This article has been written by J.AKSHAYA from The Tamil Nadu Dr. Ambedkar Law University, School of Excellence in Law, Chennai

INTRODUCTION:

Section 52 of the Transfer of Property Act 1882 deals with the ‘Doctrine of Lis- Pen dens’ the word Lis means litigation and pen dens means pending. The doctrine Lis- pen dens are the old doctrine which has been in operation from British period. This doctrine prohibits transfer of property or involving in the transfer to another person either directly or indirectly during the pendency of suit or litigation except under the authority by court or such term it may impose. Doctrine of Lis- pen dens is expressed in a maxim ‘Pendente lite nihil innovator’ which means during pendency of litigation nothing new should be introduced.

This doctrine was introduced to protect the subject matter of law suit from being transferred to third party while the case is still pending. In situations involving immovable property, any transfer of ownership must comply with the court’s decision and the transferee is bound by the courts judgement. This article highlights landmark cases and how the doctrine of lis pen dens emphasis in just, fair and equitable way in protecting the rights of property under section 52 of the Transfer of Property Act.

ORIGIN:

This doctrine has its origin from the English common law. This doctrine was given by Lord Justice Turner in Bellamy vs. Sabine 1857 where the court observes the following:

‘This is the doctrine common to law and equity courts, which I apprehend, on the grounds that, if alienation pendent 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 judgement or the decree must be obliged, according to the same course of action, to initiate these proceedings de novo’.

The facts of the case were Mr. A sold an immovable property to X. Here A’s son Z who was the legal heir of Mr. A, sued Mr. X in competent court to declare the sale was void. However during the pending of case X sells the property to S who purchases without noticing the suit. The court held that the son Z was entitled to property and the sale was set-aside. Therefore evolving the principles of common law and section 52 of the transfer of property act, 1882 was enforced. Only after this any on-going law suits in any court having authority within the limits of India, a suit or proceeding in which any right to immovable property cannot be conveyed or transferred to any other person, if so the transfer is invalid.

SECTION 52 OF THE TRANSFER OF PROPERTY ACT 1882:

For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of a proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force. In simply words, when title of property is in question before a court of competent jurisdiction, such property should not be transferred by way of sale or gift or lease or mortgage. If transferred, such transfer is invalid and the transferee has no claim.

EXAMPLE:

A has some property. He mortgaged that property to B in 1997. B filed a case against A in the competent court for the recovery of money in March 1999. During the pendency of the case A sold the said property to C. the sale transaction between A and C has been prohibited under the doctrine of Lis-pen dens as it affects B’s rights.

ESSENTIAL CONDITIONS FOR THE APPLICABILITY OF THE DOCTRINE:

For application of the doctrine, the following conditions are to be satisfied.

1. There must be pendency of a suit or a pendency of a proceeding.
2. The pendency of suit must be in the court of competent jurisdiction (competent court)
3. The suit or proceeding should not be collusive.
4. A right to immovable property should be (directly or indirectly or specifically) in question in the suit. (The question involved in the suit must be a right to immovable property)
5. The transfer should be made by one of the parties to the litigation without the authority of the court.
6. It should affect the rights of other party.

Pendency of a suit:

The pendency of suit commences from the date of filing a plaint, and continues till the disposal of suit. It also includes appeals and execution proceedings. If the plaint is filed in High Court and is returned for presentation in lower court competent to try, the pendency commences form the date of filing in the High Court. If the plaint filed a suit in lower court and from there if it is returned for presentation in High court, then the pendency commences from the date of presentation of High Court.

When the conflict arose that whether the pendency of the suit commence from the date of filing or date of serving summon. This was highlighted in the case Prag Narayanan vs. Priyaz Hassan Khan; held that the pendency of suit commences from the date of filing of the plaint and not from the date of serving of summons.

In the case of Hari lal vs. Balwantia and others; it was held that if the plaintiff was entitled to get maintenance in the life time of his husband and could for pray for charge against the property of his husband, later this right of wife would not be affected by the sale deed executed during the pendency of the suit on the transfer of such property to the defendants and the sale deed would be hit by virtue of section 52 of the transfer of property Act.

Competent Court:

Section 52 applies if the suit is pending before the court of competent jurisdiction.

Must not be collusive:

The doctrine (section 52) is applicable if the suit is collusive. A collusive suit is not real and it is a pre-planned one to defeat the defendants.

Immovable property:

The issue or question involved in the suit must be a right with regard to an immovable property.

Actual Transfer:

For application of the doctrine, there must be an actual transfer which includes sale, gift, mortgage, lease etc.

Affecting others rights:

For application of the doctrine, the transfer should affect the right of another person. The transfer during pendency is not ipso facto void, but voidable. The doctrine is not applicable if the rights of the transferor alone are affected and not the rights of parties to suit.

NON APPLICABILITY OF DOCTRINE LIS PENDENS:

This doctrine is not applicable in some cases:

• Sale made by mortgager in exercise of his power conferred under the deed
• In case were only transferor is only affected
• In cases where proceedings are collusive in nature
• When the property is not described correctly and it makes it unidentifiable
• When the right to the said property is not directly in question and alienations permit able

The doctrine fails to apply when a court orders restoration of immovable property under rule 63 of order 21 under civil procedure code, 1908.

