DOCTRINE OF LIS PENDENS
The Transfer of Property Act came into existence on 1st July, 1882. Section 52 of the act mentions about the doctrine of Lis Pendens which is titled as “Transfer of Property pending suit relating thereto.” The word “Lis” refers to an action or a suit whereas the word “Pendens” refers to pending. The word “Lis Pendens” basically refers to a suit under consideration of any court of law or an action which is pending in any court. This doctrine is derived from a common law maxim “ut lite pendente nihil innovetur” which means – that nothing new should be introduced in the pending litigation. Therefore the doctrine of Lis Pendens is based upon a principle that during the pendency of suit, the subject matter of it (i.e. the property in the suit) should not be transferred to a third party. The crux is that when litigation is pending in respect of any property, none of the two parties shall be permitted to transfer the same expect with the permission of the court. This section is not of a general binding nature instead it only binds the specific parties involved.
The principle of this doctrine is explained in the case of Bellamy v. Sabine ((1857) 1 Dec. & 566) in which Lord Turner, L.S said, it that doctrine rests upon this foundation that, it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were to allowed prevail. The doctrine of Lis Pendens was fully explained by the Honorable Council in the case of Faiyaz Hussain Khan v Prag Narain ((1907) 29 All 339 PC) in which their lordships cited with the approval of Lord Justice Turner in the case of Bellamy and held that the doctrine does not rest on any kind of the doctrine of notice but expediency i.e. the necessity that neither party to the litigation should alienate the property in dispute so as to affect his opponent.
The rule of Lis Pendens states that when there is a suit or proceeding pending between two persons with respect to an immovable property and one these parties sells or otherwise transfers the subject matter of the litigation, then the transferee will be bound by the result of the suit or proceeding whether he had the notice of the suit of proceeding or not. It is also stated that the person purchasing an immovable property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree.
The main objective behind this doctrine is that no change in the claim should be brought as creating a new interest would mean transfer of property during the pendente-lite which would further affect rights of the parties over the property and limits the court to make a proper administration of justice for the party who originally claimed. The purpose of the doctrine is to protect either party to the suit against the act of another, to avoid misuse of legal process and to restrict endless litigation.
Essential Conditions of the Doctrine of Lis Pendens
In the case of Dev Raj Dogra and others v. Gyan Chand Jain and others (AIR 1981 SC 981), the Supreme Court in a three Judge Bench elucidated the meaning of Section 52 of the Transfer of Property Act and laid down following conditions as the basic ingredients of the doctrine:
A suit or a proceeding should be pending in a court of competent jurisdiction: The case begins on the date of filing of the plaintiff and is considered to continue until a final declaration or order is issued to rule on the matter. This means that the case is considered pending even if there is an opportunity to appeal against the decision determining that suit or the execution of the decree is pending. In fact, the case will be considered ongoing until the case is finalized, not simply after the first appeal was dismissed. This doctrine applies even to any transfers made during the pendency of execution proceedings.
The suit must be relating to a specific immovable property: This doctrine applies only to immovable property cases and not to a subject in which the title is movable property. The case must be directly or indirectly related to the question of the right to immovable property such as a dispute over title, right of alienation, etc. and is not applicable to suits related to debt, taxes, rents, etc.
Illustration- A rented his property to B so there is a pending suit between a landlord (A) and a tenant (B) regarding payment of rent, then A transfers his property during that time to another person C, the transfer shall not be affected in any manner by the doctrine of Lis Pendens because the suit was not regarding the title or interest of an immovable property, it was regarding the payment of rents.
The suit should not be collusive: The doctrine of Lis Pendens is not applicable in case the suit is collusive nature. A suit is considered to be collusive if it is filed with a mala fide intent, with a secret agreement between the parties with the intention to defeat the rights of the transferee. However, if in a case where suit was bona fide at the beginning, but later during the pendency of suit a secret agreement is made between the parties in form of negotiation then in that case doctrine of Lis Pendens is applicable. As it affects the nature of the case therefore it is important to distinguish whether the suit is collusive and fraudulent in nature. While there is collusion between parties it will override the application of Section 52 whereas in case of fraud it will not. This has been succinctly explained in the case of Nagubai v B. Sham Rao ( 1 SCR 451) by stating “ In such (collusive) proceeding a claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant that the claim made therein is untrue, but the claimant has managed to obtain the verdict of the court in his favor and against his opponent by practicing fraud on the court. While in a collusive proceeding the contest is a mere sham, in a fraudulent suit it is real and earnest.” In cases of collusion, the suit will not be binding on the transferee and the transfer will be deemed valid.
