CIA – 3

PROPERTY LAW

REPORT: SECTION 52: DOCTRINE OF LIS PENDENS

Submitted by:

Divyanshu Modi

4 BA LLB ‘A’

1750113

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Table of Contents:

1) INTRODUCTION……………………………………………………… 3

2) ESSENTIALS OF THE DOCTRINE………………………………….4-6

a) Pendency of the Suit
b) Competent Court
c) Collusive suit or proceeding

3) Specific Right in Immovable Property…………………………………6-8

a. Sale
b. Suit for specific performance of contract
c. Suit on mortgage
d. Suit for partition
e. Suit for pre-emption (shares not ascertained)

4) Status of transfer…………………………………………………………8

5) Conclusion………………………………………………………………..8

6) Bibliography……………………………………………………………...9

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INTRODUCTION:

Section 52 of the Transfer of Property Act, 1882 is the expression for the maxim “pendente lite
nihil innoveture”, this principle basically means that when there is a litigation pending upon a
property or land, nothing new can be introduced upon it. The pendency of the suit is provided
in the explanation of section 52 which provides that the pendency of the suit shall commence
form the date of presentation of the plaint or the institution of the proceedings in a competent
court of jurisdiction, and continue until the suit or proceeding has been disposed of by a final
decree or order of such decree has been obtained, or has become unobtainable by reason of the
expiration of any period of limitation prescribed for the execution thereof by any law for the
time being in force.1

The principles of section 52 are in consonance with equity, good conscience or justice because
they rest upon the doctrine of 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. A transferee
pendente lite is bound by the decree just as much as he was a party to the suit. The present
section being a principle of public policy, no question of good faith or bona fide arises. The
principle underlying S.52 is that a litigating party is exempted from taking a notice of a title
acquired during the pendency.

“it is a doctrine common to the courts both of law and equity, and rests, I apprehend, upon this
foundation, that it would plainly be impossible that any action or suit could be brought to
successful termination, if alienations pendente lite were allowed to prevail. The plaintiff would
be liable, in every case, to be defeated by the defendant’s alienating before the judgement of
decree, and would be driven to commence his proceedings de novo, subject again to be defeated
by the same course of proceedings.”2

In the case of Faiyaz Hussain vs Prag Narain3 The rule contained in the section is not based
on the doctrine of notice, but is based on expediency that, when the jurisdiction of the court is
once invoked, it should be ousted by the transfer of the defendant’s interest. If that were not
so, there would be no end to litigation and justice would be defeated.4 The rule of Lis Pendens
is based upon expediency and not on the doctrine of notice.5

1
Ins. By Act 20 of 1929, section 14
2
Bellamy vs Sabine ILR 31 BOM 393
3
ILR 29 All 339
4
Jahar lal vs Bhupendra Nath, AIR 1922 Cal 412 (2)
5
R. Augusthi vs Gopalan, AIR 1970 Ker 188

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ESSENTIALS OF THE DOCTRINE:

The application of doctrine of lis pendens certifies certain essentials that need to be fulfilled.
Herein are enlisted certain essentials of the doctrine:

1) There must be a pendency of a suit or proceeding.

2) The suit or proceeding must be pending in a competent court.
3) The suit or proceeding must not be collusive.
4) A right to immovable property must be directly and specifically be in question in
that suit or proceeding.
5) The property in dispute must be transferred or otherwise dealt with by any party to
the litigation.
6) The alienation must affect the rights of the other party.

Pendency of a suit:

Under the explanation added by the amending act 20 of 1929, the pendency of a suit or
proceeding begins from the date of the presentation of the plaint or institution of the
proceedings in a court of competent jurisdiction. If the plaint is presented in a wrong court and
a transfer takes place during such pendency, the doctrine of lis pendens is not applicable in
such case.6 If the plaint is presented in a court of higher grade, and is returned for presentation
to the court of lower grade, the suit is pending from the time of first representation. If the plaint
is insufficiently stamped and is rejected and then represented after making good of the
deficiency, a transfer between the two dates of presentation would not be subject to lis
pendens.7 If the plaint is not rejected and the deficiency is recovered by the court, the doctrine
would apply. If a suit is dismissed for default and then restored, the order of restoration relates
back and the transfer after dismissal and before restoration is subject to the doctrine of lis
pendens.

