In India, the Transfer of Property Act, 1882, Section 52, recognizes the lis pendens doctrine. It reflects litigation is currently ongoing when the phrase lis pendens is used. The maxim ‘ut lite pendent nihil innovateur’, which says nothing new should be added during the pendency of litigation, expresses the doctrine of lis pendens.
Let’s understand the concept with an example –
A and B are at odds over who is the rightful owner of the land. A brings legal action against B. A could win or lose the case. If he prevails, he receives the property; but, if he loses, B receives it. There won’t be any issues if A, who claims to be the property’s owner, sells it to C while the lawsuit is still pending and A wins the case. However, if the outcome is in B’s favor, C cannot keep the property. The court’s ruling obligates C to give back the property to B. He cannot claim that he was unaware that a lawsuit was ongoing.
It has been noted that the lis pendens theory only applies when a party to the dispute has transferred property; it does not apply when a third party, or a person who is not a party to the dispute, has transferred property.
Therefore, it can be deduced that any immovable property that is the subject of a lawsuit or other legal action between two parties in any court cannot be transferred or handled in any other way by either party without the court’s permission. If or whether the transferee was given notice of the suit or proceeding, he would be held liable for the outcome if any party transfers or otherwise deals with that property.
PURPOSE OF THE DOCTRINE
The general goal of the lis pendens doctrine is to preserve the title to an immovable property under dispute throughout the pendency of the lis so that the party to whom the title accrues at the end of the lis will benefit from the judgment and decree. If this is not done, the adjudication of the lis becomes unnecessary. The Privy Council approved the Bellamy v. Sabine theory in Faiyaz Hussain v. Munshi Prag Narrain (1907) 34 Ind App 102, referenced in AIR 1978 All 318. In this case, the Privy Council stressed the significance of final adjudication and noted that without it, there would be no end to litigation.
The Supreme Court in Jayaram Mudaliar v. Ayyaswami AIR 1973 SC 569, and Rajender Singh v. Santa Singh 1973 AIR 2537, established the accompanying definition:
“lis pendens in a real sense implies a pending suit, and the doctrine of lis pendens has been characterized as the jurisdiction, force, or control which a court gains over property engaged with a suit pending the continuation of the activity, and until definite judgment in that”.
APPLICABILITY OF DOCTRINE OF LIS PENDENS
The principle of Lis pendens applies in the accompanying cases –
1. Involuntary Alienation (however section 52 of TPA,1882 may not have any significant bearing yet the doctrine applies).
2. Suit for Partition.
3. Compromise pronouncements and Consent orders which are acquired bona fide.
4. Despite misdescription of the property, if the property is inadequately distinguished.
5. Alienee knows about the identity of the property regardless of misdescription of property.
6. Sales in invitum to compulsory deals and execution deals.
7. Compulsory sale at court auction.
8. Suit for Dower
9. Suit for Injunction
10. Suit for Pre-Emption
11. Suit for Maintenance
12. Leases pendente light
13. Suit for explicit execution of agreements to sell immovable property
14. Suit for contribution
15. In a suit for contracts the doctrine of lis pendens applies just to transfers by the offended party or litigant of their individual interest after the suit including transfer by court-sale in cash orders against one or the other party.
BASIS AND ESSENTIALS OF THE DOCTRINE
This philosophy is based on “necessity” rather than “notice,” As an ongoing lawsuit is viewed as constructive notice of the fact that the title to the property is in issue, it appears that this theory is founded on notice. As a result, anybody involved in the dispute over that property must be obligated to follow the court’s ruling. The correct perspective, however, is that this philosophy is based on necessity. It is crucial for proper adjudication that parties to a lawsuit over the title to a property are not allowed to make judgments about that property themselves or alienate the contested property. Lis pendens, therefore, precludes the parties from disposing of a disputed property in a way that would obstruct the Court’s proceedings and is based on necessity and public policy. The needs of mankind demand that, in cases where a plaintiff and a defendant are engaged in a legal dispute over the ownership of a specific estate, the court’s ruling must be binding on both the disputing parties and anyone who acquires title to the estate as a result of a transfer made while the dispute was pending, regardless of whether the alienees were aware of the legal dispute or not. Without this, there could be no assurance that those would ever end. A new form may typically be required in the event of a mortgage or sale performed before the final decree to a party who was unaware of the ongoing processes, which may lead to protracted litigation. Lets now look at a few essentials –
- The property transfer must occur while a lawsuit or other legal action is still pending in order for this theory to be applicable.
