Report No. 110

19.3. Principle analogous to election.-

The underlying principle is to some extent analogous to the doctrine of election. If you take a benefit, then you also take the burden. In an onerous bequest, the testator bequeaths the property with an obligation annexed to it; in the case governed by election, the testator confers a benefit on the legatee, depriving him simultaneously of some other interest belonging to the legatee. In both the cases, something not beneficial is tagged on to the benefit.

19.4. Application.-

A Calcutta case illustrates1 the application of the section. The plaintiff (appellant) had claimed partition of two houses and certain movable property in the possession of his step mother and other three half-brothers. It was alleged by the step-mother and her sons that the property had been gifted to the step mother by her husband (i.e. the appellant's father).

The appellant's father had stipulated a condition in the gift deed that a maintenance allowance of Rs. 5 must be paid by the donee (step-mother) and she was not aware of this condition. It was held that the appellant's father handed over the document and she accepted it as a gift, without thinking of doing anything contrary to its terms, and constituted acceptance. It was not necessary that there should be acceptance of the onerous condition alongwith the acceptance of the gift. Assent of the donee is presumed until and unless he disclaims.

The section does not seem to need any change.

1. Sarba Mohan v. Manmohan, AIR 1933 Ca] 488.