Doctrine of Lis Pendens – Section 52 of Transfer of Property Act, 1882

Introduction

The doctrine of lis pendens is incorporated in the Transfer of Property Act, 1882, under Section 52. ‘Lis’ means litigation and ‘pendens’ means pending, literally signifying pending litigation. Any action or proceeding which is pending in any court of law is said to be lis pendens. The maxim representing this doctrine accurately is pendente lite nihil innovature, which means that ‘during the pendency of litigation, nothing new should be introduced’. The principle behind this doctrine is that nothing new should be introduced into a litigation that is pending, i.e. to maintain the status quo, to abstain from doing anything which may affect any party to the litigation.

In terms of property law, it implies that no new interest in respect of a property should be introduced, if that property is the subject-matter of a litigation. If a new interest or title is created in that property, that would amount to a transfer of that property. The doctrine of lis pendens prohibits the transfer of any property under litigation.

Origin of Doctrine of Lis Pendens

The doctrine of lis pendens has its origin in the case of Bellamy v. Sabine[1], wherein Turner, L.J., observed that the doctrine of lis pendens was a doctrine common to the courts of law as well as equity, since it would become almost impossible for the suit that is instituted in a court, to be adjudicated if alienations pendente lite were allowed to prevail. The plaintiff, in such a situation, would be liable to be defeated by the defendants causing the alienation before the judgement is passed, every time, and would be driven to institute a new course of proceedings, every time.

The Doctrine of Lis Pendens is a very old doctrine of common law; since speedy and effective remedies are the requisites of a judicial system, it is important to ensure that there is no invasion of any right or title of any party interested in the property. The litigation process should not be defeated because of private transactions, otherwise the purpose of seeking relief from the court would be rendered useless and ineffective. The doctrine of lis pendens is based on necessity as it prevents the parties from disposing off property that is in dispute, to not interfere with the Court’s proceedings. The decision of the Court is one to be honoured and all the parties interested in the action will be bound by it. If there were no rule to prohibit alienation of property during pendency of the suit, all successive transactions would be rendered ineffective and no person would be able to settle his rights in the property.

Doctrine of Lis Pendens in India

In India, the statutory provision for the doctrine of lis pendens is mentioned in the Transfer of Property Act. Section 52 states that if any suit or proceeding is pending in any court having authority within India, or in any court established by the Central Government outside India, any immovable property that is part of that suit or proceeding cannot be transferred or otherwise dealt with, by any party to the suit, in such a way that such transfer or dealing would affect the rights of any other party to the suit or proceeding. Such a transfer or dealing can only be affected if the Court allows it and it may impose certain conditions as it may deem necessary. Moreover, the suit or proceeding that is instituted should not be collusive in nature and must involve a right to the immovable property that is in question. This section does not apply to the State of Jammu and Kashmir.

The explanation to this section provides the pendency of proceeding would begin on the date the plaint is presented as well as instituted in court of competent jurisdiction, and it would end on the date the final decree or order is passed by the court, or if it has become unobtainable because of expiry of the limitation period. As per Section 52, the effect of doctrine of lis pendens is not to invalidate the transfer, but to make it subject to litigation.

According to the view taken by the Indian courts, it has been held that the foundation for the doctrine of lis pendens does not rest upon notice, actual or constructive; it rests solely upon necessity – the necessity that neither party to the litigation should alienate the property in dispute so as to affect his opponents.[2] In Rajendar Singh v. Santa Singh[3], the Supreme Court observed that the doctrine of lis pendens intends to strike at any attempts made by the parties to the suit to curtail the jurisdiction of the Court through private dealings, which affect the subject matter of the suit and prevent the Court from deciding a dispute in relation to that property and hence, frustrate the decree.

Essentials of Doctrine of Lis Pendens

The basis of the doctrine is necessity, so it is immaterial as to whether the transferee had any notice of suit pending in the court or not. The transferee is bound by the order of the court even if he had no actual or constructive notice of the pending suit.[4] The pendency of the suit starts from the date on which the plaint is filed in the court and ends on the date on which the final decree is passed by the court, as mentioned in the explanation to section 52.

Following are the essentials of Doctrine of Lis Pendens as described in section 52:

  1. There must be a pendency of a suit or proceeding.
  2. The suit/proceeding must be pending in a court which has the jurisdiction to try it.
  3. A right to immovable property is either directly or indirectly involved in the suit/proceeding.
  4. The immovable property in dispute is transferred/dealt with by any party to the suit.
  5. Such transfer/dealing affects the rights of the other party(s) involved in the suit/proceeding.

Transfers of property may either be done by the act of the parties or by operation of law. Transfers by operation of law are called involuntary transfers. Earlier, there was some dispute about the applicability of the doctrine of lis pendens to involuntary transfers. The matter was settled by the Privy Council in the case of Nilkant v. Suresh Chander[5], and now the doctrine is applicable to both kinds of transfers. Further, the Supreme Court, in Samarendra NathSinha v. Krishna Kumar Nag[6], stated that although section 52 does not strictly apply to involuntary alienations, for example court sales, but it is well established that the doctrine of lis pendens applies to such transfers.

