Vol. 12 · pages 271–275

250 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Here there are two gifts— (i) by A to B of A’s property (ii) by A to C of B’s property The gift to B of A’s property is a valid gift, because A is the owner of the property gifted away. The gift to C of B’s property by A is invalid, because it is not authorized by B. Question is, can B take the gift from A of A’s property and repudiate the gift of his property by A to C ? It is this problem with which the doctrine of Election deals. (ii) The doctrine of Election says that the gift to B shall take effect only if B elects to permit the gift to C also to take effect. III. THE PRINCIPLE OF THE RULE. When a person makes a gift of this sort, equity presumes that in such a gift there is an implied condition that he who accepts a benefit under an instrument must adopt the whole of it, conforming to all its provisions, and renouncing every right inconsistent with it. (iii) Courses open to a person called upon to elect. (A) Two courses are open to a person who is called upon to make an election. (1) B may allow C to take his (B’s) property and himself take A’s property. (2) B may take A’s property and not allow C to take his (B’s) property but give him compensation to the extent required to satisfy C. Illus. : A gives to B a family estate belonging to C worth £ 20,000 and by the same instrument gives to C a legacy of £ 30,000 of his (A’s) property. C can do either of the two things, (i) allow B to take the family estate or (ii) keep the family estate and give B £ 20,000. (B) The former course is called taking under the instrument. The latter is called taking against the instrument. The following points must be noted in connection with these two modes of Election :

251COMMON LAW (i) Election against the instrument is allowed in Equity only where the gift is made upon an implied condition that the donee shall part with his own property. Where the gift is made upon an express condition that the donee shall part with his own property. Equity will not allow Election against the instrument. The donee would take nothing if he refused to comply with the condition. (ii) No question of compensation arises when a person elects under the instrument. (iii) Election against the instrument where it is permitted—does not involve a forfeiture of the whole of the legacy but only of a part sufficient for compensation. IV. C ONDITIONS FOR THE APPLICATION OF THE DOCTRINE (1) The donor must have given the property of the donee to a third person. (2) The donor must have by the same instrument given his own property to the donee. To this the following must be added. (3) The property given to the donee must be such that it can be used to compensate the third person. (4) The property of the donee must be alienable. Note.—The donor will be deemed to be disposing of such interest as he may have in the property and no more. V. S OME CASES WHICH MUST BE DISTINGUISHED FROM CASES OF ELECTION (1) Cases of two gifts to one person In such cases the doctrine of election does not apply. They are cases of gifts of his own property. Here the donee may accept the one that is beneficial and reject the one that is onerous—unless the intention of the donor was that the acceptance of the onerous was a condition for the grant of the beneficial. 2. Case of two properties in one gift.—One beneficial, the other onerous. The beneficiary must take both or neither unless an intention appears to allow him to take the one without the other.

252 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES VI. C ONCLUSION (1) Conversion and election are doctrines which illustrate the maxim of Equity—Equity looks to intention. (2) That being so there would be no election if there was no intention on the part of the donor to put the donee to election. I. Performance 1. The problem :—A covenants with B to do a certain act. A does an act which can wholly or partly effects the same purpose i.e. available for the discharge of the obligation arising under the covenant but does not relate the act to the covenant. The question is how is this act to be construed ? Is it to be construed that it is an independent act quite unconnected with the covenant or is it to be construed that the intention of A in doing this act was to perform the obligation. The answer of equity is that the act must be treated as being intended to perform the obligation under the covenant. 2. Principle :—The principle underlying the doctrine of Performance is that, equity presumes that every man has an intention to perform his obligation and when he does an act which is similar to the one he promised to do, then equity gives effect to that intention. 3. The difficulties that would occur if this principle was not recognized. Illus : A convenanted on his marriage to purchase lands of the value of £200 a year and to settle them for the jointure of his wife and to the first and other sons of the marriage in fail. A purchased lands of that value but made no settlement, so that, on his death the lands descended to his eldest son. The eldest son brought a bill in equity founded on his father’s marriage-articles to have land purchased out of the personal estate of the father of the value of £ 200 a year and settled to the uses in the marriage-articles. But for the doctrine of performance the man would get both.

253COMMON LAW II. The cases in which the questions of Performance arise fall into classes : (i) Where there is a covenant to purchase and settle lands, and a purchase is in fact made. (ii) Where there is a covenant to leave personality to an individual and the covenanter dies intestate and the property thereby comes in fact to that individual. III. Cases arising under the First Class (i) Illus, already given. Points to be noted. (i) Where the lands purchased are of less value than, the lands covenanted for, they will be considered as purchased in part performance of the contract. (ii) Where the covenant points to a future purchase of lands, lands of which the covenantor is already ceased at the time of the covenant, are not to be taken in part performance. (iii) Property of a different nature from that covenanted to be purchased by the covenantor, is not subject to the doctrine of Performance. IV. Cases that fall under the second class (i) Covenant is to leave certain money. A covenanted previously to his marriage to leave to his wife £620. He married and died intestate. His wife’s share under the intestacy was less than £ 620. The wife sued for the performance of the covenant. The question was, having received £ 620 on intestacy, was it not a performance of the covenant. It was held that it was, so that the widow could not claim her share on intestacy and £ 620 over and above as a debt under the covenant. (2) In this case, the covenant was wholly performed. But even if the amount received was less than the amount due under the covenant, the doctrine of performance would apply and the convenant would have been held to be performed pro tanto. (3) Two points to be noted : (i) Where the covenantor’s death occurs at or before the time when the obligation accrues, there is performance.

254 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (ii) Where the covenantor’s death occurs after the obligation has accrued due, there is no performance. Satisfaction I. Problem.—A is under an obligation to B. A makes a gift to B. The Question is : Is the gift to B to be taken as a gift or is the gift to B to be taken as satisfaction of A’s obligation to B ? II. There is a similarity between satisfaction and performance. There are fundamental distinctions between the two. (1) In performance, the act done is available for the discharge of the obligation, but is not related in specific terms to the obligee. In satisfaction, it is related to the obligee but not in discharge of the obligation. (2) In performance, whether the covenant has been performed depends, not upon the intention but, upon whether that has been done which was agreed to be done. The question, whether a gift satisfies an obligation, depends upon the intention of the donor. (3) If an obligation has been performed-according to its terms, the obligor is discharged. If an obligor makes a gift by will in satisfaction of his liability, it rests with the obligee either to accept the gift or decline it. If he accepts it, he looses the right to enforce his obligation, if he declines it, he retains his original rights. II. Intention is that, the gift is in satisfaction of the prior obligation. III. Cases in which the question of satisfaction arises fall into two classes:— (i) Cases in which the prior obligation arises from an act of bounty. (ii) Cases in which the prior obligation is of the nature of a debt. IV. Class of cases in which the prior obligation arises from an act of bounty. In this class fall two kinds of cases— (A) Satifaction of legacies by portion. (B) Satisfaction of portions by legacies. (A) Satisfaction of legacies by portion Portion—That part of a person’s estate which is given or left to a child.