Doctrine Of Lis Pendens: Applicability & Non-Applicability

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.

CASE LAWS:

1. In Hardev Singh v. Gurmail Singh, 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 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., 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.

[The author, Shivam Sharma is a fourth-year law student at IME Law College, Delhi]

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