DOCTRINE OF LES PENDENS

The Transfer of The Transfer of Property Act, 1882, was promulgated embodying
the principles of English Common Law, namely equity, good conscience, and
justice underscored by the provisions of the Indian Contract Act, 1872, and came
into force from July 1, 1882.
Property or ownership are synonymous with each other, and ownership interest is
automatically created when a right is vested.
Ownership has to be:
1. Indefinite in point of the user – The owner may use the property subject to some
restrictions without injuring the rights of other persons, but at no point in time will
it negate the ownership in the property even if the rights may be curtailed.
2. Unrestricted in the point of disposition – The owner has an unfettered right to
dispose of the property. However, there are exceptions to this as minors (those
below the age of 18) can be owners but cannot alienate the property. Also, the
Government may acquire the property.for specific purposes irrespective of the
property owner’s consent.
3. Unlimited in the point of duration – As long as the property in question exists, the
property rights are heritable. Again, the Government can, at any point, acquire the
property and terminate the owner’s rights.
The Transfer of Property Act covers transfers inter vivos, i.e., between two living
persons. A transfer is defined as an act by which living persons convey the property
to one or more living persons.
The transferee can get the transferor’s rights and nothing more, where the owner is
the transferor, and the transferee is the person or persons to whom the rights are
conveyed.
The first amendment to the Transfer of Property Act, 1882, was in 1929, whereby
the definition of living persons was amended to include companies, associations,
and bodies of individuals, whether incorporated or not.
ORIGIN OF THE DOCTRINE OF LIS PENDENS

The doctrine of Lis Pendens has its origin by Lord Justice Turner in Bellamy Vs.
Sabine, 1857 Where the Court observed the following:
“This is a doctrine common to law and equity courts, which I apprehend, on the
grounds that, if alienation pendente lite was allowed to prevail, it would simply not
be possible for any action or suit to be resolved successfully. In any case, the
Plaintiff will be responsible for the Defendant who alienated the property before
the judgment or the decree and must be obliged, according to the same course of
action, to initiate these proceedings de novo.”
The facts of the above case were the following:
A person, Mr X, sold an immovable property to Mr A.
Mr X’s son, Mr Z, who was the heir of Mr. X, sued Mr A in a competent court to
declare the sale as void.
However, while this litigation was pending, Mr. A sold the property to Mr. B, who
did not take notice of the suit.
The Court held that the son Mr. Z was entitled to the property and the sale was set
aside.
Mr. B who purchased the property from Mr. A does not get any title as he
purchased the property from someone who did not have the title and therefore
cannot convey it.
Therefore, evolving the principles of common law and Section 52 of The Transfer
of Property Act, 1882, was born and is as follows:
When there is an ongoing lawsuit in any Court having authority within the limits of
India, a suit or proceeding in which any right to immovable property is precisely in
question, the property cannot be conveyed by any party to the lawsuit which can
influence the rights of any other party thereto under any order which may be
rendered therein, unless under the jurisdiction of the Court and on such conditions
as it may enforce.
Lis Pendens literally means ‘litigation pending’ or ‘pending suit’ and is drawn from
the concept based on the maxim “Pendente lite nihil innovature” which means that
nothing new must be introduced while a litigation or suit is pending.
 This Doctrine states that the Transfer of property shall be restricted when there is a
litigation pending on the title or any rights that arise directly thereof involving an
immovable property
The suit commences the moment a complaint is presented or the day of
commencement of proceedings in the appropriate Court and shall be terminated by
Order of the court.
The Court may, however, permit any party to the suit to transfer the property on
such terms which it may think fit and proper to impose.
The sale of immovable property can take place through private negotiations, but the
said Transfer will be subservient to the verdict of the competent Court.
Now that the doctrine is clear, an inevitable question that may arise is – what is the
objective or purpose of this doctrine? Let us read on to find out.

THE PURPOSE OF THE DOCTRINE OF LIS PENDENS

This Doctrine is essential as it prevents Transfer of the title of any disputed

property without the Court’s consent, there can be endless litigation, and it will
become impossible to bring a lawsuit to a successful termination if alienations are
permitted to prevail, and covenants are not imposed.
The ‘Transferee pendente lite’ is bound by the verdict just as if he were a party to
the suit and the transfer shall be subservient to the result of the pending lawsuit.
Let us understand the various conditions that need to be met for the doctrine to
apply:

CONDITIONS FOR APPLICABILITY OF THE

DOCTRINE AS PROVIDED IN SEC 52

• A suit or proceeding is pending.

