DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY
TOPIC- DOCTRINE OF LIS PENDENS

SESSION- 2019-20

TRANSFER OF PROPERTY-I

SUBMITTED TO: SUBMITTED BY

Dr.ANKITA YADAV VISHAL KUMAR ARYA

ASSN. PROFESSOR ROLL NO-163

DR. RMLNLU SECTION -B

ACKNOWLEDGEMENT

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I would like to take this opportunity to thank DR. ANKITA YADAV for her invaluable
support, guidance and advice. I would also like to thank my friends who have always
been there to support me and last but not the least I would also like to thank the library
staff for working long hours to facilitate us with required material going a long way in
quenching our thirst for education.

VISHAL KUMAR ARYA

TABLE OF CONTENTS

 ACKNOWLEDGEMENT
 INTRODUCTION

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  LIS PENDENS
 HISTORY OF LIS PENDENS
 BASIS OF LIS PENDENS
 STATE AMENDMENT IN GUJRAT AND MAHARASTRA
 PROVISIONS OS SECTION 52 OF TRANSFER OF PROPERTY ACT
 ESSENTIAL CONDITIONS REQUIRED FOR SEC 52.

 PENDENCY OF SUIT OR PROCEEDING

 PROCEEDING
 COMPROMISE SUIT
 PENDENCY IN COURT OF COMPETENT JURISDICTION
 RIGHT TO IMMOVABLE PROPERTY MUST BE INVOLVED
 RIGHT IN MOVABLES
 SUIT MUST NOT BE COLLUSIVE
 PROPERTY IS TRANSFERRED OR OTHERWISE DEALT WITH
 INVOLUNTARY TRANSFER
 TRANSFER WITH PERMISSION OF COURT
 TRANSFER BY ANY PARTY TO SUIT
 TRANSFER AFFECTS THE RIGHTS OF ANY PARTY
 EFFECTS OF PRINCIPLES OF LIS PENDENS
 CONCLUSION
 BIBLIOGRAPHY

INTRODUCTION

Section 52 of Transfer of Property Act deals with the Doctrine of Lis

Pendens.

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‘Lis’ means ‘litigation’ and ‘Pendens’ means ‘pending’. So, Lis Pendens
would mean ‘pending litigation’. The doctrine of Lis Pendens is expressed in
the well known maxim:-
Pendente lite nihil innovature, which means ‘during pendency of litigation,
nothing new should be introduced’. 1
Under this doctrine, it is provided that during pendency of any suit regarding
title of a property, any new interest in respect of that property should not be
created. Creation of new title or interest is known as a transfer of property.
Therefore, in essence, the doctrine of Lis Pendens prohibits the transfer of
property pending litigation. It is a very old doctrine and has been operating
in the English Common Law. Under this doctrine the judgements in the
immovable properties were regarded as overriding any alienation made by
the parties during pendency of litigation. Later on, this doctrine was adopted
also by equity for a better and more regular administration of justice.

ESSENTIAL CONDITIONS FOR APPLICATION OF SECTION 52

Following conditions are necessary for the application of the doctrine of lis
pendens as given in section 52:-

 There is a pendency of a suit or proceeding.

 The suit or proceeding must be pending in a Court of competent
jurisdiction.

 A right to immovable property is directly and specifically involved in

the suit.

 The suit or proceeding must not be collusive.

1
Dr. S. N. Shukla, The Transfer of Property Act, 28th Ed. , 2014

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  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 litigation.

When the above- mentioned conditions are fulfilled, the transferee is bound
by the decision of the Court. If the decision of the Court is in favour of the
transferor, the transferee has rights in the property transferred to him. If the
decision goes against the transferor, the transferee cannot get any interest in
the property.2

PENDENCY OF SUIT OR PROCEEDING

Proceedings -: The doctrine of lis pendens applies to transfers during

pendency of suit or proceeding. ‘Proceeding’ means a judicial activity
whether civil or criminal. Here it means a judicial activity in respect of
determining the rights in an immovable property. Accordingly, for purposes
of this section, there is no difference between a suit and a proceeding. This
section has been applied to transfers made during revenue proceedings. A
claim made under O.XXI, R. 58 of the Civil Procedure Code is a proceeding
under this section. Similarly, proceedings for ejectment before Revenue
Officer are affected by lis pendens. Since Registrar of Co-operative Societies
is regarded as a Court, therefore, proceeding under Rule 14 of the Co-
operative Societies Act, 1912 operates as lis pendens. But, proceeding before
Settlement Officer is not a proceeding under this section and such
proceeding cannot operates as lis pendens.
2
Justice P.S.Narayana, The Transfer of Property Act, 2012, p.43

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Compromise Suit -: The doctrine of lis pendens is applicable in cases
where the pending litigation is ultimately compromised and a compromise or
consent decree is passed. The word ‘decree or order’ in this section
contemplates compromise or consent decrees. However, the compromise
must be during the pendency of suit and not a compromise entered into after
withdrawal of the suit.

