Report No. 110

II. Juristic Basis

31.6. Juristic basis.-

At this stage, an examination of the juristic basis of the principle of election is necessary. Historically speaking, there have been three suggestions as to the basis of the rule of election, namely, (a) implied condition, (b) presumed intention of the testator, and (c) equity.

(a) In the beginning, the view prevailed that the testator gave his property to the recipient on the implied condition that the recipient would give his property to the third party1. This explanation, however, is not accepted now.

(b) Later, a theory was advanced that the doctrine of election was based on the presumed intention of the testator; but this theory was also rejected by the House of Lords2.

(c) The explanation now accepted is that of equitable basis. Lord Cairns expressly observed3 in 1874 that the rule of election was not based either on the testator's intention, or on his presumed intention. It is based on considerations of equity. This view was reiterated in 19204.

1. Nos Mordaunt, (1706) 2 Vern 581.

2. Cooper v. Cooper, (1874) Law Reports 7 HL 53: (1874-80) All ER Rep 307.

3. Cooper v. Cooper, (1874) LR 7 HL 53: (1874-80) All ER Rep 307.

4. Brown v. Gregson, 1920 AC 860: 1920 All ER Rep 730 (734) (HL).

31.7. Prerest understanding in England.-

It is now generally accepted that in order to achieve a just result in the circumstances of the case equity imposes this rule as a matter of conscience. To quote Vicount Haldane's observations in Brown v. Gregson, 1920 AC 860: 1920 All ER Rev 730 (734) (HL):

"The doctrine of election rests on a different foundation. It is a principle which the courts apply in the exercise of an equitable jurisdiction enabling them to secure a just distribution in substantial accordance with the general scheme of the instrument. It is not merely the language used to which the court looks. A testator may, for instance, have obviously failed to realise that any question could arise.

But the court will nonetheless hold that a beneficiary who is given a share under the will in assets, the total amount of which "depends on the inclusion of property belonging to the beneficiary himself which the testator has ineffectively sought to include, ought not to be allowed to have a share in the assets effectively disposed of excepting on terms.

He must co-operate to the extent requisite1 to provide the amount necessary for the division prescribed by the will, either by bringing in his own property, erroneously contemplated by the testator as forming part of the assets, or by submitting a diminution of the share to which he is prima facie entitled to an extent equivalent to the value of his own property if withheld by him from the common stock.

As was said by Cairns, L.C. in Cooper v. Cooper, LR 7 HL 53 (67): (1874-80) All ER Rep 307, this condition arises not us on a "conjecture of a presumed intention, but on a rule of equity founded on the highest principles of equity, and as to which the court does not occupy itself in finding out whether the rule was present or was not present to the mind of the party making the will."

1. Emphasis supplied.

31.8. Whether forfeiture just and fair.-

This juristic basis-the basis of equity-directly leads to a consideration of certain aspects of the section in our Act. The precise question to be examined is, whether considerations of equity1 necessitate total forfeiture of the benefit which the will proposes to give to the unwilling legatee (as is the present law in India), or whether it is enough if the disappointed legatee is compensated (as is the law in England).

In our view, it is enough if the unwilling legatee is permitted to retain what the testator has left to him, on condition of compensating the disappointed legatee for the loss of the benefit which the testator intended for the disappointed legatee. The present English law compels the refractory legatee (the legatee who does not comply with the will), merely to compensate the disappointed legatee.

The Indian law lays down forfeiture of the legacy proposed to be given to the legatee who does not comply with the will; and, in effect, the balance goes to the residuary legatee of the testator. This is clear from illustration (i) to section 1822.

1. Para. 31.7, supra.

2. Para. 31.13, infra. The illustrations are wrongly placed under section 102, and should, have been placed under section 180 or section 181.