THE DOCTRINE OF LIS PENDENS UNDER TRANSFER OF PROPERTY ACT, 1882
The significant thought lying behind Section 52 is that in a suit, which is still pending regarding its assurance, the status quo ought to be kept up and consequently it ought to stay unaffected by the demonstration of any of the parties to the suit. It makes it explicitly evident that during a case where in the debate between any of the events is with respect to the right of any immovable property, such resources can't be moved by utilizing any of the parties to the fit which as an outcome would likewise influence the privileges or rights of the contrary party concerned in the question. This rule doesn't get disposed of after the dismissal of the suit. After the dismissal of the suit and sooner than filling of the allure, the 'lis' keeps up to exist and thus the respondent might be kept from moving the property to the bias of the offended party. The clarification to the Section makes it very evident that the lis will be considered to have begun from the date while the plaint will be provided in the court and will keep on existing until the time such continuing has been chosen and a last request or announcement has been gotten went with complete fulfillment or release of such degree or request.
Sec 52 of the Transfer of Property Act makes simply an right to be upheld to stay away from an transfer made pendent lite in light of the fact that such transfers are not void yet voidable and that too at the choice of the influenced party to the procedure, forthcoming which the transfer is influenced. Hence the impact of the doctrine of lis pendens isn't nullify or keep avoid the transfer, however to make it subject to the consequence of the case. Be that as it may, such a use of the Doctrine isn't general in nature. There are certain cases where this Doctrine can't get applied.
DOCTRINE OF LIS PENDENS
The common law principle of lis pendens says, if property was the subject of prosecution, the respondent proprietor could move all or part of their advantage in the property throughout suit, yet not to the inconvenience of the rights of the offended party. In other terms, a third party buyer pendent lite is limited by the judgment of the court like the individual in question is involved with the suit. This doctrine depends on the maxim "pendente lite nihil innovetur" amounting to the same old thing ought to be brought into a pending case. In the Indian Law, S. 52 of Transfer of Property Act, 1882 peruses, "During the pendency in any court of any suit or procedures which isn't tricky and in which any right to immovable property is straightforwardly and explicitly being referred to, the property can't be moved or in any case managed by any party to the suit or continuing to influence the right of some other party thereto" Therefore the property, which is in debate or dispute, ought not either be sold or in any case managed in by any party to the dispute pendent lite. Be that as it may, if at all the exchange has occurred, the law doesn't clear off the deal by nullifying it yet just delivers the buyer docile to the court's decision.
This principle of lis pendens underlying the object of section 52 is to keep up the status quo unaffected by the demonstration of parties to the pending case. Be that as it may, while the principle contained in this section should be as per equity, good conscience and justice, the equivalent is lacking to a limited degree coming about not simply in aggravation in its expected fair and just establishments, yet additionally in genuine useful inconveniences to bona fide buyers of property pendent lite.
MEANING OF THE DOCTRINE OF LIS PENDENS
The doctrine of lis pendens consolidated under Section 52 of the 1929 Act, intends to say that During the pendency of any suit or proceeding which isn't conniving and in which any right to immoveable property is straightforwardly and explicitly being referred to, the property can't be moved or in any case managed by any party to the suit or proceeding to influence the rights of some other party thereto under any decree or request which might be made in that, besides under the authority of the Court and on such terms as it might force. The Supreme Court in Jayaram Mudaliar v. Ayyaswami, and Rajendnr Singh v. Santa Singh, 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.
As was seen by the Supreme Court for Jayaram's situation:
Articles of the doctrine demonstrate that the requirement for it emerges from the actual idea of the purview of Courts and their command over the topic of suit so that parties disputing before it may not eliminate any piece of the topic outside the force of the Court to manage it and subsequently make the procedures infructuous.
CONCEPT OF RULE OF LIS PENDENS
Premise of rule of lis pendens:
Doctrine of lis pendens depends on legal maxim 'ut lite pendente nihil innovetur' which implies during a prosecution the same old thing ought to be presented. Also, the standard or principle on which it rests is clarified in Bellamy v. Sabine.
