Vol. 12 · pages 266–270

245COMMON LAW (iii) From what date does conversion by contract begin to operate. 1. Conversion becomes operative from the moment when the contract is made. 2. In the case of option to purchase, conversion takes place as from the execution of the lease. 3. For the purposes of profits etc., the property remains real estate until the option is exercised, so that the rents and profits are taken by the heir entitled to Realty. 4. For the purposes of devolution, it is personality. Conversion by direction of the owner. —Whether contained in a deed or a will. 1. Two things are necessary for conversion by deed or will : (i) There must be a direction to sell or purchase Realty. (ii) There must be some person in existence who can be said to have the right to insist upon the direction being carried out Conversion is always for the benefit of some person. If there is no person to claim the benefit, then there need be no conversion. 2. In order to effect a conversion, the direction must be imperative. If direction is only optional, there will be no conversion and property will be treated as real or personal, according as to the actual condition in which it is found. NOTE.—For a difference between a direction which is really optional and a direction which is apparently optional but really imperative See Earlom vs. Saunders—(1754) Ambler’s Reports 241. Direction, if it is optional, must be express. Otherwise it will always be held to be imperative. 3. Distinction must be made between direction to sell or purchase Realty and discretion as to the time at which sale or purchase shall be made : (a) If the direction is imperative, mere fact that it is accompanied by discretion, will not prevent conversion having its effect. (b) If the direction is imperative, the fact that those to whom the direction was given have failed to carry it out, will not prevent conversion having its effect.

246 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 4. Distinction must be made between a simple direction to sell or purchase and a direction, the execution of which, is made dependent on the request or consent of some other person. In such a case, whether there will be conversion or not, rests upon the construction of the document : (a) If the intention of the clause is to enable the person named to enforce the obligation to convert, then there will be conversion. (b) If the intention of the clause is to control the operation of the direction by making it subject to application, then there will be no conversion until such application is made. 5. Distinction must be made between the power to convert and direction to convert : (1892) 1 Ch. 279. (1910) 1 Ch. 750. A mere power to convert is not imperative direction and therefore, there will be no conversion, where there is mere power. Illus. : A borrowed £ 300 from B on a mortgage of A’s property and gave B power of sale by the terms of which the surplus proceeds of sale were to be paid to A, his executors and administrators. A died intestate, and after A’s death B sold the estate and there were surplus sale proceeds. To whom would the surplus go ? As this was not a direction to sell, the property would devolve according to its actual state at the death of A. At the death of A it was Realty, therefore, the heir was entitled to it. If the sale had taken place during the life-time of A, at the death of A it would be personality and would have, therefore, gone to the next-of-kin. II. TIME FROM WHICH CONVERSION BY DIRECTION TAKES. 1. This varies according as the direction is contained in a will or in a deed. 2. If the direction is contained in a will, conversion will take place as from the death of the testator. 3. If the direction is contained in a deed, conversion will take place as from the date of the execution of the deed—notwithstand-

247COMMON LAW ing that the trust to sell or purchase is not to arise until after the, settlor’s death. III. EFFECT OF THE FAILURE OF OBJECTS FOR WHICH CONVERSION WAS DIRECTED IN A WILL OR DEED. 1. Two cases must be distinguished : (i) Cases of total failure. (ii) Cases of partial failure, (i) Cases of total failure 1. Where there is a total failure of the objects before or at the time when the deed or will came into operation, or before the time at which the duty to convert is to arise, no conversion will take place at all and the property will remain as it was. The reason is that, there is no one who can insist upon the character of the property being altered. 2. The failure must be prior failure and not subsequent failure. 3. The rule regarding conversion is uniform in the case of total failure and there is no difference between the effects of a direction in a deed and a direction in a will. (ii) Cases of partial failure 1. Where the purposes have only partially failed, then conversion is necessary to carry out such purposes as have not failed. Consequently the doctrine of conversion would operate and the representative entitled to take the property in the form in which it is directed to be converted. 2. It will be carried out to the extent necessary. Illus. : A devises Realty to trustees upon trust to sell and divide the sale proceeds between B and C. B predeceases A and C survives him. Here, sale is necessary in order that C may have what A intended to give him, i.e., money. C will take his share in money. What would happen to the share of B ? It is money in fact and ought to go to the next-of-kin. But it will go to the heir because conversion to that extent was unnecessary. Heir takes it but as money.

248 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Illus. : A bequeaths personality to trustees to invest in the purchase of land for B and C. B predeceases A and C survives him. Here, purchase is necessary in order that C may have what A intended to give him, i.e., land. C will take his share in land. What would happen to share of B ? It will go to the nextof-kin, because, conversion to that extent was unnecessary. But the next-of-kin will take it as land. Reconversion 1. Reconversion means annulment or cancellation of prior conversion. It is a reversion or restoration of the notional state of the property to its actual state. 2. Reconversion can take place in two ways : (i) By act of parties, (ii) By operation of law. (1) By act of parties 1. This occurs where a person has the right to choose between taking the property in its converted state or in its actual state. 2. Persons who have a right to make such an election and thereby reconvert property are :— (1) An absolute owner. (2) A owner of an undivided share—without the concurrence of the co-owner in the case of money to be converted into land but not in the case of land to be converted into money. This is because money is capable of apportionment while land is not. Illus.—(1) Where money is to be invested into land in the interest of A and B as joint tenants. A can elect to reconvert without the concurrence of B. (2) Ques :—Can a remainder man effect a reconversion by electing to take it in its actual state ? This is not clearly settled. (3) This rule of reconversion by act of parties applies where the owner who has a right to elect and thereby to effect reconversion is subject to the limitation that he must not be under any disability.

249COMMON LAW Infants and Lunatics are persons under disability and cannot, therefore, reconvert. But the Court may direct reconversion on their behalf if it is beneficial to them. Married woman can reconvert if the property belongs to her for her separate use. If it is not her separate property, then she can do so only with the consent of her husband. (4) Evidence of election to reconvert— (i) express declaration of intention in that behalf; (ii) conduct amounting to election. (2) Reconversion by Law Where a person, who is under an obligation to convert property, is in possession of and absolutely entitled to the property after the obligation has ceased, the property is at home and reconverted without any act on his part. Thus— A converts within 3 years after his marriage with B to invest £ 1,000 in the purchase of lands and settle them upon his wife B. B dies within a year of the marriage. Since the obligation to invest money in land and the right to require its investment are both vested in A, the obligation is discharged by operation of law and the money which was converted into land by the covenant is reconverted and passes to the nextof-kin. Election I. DISTINCTION BETWEEN ELECTION IN LAW AND ELECTION IN EQUITY. (a) Election in law is connected with the choice of a party to repudiate a liability arising out of an unauthorized act or to ratify the act and accept the liability. (b) Election in Equity is connected with the choice of a person to accept a gift which is subject to a burden or to reject the gift. II. NECESSITY FOR TIE EQUITABLE DOCTRINE OF ELECTION. (i) What is the problem which the doctrine deals with Nature of the Problem. A gives his property to B by an instrument-deed or a will—and by the same instrument gives to C a property belonging to B. What can B take under such an instrument ?