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Ammalu Achi, by Her Authorised Agent, G. Venkatachalam Pillai Vs. Ponnammal Achi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported in(1919)36MLJ507
AppellantAmmalu Achi, by Her Authorised Agent, G. Venkatachalam Pillai
RespondentPonnammal Achi and ors.
Cases ReferredMahammad Afzal Khan v. Ghulam Kasim Khan
Excerpt:
- - if, therefore, a testator has affected to dispose of property which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him must make good the testator's attempted disposition :but, if, on the contrary, he chooses to enforce his proprietary rights against the testator's disposition, equity will sequester the property given to him, for the purpose of making satisfaction out of it to the person whom he has disappointed by the assertion of those rights' this statement has been accepted as a correct exposition of the rule by eminent judges. therefore the immoveable property as well as the money were in dispute in the appeal......devised inherited property and also the legacy of rs. 800, the 8th issue in the case raises the question of election. in our opinion, the doctrine is applicable to the present case. the weight of authority in england is to regard the doctrine as based on the principle of compensation and not on that of forfeiture. see ker v. wauchope (1819) 1 bligh h.l. 1 : 4 l.r. 1 and rancliffe (lord) v. parkyns (1818) 6 dow. 149. the fact that the 2nd defendant may be compelled at the instance of the reversioners to give up the property after the life-time of the plaintiff, whereas she will have an absolute right in the rs. 800 bequeathed to her is not a ground for not applying the doctrine of election. the quantum of compensation is not what the court looks to. it is only concerned with seeing.....
Judgment:

1. The finding is that the testator intended to make an independent gift of Rs. 800 to the plaintiff by his will. The testator was the divided brother of the plaintiff's father; and managed, the properties which she inherited, during her minority. Before his death, the testator bequeathed a portion of the properties which he was then managing to the 2nd defendant; by the same instruments he gave the plaintiff Rs. 800. She now sues to recover the devised inherited property and also the legacy of Rs. 800, The 8th issue in the case raises the question of election. In our opinion, the doctrine is applicable to the present case. The weight of authority in England is to regard the doctrine as based on the principle of compensation and not on that of forfeiture. See Ker v. Wauchope (1819) 1 Bligh H.L. 1 : 4 L.R. 1 and Rancliffe (Lord) v. Parkyns (1818) 6 Dow. 149. The fact that the 2nd defendant may be compelled at the instance of the reversioners to give up the property after the life-time of the plaintiff, whereas she will have an absolute right in the Rs. 800 bequeathed to her is not a ground for not applying the doctrine of election. The quantum of compensation is not what the Court looks to. It is only concerned with seeing that a party deprived of a right vesting in him is recompensed by the gift of another property whatever may be its nature or duration of enjoyment. See Wilson v. Lord John Townshend (1795) 2 Vesey 693 and Webb v. Shaftesbury (Earl of) (1802) 7 Vesey 480 : 32 L.R. 1911. Further as pointed out in Whistler v. Webster (1794) 2 Ves. 370' it is immaterial' in regard to the doctrine of election whether the testator, in disposing of that which is not his own, is aware of his want of title, or proceeds on the erroneous supposition that he is exercising a power of disposition which belongs to him; in either case, whoever claims in opposition to the will, must relinquish what the will gives him' (Jarman on Wills, First Edition 387). See also Thellusson v. Woodford (1806) 13 Vesey 209 and In re Brooksbank : Beauclerk v. James (1886) 84 Ch Dvn. 160. The fact therefore that had the testator known that he was giving the 2nd defendant only a precarious life-interest in the 2 acres, he may not have given plaintiff Rs. 800, is not a sufficient reason for not giving the plaintiff the Rs. 800 if she chooses to claim it. The principle on which election rests has been thus stated by Jarman at page 532. ' The doctrine of election may be thus stated. That he who accepts a benefit under a deed or will, must adopt the whole contents of the instrument conforming to all its provisions and renouncing every right inconsistent with it. If, therefore, a testator has affected to dispose of property which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him must make good the testator's attempted disposition : but, if, on the contrary, he chooses to enforce his proprietary rights against the testator's disposition, equity will sequester the property given to him, for the purpose of making satisfaction out of it to the person whom he has disappointed by the assertion of those rights' ' This statement has been accepted as a correct exposition of the rule by eminent Judges. See also Cooper v. Cooper (1874) L.R. 7 H.L. 53 and Codrington v. Codrington (1875) L.R. 7 H.L. 854.

2. Mr. Ramachandra Aiyar relying on In re Lord Chesham : Cavendish v. Dacre (1886) 31 Ch. Dvn. 466 contended that as the plaintiff had no power of dispossession over the property dealt with by the testator no question of election can arise. The plaintiff could certainly alienate her life-interest even granting that was all that that she had in the 2 acres disposed of by the testator. The decision in Mahammad Afzal Khan v. Ghulam Kasim Khan (1903) I.L.R 30 Cal. 843 (P.C.) proceeded on the footing that as the party was asked to choose between two donations by two different donors, no question o'f election arose. We may say that Section 35 of the Transfer of Property Act and Section 172 of the Indian Succession Act enunciate the doctrine of election as enforced in England : but as those sections do not apply to Hindus, we have preferred to base our judgment on English decisions. We are unable to agree with Mr. T.R. Venkatarama Sastri that the plaintiff had deliberately made her choice because she took possession of the immoveable properties decreed to her pending the appeal. In the appeal she claimed the money in addition. Therefore the immoveable property as well as the money were in dispute in the appeal. We think that in modification of the decree of the Lower Appellate Court, plaintiff should be given 2 months' time to elect which of the two properties she would accept. If she does not elect within that time, it must be held she elected to retain the immoveable properties which she took possession of in execution. The respondent will then be at liberty to apply for restitution of the other property, if that contingency arises. The order as to costs in the Lower Courts will stand. In this Court each party will bear her or their own costs.


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