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    Question

    The foundation of doctrine of election under the

    transfer of property Act is that a person taking the benefit of an instrument:
    A Must not bear the burden Correct Answer Incorrect Answer
    B Burden is not the subject matter of election Correct Answer Incorrect Answer
    C Must bear the burden Correct Answer Incorrect Answer
    D None of the above. Correct Answer Incorrect Answer

    Solution

    According to doctrine of election, if a benefit is conferred upon a person under an instrument, that person must also bear the burden. A person cannot take what’s beneficial to him and disapprove to that which is against him under the same instrument. The Latin maxim “quod approbo non reprobo” means that ‘no one can approbate and reprobate.’ In other words, a person cannot accept a thing and reject another in the same instrument. This maxim is one of the underlying principles of doctrine of election .   For the first time, doctrine of election was elaborately explained by Lord Hather in the case of Cooper v Cooper [1874] –   “There is an obligation on him who takes a benefit under an instrument to give full effect to that instrument under which it was beyond the power of the donor or settlor 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 carrying the instrument into full and complete force and effect.”   S. 35. Election: Election when necessary.— 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 such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert 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, before the election, died or otherwise 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. 

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