Lord Chancellor Cranworth in the previously mentioned case articulated that:
It is hardly right to discuss lis pendens as influencing the buyer through the doctrine of notice, however without a doubt the language of the courts frequently so depicts its activity. It influences him not on the grounds that it amounts to notice, but since the law doesn't permit defendant parties to provide for others pending the case rights to the property in dispute to prejudice the contrary party. The necessities of humankind necessitate that the choice of the court in the suit will be restricting on the disputant parties, yet additionally on the individuals who determine title under them by distance made pending the suit, regardless of whether such alienus had or had not notice of the pending procedures. In the event that this were not so there could be no assurance that the case could at any point reach a conclusion and said that: The establishment for the doctrine of lis pendens doesn't settle upon notice, real or helpful, it rests exclusively upon necessity-the necessity, that neither party to the prosecution ought to alienate the property in question to influence his adversary.
The principle of lis pendens has been completely elucidated by the Privy Council for this situation of Faiyaz Hussain Khan v Prag Narain where their lordships cited with approval of Lord Justice Turner for Bellamy's situation. It has been held that the establishment for the doctrine doesn't settle upon notice, it rests exclusively upon necessity- the necessity that neither one of the parties ought to alienate the property in debate or dispute so you can influence his contrary parties.
The overall point of view arising out of the cases holds the interests of the transferee pendente lite to be subservient to the interests of the original parties to the prosecution. Consequently, such exchanges are not void, yet are held to be voidable at the choice of the party in whose favor the Court has proclaimed. It was expressed on account of Gouri Dutt Maharaj that Section 52 guarantees that the status quo of the parties to the suit is kept up despite such exchanges. In situations where both of the parties effectively figure out how to alienate a suit property, the Transferee pendent lite is the one whose interest might be impeded as a result to the Court's announcement. Such pronouncement is overall in the courtesy of one of the parties of the original suit.
ESSENTIAL INGREDIENTS OF SECTION 52 OR DOCTRINE OF LIS PENDENS
The followings are the fundamental conditions for the pertinence of the doctrine of lis pendens:
There should be pendency of a legitimate suit or lawful proceeding.
The suit or proceeding recorded by the offended party should be pending in a court of competent jurisdiction
The suit or proceeding should not be conniving;
A right to immovable property should be straightforwardly and explicitly being referred to or in question around suit or proceeding
The censured property should be moved or in any case managed by any party to the prosecution
The alienation or transfer should influence the rights of the other party.
RIGHTS RELY UPON REMEDIES.
This likewise holds great as regards the right to property. Since rapid and effective remedies are of most extreme significance, it must be guaranteed that once an individual has started lawful interaction in any court to look for remedy against any attack to his right or danger of intrusion thereto, the lawful cycle ought not be crushed because of private arrangements or any transfer, that is, transfer of property in dispute or by virtue of some other activity of any party to such legitimate cycle, in any case the actual reason for looking for help against any complaint would be meaningless and ineffective.
To guarantee that the lawful remedy stays proficient all through the lawful process, jurists had advanced an overall principle known as lis pendens putting together it with respect to the need that neither party to the suit ought to alienate the property in dispute to influence his opponent.
Wharton's Law Dictionary characterizes lis pendens as pending suit. Lis implies a suit, activity, dispute or controversy, is a contention or challenge, while controversy is a contested question, a suit at law and the 'pendens' of the lis isn't upset on in any way influenced by the fact of an appeal taken from one Court then onto the next. The case or challenge actually goes on.
The guideline of lis pendens epitomized in Section 52 of the Act being a rule of public approach, no inquiry of good faith or bonafide emerges. Such being the position the transferee from one of the parties to the suit can't state or guarantee any title or interest acquired to any of the rights and interests obtained by the another party under the declaration in suit. The guideline of lis pendens has the object to forestall anything done by the transferee from working antagonistically to the interest proclaimed by the decree.
