A suit that is pending in any court of law is referred to as a lis pendens. It is a court action that is currently pending. Section 52 of the Transfer of Property Act of 1882 establishes the doctrine. This section is based on the maxim ‘ut lite pendente nihil innovetur,’ which states that no new information should be introduced into pending litigation. In terms of property law, it implies that if a property is the subject of litigation, no new interests in relation to that property should be introduced. A transfer of that property would occur if a new interest or title was created in it. The transfer of any property involved in litigation is forbidden by the lis pendens doctrine.
The doctrine’s goal, which is to maintain the status quo unaffected by the actions of any parties to the ongoing litigation, is discussed in the article. The tenets of this doctrine are the tenets of equity, a good conscience, or justice because they are founded on the just and equitable tenet that it will be impossible to successfully conclude an action or suit if alienations are allowed to avail. Along with the judicial precedents established by the Hon’ble Supreme Court of India, the article also covers the prerequisites necessary for the application of the doctrine.
- Doctrine of Lis Pendens
The Transfer of Property Act in India contains a statutory provision for the doctrine of lis pendens. According to Section 52, “During the pendency in 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 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.”
The explanation in this section explains that the proceeding’s pendency would start on the day the plaint is filed and instituted in the court with jurisdiction over the matter, and it would end on the day the court issues its final decree or order, or if it has become unobtainable due to the passage of the limitation period. According to Section 52, the effect of the lis pendens doctrine is to subject the transfer to litigation rather than invalidating it.
1.1 Origin and Purpose of Doctrine of Lis Pendens
The doctrine of lis pendens originated in the case of Bellamy v. Sabine, in which Turner, L.J., observed that the doctrine of lis pendens was a doctrine common to courts of law as well as equity, because allowing alienations pendente lite (during litigation) to prevail would make it almost impossible for the suit that is instituted in a court to be adjudicated. In such a case, the plaintiff is likely to be defeated by the defendants causing the alienation before the judgement is rendered, and will be forced to institute a new course of proceeding each time. In Faiyaz Hussain v. Munshi Prag Narrain, the Privy Council approved the Bellamy v. Sabine theory and emphasised the importance of final adjudication, noting that without it, there would be no end to litigation.
The Supreme Court established the following definition in Jayaram Mudaliar v. Ayyaswami and Rajender Singh v. Santa Singh, “ lis pendens literally means a pending suit, and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein.”
1.2 Important Prerequisites for the Doctrine’s Applicability as described in Section 52
In order for this theory to apply, the property transfer must occur while a lawsuit or other legal action is still pending.
The action or proceeding must be pending in a court of competent jurisdiction: If the complaint was filed in the wrong court and a transfer occurred while the suit or procedure was still pending, this doctrine would be inadmissible.
The lawsuit directly or expressly involves a right to immovable property: Another requirement for the doctrine’s application is that the lawsuit involves a legitimate right to immovable property. The lawsuit should be about the title or interest in that property. This theory does not apply where the issue in the lawsuit or proceeding has nothing to do with the title or interest in real property.
There must be no collusion in the lawsuit or proceeding: A lawsuit is collusive if it was filed with the intent to harm the transferee of the other party, which means that the plaintiff and defendant had a fraudulently concealed agreement that the lawsuit would not be challenged.
Either party is transferring the property in question: This type of transfer includes sales, exchanges, leases, and mortgages.
The other party’s rights should be directly impacted by the lawsuit.
Non-applicability examples include:
i) This does not apply to a private sale by a creditor who has the right to sell the mortgaged property even if the borrower has a redemption suit pending.
ii) The Doctrine also does not apply when the property is not properly described, rendering it unidentifiable.
iii) In a maintenance suit, where the property is mentioned only to determine maintenance payments transparently, the Doctrine does not apply because a right to the said immovable property is not directly in question, and alienations are thus permitted.
iv) When a Court orders the restoration of immovable property under the Civil Procedure Code, Order 21, Rule 63, the Doctrine does not apply.
1.3 Judicial Precedents
In Hardev Singh v. Gurmail Singh (2000), the court determined that Section 52 of the Transfer of Property Act would not render any sale of the contested properties void or illegal, but would only exempt the buyer from the restrictions imposed by the court’s ruling on the dispute’s resolution.
In Clifford George Pinto v. M. R. Shenava & Ors (2005), it was decided that section 52 could be used in situations where an immovable property sale is conducted through private negotiations while a legal dispute is pending.
The broad principle underlying Section 52 of the Transfer of Property Act,1882 is to maintain the status quo, unaffected by the act of any party to the pending litigation, it was held in Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors (1948).
The Supreme Court stated in T.G. Ashok Kumar v. Govindammal & Anr (2010), “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.”
The Lis Pendens doctrine strictly adheres to the theory of necessity rather than the theory of notice, which is governed by the three common law principles of justice, equity, and good conscience. Therefore, it is essential to making sure that justice is served without violating the rights of either party.
- Bellamy v. Sabine (1857) De G and J 566
- Clifford George Pinto vs M.R. Shenava And Ors AIR 167 (Kant 2005)
- Faiyaz Hussain v. Munshi Prag Narrain (1907) 9 BOMLR 656
- Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors (1948) 50 BOMLR 657
- Hardev Singh v. Gurmail Singh (Civil Appeal No. 6222 of 2000)
- Jayaram Mudaliar v. Ayyaswami AIR 569 (SC 1973)
- Rajender Singh & Ors v. Santa Singh & Ors AIR 2537 (SC 1973)
- T.G.Ashok Kumar vs Govindammal & Anr (Civil Appeal No. 10325 of 2010)
- See Krishna Rao P V, The doctrine of Lis Pendens, blog.ipleaders.in (March 21, 2021) https://blog.ipleaders.in/doctrine-lis-pendens/ (Last visited Sept.24, 2022)
- See Varun Modasia, Doctrine of Lis Pendens: A Right Against Unauthorized Alienation, legalservice.com https://www.legalserviceindia.com/legal/article-5254-doctrine-of-lis-pendens-a-right-against-unauthorized-alienation.html (Last visited Sept.24, 2022)
- See Zara Suhail Ahmed, Doctrine of Lis Pendens – Section 52 of Transfer of Property Act, 1882, lawcorner.in (July 19, 2021) https://lawcorner.in/doctrine-of-lis-pendens/#Origin_of_Doctrine_of_Lis_Pendens (Last visited Sept.24,2021)
- The Transfer of Property Act, 1882, Acts of Parliament, 1882 (India) s.52.
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