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Judgment
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.
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 Immovable properties decreed to her pending the appeal. In the appeal she claimed the money in addition.
Therefore the Immovable 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 Immovable 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.