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 essentially 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.