The law incorporation in Section 52 of the Transfer of Property Act, 1882 is based on doctrine of lis pendens.
Section 52 of transfer of Property states that,
“During the pendency of any court having authority within the limits of India excluding the state of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable directly or substantially in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such as may be prescribed.”
The term ‘lis’ means ‘litigation’ and ‘pendens’ means ‘pending’. Thus lis pendens means pending litigation. This doctrine has been expressed in an well-knownpendente principle “pendent lite nihil innovature” which means “during the pendency of litigation, nothing new should be introduced.”
So, under this doctrine, the principle is during the pendency of any suit regarding the tittle of the property, any new interest should not be crated. Thus the doctrine of lis pendens prohibits the transfer of property pending suit.
The basis of doctrine of lis pendens is necessary rather than actual or constructive notice, it may be said that this doctrine is based on notice because a pending suit is regarded as a constructive notice of the fact the disputed tittle of the property under litigation. Therefore any person dealing of that property must be bound by the decision of the Court.
For the administration of justice, it is necessary that while any suit is pending in a court of law regarding tittle of the property, the litigant should not be allowed to take decision themselves and transfer the disputed property.
So, the doctrine of lis pendens is based on necessary and is a matter of public policy, because it prevents the parties from disposing a disputed property in such a manner as to interfere court’s proceeding.
Essential conditions for the application of doctrine of lis pendens:
Following are the essential condition to be fulfilled for the application of doctrine of lis pendens as provided in the Section 52 of the Transfer of Property Act, 1882.
- There is a pendency of suit or proceeding.
- The suit or proceeding must be pending before a competent court of jurisdiction.
- A right to immovable property is directly or specifically involved in the suit.
- The suit or proceeding must not be collusive.
- The property in dispute must be transferred or otherwise dealt with by any party to suit.
- The transfer must affect the rights of the other party to litigation.
When these above mentioned conditions are fulfilled, the transferee is bound by the decision of the court. If the decision of Court is in favour of the transferor, the transferee has right transferred on him, but if the decision of the Court goes against the transferor, the transferee will not get any interest on that property.
Let’s discuss these conditions briefly,
(1) Pendency of suit:
Section 52 of Transfer of Property Act, 1882 or the Doctrine of lis pendens only applies when the property transferred during the pendency of suit or proceeding. Pendency of suit or proceeding is that period during which a suit is remains before a court for its final disposal. A suit is instituted by filing a plant, that is the first step of a suit and the last step of suit is passing decree by Court.
So a suit is starts with filing a suit and ends with passing a decree by court. So, the pendency of suit begin from the date on which the plant is presented and pendency of suit terminates on the date when final decree passed by Court.
(2) Pendency of suit in a court of competent jurisdiction:
The suit or the proceeding during which the property is transferred, must be pending before a court of competent jurisdiction. When a suit is pending before a court which has no proper jurisdiction to entertain it, the doctrine of lis pendens shall not apply.
(3) Right to immovable property must be involved:
Another condition for the applicability of this doctrine is that the suit right to immovable property directly or specifically in question. The litigation should be regarding the tittle or interest of that property. Where the question involving the suit or proceeding does not relates to the tittle or interest in an immovable property, the doctrine of lis pendens has no application.
For example where a suit is pending between landlord and tenant regarding payment of rent, and during that time landlord transfers his property, the transfer shall not affect by the doctrine of lis pendens because the litigation was not regard to the tittle or interest of an immovable property. The suit involves payment of rents.
(4) Suit must not be collusive:
Doctrine of lis pendens is inapplicable if the suit is collusive in the nature. A suit is collusive if it was instituted with a mala fide intention.
Where a property is transferred during the pendency of collusive suit, the transfree is not bound by the litigation. However if any suit at the beginning was bona fide, but during pendency of suit there is a secret agreement between the parties in form of compromise, in that cases too lis pendens is applicable.
(5) Property is transferred or otherwise dealt with:
During pendency of suit, the property must be transferred or otherwise dealt with by any of the parties in a suit. Transfer includes sale, exchange, lease and mortgage.
Thus during pendency of suit if the disputed property is sold or given lease or mortgaged either by plaintiff or defendant, this doctrine of lis pendens shall apply, and the transfer would be the subject of the decision of Court.
The expression “otherwise dealt with” has been interpreted to means those transactions in which although there is transfer of some interest in the property, but they do not come strictly as the transfer within the meaning of Section 5 of Transfer of Property Act, 1882. Accordingly surrender, release or partition as transfer, a contract of sate has been regarded as a transfer within the meaning of “otherwise dealt with.”
(6) Transfer affects rights of any other party:
The last condition for the applicability of doctrine of lis pendence is that the transfer during which pendency must affect the right of any other party to the suit. The principle of lis pendens is intended to safeguard the parties to litigation against transfers by their opponents.