Lis pendens

Section. 52 Transfer of Property Act, provides doctorine of Lis pendens . It is a Latin term it
means transfer during pending litigation. This doctrine puts restriction on the Transfer of
Property during the pendency of the suit in a court competent to try it.

Transfer of Property pending suit relating thereto - Section.52- during the pendency in any Court
having authority within the limits of 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 removable 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 right of any other party thereto under any decree which maybe made therein , except under
the authority of the court and on such terms as it may impose .

Explanation -

for the purpose of this section the dependency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the plaint or the Institution of the 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 and complete satisfaction or discharge of such degree 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.

3. The Object of this Doctrine -

I. avoid endless litigation.
II. To protect one of the parties to the litigation against the act of the order .
III. to avoid abuse of legal process.

4.Essential to constitute Lis pendens.

a .there should be a suit or proceeding.

b. Such suit or proceeding is pending before competent court having jurisdiction to try it .

c. Such suit or proceeding is not collusive.

d. The suit or proceeding must be such a which the question of immovable property is directly or
substantially in issue.

e. The suit or proceeding must be pending .

f . then neither party to the suit or proceeding shall transfer or otherwise deal with immovable
property, which is the subject matter of such a suit.
g . so as to defeat the right of party. provided (exception ) with the leave or permission of the
court even during dependency of the suit property can be transferred . But while granting such
permission the court may impose certain conditions, which are to be obeyed by the parties.
Generally in such case Court can the security from such parties to whom such permission is
granted. If any transfer is made in violation of this provision then such transfer are not
recognised by law as proceeding de novo (fresh) not necessary . The Court discretionary powers.
The Court may give permission or not.

Illustration

A, who is landlord has filed a Suit against a tenant B for the recovery of possession of the
premises . B knows that he will lose the Case. he is debarred or prevented form creating any third
party interest in the property, during the pendency of the suit . suppose B creates the interest in C
in respect of the property which is subject matter of suit then if suit is decided and decree in
favour of A the decree cannot be executed against C who is in possession of the property now .
this will defeat the provision of law .

5. Exception to the rule of Lis pendens.

The bonafide purchaser for value without notice. Bonafide purchaser is the purchaser who in the
good faith, after due enquiry from the Seller who has taken proper precaution. for value- he has
become purchaser for consideration without notice for example . without knowledge of defective
title of the Seller .
if he is not a bed of Bonafide purchaser for value without notice then transferee shall not be
entitled to any protection where is where in he purchased the property at his own risk and Peril .

6.Amendment to Indian registration (Bombay Amendment Act 1939)

as per the amendment it is necessary in the state of Maharashtra and Gujarat that in event Of
such Suite there must be notice of pendency of the suit or proceeding to be registered under the
provision of section .18 of the registration act . The amendment to section 52 provides for a
notice of Lis pendens . is mandatory and shall be registered under section.18 of the Indian
registration act.

The notice shall following particulars-

first- such a notice is mandatory.

second - such notice shall be registered under section.18 of the Indian registration act.
Third - in such a notice following particulars shall be incorporated -

1) the name and address of the owner of immovable property

2) the name and address of the person whose is right to the immovable property is in question.

3) the description of the immovable property .

4) the nature of right in respect of such immovable property.

5) the court in which such a suit for proceeding depending.

6) the nature and title of suit of proceedings

7) the date on which the suit the suit or proceeding was instituted .

Case Law :-

A) M/s Supreme general films Exchange Limited. vs brijnath Singh AIR, 1975 SC 1810.

A theater Plaza Talkies, was attacked execution of a decree against the owner of theatre . A lease
of the same theatre was excluded in favour of appellant company during the attachment .
Supreme Court held that the lease is to be struck by doctrine Lis pendens.

Jayaram mudaliyar vs Ayyaswami and others AIR 1973 . Supreme Court 569 .
Supreme Court held that the purpose of S. 52 of Transfer of Property Act , is not to defeat in any
just and equitable claim but only subject them to the authority of the court which is dealing with
the property to which claims are put forward .

Conclusion

the purpose of doctrine or lease tender is not to affect any just equitable claim. this section
protect the rights of the parties who claim interest in the property by filing a suit . The rule of Lis
pendens is based on the maxim that "nothing new should be introduce in a pending litigation."
the application of this role does not depend upon the transferee who had knowledge of the
pendency of the Proceeding. According to this rule during the pendency of the litigation , no
party to the litigation can transfer the suit property with intention to affect the right of the
opposite party.
Courtesy: Sir Zulfikar Nasir

Doctrine of Lis Pendens

The meaning of lis pendens is - „a pending legal action‟, wherein Lis means the „suit‟ and
Pendens means „continuing or pending‟. The doctrine has been derived from a latin maxim “Ut
pendent nihil innovetur” which means that during litigation nothing should be changed.

