A vested interest is created in favour of a person without specifying the time when it is to take effect,

or specifying that it is to take effect forthwith, or on the happening of a certain event. It is ownership. It
does not depend upon the fulfilment of any condition. It creates an immediate right, though the
enjoyment may be postponed to a future date. Thus, owners title is already perfect. It is not defeated
by death of transferee before he obtains possession. It is both transferable as well as heritable. If the
transferee of a vested interest dies before actual enjoyment, it passes on to his heirs.

Example: A makes a gift to B of Rs. 100 to be paid to him on the death of C. B gets a vested interest,
as the event, namely, Cs death is certain

Contingent interest
A contingent interest is created in favour of a person to take effect only on the happening or not
happening of a specified uncertain event, which may or may not happen. It is only a chance of becoming
an owner. However, it is different from spies successions. It is solely dependant upon the fulfilment of
the condition (after which it becomes vested interest), so that if the condition is not fulfiled, the interest
may fall through. Thus, the owners title is as yet imperfect, but is capable of becoming perfect.
Whether it passes on the death of the transferee or not depends on the nature of the contingency. It is
transferable. Whether it is heritable or not depends on the nature of the contingency. If the transferee
dies before obtaining possession, the contingent interest fails, and does not pass on to his heirs.
Example: An estate is transferred to A if he shall pay Rs. 500 to B. As interest is contingent until he
paid Rs. 500 to B.

Section 19 in The Transfer of Property Act, 1882

Vested interest.Where, on a transfer of property, an interest therein is created in favour
of a person without specifying the time when it is to take effect, or in terms specifying that
it is to take effect forthwith or on the happening of an event which must happen, such
interest is vested, unless a contrary intention appears from the terms of the transfer. A
vested interest is not defeated by the death of the transferee before he obtains possession.

Explanation.An intention that an interest shall not be vested is not to be inferred merely
from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest
in the same property is given or reserved to some other person, or whereby income arising
from the property is directed to be accumulated until the time of enjoyment arrives, or
from a provision that if a particular event shall happen the interest shall pass to another
person.

Section 21 Transfer of Property Act, 1882

Contingent interest

Where, on a transfer of property, an interest therein is created in favor of a person to take

effect only on the happening of a specified uncertain event, or if a specified uncertain event
shall not happen, such person thereby acquires a contingent interest in the property. Such
interest becomes a vested interest, in the former case, on the happening of the event, in the
latter, when the happening of the event becomes impossible.

Exception : Where, under a transfer of property, a person becomes entitled to an interest

therein upon attaining a particular age, and the transferor also gives to him absolutely the
income to arise from such interest before he reaches that age, or directs the income or so
much thereof as may be necessary to be applied for his benefit, such interest is not contingent.

INTRODUCTION
The doctrine of election is stated in Sec. 35 of the Transfer of Property Act alongside
Section 180 to 190 of the Indian Succession Act.

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 :

Where the transfer has been through gratuitous means and the transferor has
become incapable of making a new transfer.
In all cases where the transfer is for consideration.

An illustration to further explain :

A owns a property that is worth Rs 800. B professes to transfer the same to C through
the Rs1000 instrument to A. But the A, the owner opts/elects to retain his property and
thus, forfeits the gift of Rs 1000

EXCEPTIONS

When the owner who is considering the election between retaining the property and
accepting a particular benefit, chooses the former, he is not bound to relinquish any
extraneous benefit that he gains through the transaction.

The acceptance of the benefit by the original owner shall be deemed to be as election
by him to validate the transfer, if he is aware of his responsibilities and the
circumstances that might influence a prudent man into making an election.

This knowledge of the circumstances can be assumed if the person who gains the
benefit enjoys it for a period of more than two years. Further discussion over this has
been made under the heading of Modes of Election.

If the original owner does not elect his option within a year of the transfer of property,
the transferor would require him to elect his choice. Even after the reasonable time, if
he still does not also still elect, the original owner shall be assumed to have elected
the validation of the property transfer as his choice.

