Written by:Adv. Pooja Gupta

Doctrine of Lis Pendens in Transfer of Property Act

Introduction of the Doctrine of Lis Pendens: – The Lis Pendens Doctrine, where ‘Lis’ refers to ‘Suit/Litigation’ and ‘Pendens’ refers to ‘ongoing or pending’ As a result, the Lis Pendens doctrine literally means “Pending Litigation”.

Latin maxim “Ut Pendent Nihil Innovetur

This doctrine has been described or originated from the Latin phrase “Ut Pendent Nihil Innovetur“, which means “During the Pendency of Lawsuit or Litigation“, nothing substantial should be added or modified. Thus, the concept inherent in the Doctrine provides that no additional interest can be established or created on the specific property that is the subject matter of the suit during the court proceedings of any suit connected to the property title. To put it another way, the Doctrine forbids the transfer of conflicting property.

The Concept of Notice

The Doctrine appears to be originally founded on the idea of notice, as pending litigation is regarded as constructive notice for the contested property Pendente Lite (Pending). The decision of the court will be binding on everyone who is related to the property’s title or the subject matter of the dispute. As a result, the Doctrine confers authority, jurisdiction, or control over the disputed property on the court. Therefore, the party involved in the title conflict litigation is not permitted to transfer the asset or make any other decisions that could interfere with the court’s processes. As a consequence, the doctrine prohibits litigants from transferring or disposing of the disputed property in order to administer justice.

Application of Sec. 52 of the T.P. ACT

The section is applicable to suits involving a title conflict over any immovable estate/Property, and it prohibits or restrains any transfer, alienation, or disposition of that immovable property in question while the lawsuits are pending or until a decision from a court of competent jurisdiction affects the opponent’s rights.

According to the interpretation of Sec 52, Lis is presumed to begin on the date of the filing of the plaint and continues until the lawsuit or proceedings has been appropriately resolved with by a final order or decision when sufficient compliance or discharge of said decision or order has been attained.

In the matter of Bellamy v. Sabine

This doctrine was established: –

Justice Turner established the doctrine of ‘Lis Pendens’ in Bellamy vs. Sabine. It means that while the case is Pendente Lite (Pending), neither party can transfer the property in issue in such a way that it adversely affects the rights of his opponents.

If any immovable assets/property was transferred while the suit was pending, the right to claim title to such immovable asset/property will be determined. Although Sec. 52 doesn’t deem that kind of a transfer unlawful, the transferee is legally obliged by the pendente lite’s decision.

It is founded on the idea that a person who purchases an immovable property from a judgement debtor during the proceeding of the litigation has no autonomous right to property to oppose, obstruct, or object to the implementation of a judgement. As a result, if the immovable property is purchased from the decree-holder, only the transferee will receive ownership of the property.

Prerequisites that must be satisfied

In the matter of Dev Raj Dogra & Ors. vs. Gyan Chand & Ors.

The Apex Court interpreted Sec. 52 of the T.P. Act in this decision and established the necessary requirements that must be met in order to fall u/s 52:

  • Litigation or proceeding should be filed in which any right to immovable property is actually directly and explicitly challenged.
  • The litigation or procedure must be pending in a court of adequate jurisdiction.
  • The lawsuit or proceeding must not be coercive in any way.
  • In this case, the right to immovable assets/property must be explicitly and properly contested.

Any transfer of such immovable assets or direct dealing with such assets during the course of the proceedings is prohibited, unless authorised by the Court, if such transfer or else dealing with the assets by any party to the litigation or lawsuit impacts the entitlement of any other person to the litigation or lawsuit under any decree or order which may be granted in the said legal proceeding or lawsuit.

Non-applicability of Lis Pendens

However, even if all of the aforementioned elements are met, there are some instances where Sec. 52 does not apply, i.e., such as: –

  1. A friendly suit,
  2. Collusive proceedings,
  3. Cases of review,
  4. When transfer alone is affected,
  5. In the situation of a private sale performed by a mortgagee in an exercise of authority specifically mentioned in mortgage,
  6. The Lis Pendens principle has no impact on the deed, and because it is made during the proceeding of the mortgagor’s redemption litigation, the sale remained lawful & valid,
  7. To transfer a pending lawsuit to someone who isn’t a party to the case,
  8. Private property, excluding chattel interests in real estate,
  9.  Cases where the parties to the transfer are all on the same side of the issue,
  10. Cases where the transfer is effected by an order of the court in which a lawsuit or proceeding is pending,
  11. Cases in which the asset/property in the plaint is not properly described.

Hardev Singh v. Gurmail Singh Case

In lieu of support, A transferred some of his properties into the name of his spouse, B, according to the facts of the matter. B, on the other side, has filed a suit to establish her ownership of the properties/assets transferred to her.

While the litigation was continuing, A sold the assets/property to C through a deed of sale, but the verdict was against A. However, when C was contesting the title to the property on the second appeal, he included a ground for B’s death. As a result, C maintained that the challenged property that will pass to A following B’s death should come to C in accordance with the sale deed.

While hearing the matter, the Supreme Court ruled as follows

Sec.52 simply forbids a transfer” It’s doesn’t mention that doing the same would be illegal. Only the buyer during the proceeding of a suit is obligated by the outcome of the case. As a result, the transaction was not made null and void.”

It denotes that the section prohibits the transfer, but it doesn’t declare it null & void. It implies that the transferee will be obligated by the court’s ruling. According to the decision, the transferee’s entitlement to the contested property will be restricted to the extent of the transferor’s right to the disputed property.

Conclusion of the Doctrine of Lis Pendens

The concept of Lis Pendens is focused only on the concept of necessity, instead of the principle of notice, which is controlled by common law principles such as Equity, Justice, and Good Morality. As a result, it is essential in ensuring that justice has been served without jeopardising either party’s rights.

Read more: –

Transfer of Property Act, 1882

Doctrine of Election (T.P.A of  1882)

Directive Principle of State Policy (DPSP)

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