DOCTRINE OF LIS PENDENS

In India, the Transfer of Property Act, 1882, Section 52, recognizes the action at law doctrine. It reflects litigation is currently ongoing when the phrase action at lawis employed. The maxim ‘ut lite pendent nihil innovateur’, which says nothing new should be added during the pendency of litigation, expresses the doctrine of legal action.

Let’s understand the concept with an example – 

A and B are at odds over who is that the rightful owner of the land. A brings 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 continues to be pending and A wins the case. However, if the result is in B’s favor, C cannot keep the property. The court’s ruling obligates C to grant back the property to B. He cannot claim that he was unaware that a lawsuit was ongoing.

It has been noted that the legal action theory only applies when a celebration to the dispute has transferred possession; it doesn’t apply when a 3rd party, or an individual who isn’ta celebration to the dispute, has transferred property.

Therefore, it is deduced that any immovable property that’s the topic of a lawsuit or other action at law between two parties in any court can not be transferred or handled in the 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 chargeable forthe result if any party transfers or otherwise deals therewith property.

APPLICABILITY OF DOCTRINE OF ACTION

The principle of action at law applies within the accompanying cases –

1. Involuntary Alienation (however section 52 of TPA,1882 might not have any significant bearing yet the doctrine applies).

2. Suit for Partition.

3. Compromise pronouncements and Consent orders which are acquired real.

4. Despite misdescription of the property, if the property is inadequately distinguished.

5. Alienee knows about the identity of the property irrespective 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. during a suit for contracts the doctrine of action at law 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 opposite party.

PURPOSE OF THE DOCTRINE 

The general goal of the legal action doctrine is to preserve the title to an immovable property under dispute throughout the pendency of the lis so the party to whom the title accrues at the top of the lis will like the judgment and decree. If this can be not done, the adjudication of the lis becomes unnecessary. The 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. during this case, the council stressed the importanceof ultimate adjudication and noted that without it, there would be without stopping 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 an exceedingly real sense implies a pending suit, and therefore the doctrine of action at law has been characterized because 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”.

BASIS AND ESSENTIALS OF THE DOCTRINE

This philosophy relies on “necessity” instead of “notice,” As an ongoing lawsuit is viewed as constructive notice of the actual fact that the title to the property is in issue, it appears that this theory is founded on notice. As a result, anybody involved within the dispute over that property must be obligated to follow the court’s ruling. the proper perspective, however, is that this philosophy relies on necessity. it’s crucial for correct adjudication that parties to a lawsuit over the title to a property don’t seem to be allowed to create judgments that property themselves or alienate the contested property. action at law, therefore, precludes the parties from casting off a disputed property during a way that might obstruct the Court’s proceedings and relies on necessity and public policy. the wants of mankind demand that, in cases where a plaintiff and a defendant are engaged during a legal dispute over the ownership of a selected estate, the court’s ruling must be binding on both the disputing parties and anyone who acquires title to the estate as a results of a transfer made while the dispute was pending, no matter whether the alienees were conscious of the legal dispute or not. Without this, there may well be no assurance that those would ever end. a brand new form may typically be required within the event of a mortgage or sale performed before the ultimate decree to a celebration who was unaware of the continued processes, which canresult in protracted litigation. Lets now have a look atsome essentials –

• The property transfer must occur while a lawsuit or other action remains pending so as for this theory to be applicable.

Judicial Precedent – The rule of legal action 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 correct to which is directly and specifically at issue within the suit or proceeding), whether or not they weren’t parties to the lawsuit or weren’t 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 convey the Court entire control over alienations within the res pendente lite and, as a result, make its judgments binding on the alienees as if they were parties, no matterthe problem particularly circumstances.

• This doctrine wouldn’t be admissible if the complaint was filed within 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 within 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 therein property should be the topic of the lawsuit. Where the problem within the lawsuit or proceeding has nothing to try to to with the title or interest in belongings, this theory isn’t applicable.

Judicial precedent – within the case of T.G. Ashok Kumar v. Govindammal et al, LQ 2009 HC 16944 it absolutely was noted that the transferee’s title won’t be impacted if the pendente lite transferor’s title is upheld in relevance the transferred possession. The transferee’s title will only be preserved in relevancy that portion of the transferred possession, however. The transfer in regard to the remaining portion of the transferred possessionare going to be invalid. The transferee won’t have any right, title, or interest in this portion, on the opposite hand, if the pendente lite transferor’s title is recognized or accepted only in respect toa component of the possession.

• The lawsuit or proceeding must not involve collusion; if it does, the doctrine of action at law isn’t suitable. A lawsuit is collusive if it absolutely was filed with the intent to harm the opposite party’s transferee, which suggests that the plaintiff and defendant had a fraudulently concealed arrangement that the lawsuit wouldn’t be challenged.

• The property in question must be sold or otherwise restrained by any party to the lawsuit while it’s pending. Sales, exchanges, leases, and mortgages are samples of this kind of transfer.

• The fourth need for the idea of legal action to be applicable is that the transfer during the pendency of the suit must impair the rights of the other party to the lawsuit, because it doesn’t apply in cases when the parties are arrayed on the identical side.

CONCLUSION

The ability to use 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 that the party in question?

3. How and in what ways the transfer will impact each and each person involved within the current case.

In the identical or later proceedings involving the same parties, this clause is also invoked as a defense. However, before employing this provision as a weapon, someone must first understand their legal standing to try to to so within the event that their claim is challenged in court. only it’s proven that the transfer has harmed the rights of another party to the lawsuit can it’s declared void in accordance with the standards of this section. If the party contesting the transfer invokes the legal action theory, it must prove that the transfer was made with the intention of impairing the plaintiff’s rights under any possible judicial writ.

REFERENCES

Online Sources:

1. http://www.ilms.academy/blog/doctrine-of-lis-pendens
2. http://www.sbhambriadvocates.com/post/the-doctrine-of-lis-pendens-under-transfer-of-property-act-1882
3. latestlaws.com
4. legalserviceindia.com
5. lawbhoomi.com

Book:

1.Transfer of Property Act, 1882

Cases:

1. T.G. Ashok Kumar v. Govindammal et al, LQ 2009 HC 16944
2. Simla Banking Industrial Co. Ltd. v. Firm Luddar Mal AIR 1959 Punj 490
3. Jayaram Mudaliar v. Ayyaswami AIR 1973 SC 569
4. Rajender Singh v. Santa Singh 1973 AIR 2537
5. Faiyaz Hussain v. Munshi Prag Narrain (1907) 34 Ind App 102, referenced in AIR 1978 All 318

Aishwarya Says:

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