• The above suit is brought to a competent court within the jurisdiction.
• The right to the title of an immovable property is directly in question.
• There cannot be any collusion.
• The suit should directly affect the rights of the other party.
• The property in question is being transferred by either party.
Some examples for Non-Applicability
• This does not apply to a private sale by a creditor who holds the right to dispose of
the property that is mortgaged to it even when the borrower has a redemption suit
pending.
• The Doctrine also does not apply when the property is not described correctly,
making it unidentifiable.
• In a maintenance suit, where the property is mentioned only so that maintenance
payments can be determined transparently; the Doctrine does not apply when a
right to the said immovable property is not directly in question and alienations are
thereby permitted.
• The Doctrine fails to apply when a Court orders restoration of immovable property
under the Civil Procedure Code, Order 21, Rule 63.

UNDERSTANDING THE JURISPRUDENTIAL

EVOLUTION OF THIS DOCTRINE

In Ayyaswami vs Jayaram Mudaliar AIR 1973 SC 569, the Court held that the
purpose of this provision is not to deprive the parties of every just or fair argument
but rather to guarantee that the parties submit themselves to the jurisdiction and
authority of the Court which shall determine all claims that are placed before it to
the satisfaction of the parties concerned.
In the case of Hardev Singh v. Gurmail Singh, Civil Appeal No. 6222 of 2000, the
Court ruled that Section 52 of the Transfer of Property Act, would not make void or
unlawful any sale of the contested properties, but only puts the purchaser beyond
the binding limits of the judgment on the disposition of the conflict.
In the case of Koyalee v. Rajasthan District, AIR 2009 Raj.28, the land in question
was originally registered in the name of the Plaintiff’s husband. After his death, his
brother realised and knowing well that the wife of his brother was alive and was the
sole legal heir, filed a lawsuit pursuing the Khatedari rights, and pursuant to this,
the wife had to contest that she was the sole legal heir of the recorded Khatedar.
The brother further went on to transfer the land despite the lawsuit that was
pending, since this was done without seeking the Court’s permission the transfer
was struck down under Section 52 of the Transfer of Property Act as per the
Doctrine of lis pendens.
In Vinod Seth v. Devinder Bajaj, 2010, though reiterating its power to exclude the
suit property from the limitations set out in Section 52 of the Act, it has allowed the
Respondent to make a pendente lite move. These exemptions under Section 52 are,
however, subject to certain conditions imposed by the Court. In the case at
question, the Plaintiff was a contractor who wished to make a profit by constructing
a building on the suit-land, and the Defendant wanted to move it to a third party. A
total of three lakh rupees was to be deposited as a security by the Defendant to
transfer the property in question, The sum the claimant would have profited by.
The Court had thus levied the condition for the payment of that sum, which would
make the pendente lite transfer legitimate.
The Court’s positions on this pendente lite-transfers issue are explained in Ashok
Kumar v. Govindammal and Anr, 2010. The Supreme Court of India has here
reaffirmed that a pendente lite cannot be transferred for a property whose title is the
subject of litigation.
These transfer payments would limit the rights of the party to whom the Court
would eventually have agreed that the property would be given the title. Where the
right of the pendente lite transferor to the property is upheld under the decree of the
Court, then the title of the transferee to the property is disregarded. However, if the
title of the pendente lite transferor is acknowledged only for a smaller portion of
the property, only for that portion of the property can a transferor have the title. The
Transfer of the title of the rest of the land, for which there is no right for the
pendente lite transferor, is invalid. This means that the transferee cannot claim the
title or any other interest in the rest of the property. Finally, if the transferor was
found to have no right in the first place to the transferred land, then the transferor
would also not have gained rights on this property.
The Supreme Court discussed and amended the law concerning the Doctrine of lis
pendens in Har Narain v Mam Chand, in compliance with Section 47(2) of The
Registration Act, 1908. The lis pendens doctrine states that no fixed property may
be transferred when a lawsuit relating to it is pending. Under Section 47, from the
date of execution, a recorded sale deed of a fixed property is considered to exist
upon registration. The Court made it clear that the fiction produced pursuant to
Section 47 does not prohibit lis pendens from functioning. Thus, if the civil action
starts and is registered later, the Court held that land sales are still subject to the
principle of lis pendens.

SUGGESTIONS

To digitize all property records, while the Doctrine is necessary to ensure that the
property rights of the parties involved are protected, it is also imperative that
technology be employed so that the property title in question does not get
transferred while the case is pending. This can be achieved by the complete
digitalization of property records wherein all properties are accorded a property
identification number, this along with the fact that India has already created a
Unique Identification System for all its citizens via the Aadhaar card can be
combined to ensure that the integrity and sanctity of the data are never in question.
This will also help in avoiding cases where the property cannot be identified.
When an encumbrance certificate (EC) is issued, it mentions any encumbrance.
This can be improved, so as to list any pending litigation(s) to alert the registering
authority and the parties concerned.

CONCLUSION

The doctrine of Lis Pendens is strictly based on the theory of necessity rather than on
the theory of notice governed by the principles enshrined in common law, namely
Justice, Equity and Good Conscience. It is, therefore, pivotal in ensuring that justice is
provided without injuring the rights of either party.