Section 52 of the Transfer of Property Act of 1882 codified the doctrine of Lis Pendens. Lis Pendens means “pending suit” in Latin, with “Lis” meaning “litigation” and “Pendens” meaning “pending.” Lis Pendens is derived from the Latin phrase “ut lite pendente nihil innovetur,” which means “in a pending action, nothing new shall be introduced.” The rule behind the maxim is to conclude settlements in a clearer way if any alienation is allowed during the proceedings of the suit. A defendant cannot deprive the successful plaintiff of the fruits of the decree by alienating property while the case is pending.
According to Section 52 of the Transfer of Property Act, 1882, 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 mentioned immovable property, neither of the involved parties can either transfer or deal with it in any way that may affect the rights of the other party. Also, according to the Section’s explanation, this concept applies from the time the suit is filed with the court until the day of the judgement.
The basic objective underpinning Section 52 of the act is to protect and preserve the status quo in an ongoing matter while preventing any changes made by the parties involved. The principle specifically mentions situations in which an immovable property is involved, either directly or indirectly.
The doctrine of Lis Pendens is intended to (i) avoid prolonged litigation, (ii) shield either party to the litigation from the actions of the other, and (iii) prevent exploitation of the judicial system.
Essentials of Doctrine:
In Dev Raj Dogra and others v. Gyan Chand Jain and others[i], the Supreme Court defined the meaning of Section 52 of the Transfer of Property Act and established the following conditions:
- A litigation or proceeding must be filed in which any right to immovable property is directly and specifically challenged.
- The case or action should be pending in a competent court.
- It should not be a collusive lawsuit or proceeding.
- The right to immovable property must be directly and clearly at issue in the litigation.
- During the pendency of the suit, any transfer or other dealing with such immovable property by any party to the suit or proceeding is prohibited unless authorized by the Court, if such transfer or other dealing with the property by any party to the suit or proceeding affects the right of any other party to the suit or proceeding under any order or decree that may be passed in the said suit or proceeding.
The purpose of this provision, according to the Court in Ayyaswami v. Jayaram Mudaliar[ii], is not to deprive the parties of every just or fair argument, but rather to ensure that the parties submit themselves to the Court’s jurisdiction and authority, which shall determine all claims brought before it to the satisfaction of the parties concerned.
The issue in Hardev Singh v. Gurmail Singh[iii] was a property handed by the defendant to the appellant in lieu of support, which resulted in a settlement between the parties. According to the Court, Section 52 only forbids a property transfer and does not imply that a pendente lite transfer is unconstitutional. Only the purchaser would be bound by the pending decision in such a case.
In Lov Raj Kumar v. Dr. Major Daya Shanker and Ors[iv]., the court found that the principles under Section 52 of the TOPA are based on equity, justice, and good conscience, and that it will be hard to successfully terminate an action if alienation is present. Allowing alienation would be a betrayal of justice’s goals and a betrayal of principles of equity. As a result, Section 52 of the TOPA became applicable.
The doctrine of Lis Pendens is based only on the theory of necessity, rather than the theory of notice, which is controlled by common law principles such as Justice, Equity, and Good Conscience. As a result, it is critical in ensuring that justice is served without jeopardizing either party’s rights. Because the doctrine of lis pendens is consistent with justice, equity, and good conscience, it will be implemented in situations where the Transfer of Property Act is inapplicable, with the goal of preventing the deserved party’s right from being curtailed by another. This principle is restrictive in nature, as it forbids one from exploiting another’s rights.
- Krishna Rao, The doctrine of Lis Pendens, Blog iPleaders, https://blog.ipleaders.in/doctrine-lis-pendens/#Suggestions
- Alba Law Offices, Doctrine of Lis Pendens, Legally India, https://www.legallyindia.com/views/entry/doctrine-of-lis-pendens
- Varun Modasia, Doctrine of Lis Pendens: A Right Against Unauthorized Alienation, Legal Service India, https://www.legalserviceindia.com/legal/article-5254-doctrine-of-lis-pendens-a-right-against-unauthorized-alienation.html#:~:text=lis%20pendens%20literally%20means%20a,and%20until%20final%20judgment%20therein.
- Zara Suhail Ahmed, Doctrine of Lis Pendens – Section 52 of Transfer of Property Act, 1882, Law corner, https://lawcorner.in/doctrine-of-lis-pendens/
- Lexlife editor, Explained: Doctrine of Lis Pendens under Property Law, Lex Life India, https://lexlife.in/2021/01/18/explained-doctrine-of-lis-pendens-under-property-law/
[i] Dev Raj Dogra and others v. Gyan Chand Jain and others, AIR 1981 SC 981.
[ii] Ayyaswami vs Jayaram Mudaliar AIR 1973 SC 569.
[iii] Hardev Singh v. Gurmail Singh, Civil Appeal No. 6222 of 2000.
[iv] Lov Raj Kumar v. Dr. Major Daya Shanker and Ors, AIR 1986 Delhi 364.
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