Explained: Doctrine of Lis Pendens under Property Law

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Introduction: Origin

Lis pendens, translated from Latin is “a suit pending”, the term ‘Lis’ meaning ‘Litigation’ and ‘Pendens’ meaning ‘pending’. Lis Pendens comes from the Latin maxim “ut lite pendente nihil innovetur” which means nothing new to be introduced in a pending suit. The rule behind the maxim is to conclude settlements in a clearer way if any alienation is allowed during the proceedings of the suit.

The principle has been a statutory provision in Section 52 of the Transfer of Property Act, 1882. A defendant cannot, by alienating property during pendency of litigation, venture into depriving the successful plaintiff of the fruits of decree[1]

Legal Principle  

The doctrine of Lis Pendens as mentioned in Section 52 of the Transfer of Property Act states as follows:

“52. Transfer of property pending suit relating thereto.—During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically 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 terms as it may impose.”[2]

According to the Section, during the pendency of a suit or proceeding in any Court having jurisdiction within India or outside the limits of the central Government, involving the rights to a specifically mention immovable property, neither of the involved parties can either transfer nor deal with it in any other way which may affect the rights of the other party. Also, as per the explanation provided by the Section, it is mentioned that the applicability of this principle is from the day the suit has been brought on to the Court till the day of the judgment.

The main principle underlying Section 52 of the act is to maintain and preserve the status quo in a pending case and prevent any alteration that can be brought to the case by the involved parties. The principle specially mentions cases where an immovable property is directly or indirectly involved.

In the case of Bellamy v. Sabine (1857), Lord Turner explained the significance of this law as a doctrine common to both, Courts of law and equity. He explained, it laid upon the foundation that it would be impossible for any Court to bring a suit to a successful termination if alienation, during the pendency of a suit, prevails. In the same case, Cranworth L.C., observed that neither of the party to the suit can alienate property in question, affecting the opponent’s rights.

Essentials of Doctrine of Lis Pendens 

For application of the doctrine of lis pendens, there are certain essentials that need to be followed. In Dev Raj Dogra and others v. Gyan Chand Jain and others, the Supreme Court laid down the following conditions to be followed:

  • The pendency of suit should be in a Court of proper jurisdiction.
  • The subjected proceeding should not be a collusive kind but a bona fide one.
  • The suit must include issues of rights to an immovable property, either directly or indirectly.
  • The transfer of property in question, must be affecting the rights of the other party involved.
  • The period of pendency remains from the day the case is filed in the Court till the day of execution of decree.

Upon satisfying the above essentials, the transferee is bound to the Court’s decision. The rights of the transferred estate then depends on the Court’s judgment. If the decision of the Court is in favour of the transferor, the rights of the transferred estate will be with the transferee and if the decision is made against the transferor, the transferee would not be receiving any rights related to the questioned estate.

Exceptions

Not regarding what the doctrine states, the Court also has the power to permit any party involved in the suit to transfer the property in question. In Vinod Seth v. Devinder Bajaj, the Court observed that the underlying principle of Section 52 of Transfer of Property Act, is based on equity and justice. This means that the Court has the power to transfer the property subjected to the suit by imposing terms that deems fit. The leading case Bellamy v. Sabine also implies that the doctrine is common to the Courts of both law and equity.

Non applicability of the Doctrine

There are also certain cases where the application of this doctrine is not valid. Such as:

  • Cases of private selling by mortgagee in exercise of power conferred by the mortgage deed.
  • Cases where only the rights of the transferor is affected.
  • Cases where the suit is of collusive nature.
  • Cases where the property involved is not described properly or in of movable category.
  • In matters of review.
  • Cases involving annul leases or other actions.
  • To the time in between two suits involving the same property.
  • Cases where the alienated property does not create inconsistency with what may be decided by the Courts.

Status of transfer

Section 52 states that property cannot be alienated or dealt in any other way that affects the other party’s rights. It is also valid to transfer a property during the pendency of a suit and is only subjected to the decision of the suit. Thus, the transfer is voidable at the instance of the affected party until it conflicts against the rights given by the court’s decision. The principle only prohibits the alienation during a pending litigation when it affects the rights of a party. Hence, Section 52 can be considered as prohibitive in nature.

Landmark Case Laws

  • Hardev Singh vs. Gurmail Singh

In this case, the question was about a property given by the defendant to the appellant in lieu of maintenance, followed to a compromise between the parties. The Court stated that Section 52 merely prohibits a property transfer, it does not indicate that a pendente lite transfer would be illegal. Only the purchaser during such case would be bound by the pending decision.

  • T.G. Ashok Kumar v. Govindammal & Anr.

In T.G. Ashok Kumar v. Govindammal & Anr., the Supreme Court observed that if the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee’s title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee’s title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is entirely allotted to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property[3].

  • Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors.

In Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors., the Court discarded the defendant’s argument based on Section 52 of the act and favored the appellant on the principle ground that, the main purpose of the Section is to maintain the status quo, unaffected by the parties. The applicability of this Section cannot depend on subject of proof.

  • Ramjidas v. Laxmi Kumar and Ors.

In Ramjidas v. Laxmi Kumar and Ors., the Madhya Pradesh Court observed that the purpose of Section 52 was only to put forward the property in question to the authority of Court and not to defeat any just and equitable claim.

  • Rajender Singh and Ors. v. Santa Singh and Ors.

In Rajender Singh and Ors. v. Santa Singh and Ors. , the Court observed that the doctrine of lis pendens could be used to provide exclusion of the parties during the pendency of the suit. The intention was to strike out any attempts by the parties of interfering the pending litigation which would affect rights of either of the party regarding the immovable property. With the doctrine, the Court the power and authority to prevent the object from being defeated in a pending suit.

  • Lov Raj Kumar v. Dr. Major Daya Shanker and Ors.

In Lov Raj Kumar v. Dr. Major Daya Shanker and Ors., held that the principle under Section 52 of TPA are based on the principles of equity, justice and good conscience, and it will be impossible to bring an action to a successful termination if alienation is prevailing. Allowing alienation would defeat the ends of justice and throw away principles of equity. Hence Section 52 of the TPA was made applicable.

Conclusion

The Doctrine of Lis Pendens, mentioned in Section 52 of Transfer of Property Act, prevents a party to a suit from being deprived of its right regarding a certain property. It prevents from changes being made, introduction of rights in between a pending litigation. Depending on factors such as the affecting party, the alienated property, the privileges, this doctrine can be both a boon as well as a bane. Even though the principle is specifically mentioned in the Act, having a foundation based on the principles of equity and justice, the Courts have full power to go against the principle if deemed fit. This principle is prohibitive in nature and prohibits one to exploit the rights of other.


[1] Shivani Rani, Pendente lite nihil innovetur – Law Times Journal

[2] S.52, Transfer of Property Act, 1882

[3] ALBA LAW OFFICES, Doctrine of Lis Pendens – Experts & Views – Legally India

Authors: Srijeeta

Editor: Kanishka Vaish, Editor, LexLife India.

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