RULE OF LIS PENDENS

SECTION 52
INTRODUCTION
The doctrine of lis pendens is incorporated in the Transfer of Property Act, 1882, under
Section 52. ‘Lis’ means litigation and ‘pendens’ means pending, literally signifying
pending litigation. Any action or proceeding which is pending in any court of law is said
to be lis pendens. The maxim representing this doctrine accurately is pendente lite nihil
innovature, which means that ‘during the pendency of litigation, nothing new
should be introduced’. The principle behind this doctrine is that nothing new should be
introduced into a litigation that is pending, i.e. to maintain the status quo, to abstain from
doing anything which may affect any party to the litigation.
In terms of property law, it implies that no new interest in respect of a property should be
introduced, if that property is the subject-matter of a litigation. If a new interest or title is
created in that property, that would amount to a transfer of that property. The doctrine of
lis pendens prohibits the transfer of any property under litigation.
ORIGIN OF DOCTRINE OF LIS PENDENS
The doctrine of lis pendens has its origin in the case of Bellamy v. Sabine, wherein
Turner, L.J., observed that the doctrine of lis pendens was a doctrine common to the
courts of law as well as equity, since it would become almost impossible for the suit that
is instituted in a court, to be adjudicated if alienations pendente lite were allowed to
prevail. The plaintiff, in such a situation, would be liable to be defeated by the
defendants causing the alienation before the judgement is passed, every time, and would
be driven to institute a new course of proceedings, every time.
The doctrine of lis pendens is based on necessity as it prevents the parties from
disposing off property that is in dispute, to not interfere with the Court’s proceedings.
The decision of the Court is one to be honoured and all the parties interested in the
action will be bound by it. If there were no rule to prohibit alienation of property during
pendency of the suit, all successive transactions would be rendered ineffective and no
person would be able to settle his rights in the property.
DOCTRINE OF LIS PENDENS IN INDIA
In India, the statutory provision for the doctrine of lis pendens is mentioned in the
Transfer of Property Act.
Section 52 states that if any suit or proceeding is pending in any court having authority
within India, or in any court established by the Central Government outside India, any
immovable property that is part of that suit or proceeding cannot be transferred or
otherwise dealt with, by any party to the suit, in such a way that such transfer or dealing
would affect the rights of any other party to the suit or proceeding. Such a transfer or
dealing can only be affected if the Court allows it and it may impose certain conditions as
it may deem necessary.
Moreover, the suit or proceeding that is instituted should not be collusive in nature and
must involve a right to the immovable property that is in question.
As per Section 52, the effect of doctrine of lis pendens is not to invalidate the transfer, but
to make it subject to litigation.
ESSENTIALS OF DOCTRINE OF LIS PENDENS
1.There must be a pendency of a suit or proceeding.
2.The suit/proceeding must be pending in a court which has the jurisdiction to try
it.
3.A right to immovable property is either directly or indirectly involved in the
suit/proceeding.
4.The immovable property in dispute is transferred/dealt with by any party to the
suit.
5.Such transfer/dealing affects the rights of the other party(s) involved in the
suit/proceeding.
CONTD.
Once all the conditions are fulfilled, the transferee is bound by the court’s
decision. If the decision of the court is in favour of the person transferring the
property in dispute (transferor), the person to whom the property is transferred
(transferee) gets all the rights attached to that transfer.
If the decision is against the transferor, the transferee does not get any right
because the transferor has no right to transfer the property anymore. Although, it
must be noted that section 52 does not invalidate any transfer, but makes it
subject to the rights of the parties involved in the suit.
In Gouri Dutt Maharaj v. Sheikh Sukur Mohammed& Ors., it was observed
that the principle underlying section 52 is to maintain the status quo.
APPLICATION OF DOCTRINE OF LIS PENDENS
The doctrine of lis pendens is not applicable where the suit is collusive i.e. instituted with
mala fide intention. This means that there is no actual dispute but the suit is filed for some
evil motive, for example, defrauding a third party.
In Nagubai v. B. Sham Rao, (1956) SCR 451, the Supreme Court observed, “In such
(collusive) a proceeding the claim put forward is fictitious, the contest over it is unreal, and
the decree passed therein is a mere mask having the similitude of a judicial determination
and worn by the parties with the object of confounding third parties.” However, the doctrine
is applicable in cases where the litigation is ultimately compromised and a
compromise/consent decree is passed, i.e. where there is a compromise suit. Such
compromise should be made during the pendency of litigation.