In addition, it is likewise imperative to comprehend that the precept or doctrine doesn't becomes eradicated when the suit is arranged. It actually stays into reality till when the suit is excused and an appeal isn't yet recorded, subsequently leaving no escape clause to bias any party to the suit. The clarification to the Section makes it exceptionally evident that the suit will be considered to have begun from the date while the plaint will be provided in the court and will keep on existing until the time such continuing has been chosen been by definite order.
THE PURPOSE OF DOCTRINE OF LIS PENDENS
The wide reason for section 52 of TPA, 1882 is to keep up and to protect the status quo unaffected by the activity of any party to the procedure pending its assurance. The purpose of section 52 isn't to overcome or to deny any legitimate and impartial case yet just to expose them to the power and tact of the competent court which is engaging the property to which cases are advanced. The primary intention of this section or principle is that to defend a party from being deprived of the fruits of suit by reason of a third party setting up rights autonomously based on transfer or dealing during the pendente light.
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 suit for contracts the doctrine of lis pendens applies just to transfers by 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.
JUDICIAL PRECEDENTS ON DOCTRINE OF LIS PENDENS
The guideline on which the doctrine of lis pendens rests is clarified in the main instance of Bellamy v. Sabine, where Turner, L.J. noticed:
It is as I might suspect, a principle common to the courts both of Law and Equity, and rests, as I capture, upon this establishment that it would evidently be unimaginable that any activity or suit could be brought to a fruitful end, if alienations pendente lite were allowed to win. The offended party would be at risk for each situation to be crushed by the respondent's alienating before the judgment or order, and would be headed to begin his procedures once more, subject again to be crushed by a similar course of proceeding.
In Simla Banking Industrial Co. Ltd. v. Firm Luddar Mal, Tek Chand, J, on the impact of judgment upon parties to alienation during pending suit said that:
The rule of lis pendens sets out that whoever buys a property during the pendency of an activity, is held bound by the judgment that might be made against the individual from whom he inferred his title (to the immovable property, the right to which is straightforwardly and explicitly being referred to in the suit or proceeding) despite the fact that such a buyer was not involved with the activity or had no notice of the pending prosecution. The aim of the rule or doctrine is to contribute the Court with unlimited oversight over alienations in the res which is pendente lite, and in this manner to deliver its judgment restricting upon the alienees, as though they were parties, despite the difficulty in individual cases.
In KN Aswathnarayana Setty v. State of Karnataka and Ors, Dr. B.S. Chauhan, J. communicated the significance of lis pendens by saying that:
The rule of 'lis pendens' is as per the equity, good conscience and justice since they rest upon a fair and just establishment that it will be difficult to carry an activity or suit to a fruitful end if alienations are allowed to win. A transferee pendente lite is bound by the declaration similarly however much he was involved with the suit. A disputing party is absolved from considering a title obtained during the pendency of the prosecution.
Notwithstanding, it should be certain that simple pendency of a suit doesn't keep one of the parties from managing the property comprising the topic of the suit. The law essentially proposes a condition that the alienation will, in no way, influence the rights of the other party under any pronouncement which might be passed in the suit except if the property was alienated with the consent of the Court. The transferee can't deny the effective offended party of the products of the decree on the off chance that he bought the property pendente lite.
In Hardev Singh v. Gurmail Singh, the Supreme Court saw that:
Section 52 of the Act doesn't proclaim a pendente lite transfer by involved with the suit as void or illicit, yet just makes the pendente lite buyer bound by the choice of the pending prosecution. Hence, if during the pendency of any suit in a court of competent jurisdiction which isn't collusive, in which any right of an immovable property is straightforwardly and explicitly being referred to, such undaunted or immovable property can't be moved by any party to the suit to influence the rights of some other party to the suit under any announcement or decree that might be made in such suit.
