Doctrine of lis pendens

Introduction
The Transfer of Property Act, 1882, was promulgated embodying the principles of English
Common Law, namely equity, good conscience, and justice underscored by the provisions of the
Indian Contract Act, 1872, and came into force from July 1, 1882.

Property or ownership are synonymous with each other, and ownership interest is automatically
created when a right is vested.

Ownership has to be:

1)Indefinite in point of the user – The owner may use the property subject to some restrictions
without injuring the rights of other persons, but at no point in time will it negate the ownership in
the property even if the rights may be curtailed.
Unrestricted in the point of disposition – The owner has an unfettered right to dispose of the
property. However, there are exceptions to this as minors (those below the age of 18) can be
owners but cannot alienate the property. Also, the Government may acquire the property for
specific purposes irrespective of the property owner’s consent.
2)Unlimited in the point of duration – As long as the property in question exists, the property
rights are heritable. Again, the Government can, at any point, acquire the property and
terminate the owner’s rights.
The Transfer of Property Act covers transfers inter vivos, i.e., between two living persons. A
transfer is defined as an act by which living persons convey the property to one or more living
persons.

The transferee can get the transferor’s rights and nothing more, where the owner is the
transferor, and the transferee is the person or persons to whom the rights are conveyed.

The first amendment to the Transfer of Property Act, 1882, was in 1929, whereby the definition
of living persons was amended to include companies, associations, and bodies of individuals,
whether incorporated or not.

Origin Of The Doctrine Of Lis Pendens

The doctrine of Lis Pendens has its origin by Lord Justice Turner in Bellamy Vs. Sabine, 1857
Where the Court observed the following:

“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 Purpose Of The Doctrine Of LIS PENDENS

This Doctrine is essential as it prevents Transfer of the title of any disputed property without the
Court’s consent, there can be endless litigation, and it will become impossible to bring a lawsuit
to a successful termination if alienations are permitted to prevail, and covenants are not
imposed.

The ‘Transferee pendente lite’ is bound by the verdict just as if he were a party to the suit and
the transfer shall be subservient to the result of the pending lawsuit.

Let us understand the various conditions that need to be met for the doctrine to apply:

ESSENTIAL CONDITIONS FOR THE APPLICATION OF DOCTRINE OF LIS PENDENS:

Following are the essential condition to be fulfilled for the application of the doctrine of Lis
pendens as provided in Section 52 of the Transfer of Property Act, 1882.

-There is a tendency of suit or proceeding.

-The suit or proceeding must be pending before a competent court of jurisdiction.
-A right to immovable property is directly or specifically involved in the suit.
-The suit or proceeding must not be collusive.
-The property in dispute must be transferred or otherwise dealt with by any party to suit.
-The transfer must affect the rights of the other party to the litigation.
-
(1) Pendency of Suit: Section 52 of Transfer of Property Act, 1882 or the Doctrine of Lis
pendens only applies when the property transferred during the pendency of suit or proceeding.
Pendency of suit or proceeding is that period during which a suit remains before a court for its
final disposal. A suit is instituted by filing a plant, that is the first step of a suit and the last step of
a suit is passing decree by Court.

(2) Pendency of suit in a court of competent jurisdiction: The suit or the proceeding during which
the property is transferred, must be pending before a court of competent jurisdiction. When a
suit is pending before a court which has no proper jurisdiction to entertain it, the doctrine of Lis
pendens shall not apply.

(3) Right to immovable property must be involved: Another condition for the applicability of this
doctrine is that the suit right to the immovable property directly or specifically in question. The
litigation should be regarding the title or interest of that property. Where the question involving
the suit or proceeding does not relate to the title or interest in immovable property, the doctrine
of Lis pendens has no application.

(4) The suit must not be collusive: Where a property is transferred during the pendency of the
collusive suit, the transferee is not bound by the litigation. However, if any suit at the beginning
was bona fide, but during the pendency of the suit, there is a secret agreement between the
parties in form of compromise, in that cases too Lis pendens is applicable.

(5) Property is transferred or otherwise dealt with: During the pendency of the suit, the property
must be transferred or otherwise dealt with by any of the parties in a suit. The transfer includes
a sale, exchange, lease and mortgage. Thus, during the pendency of the suit, if the disputed
property is sold or given lease or mortgaged either by plaintiff or defendant, this doctrine of Lis
pendens shall apply, and the transfer would be the subject of the decision of Court.

(6) Transfer affects the rights of any other party: The last condition for the applicability of the
doctrine of Lis Pendence is that the transfer during which pendency must affect the right of any
other party to the suit. The principle of Lis pendens is intended to safeguard the parties to
litigation against transfers by their opponents.

YLCube

Doctrine Of Lis Pendens: Applicability & Non-Applicability

June 16, 2020   •    Architi Batra

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 innovator” 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.

Aim-
(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 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 the execution of a decree.

ESSENTIAL CONDITIONS FOR THE APPLICATION OF DOCTRINE OF LIS PENDENS:

Following are the essential condition to be fulfilled for the application of the doctrine of Lis
pendens as provided in Section 52 of the Transfer of Property Act, 1882.

There is a tendency of suit or proceeding.

The suit or proceeding must be pending before a competent court of jurisdiction.
A right to immovable property is directly or specifically involved in the suit.
The suit or proceeding must not be collusive.
The property in dispute must be transferred or otherwise dealt with by any party to suit.
The transfer must affect the rights of the other party to the litigation.
(1) Pendency of Suit: Section 52 of Transfer of Property Act, 1882 or the Doctrine of Lis
pendens only applies when the property transferred during the pendency of suit or proceeding.
Pendency of suit or proceeding is that period during which a suit remains before a court for its
final disposal. A suit is instituted by filing a plant, that is the first step of a suit and the last step of
a suit is passing decree by Court.

(2) Pendency of suit in a court of competent jurisdiction: The suit or the proceeding during which
the property is transferred, must be pending before a court of competent jurisdiction. When a
suit is pending before a court which has no proper jurisdiction to entertain it, the doctrine of Lis
pendens shall not apply.

(3) Right to immovable property must be involved: Another condition for the applicability of this
doctrine is that the suit right to the immovable property directly or specifically in question. The
litigation should be regarding the title or interest of that property. Where the question involving
the suit or proceeding does not relate to the title or interest in immovable property, the doctrine
of Lis pendens has no application.

(4) The suit must not be collusive: Where a property is transferred during the pendency of the
collusive suit, the transferee is not bound by the litigation. However, if any suit at the beginning
was bona fide, but during the pendency of the suit, there is a secret agreement between the
parties in form of compromise, in that cases too Lis pendens is applicable.

(5) Property is transferred or otherwise dealt with: During the pendency of the suit, the property
must be transferred or otherwise dealt with by any of the parties in a suit. The transfer includes
a sale, exchange, lease and mortgage. Thus, during the pendency of the suit, if the disputed
property is sold or given lease or mortgaged either by plaintiff or defendant, this doctrine of Lis
pendens shall apply, and the transfer would be the subject of the decision of Court.

(6) Transfer affects the rights of any other party: The last condition for the applicability of the
doctrine of Lis Pendence is that the transfer during which pendency must affect the right of any
other party to the suit. The principle of Lis pendens is intended to safeguard the parties to
litigation against transfers by their opponents.

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:

-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.

Understanding the jurisprudential evolution of this Doctrine

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 submit themselves to the 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 v. 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 judgment on
the disposition of the conflict.