Judicial Precedent – The rule of lis pendens states that anyone who purchases property while a lawsuit is pending is bound by any judgment rendered against the person from whom he derived his title (to the immovable property, the right to which is directly and specifically in dispute in the suit or proceeding), even if they were not parties to the lawsuit or were not aware that one was pending. This ruling was made in Simla Banking Industrial Co. Ltd. v. Firm Luddar Mal AIR 1959 Punj 490 . The doctrine’s goal is to give the Court entire control over alienations in the res pendente lite and, as a result, make its judgments binding on the alienees as if they were parties, regardless of the difficulty in particular circumstances.
- This doctrine would not be admissible if the complaint was filed in the wrong court and a transfer occurred while the suit or procedure was still pending. The action or proceeding must be ongoing before a court with competent jurisdiction.
- A right to immovable property is directly or expressly involved in the lawsuit- Another need for the doctrine’s applicability is that the lawsuit must involve a legitimate right to immovable property concern. The title or interest in that property should be the subject of the lawsuit. Where the issue in the lawsuit or proceeding has nothing to do with the title or interest in real property, this theory is not applicable.
Judicial precedent – In the case of T.G. Ashok Kumar v. Govindammal and Others, LQ 2009 HC 16944 it was noted that the transferee’s title will not be impacted if the pendente lite transferor’s title is upheld in relation to the transferred property. The transferee’s title will only be preserved in relation to that portion of the transferred property, however. The transfer in relation to the remaining portion of the transferred property will be invalid. The transferee will not have any right, title, or interest in that portion, on the other hand, if the pendente lite transferor’s title is recognized or accepted only in regard to a part of the transferred property.
- The lawsuit or proceeding must not involve collusion; if it does, the doctrine of lis pendens is not suitable. A lawsuit is collusive if it was filed with the intent to harm the other party’s transferee, which means that the plaintiff and defendant had a fraudulently concealed arrangement that the lawsuit would not be challenged.
- The property in question must be sold or otherwise dealt with by any party to the lawsuit while it is pending. Sales, exchanges, leases, and mortgages are examples of this type of transfer.
- The fourth need for the theory of lis pendens to be applicable is that the transfer during the pendency of the suit must impair the rights of any other party to the lawsuit, as it does not apply in cases when the parties are arrayed on the same side.
The ability to employ Section 52 rights as a sword or a shield completely depends on such factors as:
1. What right or interest is transferred?
2. Who is the party in question?
3. How and in what ways the transfer will impact each and every person involved in the current case.
In the same or later proceedings involving the same parties, this clause may be invoked as a defense. However, before employing this provision as a weapon, a person must first understand their legal standing to do so in the event that their claim is challenged in court. Only when it is proven that the transfer has harmed the rights of another party to the lawsuit can it be declared void in accordance with the criteria of this section. If the party contesting the transfer invokes the Lis Pendens theory, it must prove that the transfer was made with the intention of impairing the plaintiff’s rights under any possible court order.
Purpose of the doctrine https://www.ilms.academy/blog/doctrine-of-lis-pendens
Applicability of the Doctrine https://www.sbhambriadvocates.com/post/the-doctrine-of-lis-pendens-under-transfer-of-property-act-1882
Basis and essentials of the doctrine https://www.latestlaws.com/articles/doctrine-of-lis-pendens-explained/
Judicial Precedents https://legalserviceindia.com/legal/article-5254-doctrine-of-lis-pendens-a-right-against-unauthorized-alienation.html
The doctrine of Lis Pendens under Transfer of property https://lawbhoomi.com/doctrine-of-lis-pendens/
Click Here to know more about our Upcoming Courses
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at email@example.com
In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories
Leave a Reply