Once all the conditions are fulfilled, the transferee is bound by the court’s decision. If the decision of the court is in favour of the person transferring the property in dispute (transferor), the person to whom the property is transferred (transferee) gets all the rights attached to that transfer. If the decision is against the transferor, the transferee does not get any right because the transferor has no right to transfer the property anymore. Although, it must be noted that section 52 does not invalidate any transfer, but makes it subject to the rights of the parties involved in the suit. In Gouri Dutt Maharaj v. Sheikh Sukur Mohammed& Ors.[7], it was observed that the principle underlying section 52 is to maintain the status quo.

Application of Doctrine of Lis Pendens

The doctrine of lis pendens is not applicable where the suit is collusive i.e. instituted with mala fide intention. This means that there is no actual dispute but the suit is filed for some evil motive, for example, defrauding a third party.

In Nagubai v. B. Sham Rao[8], the Supreme Court observed, “In such (collusive) a proceeding the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties.” However, the doctrine is applicable in cases where the litigation is ultimately compromised and a compromise/consent decree is passed, i.e. where there is a compromise suit. Such compromise should be made during the pendency of litigation.

For the applicability of doctrine of lis pendens, there must be a question of the right to immovable property involved in the suit. The suit itself should be regarding the dispute in an immovable property, relating to any right or title of the same. Such suits include a suit for partition, a suit on mortgage, a suit for pre-emption and a suit of easement.

In Clifford George Pinto v. M. R. Shenava & Ors.[9], it was held that section 52 could be applied to cases wherein a sale is made of an immovable property through private negotiations, during pendency of litigation process. In Faiyaz Hussain Khan v. Prag Narain[10], a mortgagee sued the mortgagor for enforcement of his loan, but before the summons could be served to the mortgagor, he initiated a subsequent mortgage. The prior mortgagee continued his suit without making the subsequent mortgagee a party to the suit, and obtained a sale decree from the court. The subsequent mortgagee did not have any right to redeem the previous mortgage.

The inalienability of immovable property in dispute while litigation is pending is subject to the power of the court. If the court decides, it can exempt the property from the application of section 52 and may impose conditions accordingly.[11]In Ramjidas v. Laxmi Kumar & Ors.[12], the court observed that section 52 does not defeat any claim that is just and equitable, instead it subjects them to the authority of the court. The courts are required to interpret the section strictly. Any transfer of immovable property which is made outside the period of the litigation process will not be covered under the doctrine of lis pendens.

Moreover, there are certain instances where the doctrine of lis pendens is not applicable:

1. Where there is a private sale by a creditor holding the right to dispose off the mortgaged property even if there is a suit for redemption filed for the same.

2. If the property is not described clearly, or if it cannot be identified, the doctrine of lis pendens will not be applicable. Mere mention of the property is not enough, it should be identifiable.

3. Where there is a suit for maintenance only for the maintenance payments to be ascertained transparently, the doctrine of lis pendens will not apply because the property is not directly in question.

4. Where a court orders restoration of an immovable property under Order 21, Rule 63 of the Civil Procedure Code, 1908, the doctrine of lis pendens is not applicable.

5. Where a transfer is affected by a person who is not a party to the suit.

6. Where the transferor is only partly affected because of the transfer.

Conclusion

A purchaser pendente lite is given an opportunity to defend himself. If the interest of such purchaser is substantial, he can be made as a proper party to the suit. But his rights or title would be subject to the decision of the court, and any condition that it may impose. The purchaser is entitled to be impleaded in the suit or any other proceeding where his predecessor was party to the litigation.[13]

The doctrine of lis pendens is in consonance with public policy, and with the principles of justice, equity and good conscience. The provision under section 52 bars any party to the suit to take decisions of alienation of property themselves and interrupt the working of the court. It further ensures that no person’s right is curbed due to another’s will.

[1] (1857) 1 De G & J 566.

[2]Govinda Pillai v. Aiyyappan Krishnan, AIR 1957 Ker. 10.

[3] AIR 1973 SC 2537.

[4]RappelAngusthi v. Gopalan, AIR 1970 Ker. 188.

[5] (1885) 12 Cal. 414; Motilal v. Karrabulam, (1897) 25 Cal. 179.

[6] AIR 1967 SC 1440.

[7] AIR 1948 PC 147.

[8] (1956) SCR 451.

[9] AIR 2005 Kant 167.

[10] (1907) 29 all. 339.

[11]Vinod Seth v. Devinder Bajaj, (2010) 8 SCC 1.

[12] AIR 1987 MP 78.

[13]Bhanumani Sahu v. State of Orissa, AIR 2013 Kant. 137.

Also Read – Origin And Development of The Tort of Vicarious Liability

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About Zara Suhail Ahmed

Zahra is a student at Aligarh Muslim University, pursuing a 5-year B.A. LLB course. Currently in her 4th year, Zahra opted for Law after completing most part of her schooling from Cambridge School, New Delhi. Zahra has interned under a few lawyers and firms, participated in various moot courts and similar events, and is proficient in research and written content. A strong believer that education is the greatest virtue, Zahra seeks to learn from every platform and individual, whether working alone or as a team. Although Zahra is keenly interested to pursue ADR (Alternate Dispute Resolution) as a career, she has kept her options open and is interested in examining the different career prospects that her profession has to offer. Zahra has diversified interests apart from her professional life as well. Not only a successful lawyer, but she also aspires to become a productive human being.

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