Q) Discuss fully the doctrine of Lis Pendens with illustration.

[10] (page150)

Ans) The doctrine of lis pendens, meaning "pending litigation," comes into play when there is
a legal dispute over immovable property, and one party involved in the litigation attempts to
transfer the property in question. Section 52 of the Transfer of Property Act, 1882, outlines the
doctrine, establishing that during the pendency of a non-collusive suit or proceeding within a
court's jurisdiction, involving a specific right to immovable property, the said property cannot
be transferred or dealt with by any party to the suit in a way that affects the rights of other
parties under any eventual court decree, except with the court's authority and on its terms.

The doctrine, expressed in the maxim "pendente lite nihil innovature" (meaning 'during the
pendency of any suit regarding the title of a property, no new interest in respect of that property
should be created'), does not annul the conveyance but subordinates it to the rights established
by the litigation's outcome. The transferee becomes bound by the result of the suit, irrespective
of whether they had prior notice of the proceedings.

The rationale behind the doctrine, as highlighted in Bellamy v. Sabine (1857) 1 Dec. & 566,
rests on the impossibility of successfully concluding legal actions if property transfers during
litigation were allowed. It prevents the defeating of a plaintiff's claim through alienations
before a judgment or decree is reached.

The application of lis pendens is based on expediency, and the awareness of the transferee
regarding the ongoing suit is immaterial. This doctrine was thoroughly explained by the Privy
Council in Faiyaz Hussain Khan v. Prag Narain (1907) 29 All 339 PC, quoting with approval
the observations of Lord Justice Turner in Bellamy's case.

For the doctrine to apply, certain conditions must be met:

1. Pending Suit or Proceeding: The doctrine applies when there is an ongoing legal
action or proceeding concerning the disputed immovable property. The period of
"pendency" starts from the presentation of the plaint or the initiation of the proceeding
in a court of competent jurisdiction.

2. Competent Court: The suit or proceeding must be within the authority of a competent
court. If the plaint is presented in an incorrect court, and a transfer occurs during this
period, the doctrine may not apply.

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 3. Non-Collusive Nature: The legal dispute must not be collusive, meaning there should
be no fraudulent understanding between the parties involved to avoid contesting the
suit with the aim of defeating the rights of transferees.

4. Specific Right to Immovable Property: The right to immovable property must be

directly and specifically in question in the ongoing legal proceedings. This ensures that
the doctrine is invoked only when the subject matter of the dispute involves a clear
interest in immovable property.

5. Property Transfer or Dealing: The doctrine restricts the transfer or dealing of the
disputed property by any party to the litigation during the pendency of the legal action.
Such transactions are not void but are subordinate to the rights established by the
eventual court decree.

Example: While the property dispute is ongoing, A sells the disputed property to X without
the court's authorization. The doctrine of lis pendens would render this transaction subservient
to the rights determined by the court's eventual decree.

6. Effect on Other Party's Rights: The property transfer or dealing must have an impact
on the rights of the other party involved in the litigation. The doctrine aims to prevent
one party from taking actions that could undermine the legal process or defeat the
claims of the opposing party during the pending litigation.

Example: A sells the disputed property to X during the litigation. The court later decrees in
favor of B. Despite X being unaware of the lawsuit, the doctrine of lis pendens binds X to the
court's decision, and B retains ownership of the property.

In Simla Banking Industrial Co. Ltd. v. Firm Luddar Mal, Tek Chand, J., highlighted that
the rule of lis pendens dictates that anyone purchasing property during a legal action is bound
by the judgment made against the person from whom they derived their title. This applies even
if the purchaser was not part of the action or had no knowledge of the ongoing litigation. The
purpose is to give the court control over property transfers during the litigation, making its
judgment binding on the alienees.

In KN Aswathnarayana Setty v. State of Karnataka & Ors, Dr. B.S. Chauhan, J., clarified
that the principle of lis pendens aligns with equity, good conscience, and justice. It ensures that
alienations do not undermine the success of legal actions, holding that a transferee during

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litigation is bound by the decree as if they were a party to the suit. This exemption from taking
notice of titles acquired during litigation is crucial for maintaining fairness.

However, it's essential to note that the mere pendency of a suit doesn't outright prevent parties
from dealing with the property involved. The law specifies a condition that such alienation
should not affect the rights of the other party under any potential decree unless done with the
court's permission. The transferee cannot deprive the successful plaintiff of the decree's
benefits if they purchased the property pendente lite.