The principle embodying the said doctrine is that the subject matter of a suit should not be
transferred to a third party during the pendency of the suit. In case of transfer of such immovable
property, the transferee becomes bound by the result of the suit.

The doctrine of Lis Pendens esstentially aims at (i) avoiding endless litigation, (ii) protecting
either party to the litigation against the act of the other, (iii) avoiding abuse of legal process.
Lis Pendens is captured under Section 52 of the Transfer of Property Act, 1882 (the “Act”). The
Section essentially prohibits alienation of immovable property when a dispute relating to the
same is pending in a competent court of law. It is based on the principle 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.[1]

APPLICATION OF SECTION 52 OF TRANSFER OF PROPERTY ACT –

CONDITIONS TO BE SATISFIED

The Supreme Court in a three Judge Bench in Dev Raj Dogra and others v. Gyan Chand Jain
and others[2] construed the meaning of Section 52 of the Transfer of Property Act and laid down
following conditions:

1. A suit or a proceeding in which any right to immovable property is directly and

specifically in question must be pending;
2. The suit or proceeding should be pending in a Court of competent jurisdiction;
3. The suit or the proceeding should not be a collusive one;
4. Litigation must be one in which right to immovable property is directly and specifically
in question;
5. Any transfer of such immovable property or any dealing with such property during the
pendency of the suit is prohibited except under the authority of Court, if such transfer or
otherwise dealing with the property by any party to the suit or proceeding affects the right
of any other party to the suit or proceeding under any order or decree which may be
passed in the said suit or proceeding.

Non – Applicability of Doctrine of Lis Pendens

Lis Pendens is not applicable in every case. There are certain instances wherein this doctrine
does not apply[3]:

 A sale made by the mortgagee in the exercise of the power as conferred by the mortgage
deed.

 In matters of review;

 In cases where the transferor is the only party affected;

 In cases of friendly suits;

 In cases where the proceedings are collusive;

 In case of suits involving pending transfers by a person who is not a party to the suit;

 In cases where the property has not been properly described in the plaint;
 In cases where the subject matter of rights concerned in the suit and that which are
alienated by transfer are different.

Judicial Precedents

1. In Hardev Singh v. Gurmail Singh[4], the Supreme Court observed that Section 52 of the
Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but
only makes the pendente lite purchaser bound by the decision of the pending litigation.
Thus, if during the pendency of any suit in a court of competent jurisdiction which is not
collusive, in which any right of an immovable property is directly and specifically in
question, such immovable property cannot be transferred by any party to the suit so as to
affect the rights of any other party to the suit under any decree that may be made in such
suit.
2. In T.G. Ashok Kumar v. Govindammal & Anr.[5], the Supreme Court observed that 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.
3. In Jayaram Mudaliar v. Ayyaswami[6], the Supreme Court held that the purpose of
Section 52 of the 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. The Supreme Court went on to further explain the scope 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.‟
4. In Rajender Singh and Ors. v. Santa Singh and Ors.[7], it was observed by the Supreme
Court 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 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.
5. In Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors.[8], it was held that broad
principle underlying Section 52 of the Transfer of Property Act,1882 is to maintain status
quo, unaffected by act of any party to the pending litigation.
6. In Ramjidas v. Laxmi Kumar and Ors.[9], the Madhya Pradesh Court observed that the
purpose of Section 52 is not to defeat any just and equitable claim but only to subject
them to the authority of Court which is dealing with the property to which the claims are
put forward.
7. In Lov Raj Kumar v. Dr. Major Daya Shanker and Ors.,[10] the Delhi High Court
observed that the „principles contained in Section 52 of Transfer of Property Act are in
accordance with the principle of 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. Allowing alienations
made during pendency of a suit or an action to defeat rights of a Plaintiff will be paying
premium to cleverness of a Defendant and thus defeat the ends of justice and throw away
all principles of equity‟.

[1] Chaman Lal v. Nanki, High Court of Himachal Pradesh, Execution Petition No. 1 of 2014;
Usha Sinha v. Dina Ram, Appeal (Civil) 1998 of 2008.

[2] AIR 1981 SC 981

[3] See, http://artismc.com/index.php/blogs/view/52/228/ last assessed on 20th September, 2016

[4] Civil Appeal No. 6222 of 2000

[5] Civil Appeal No. 10325 of 2010

[6] 1972 (2) SCC 200

[7] AIR 1973 SC 2537

[8] AIR 1948 PC 147

[9] AIR 1987 MP 78

[10] AIR 1986 Delhi 364