In context of a minor, the period of election shall be stalled till the individual attains
majority unless he is represented by a guardian

UNDERSTANDING THE PRINCIPLE

In simple words, a person utilizing the benefits of an instrument also has to carry the
burden attached. This doctrine is founded upon a model wherein a person persuades
another to act in a manner to his prejudice and derives any advantage from that, then
he cannot turn around and claim that he was not liable to perform his part as it was
void. This doctrine is universal and is applicable to Hindus, Muslims as well as
Christians.
So, this doctrine contains the principle that the exercise of a choice by a person left to
himself of his own free will to do one thing or another binds him to the choice which he
has voluntarily made, and is founded on the equitable doctrine that he who accepts
benefit under an instrument or transaction of his choice must adopt the whole of it or
renounce everything inconsistent with it. Thus, it is a general rule that a person cannot
approbate and reprobate. Also, the election is confined to the case of a gift or Will and
does not apply in case of a legal remedy

Conditions precedent for equity of election:

A transfer of property by a person who has no right to transfer;

As a part of the same transaction, he must confer some benefit on the owner
of the property and
Such owner must elect either to confirm such transfer or to dissent from it.

OTHER IMPORTANT CONDITIONS

Proprietary Interest

Election over a property is not asked to made by a person unless he holds a proprietary
interest which are disposed off in derogation of the persons rights.

So, election cannot take place if the property that is decided by the transferor to be
disposed does not happen to be owned by any individual to whom an interest is being
provided through the transfer. Also, it cannot take place if the transferor does not
provide any benefit on the individual who is the original owner of the property.

As part of the same transaction

One cardinal condition for 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.

In the landmark case of Ramayyar v. Mahalaxmi, a widow had given a gift in excess
of her powers and had then provided a will which stated that excluding the properties
which I have already given away, I will make the following dispositions. The Court
ordered that the plaintiff under the will was not excluded from the election doctrine
from contesting the previous gift which wasnt the issue of the will at all.

It is to be noted that different nature of two properties is not a bar to election by the
owner like in the case of Ammalu v. Ponnammal where 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.

Donors Intention

In order to create a situation of election, it is important that the intention of the testator
should be clear with regard to disposing of the property which he does not own. Parol
evidence is not acceptable and thus the intention must be prima facie clear.
Indirect Benefit

The benefit that the original owner is conferred with has to be direct in nature and if
indirect, he does not need to elect. This principle is explained in Section 184 of Indian
Succession Act, 1925 and states that when the devisee who claims derivatively
through another does not take under the deed, and is not bound by the equity attaching
thereto.

Difference in Capacity

An individual can in one capacity utilize a benefit while can dissent or reject that benefit
in another capacity. It means to explain that it is possible to facilitate two roles of an
individual wherein he can for example, accept legacy for an estate while in his personal
competence, he could retain the property.

Modes of Election

The election by the owner can either be direct or indirect. In direct election, it is simply
through communication about the elected choice or option. Though, in case of an
indirect election, the acceptance of the benefit by the original owner is subject to two
conditions:

1. He has to be aware of his duty to elect, and

2. There must be proof of knowledge of circumstances which would influence the
judgment of a reasonable man in making an election :

Enjoyment for two years of the benefit by the person on whom it is conferred with any
dissent.

The election shall be presumed when the donee acts in such a manner with the
property gifted to him that it becomes impossible to return it to the original owner in its
original state.

Difference between English Law and the Indian Law Perspective

The English law depends upon the principle of compensation which means that if the
original owner does not choose to validate the transfer, he can keep the property and
also the benefit accrued, subject to compensation provided to the donee, to the extent
of the property he had suffered a loss for.

But in the Indian law context, this doctrine is influenced by the principle of forfeiture
which states that if the original owner does not choose to validate the transfer, the
donee incurs a forfeiture of the conferred benefit which goes back to the transferor.

COMPENSATION

Estimated cost of the property which is attempted to be transferred towards the

transferee is the approximation of the compensation that he shall receive. However,
in context of immovable properties, there arises the issue of changing value of the
property according to the lapse of time. Thus, this valuation is to take place at the date
of the instrument becoming operational rather than at the time of election.

CONCLUSION

Section 35 of the Transfer of Property Ac, 1882 explains the concept of the Doctrine
of Election. This project tries to deal with the various nuances involved in the doctrine
through the usage of various landmark judgments. Herein, special emphasis has been
placed upon providing a clear understanding of the conditions necessary for the
election by the original owner to take place. The differences between the Indian Law
perspective as well as the English Law perspective is brought out through critical
analysis of the provisions i.e. Principle of forfeiture and Principle of compensation.
Various aspects such as Proprietary Interest, Compensation estimated, indirect
benefit, the intention of the donor etc have been dealt and explained for the enhanced
understanding over the model of Doctrine of Election