Q) Write a note on the doctrine of Election with suitable illustration. [10]

Ans) The doctrine of election, as illuminated by the House of Lords in the pivotal case of
Cooper vs. Cooper, underscores the legal principle that a beneficiary must uphold the full effect
of a will or instrument from which they derive benefits. Embedded in the obligation to give
effect to such instruments, the doctrine necessitates a crucial choice for the beneficiary – to
either validate or reject a transfer that may be beyond the transferor's rightful authority. This
legal doctrine finds explicit articulation in Sec. 35 of the Transfer of Property Act, along with
Sections 180 to 190 of the Indian Succession Act, providing a framework for addressing
property transfers without due rights.

The election under Section 35 of the Transfer of Property Act refers to the ability to select from
presumed options. Both movable and immovable properties are included in the notion of
election. It stipulates that if someone claims to be transferring property over which they have
no legal authority without first notifying the owner, they must go to the owner to ask for the
property’s disposal. The decision to authorize it or not rests with the owner. This principle was
emphasized by Lord Hather in Cooper v. Cooper, where he stated that there is an obligation on
the beneficiary to give full effect to the instrument under which they receive a benefit.

Essential Ingredients for Election under Section 35 of TPA:

For the constitution of an election under Section 35 of TPA, several key ingredients must be
met:

1. Owner's Prohibition: The owner of the asset being transferred should not be the one
making the property transfer.

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 2. Simultaneous Transfers: The transferor must grant a portion of their property to the
property owner concurrently and in the same document.

3. Single Transaction: Both transfers – transferring the owner’s property to the transferee
and providing the property owner with a benefit – must occur in the same transaction.
If accomplished through two different instruments, the election concept is not
applicable.

4. Proprietary Interest: The proprietor must possess a proprietary interest in the asset,
distinguishing it from a mere personal claim by a creditor.

5. Direct Benefit: The owner who benefits indirectly without direct gains from the
transaction is not obligated to make an election.

When does the Requirement of Election Arise:

The requirement of election under Section 35 of TPA arises when the transferor decides to quit
their rights in order to transfer the property. The decision to accept or reject must occur in the
same transaction, and until then, the benefits must be relinquished.

Circumstances for Not Electing under Section 35 of TPA:

According to Section 35 of TPA, a person is not required to elect when they gain indirectly
from the transactions rather than directly.

Circumstances for Dissenting from Election:

If the owner decides not to allow the transfer, the transferred service will be returned to the
transferor. This may occur in voluntary transfers where the transferor has passed away or lost
the ability to make further transfers.

Time Limit for Election under Section 35 of TPA:

Section 35 of TPA specifies that the transferor or their representative must receive notice from
the property owner within a year of the transfer’s date. Failure to respond within the specified
timeframe results in the assumption of confirmation, even if the party is aware of the expiration
date.

Conclusion:

The doctrine of election under Section 35 of TPA acts as a crucial framework for property
transfers, balancing the rights of the owner and the transferor. By outlining the essential

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ingredients, circumstances, and time limits, it establishes a clear mechanism for ensuring
fairness and equity in property dealings. Upholding the principle that one cannot both accept
benefits and reject obligations, the doctrine safeguards the integrity of property transactions in
various legal contexts, as illustrated by the precedent set in Cooper v. Cooper.

Q) What are the exceptions to this rule.[6]

Ans) According to the provisions of Section 35 of the TPA, a beneficiary clause must be made
for the transferee when the transferee accepts the transfer. The transferor may then accept the
transfer and make use of the beneficiary clause, or the transferee may object. However, there
is a specific exemption to this regulation, which states that if the transferee does not expressly
consent or make a firm decision, then it will be assumed that they have approved the transfer
in the following circumstances:

• It will be deemed that the transferee has accepted if they fully benefit from the
beneficiary clause mentioned in the transfer or in other circumstances where they do.

• The transferee is required to respond if, after a year, no approval has been given about
the transfer of the property. If he or she didn’t, it would be assumed that they had given
their consent to the transfer.

• When there is a disability, such as a minority or insanity, the electoral duty is suspended
unless the guardian makes the transfer.

• Suppose the transferor includes both an independent beneficiary clause and a

beneficiary clause at the moment of transfer. Therefore, the transferee will likewise
receive the independent beneficiary clause even if they did not consent to the
transaction.

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