Competent Court:

In order that the section may be applicable, the suit must be applicable, the suit must be pending
in a court of competent jurisdiction. For example, where the property is situated outside the
jurisdiction of the court, it cannot pass a valid decree so as to affect an alienation made pendente
lite.

6
S.N. Shukla, Transfer of Property, ed 2015, pg 142-143.
7
Mahendra Nath vs Parmeswas, (1921) 60 I.C. 439

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Collusive suit or proceeding:

the next condition is that the suit or proceeding must not be collusive. A collusive suit is not a
real suit but is one in which there is a fraudulent secret understanding between the plaintiff and
the defendant that the suit would not be contested with a view to defeat the rights of the
transferee of wither parties.

An illustrative example would be: A and B agree (i) that B would file a suit against A in respect
of a house in A’s possession, (ii) that A would not seriously contest the suit, and (iii) that
during the pendency of the suit, B would sell the house to one D and the money received from
D would be divided between them. B files the suit as agreed, B during the pendency of the suit
sells the house to D with the belief that the sale deed to D would be set aside having been
executed during the pendency of the suit. B’s suit is decreed. The suit being collusive, the
transfer to D would not be set aside.8

Where the property involved in the partition suit has been transferred to the third party by one
of the parties to the suit during its pendency, which ended in compromise decree and it was not
shown that the suit was collusive in nature, such transfer of property was held
to be bad and invalid under Section 52.

The court in the case9

“the doctrine of lis pendens embodied in section 52 of the TOPA is based upon sound principles
of law and equity it would plainly be impossible that any action or suit could be brought to a
successful termination if alienations pendente lite were permitted to prevail. The only exception
is with regard to any suit or proceedings which is collusive in nature. If the suit or other legal
proceeding is not collusive in nature, then even though the suit ends in a compromise decree
between the parties, the transferee from the unsuccessful party during the pendency of the suit
shall be bound by the decree passed in the previous suit. It is not a pre-requisite for the
applicability of section 52 that any transferee pendente lite must be a party to the compromise
entered into between the parties, who have bona fide put the law into motion for setting a bona
fide dispute.”10

8
Supra 6
9
Bishundeo Shah vs Natho Yadav, AIR 1982 NOC (Pat.)
10
Ibid 9

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It is hence clear that the rule of lis pendens embodied in section 52 does not apply to a collusive
suit or in a suit wherein a decree has been obtained by fraud or collusion.11 In a case wherein
the proceeding is tainted with fraud or collusion, the doctrine has no application. A decision
arrived at in a collusive proceeding, is binding only on the parties but no ton the transferee.
Again, a suit bona fide in its inception may become collusive by reason of collusive
compromise at any stage of the suit or proceeding.12

Specific Right in Immovable Property:

The Doctrine of lis pendens is applicable only on immovable property and not on movable
property.13 A charge does not create interest but however amounts to a right to the property
within the meaning of section 52.14 Further, in order to attract the doctrine of lis pendens it is
essential that the property must be in one respect be under the ambit of the meaning of the word
“directly” and further it must be of specific property mentioned in the plaint to come under the
ambit of meaning of the words “specifically”.15

It is the essence of the of the rule of lis pendens that a right to immovable property is directly
and specifically in question in the suit. A suit wherein the right to immovable property are not
directly and specifically in question, in a suit, is out of the ambit of Section 52.16

The Doctrine applies to following mentioned below:

(a) Sale
(b) Suit for specific performance of contract
(c) Suit on mortgage
(d) Suit for partition
(e) Suit for pre-emption (shares not ascertained)

11
Awadesh Prasad vs Belarani, ILR 33 Pat. 389
12
Annamali vs Malayandi, 20 Mad. 426
13
Vasantha Viswanathan vs V.K. Eayalwar, (2001) 8 SCC 133 : 2002 (4) CCC 39 (46)
14
Hiranya Bhushan Mukherjee vs Gowri Dutt Maharaj, AIR 1943 Cal 207 (231) (DB)
15
Nrisingha Prosad Bose vs Nil Ratan Singh, 54 Cal WN 683.
16
Indu Bhushan Mitra vs Sudhakar Chaudhury, AIR 1957 Cal 106

