This article has been written by Jessica Fernandez from Lloyd Law College.

Edited and Published by Risha Fatema.

Table of Contents

INTRODUCTION

The doctrine of lis pendens is derived from the maxim “pendente lite nihil innovature” which means that during the pendency of litigation, nothing new should be introduced. Even the terms ‘lis’ and ‘pendens’ bring out the same meaning, ‘Lis’ means litigation and
‘pendens’ means something that is pending. This doctrine is enshrined under Section 52 of the Transfer of Property Act, 1882 (TPA), in India. It functions to safeguard the rights and interests of parties engaged in a litigation pertaining to a specific property.

The key objective of the doctrine of lis pendens is to stop the subject matter of a particular lawsuit from being transferred to an altogether different party while it is still pending in a court of law. When it comes to immovable property, the court’s ruling governs all ownership transfers, and the transferee is obligated to abide by it.

CONCEPT OF VOID TRANSFER

To have a simpler understanding of the doctrine, one needs to understand what a void transfer is. A transfer that is made against the principle contained in the doctrine, would be a void transfer, i.e., the transfer would be invalid and is not legally binding. Any transfer of immovable property by any party involved in a lawsuit or proceeding that is still pending in court is null and void against anyone who may acquire an interest in such disputed property, this can be done under a decree or order passed by the court in such suit or proceeding.

Therefore, the transfer referred to in section 52 of the Transfer of Property Act, 1882 would be void against a subsequent transferee from the date of the institution of the suit or proceeding. This means that if either of the parties transfers that particular disputed property while a lawsuit is active and someone else gains a stake in the
property as a result of the suit’s outcome, the former transfer,i.e., the one made while the proceedings were still pending, would be considered null and void.

SECTION 52 OF THE TRANSFER OF PROPERTY ACT, 1882

Section 52 of the TPA reads as follows:-

“During the pendency in any Court having authority within the limits of India or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable 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 following conditions are emphasised upon by the section for its applicability:-

● There has to be an ongoing lawsuit (a proceeding that is pending)
● It must be filed within a court that has the jurisdiction to hear the case.
● The issue at hand must relate to the title of an immovable property and the title must be directly in question.
● There should not be any collusion.
● The other party’s rights ought to be directly impacted by the lawsuit.
● One of the parties must be transferring the immovable property in question.
The application of the doctrine of Lis Pendens is not automatic, ie., does not take effect when a lawsuit involving immovable property is initiated. Certain specific requirements must be met for this doctrine to take effect.

The court held in the Balwant Singh v. Buta Ram that the theory applies when all of the aforementioned listed conditions are met. Property cannot be transferred without the court’s approval during a case in a court with the relevant jurisdiction if ownership of immovable property is directly and materially disputed. When this kind of transfer take place, buyer of the immovable
property will be obligated to follow the court’s decision.

Over time, courts have also identified specific instances in which the doctrine of lis pendens does not apply. These situations include, but are not limited to, situations in which only the transferor is impacted or where there is a collusive or amicable litigation, or a case where transfer is executed by a person who is not one of the parties to the matter.

For example, the doctrine is non applicable in a situation where right to the said immovable property is not directly in question and alienations are thereby permitted or in a situation when the property is not described correctly, making it unidentifiable.

PURPOSE OF THE DOCTRINE OF LIS PENDENS

This doctrine is crucial because it forbids the transfer of ownership of any
disputed property without the approval of the court, which could lead to never-ending litigation. If alienations were to be allowed to prevail, then in such a situation, it would be impossible to successfully terminate a lawsuit.
The “Transferee pendente lite” is subject to the judgment in the same way as if
he were a party to the action, and the outcome of the ongoing litigation will determine the terms of the transfer, i.e., it would be superior to any transfer made during the period wherein litigation is still pending in the court.