PENDENCY IN COURT OF COMPENENT JURISDICTION

The suit or proceeding during which the property is transferred, must be

pending before a Court of competent jurisdiction. Where a suit is pending
before a Court which has no proper jurisdiction to entertain it, the lis
pendens cannot apply. For filing a suit, the Civil Procedure Code has
prescribed jurisdictions of the Courts on the ground of territory or on the
basis of valuation of the subject-matter of dispute. The jurisdiction of the
Court is, therefore, territorial or pecuniary or, otherwise as given in this
code. Thus, a suit respecting any immovable property should be filed only in
the Court within whose jurisdiction the property situates. If the disputed
property is situated outside the territorial limits of the Court, it has no
competency to try any any suit involving that property. Accordingly, the
Court cannot pass a valid decree so as to affect a transfer made pendente lite.
Lis pendens is not applicable where the suit is pending in any Court is
outside the scope of this section.

However, as regards pecuniary jurisdiction, if a suit is filed in a higher Court

which should have been filed in the lowest Court, it has been held that there
is no lack of jurisdiction; it is merely a irregularity and section 52 applies.

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RIGHT TO IMMOVABLE PROPERTY MUST BE INVOLVED

Another condition for applicability of this section is that in the pending suit,
right to immovable property must directly and specifically be in question.
The litigation should be regarding title or interest in an immovable property.
Where the question involved in the suit or proceeding does not relate
directly to any interest in an immovable property, the doctrine of lis pendens
has no application. For example, where a suit is pending between landlord
and tenant regarding payment of rents and during litigation the landlord
transfers the property, the transfer is not affected by lis pendens because the
litigation is not with regard to any interest in the property but involves
payment of rents. Similarly, where a Hindu widow filed a suit against her
stepson for maintenance and specifies certain immovable properties in
possession of such stepson, it was held that right to immovable property is
not directly in issue and this section cannot apply. Mere mention of an
immovable property in the plaint is not enough, rights in respect of that
immovable property must directly and substantially be in question. In a suit
for specific performance of a contract to transfer an immovable property is
directly and substantially in question. Therefore, transfer of that property is
within the scope of this section. The test whether a suit or proceeding
involves any question of right in immovable property should be the nature of
claim and the decree passed rather than the property mentioned in the plaint.
However, following suits have been held to involve question of rights in
immovable property and are within the scope of this section:-

 A suit for partition.

 A suit on mortgage.

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  A suit for pre-emption.

 Easement suit.

 Suit for maintenance by a Hindu widow in which she claims to

have her maintenance made a charge on specific immovable
property and a decree is passed creating a charge on such property.

Where the suit or proceeding does not involve any question of right in
immovable property, lis pendens does not apply.3 Thus, these are the suits
where lis pendens does not apply:-

 Suit for debt or damages where the claim is limited to money.

 A suit for the recovery of movables.

 A suit for an account.

Similarly, a suit for recovery of rents of an agricultural holding is also

outside the scope of this section.

Rights in movables -: The doctrine of lis pendens does not apply where the
suit involves rights in movable properties. Standing timber is a movable
property, therefore, this section cannot apply where the issue before the
Court is rights in respect of standing timber. Similarly, where certain
ornaments were pledged pending a suit for their recovery, it was held that lis
pendens is not applicable and the pledge shall not be subject to decision of
the Court.

3
1957) S.C.R. 77.

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SUIT MUST NOT BE COLLUSIVE

Lis pendens is inapplicable if the suit is collusive in nature. A suit is

collusive if it is instituted with a mala fide intention. Mala fide intention
behind instituting a suit is inferred from the fact that parties to the suit know
their respective rights in the property and there is no actual dispute. Such
suit is, therefore, fictitious and the very purpose of filing the suit is to get
judicial decision for some evil design e.g. defrauding a third party. Since
such suits are instituted with a mala fide intention of causing injury to a third
person, there is no question of its being a litigation involving rights in an
immovable property. Where property is transferred during pendency of a
collusive suit, the transferee is not bound by the result of the litigation.
However, it is impossible that a suit in the beginning is bona fide but during
pendency there is a secret agreement between the parties in the form of a
compromise. In such cases too lis pendens is inapplicable.