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Suit for Specific Performance:

The Doctrine of lis pendens applies to suits for injunction. The pendency of the suit under
Section 52 as it stands after the amendment of 1929, extends up to the complete satisfaction of
the decree passed in the suit, and under the present law the injunction will go with the land and
the decree can be executed against the legal representative and also against the transferee of
the judgement-debtor.17

Suit on mortgaged property:

Where the litigation regarding mortgage property is pending, till the possession of the property
is delivered, the proceeding shall be deemed to be pending and any transfer of the mortgaged
property during the said period is met by the doctrine of lis pendens.18 A mortgage executed
after a mortgage decree and during the course of execution proceedings is subject to lis
pendens.19

Suit on partition:

A partition of a Hindu joint family property does not amount to a transfer, but as aforesaid is
covered under the expression ‘or otherwise dealt with’. Similarly, a partition suit involves
rights in specific immovable property, and a transfer of property when a suit for a partition is
pending in a court of law would be hit by the rule of lis pendens.20

• In the case Jayaram vs Ayyaswami,21 The Supreme Court held that “the purpose of
section 52 of the TOPA 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 claim are
put forward”.

Suit for Pre-emption:

The doctrine of lis pendens is also applicable to the pre-emption suits as well.22 The doctrine
does not affect the validity of the sale by the vendee during the pendency of the pre-emption
suit to a person possessing a right of pre-emption equal to that of pre-emptor.23

17
1935 A.M.L.J. 67
18
Kedarnath vs Sheonarain, AIR 1970 SC 1717 (1720)
19
Madho Ram Sand vs Kirtya Nand, AIR 1944 PC 96 (99) : 218 IC 244
20
Venkatro Anantdeo Joshi vs Malatibai, AIR 2003 SC 267
21
AIR 1973 SC 569
22
AIR 1925 All. 336
23
AIR 1970 J&K 37 (F.B.)

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The doctrine of lis pendens does not apply where pre-emptors had obtained decree before
declaratory suit.24

Status of Transfer:

The language of the section is prohibitive in nature. Section 52 uses the phrase ‘the property
cannot be transferred or otherwise dealt with’. At the same time, the transfer pendente lite is
not void, but is only subject to the outcome of litigation.25 The transfer is thus voidable at the
instance of the party which is affected, except to the extent that it may conflict with rights
decreed under the decree held to be valid and operative between the two parties. The transferee
only takes the title of the transferor subject to the result of the pending litigation.

This rule does not annul the conveyance but tender it subservient to the rights of the parties to
the action, as determined by the decree. This doctrine does not defeat any just and equitable
claim, but only subjects them to the authority of the court dealing with the property to which
claims are put forward. The Supreme court in a case has held that:

“The effect of section 52 in not to wipe transfer out altogether but to subordinate it to
the rights based on the decree in the suit. As between the parties to the transaction,
however, it was perfectly valid and operated to vest the title of the transferor to the
transferee.”26

Conclusion:

Section 52 of the Transfer of Property Act, 1882 is the expression for the maxim “pendente lite
nihil innoveture”, this principle basically means that when there is a litigation pending upon a
property or land, nothing new can be introduced upon it. The purpose of section 52 of the
TOPA 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 claim are put forward. The language of
the section is prohibitive in nature. Section 52 uses the phrase ‘the property cannot be
transferred or otherwise dealt with’ which states that his doctrine does not defeat any just and
equitable claim, but only subjects them to the authority of the court dealing with the property
to which claims are put forward.

24
AIR 1929 Lah. 589.
25
Supra 21
26
Supra 2

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Bibliography:

1) Transfer of Property Act, 1882 – S.N. Shukla, ed. 2015

2) Sanjeev Row’s Commentary on Transfer of Property Act, 1882, Vol. 1, ed. 2016
3) Transfer of Property Act, 1882 – P.P. Saxena, ed. 2, Lexis Nexis 2011
4) <legalbites.in/property-laws-jurisprudence/> as accessed on 10/03/2019