Know The Doctrine of Lis Pendens Section 52 Transfer Of Property Act,1882
Know The Doctrine of Lis Pendens Section 52 Transfer Of Property Act,1882

Know The Doctrine of Lis Pendens U/s 52 Of TheTransfer Of Property Act,1882

Introduction

The doctrine of Lis Pendens explains that the judgment given by the court binds a person who purchases the property during the pendency of any litigation. The court order may come out against such a person who transfers his title of the immovable property, which is already part of the lawsuit or is pending court proceedings.

In this article, we discuss the basic concept of the doctrine of Lis pendens, which is related to the ground of the principle of equity and justice. Any immovable property directly involved in the question of litigation can not be transferred during the pendency of the suit or proceeding. That may affect the legal rights of another party of the claim if they successfully obtain the decree or order by the court.

Meaning of Lis pendens 

The Lis pendens doctrine aims to prohibit property transfer, which is already a part of litigation. The Word Lis pendens is defined in the Transfer of Property Act 1882 under section 52. According to the meaning of Lis pendens, we can say that Lis means litigation, and pendens means pending, which means already pending, called Lis pendens.[1].

The word Lis pendens comes from the Latin, there in Lis means litigation and pendens represents pending; that means a suit or litigation is pending.

The general rule of property law is that no new title can be introduced if such property is in question or involved in litigation; if that happens, it is the amount to transfer such property.

Lis pendens aim to prevent the purchase of a property that is part of litigation and is bound by judgment or order during the pendency of the suit. Such a decision may go against the party who transfers the property. We should note that it is bound to the litigation party or third party who did not know of such pending litigation.

The Aim of the Doctrine of Lis Pendens

This doctrine aims to prevent a transfer of the property, which is a subject matter of litigation, without the court’s prior permission that can not be transferred. It is necessary because if that kind of alienation is permitted, it creates an unnecessary multiplicity of litigation. As a result, the main suit can not be successfully decided on merit.

Here, the transferee who transfers his title during the pendency of the suit proceeding is bound to the court’s final judgment even if he is not a party to the suit.

Know the doctrine of lis pendens and its essential elements

The general rule of the doctrine of Lis pendens is that if the property is in question of litigation in that situation, the defendant or owner of the property can not transfer his title with harm to the plaintiff’s right. If he does, he is bound to the court’s final judgment. The law does not invalidate such a transaction; however, the purchaser of such property is liable to the court order that may be passed against him, and he is responsible for his actions.

Essential conditions for applicability of Lis Pendens

The following conditions should be satisfied for the applicability of the doctrine of Lis Pendens;

  • The lawsuit or proceeding must be pending in the competent jurisdiction of the court.
  • The title of the immovable property may be the subject matter of the legal dispute, which means the immovable property must be directly involved in a suit or proceeding.
  • There should not be cooperation between the parties of the suit.
  • The property right must be affected by the other party of the suit.
  • There should be the possibility of property transfers, which is already in question of the subject matter of the suit or proceedings.

When is the Doctrine of Lis Pendens not applicable?

In some of the circumstances, the concept of the doctrine of Lis pendens is not applicable, which is given below;

  • This doctrine does not apply if the property of the subject matter is not described correctly. That is not used in the unidentified property.
  • If the court passes the order for restoration of immovable property under Order 21, Rule 63 of the Civil Procedure Code, in that case, this doctrine does not apply.
  • This doctrine does not apply in the suit for maintenance. Because the property mentions specifically the payment issues only. Here, the immovable property is directly not in the subject matter. That’s why said
  • property may be permitted alienation.
  • In the case of a creditor who has a right to dispose of the immovable property mortgaged. He can sell such property, even if the redemption suit of the borrower is pending. The sale is made by a mortgagee who has the right to confer by the mortgage deed.
  • In the case when, the matter of review.
    Such doctrine does not apply when the transferor is an affected party.
  • The transfer is made by another person who is not a party to the pending suit.
  • This doctrine also does not apply in the friendly suit.

What does it mean if there is a lis pendens?

The basic meaning of the Lis pendens is there is a pending suit through the way of Lis pendens, and the party of the claim is enabled to inform the third person regarding his right of the suit property who is interested in such property.

Where is the doctrine of lis pendens applicable?

The doctrine of Lis pendens is applied in the court of law and court proceedings. If the property is the subject matter of the suit and the proceeding is pending. During that period, the property is alienated or otherwise dealt with, which can affect the parties’ rights, then it will be applied.

Judicial Precedents on the doctrine of lis pendens:

Sardar Hari Bachan Singh vs Major S. Har Bhajan Singh And Anr, (AIR 1975 PH 205), the Punjab-Haryana High Court held that, the alienee pendente lite cannot claim any compensation for the improvements made by him in the property purchased by him and that the alienee pendente lite is not a necessary party to the suit.[2].

Krishnaji Pandharinath vs Anusayabai And Anr, (AIR 1959 Bom 475), the Bombay High Court, held that the application of the doctrine of lis pendens does not depend upon the purchaser having notice of the suit; even if the transferee pendente lite from a party has no notice of the suit, the rights of the other party to a suit in which a right to immovable property is directly and specifically in question under the decree cannot be prejudicially affected by the transfer.[3].

Har Prasad vs Sita Ram, (AIR 1940 All 141), the Allahabad High Court held that even though Section 52 does not operate to annul a transfer pendente lite it renders the transfer subservient to the rights of the parties to the action as determined by the judgment or decree passed in the action.[4].

Narayan Laxman Ayarkar And Ors. vs Vishnu Waman Dhawale And Anr, (AIR 1957 Bom 1170), the Bombay High Court, held that Section 52 of the Transfer of Property Act makes transfers during the pendency of any suit or proceeding, which is not collusive of any right to immovable property which is directly and specifically in question, ineffective as against the person who may ultimately be declared entitled thereto, except where the transfer has been effected under authority of the Court.[5].

Parmeshari Din vs Ram Charan, (1937) 39 BOMLR 1019, the Bombay High Court held that a transferee of property pendente lite must be treated as a representative in interest, and as such bound by the result of the suit, and the decree can be executed against him although he was not a party to the suit.[6].

Conclusion

The doctrine of Lis pendens aims to provide equity and sound sense following the principle of justice and concerns public policy. The doctrine is defined in the Transfer of Property Act of 1882 under section 52. It clearly says that any immovable property in the question of the suit or proceeding under the court cannot be alienated or dealt with. If that happens, it can affect the party’s right of the party to the claim. If the party is doing that activity, it will be bound by the order passed by the court, which may result against him even if he was not a party to the litigation.

Reference 

(1) Section 52 of The Transfer of Property Act 1882.

 (2) Sardar Hari Bachan Singh vs Major S. Har Bhajan Singh And Anr, (AIR 1975 PH 205).

(3) Krishnaji Pandharinath vs Anusayabai And Anr, (AIR 1959 Bom 475).

(4) Har Prasad vs Sita Ram, (AIR 1940 All 141).

(5) Narayan Laxman Ayarkar And Ors. vs Vishnu Waman Dhawale And Anr, (AIR 1957 Bom 1170).

(6) Parmeshari Din vs Ram Charan, (1937) 39 BOMLR 1019.

Also Read: What is the value of an unregistered agreement to sell an immovable property?

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