
BIBLIOGRAPHY
Mulla, The Transfer of Property Act, 1882 (10th edn.).
Dr. Avtar Singh, A text book on The Transfer of Property act.
Vepa P. Sarathi, Law of Transfer of Property (5th edn.).
Dr Poonam Pradhan Saxenea, Property Law (2nd edn.).