In T.G. Ashok Kumar v. Govindammal and Anr., the Supreme Court saw that:
In the event that the title of the pendente lite transferor is maintained concerning the moved property, the transferee's title won't be influenced. Then again, if the title of the pendente lite transferor is perceived or acknowledged uniquely concerning a piece of the moved property, at that point the transferee's title will be saved distinctly as to that degree and the exchange as to the excess part of the moved property will be invalid and the transferee won't get any right, title or interest around there. In the event that the property moved pendente lite, is completely dispensed to some other party or parties or if the transferor is held to have no right or title around there, the transferee won't have any title to the property.
In Rajender Singh and Ors. v. Santa Singh and Ors, it was seen by the Supreme Court that:
The doctrine of lis pendens was expected to strike at endeavors by parties to a suit to evade the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may eliminate the topic of prosecution from the ambit of the court's ability to choose a pending question or disappoint its pronouncement.
Alienees getting any immovable property during pending prosecution, are held to be bound by a utilization of the principle, by the declaration passed in the suit despite the fact that they might not have been impleaded in it. The entire object of the doctrine of lis pendens is to expose parties to the suit just as others, who look to gain rights in immovable property, which are the topic or subject matter of prosecution, to the force and jurisdiction of the Court to forestall the object of a pending activity from being crushed.
In Gouri Dutt Maharaj v. Sheik Sukur Mohammed and Ors, it was held that: The wide concept in Section 52 of the Transfer of Property Act,1882 is to keep up the norm, unaffected by act of any party to the pending suit.
In Ramjidas v. Laxmi Kumar and Ors., the Madhya Pradesh Court saw that:
The reason for Section 52 isn't to overcome any just and equitable claim but only to expose them to the authority of Court which is managing the property to which the claims are advanced.
It can be concluded that the principle or doctrine of ‘Lis Pendens’ and its standards of public strategy as cherished under Section 52 of The Transfer of Property Act, 1882 are in consistence with Justice, Equity and Good Conscience as they rest upon an establishment which is evenhanded and just, i.e., alienation of properties having pending case or suit can't be permitted to win as it will be difficult to carry that suit to a fruitful end. It just hypothesizes a condition that the alienation will in no way influence the privileges or rights of the other party under any announcement or decree which might be passed in the suit except if the property was alienated with the consent of the Court.
It has the doctrine of necessity as its premise instead of the doctrine of notice. For the organization or administration of equity, it is far fundamental that simultaneously as any suit is pending in a courtroom concerning title of the property, the prosecutor should not be permitted to take decision themselves and alienate or move the disputed property. Thus, Section 52 of The Transfer of Property Act, 1882 assumes an essential part to guarantee that equity is very much served to the deserved and that no individual's right is checked by another to his own fulfillment and will.
1.By Ayesha Adyasha Mehak Dhiman, Doctrine of Lis pendens, May 30, 2020, available at: https://www.latestlaws.com/articles/doctrine-of-lis-pendens-explained/ (Visited on April 12, 2021)
2. Doctrine of Lis Pendens, Section 52 of TPA, available at: https://lawlegum.com/doctrine-of-lis-pendens-section-52-of-tpa/ (Visited o April 12, 2021)
3.By Varun Modasia, Doctrine of Lis Pendens: A right against unauthorized alienation, available at: https://legalserviceindia.com/legal/article-5254-doctrine-of-lis-pendens-a-right-against-unauthorized-alienation.html (Visited on April 14, 2021)
3.By Ina Pant, Doctrine of Lis Pendens, available at: https://www.legalbites.in/doctrine-lis-pendens/ (Visited on April 15, 2021)
4. What is Lis Pendens, available at:
https://www.uslegalforms.com/realestate/lispendens.htm?msclkid=ec359917651e15a05342f962e9c14375&utm_source=bing&utm_medium=cpc&utm_campaign=USLF_Category_Real%20Estate&utm_term=lis%20pendens%20form&utm_content=Lis%20Pendens (Visited on April 15, 2021).
5.Doctrine of Lis Pendens under Transfer of property Act, available at: https://lawbhoomi.com/doctrine-of-lis-pendens/ (Visited on April 16, 2021)
BY JYOTIKA SAROHA