EXCEPTION TO THE DOCTRINE OF LIS PENDENS

Although the Lis Pendens doctrine usually requires the fulfillment of specific circumstances, there are instances in which the same may not be necessarily required, One such instance is when a transfer is executed with the approval of the court. That is specifically stated in Section 52 of the Transfer of Property Act, 1882, “except under the
authority of the Court and on such terms as it may impose.”

As a result, the court may, subject to any restrictions set by the court, allow any party to dispose of the property during the course of a litigation that directly and openly addresses problems pertaining to the rights of immovable property. In the Vinod Seth v. Devinder Bajaj case, for example, the court decided that the case should be exempted from the doctrine of Lis Pendens as long as security was offered after carefully reviewing the facts and circumstances of the case.

In this particular case, the defendants were permitted to sell the property even though the matter was still pending by the court, they provided a security deposit of Rs. 3,000,000.

ORIGIN AND DEVELOPMENT OF THE DOCTRINE BY THE JUDICIARY

The doctrine of Lis Pendens originated in the case of Bellamy v. Sabine (1857). Justice Turner in this case made the following observation:-
“This is a doctrine common to law and equity courts, which I apprehend, on the
grounds that, if alienation pendente lite was allowed to prevail, it would simply not be possible for any action or suit to be resolved successfully. In any case, the plaintiff will be responsible for the defendant who alienated the property before the judgment or the decree and must be obliged, according to the same course of action, to initiate these proceedings de novo”.

The High Court of Madhya Pradesh, in the case of Gouri Datt Maharaj v. Sheikh Sukur Mohammed & Ors.(1948), highlighted the underlying principle of
Section 52 of Transfer of Property Act. This section is intended to maintain the status quo, ensuring that it remains unaffected by the actions of any party involved in the pending litigation.

In Rajendra Singh and Ors. v. Santa Singh and Ors (1973), the Supreme Court cited a much more definite meaning to the doctrine and its purpose. It was stated
in the Court that “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”.

It was also held in this case that the doctrine of lis pendens was intended to strike at attempts made by parties to a litigation to find a way around the
jurisdiction of a court for their own benefit and delay the proceedings even further. This could lead to multiple litigations as other parties get involved and demand for their interest in the property, thereby delaying the valuable time of the Judiciary.

In Kn Aswathnarayana Setty & Ors vs State Of Karnataka & Ors (2013) “ The principle of ‘lis pendens’ is in accordance with the equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendente lite is bound by the decree just as much as he was a party to the suit.”
In Thomson Press (India) Ltd vs Nanak Builders & Investrs.P.Ltd & Ors (2013) the object of the doctrine was laid out. It was held that the whole object of the doctrine of lis 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 litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated.

In the case of Iqbal Singh v. Mahendar Singh (2012) the High Court of Delhi applied the doctrine to arbitration as well as it considered it unjust for the principle to apply only to litigation and the rights of the parties not being equally protected under arbitration proceedings.

It was held that once arbitration proceedings commence, the suit property becomes sub-judice, and any transfer made during the pendency of arbitration proceedings would be subject to Section 52 of Transfer of Property Act, just as it would normally be under litigation proceedings.

CONCLUSION

The doctrine of lis pendens has been rightly constructed in a way that it benefits the parties to a suit and also the judiciary by saving its time. It helps the Courts to avoid being trapped in a loop in deciding the rightful owner of an immovable property.

Furthermore, the doctrine cannot be misused by anyone by merely mentioning an immovable property in the plain as Section 52 of the Transfer of Property Act, 1882 provides for a set of conditions that require to be met before the application of the doctrine can take place. The suit must be about an immovable property that directly and
substantially involves questions about its rights in order for the doctrine to be invoked.

Secondly, the doctrine in its pith and substance prohibits transfer during the
pendency of the suit. This provides protection and assurity to the party who is the actual owner of the property in a case where a second party has somehow unrightfully acquired the ownership rights. Therefore, if an attempt made by such a party to restrict the other party’s rights by transfer of the property to a transferee is made, then such a transfer would be held void.