The property in dispute must be alienated or otherwise dealt with by any party to suit: During the pendency, the property must be transferred or otherwise dealt by any party in the suit. Such transfers include selling, exchanging, renting and mortgaging. Therefore, at the time pendency of a suit if that property is sold or leased or held by the plaintiff or the defendant, this doctrine shall apply and the alienation subject to the judgment of Court.
The transfer must affect the rights of the other party to suit: The transfer during which pendency must affect the right of any other party to the suit as it does not apply to a case where the parties affected are ranged on the same side. This principle is intended to safeguard the parties to litigation against transfers by their opponents.
Non – Applicability of Doctrine
Non – Applicability of Doctrine
Although the doctrine of Lis Pendens is applicable in many cases but there are many instances where the doctrine cannot be applied. Following are the instances:
A private sale by a mortgagee in exercise of power conferred by mortgage deed is not affected by the doctrine of Lis Pendens embodied in the section and the sale is valid even if it is made during the pendency of a redemption suit which is filed by the mortgagor.
When the transferor alone is affected.
The Doctrine fails to apply when a Court orders restoration of immovable property under the Civil Procedure Code, Order 21, Rule 63.
To a friendly suit.
Where the proceedings are collusive.
To a transfer pending suit by a person who is not a party to such suit.
To personal property other than the chattel interests in land.
The Doctrine also does not apply when the property is not described correctly, making it unidentifiable.
In the case of Hardev v. Gurmail Singh (Civil Appeal No. 6222 of 2000), the court held that Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as invalid, void or unlawful but only make the pendente lite purchaser to be bounded by the pending litigation decision. The rights of the other parties are not affected by such a transfer.
In Jayaram Mudaliar v. Ayyaswami (1972 (2) SCC 200), the Court held that the purpose of the provision is not to deprive the parties of every just or fair argument or to defeat the just and fair claim but to guarantee that the parties submit themselves to the authority of the court and jurisdiction which will determine all claims that are placed before it are to the satisfaction of the parties concerned. The Supreme Court further explained the scope of the doctrine of lis pendens as, ‘It is evident that the doctrine, as stated in section 52, applies not merely to actual transfers of rights which are subject-matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto. Hence it could be urged that where it is not a party to the litigation but an outside agency such as the tax collecting authorities of the Government, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward.’
In the case, Rajender Singh and Ors. v. Santa Singh and Ors.( AIR 1973 SC 2537) , Supreme Court noted that, ‘the doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during pending litigation, are held to be bound by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it.’ The whole object of the doctrine of Its pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated.
Exception to the Doctrine
In some cases, this section can be used as a sword when those who are innocent in a legal case are not allowed to transfer properties freely because of false charges. Such a situation would defeat the purpose of Lis Pendens for equality, justice and a good conscience. Therefore, an exception has been introduced to deal with such situations. This exception manifests by making this section subject to the power of the Court to exempt any suit property from the purview of the operation of this Section subject to such conditions as it may impose. Many situations illuminate cases where this doctrine does not apply such as the private sale by a mortgagee, collusive suits, friendly suits and more. Therefore, the Court may, in appropriate cases, allow a party to transfer property rights of a disputed property.
From the above mentioned study of the doctrine it can be concluded that the doctrine of lis pendens and its principles of public policy as enshrined under Section 52 of The Transfer of Property Act, 1882 are in compliance with Justice, Equity and Good Conscience. Hence, it will also be applicable at times to the cases to which Transfer of Property Act is inapplicable, with a mere objective of preventing the right of the deserved party from being curbed by another. However, this section can be used both as a sword as well as shield. It can be used as a shield in the same or subsequent proceedings between the same parties and it can also be used as sword against the innocents in a legal case depending upon the facts and by knowing how and in what manner to do so.
Muskan Sethi, IJLMH, Vol. 4 Iss 2; pg. 1968, (https://www.ijlmh.com/paper/indian-law-on-lis-pendens/)
Transfer of Property Act, 1882
NAME- BHAWNA PAWAR
COURSE AND YEAR- B.A. LL.B (Hons.), 2ND YEAR
COLLEGE- DR. B. R. AMBEDKAR NATIONAL LAW UNIVERSITY, SONEPAT