A Hindu wife filed a maintenance suit against her husband with a secret
agreement that during litigation the husband would transfer the property.
During the pendency of the suit, the husband sold the property. Later on, a
charge was created in favour of the wife over the property. It was held by the
Privy Council that the suit was collusive in nature and was, therefore,
outside the scope of lis pendens. Accordingly, the Court held that the
purchaser was not bound by the charge on the property.

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PROPERTY IS TRANSFERRED OR OTHERWISE DEALT WITH

During pendency of suit, the property must be transferred or otherwise dealt

with by any of the parties to suit. ‘Transfer’ includes sale, exchange, lease
and mortgage. Thus, during pendency of suit if the disputed property is sold
or given in exchange, is leased or is mortgaged either by plaintiff or by
defendant, the doctrine of lis pendens shall apply on it and the transfer
would be subject to decision of the Court.

The expression “otherwise dealt with” has been interpreted to mean those
transactions in which although there is transfer of some interest in the
property but they do not come strictly within the meaning of ‘transfer of
property’ as defined in Section 5 of this Act. Accordingly, surrender, release
or partition would be regarded as transfer for purposes of this section. A
contract of sale has been regarded as a transfer within the meaning of
‘otherwise dealt with’. Therefore, entering into contract of sale of the
disputed property during litigation shall attract the provisions of this section.
Partition effected during pendency of the suit shall also come within the
ambit of this section. Handing over of the disputed property during litigation
would mean ‘otherwise dealt with’ and section 52 applies.

To construct building on the disputed land so as to compel the plaintiff to file

another suit for its removal is dealing the property otherwise and comes
within the purview of Section 52. Entering into a compromise respecting
disputed property with a third person during litigation is also dealing the
property otherwise.

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Involuntary Transfers -: Transfer of property may either be by act of
parties or by operation of law. Transfers by operation of law are known as
involuntary transfers e.g. Court sale or transfer made by order of Court.
Section 52 is applicable to both the kinds of transfers pendente lite.
Formerly there was some doubt whether this section applies to transfers
made by operation of law because this Act does not apply to such transfers.
But the Privy Council had settled the law that the principle of lis pendens is
applicable also to transfers by operation of law. The doctrine of lis pendens
applies where the sale is made by order of the Court. Though an attachment
is not a transfer, but a sale in pursuance of an attachment comes within the
scope of this section. The principle of lis pendens applies to execution sales
as well as sales for non- payment of Government Revenue. The auction-
purchaser is bound by the decision of the pending litigation though auction
is made by Court’s order. Purchaser at a sale for arrears of income-tax is
affected by the rule of lis pendens and would be bound by the decision of
Court if he had purchased the property pending litigation. Lease effected by
Government in khas mahal is regarded as lease by the landlord and if made
pendente lite, Section 52 is applicable on such a lease. In Sujan Bhan v. Guj
Rai4 a suit for specific performance of a contract for the sale of an
immovable property was pending in a Court. The property was purchased
under an auction sale in execution of decree in suit filed on the basis of a
promissory note. The Allahabad High Court held that the execution sale
would be hit by the provisions of Section 52 and no title could be given to
the purchaser.

4
AIR (1981) ALL. 149.

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Transfers with permission of the Court -: When a transfer is made during
pendency of suit with the permission of Court, the principle of lis pendens is
not applicable. The concluding part of this Section exempts transfers
pendente lite if such transfer is made ‘under the authority of the Court and
on such terms as it any impose’. Under this clause the parties to suit are
entitled to apply to the Court in which the suit is pending to get permission
for the transfer. If the Court deems it fit, it may give permission for the
transfer of disputed property. In such a situation, Section 52 shall not apply
on the transfer of disputed property. In such a situation, section 52 shall not
apply on the transfer though it is made during pendency of suit.

TRANSFER BY ANY PARTY TO SUIT

Transfer made during pendency of suit is not enough to attract the provisions
of this section. It is necessary that transfer of disputed property is made by
any party to suit. Transfer of property by a person whose title is not in any
way connected with disputed property is not affected by lis pendens. A party
to suit whose name is struck off as a contesting party by consent is not
bound by the decree because lis pendens shall not apply to him. It is to be
noted that the words ‘any party’ are not merely descriptive but refer to the
time when the transaction takes place. The doctrine of lis pendens was,
therefore, not applied where the transfer was made pending the suit by a
person who was not party at the time of transfer but, was subsequently made
a party as a representative of the original defendant.