EXCEPTION TO THE DOCTRINE OF LIS PENDENS:

The doctrine of Lis pen dens will not take effect when the transfer takes place with the authority or the permission of the court. Any law suits with issues related to immovable property, the court has discretion to give any party the right to transfer or to dispose the property while the case is on-going. This is an exception to the doctrine Lis pen dens. For instance in the case of Vinod Seth vs. Devendrar Bajaj, the court after examining thoroughly the facts and circumstances determined that it was appropriate to exempt the case from the doctrine Lis pendens, provided that security was provided. In this specific instance upon providing security deposit of Rs3,00,000 the court allowed the defendants to sell the property even during the case was still pending.

JUDICIAL PRECEDENTS ON DOCTRINE OF LIS PENDENS:

APPLICABILITY OF DOCTRINE IN INDIA:

• The leading case on this doctrine in India is Faiyaz Hussain Khan vs. Prag Narain in which the Privy Council quoted with the –approval of Turner and Lord Cranworth in Bellamy case and emphasised the significance of the question of Lis pen dens have been decided on the same principle. This rule is not based on the doctrine of notice. But on expediency, the necessity for final adjudication.
• In National Textile Corporation (U.P) Ltd, Kanpur vs. Swadeshi cotton Mills Co. Ltd and others (2000), it was held that section 52 enacts the doctrine of Lis Pendens. It imposes a prohibition on transfer or otherwise dealing with any property during with the pendency of a suit, provided, the conditions laid down in the section are satisfied.

TWO IMPORTANT RULES SHOULD BE NOTED:

DOCTRINE OF NOTICE AND LIS PENDENS:

The rule contained in Section 52 of the Transfer of Property Act is however not based on the doctrine of notice but on expediency. The Lis penden does not annul the transfer but only renders it subservient to the rights of the parties to the litigation. According to this rule, therefore, whosoever purchases a property during the pendency of a suit is bound by the judgement that may be made against the person from whom he derived title even though such a purchaser was not a party to the action or had no notice of the pending litigation.

RESJUDICATA AND LIS PENDENS:

The rule of Resjudicata prevents the owner from dealing Lis pendens and once a judgement is pronounced by a competent court in regard to the subject matter of the suit in which the doctrine of Lis pendens applies, the decision is resjudicata and binds not only party to the suit but also the transferee pendente Lite

• In Ayyaswami vs. Jayaram Mudaliar AIR 1973 SC 569, the court held that the purpose of this provision is not to deprive the parties of every just or fair argument but rather to guarantee that the parties themselves submit to jurisdiction and authority of the court which shall determine all claims that are placed before it to the satisfaction of the parties concerned.
• In the case of Hardev Singh vs Gurmail Singh, civil Appeal No.6222 of 2000, the court ruled that section 52 of the transfer of Property Act, would not make void or unlawful any sale of the contested properties, but only puts the purchaser beyond the binding limits of the judgement on the disposition of the conflict.
• The courts position on this pendent lite transfers issue is explained in Ashok Kumar vs. Govindammal and Anr, 2010. The Supreme Court of India has here reaffirmed that a pendent li[=te cannot be transferred for a property whose title is subject of litigation. The rights of the person to whom the court would eventually have granted title to the property by these transfer payments. When the ruling is upheld by the court the title to the property is ignored. A transferor can only have title to a portion of the property, but if the pendent lite transferors title is accepted for the entire property. The Transfer of the title of the rest of the land, for which there is no right for the pendent lite transferor, is invalid. This means that the transferee cannot claim the title or any other interest in the rest of the property. Finally, if the transferor was found to have no right in the first place to the transferred land, then the transferor would also have no right on this property.

EFFECT OF DOCTRINE OF LIS PENDENS:

• A transfer or dealing by a party to suit during the pendency of the suit/ proceeding is not ipso facto void.
• It only cannot affect the rights of any other party to the suit under any decree or order that may be made in the suit or proceeding.
• Section 52 create only a right to be enforced to avoid a transfer made pendent lite, because such transfers are not void but voidable and that too at the option of the affected party to the proceeding, which the transfer is affected.
• Thus the effect of the rule of lis pendent is not to invalidate or avoid the transfer, but to make it subject to the result of the litigation.

So according to this rule whosoever during the pendency of the suit is bound by the court judgement.

CONCLUSION:

The rule of Lis pendens is enacted for the benefit of the third party and not for the party making transfer. This doctrine is designed to maintain the status quo of the property until the legal dispute is resolved. This doctrine is strictly based on the doctrine of necessity. It ensures that justice is provided without injuring the rights of either party.

REFERENCES:

1. Dr Poonam Pradhan Saxena, Property Law (2017, 3^rd Edn.)
2. Dr. Rega Surya Rao, Lectures on Transfer of Property Act, Asia Law House,2015
3. www.legalserviceindia.com/87
4. drishtijudiciary.com/lis(Visited on 23/12/2023)
5. lawnotes.co/doctrine-of-lis
6. Docrine of Lis pendis and section 52 of the Transfer of Property Act, September 09, 2023
7. blog.ipleaders.in/lis-pendens/ (Last visited on 23/12/2023)