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TRANSFER AFFECTS THE RIGHTS OF ANY OTHER PARTY

The last condition for applicability of Section 52 is that the transfer during
pendency must affect the rights of any other party to suit. The principle of lis
pendens is intended to safeguard the parties to litigation against transfers by
their opponents. So, the words ‘any other party’ here does not mean stranger
to suit. It means any other party between whom and the party who transfers,
there is an issue for decision which might be prejudiced by alienation. ‘Any
other party’ here means the opposite party whose interest may be affected by
transfer pendente lite. Where the rights only of the transferor and not of the
other party to suit are affected, the principle of lis pendens does not apply.
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Thus, Section 52 cannot be made applicable between parties who are at one
side either as plaintiff or as defendant because there is no question of any
dispute between them.

For example, in a suit A is plaintiff and B, and C are co-defendants. During

pendency of the suit B transfers the property. C cannot take the benefit of
Section 52 because there is no dispute between B and C. but A can take the
benefit of this section because he is party to suit other than the transferor and
his rights may be affected by the transfer pendente lite.

EFFECT OF THE PRINCIPLES OF LIS PENDENS

Lis pendens is taken as constructive notice of the pending lawsuit, and it

serves to place a cloud on the title of the property in question until the suit is
resolved and the notice released or the lis pendens is expunged. Reputable,
5
1957) S.C.R. 77.

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careful lenders will not lend money on the security of land which is subject
to a lis pendens, as title insurance companies will not insure the title to such
land: title is taken subject to the outcome of the lawsuit. Because so much
real property is purchased with borrowed money, this largely keeps the
owner from selling the property. It also may keep the owner from borrowing
money secured by the property (such as to pay the costs of defending the
suit). Similarly, careful buyers will be unwilling to purchase the land, at least
not at what the full value would be without the cloud on title.6

While it is generally thought of in connection with real property (land,

buildings, and the like), the doctrine of lis pendens also applies to personal
property. Frequently, lis pendens statutes only apply to real property, so the
common-law doctrine probably still applies to personal property.

The effect of lis pendens is, therefore, that it does not prevent the vesting of
title in the transferee but only makes it subject to the rights of the parties as
decided in the suit. Section 52, therefore, does not invalidate the transfer but
renders if subservient or subject to the rights of the parties to litigation. The
words “so as to affect the rights of any other party thereto under any decree
or order which may be made therein” suggest that the transfer pendente lite
is valid and good to the extent that it might conflict with rights established
under the decree.

6
Uzoe v. Ma Mya May, (1930) 127 I.C. 170.

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CONCLUSION

A pending suit involving title conveys notice to intending purchasers, and

charges the land, in whosesoever hands it may be, with the consequences of
whatever decree may be made. This is known technically, as lis pendens.
The doctrine of lis pendens is, that a purchase of property actually in
litigation, or, as the technical phrase runs, a purchase pendente lite, although
for a valuable consideration and without any actual notice, affects the
purchaser in the same manner as if he had such notice, and he will
accordingly be bound by the judgment or decree rendered in the suit.7

The doctrine of lis pendens applies only where a third person attempts to
intrude into a controversy by acquiring an interest in the subject-matter of
the litigation. The reason of the rule is, that if a transfer of interest pending
suit were to be allowed to affect the proceedings, there would be no end to
litigation; for as soon as a new party was brought in he might transfer to
another, and render it necessary to bring that other before the Court, so that a
suit might be interminable.

7
Justice P.S.Narayana, The Transfer of Property Act, 2012,

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BIBLIOGRAPHY

BOOKS REFERRED :-

1. Prof. R.K. SINHA, THE TRANSFER OF PROPERTY ACT, 10 TH

EDITION, 2008.
2. Dr. S.N. SHUKLA, THE TRANSFER OF PROPERTY ACT, 26 TH
EDITION, 2006.

3. VEPA P. SARATHI, LAW OF TRANSFER OF PROPERTY, 5 TH

EDITION, 2005.

4. Dr. AVTAR SINGH, THE TRANSFER OF PROPERTY ACT, 2008.

5. H.N. TIWARI, TRANSFER OF PROPERTY ACT, 4 TH EDITION,

2005.

WEBSITES :-

 Legalservicesindia.com
 Indiankanoon.org

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