For the applicability of doctrine of lis pendens, there must be a question of the right to
immovable property involved in the suit. The suit itself should be regarding the dispute in an
immovable property, relating to any right or title of the same. Such suits include a suit for
partition, a suit on mortgage, a suit for pre-emption and a suit of easement.
CASE LAWS
In Jayaram Mudaliar v. Ayyaswami, 1972 (2) SCC 200 the Supreme Court held that
the purpose of Section 52 of the Act 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 claims are put forward.  
The Supreme Court went on to further explain the scope of lis pendens as, ‘It is evident
that the doctrine, as stated in section 52, applies not merely to actual transfers of rights
which are subject-matter of litigation but to other dealings with it by any party to the suit
or proceeding, so as to affect the right of any other party thereto.
Hence it could be urged that where it is not a party to the litigation but an outside
agency such as the tax collecting authorities of the Government, which proceeds against
the subject-matter of litigation, without anything done by a litigating party, the resulting
transaction will not be hit by Section 52.
CONTD.
Again, where all the parties which could be affected by a pending litigation are
themselves parties to a transfer or dealings with property in such a way that they cannot
resile from or disown the transaction impugned before the Court dealing with the
litigation the Court may bind them to their own acts. All these are matters which the
Court could have properly considered.
The purpose of Section 52 of the Transfer of Property Act 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 claims are put forward.’
CONTD.
In Hardev Singh v. Gurmail Singh, Civil Appeal No. 6222 of 2000, 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 an 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.
CONTD.
In T.G. Ashok Kumar v. Govindammal & Anr. Civil Appeal No. 10325 of 2010, 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.
In Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors. AIR 1948 PC 147, it was held
that broad principle underlying Section 52 of the Transfer of Property Act,1882 is to maintain
status quo, unaffected by act of any party to the pending litigation.
CONTD.
In Rajender Singh and Ors. v. Santa Singh and Ors. AIR 1973 SC 2537, it was
observed by the Supreme Court that the doctrine of lis pendens was intended to strike at
attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a
dispute on rights or interests in immovable property is pending, by private dealings which
may remove the subject matter of litigation from the ambit of the court's power to decide
a pending dispute or frustrate its decree.
Alienees acquiring any immovable property during pending litigation, are held to be
bound by an application of the doctrine, by the decree passed in the suit even though they
may not have been impleaded in it.
The whole object of the doctrine of lis pendens is to subject parties to the litigation as
well as others, who seek to acquire rights in immovable property, which are the subject
matter of litigation, to the power and jurisdiction of the Court so as to prevent the object
of a pending action from being defeated.
CONTD.
In Ramjidas v. Laxmi Kumar and Ors. AIR 1987 MP 78, the Madhya Pradesh Court
observed that the purpose of Section 52 is not to defeat any just and equitable claim but
only to subject them to the authority of Court which is dealing with the property to which
the claims are put forward.
In Lov Raj Kumar v. Dr. Major Daya Shanker and Ors., AIR 1986 Del. 364 the Delhi
High Court observed that the ‘principles contained in Section 52 of Transfer of Property
Act are in accordance with the principle of equity, good conscience or justice, because
they rest upon an 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. Allowing
alienations made during pendency of a suit or an action to defeat rights of a Plaintiff will
be paying premium to cleverness of a Defendant and thus defeat the ends of justice and
throw away all principles of equity’.
CONTD.
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.
NON – APPLICABILITY OF DOCTRINE OF LIS PENDENS
Where there is a private sale by a creditor holding the right to dispose off the mortgaged
property even if there is a suit for redemption filed for the same.
If the property is not described clearly, or if it cannot be identified, the doctrine of lis
pendens will not be applicable. Mere mention of the property is not enough, it should be
identifiable.
Where there is a suit for maintenance only for the maintenance payments to be
ascertained transparently, the doctrine of lis pendens will not apply because the property
is not directly in question.
Where a court orders restoration of an immovable property under Order 21, Rule 63 of
the Civil Procedure Code, 1908, the doctrine of lis pendens is not applicable.
Where a transfer is affected by a person who is not a party to the suit.
Where the transferor is only partly affected because of the transfer.
CONCLUSION
A purchaser pendente lite is given an opportunity to defend himself. If the
interest of such purchaser is substantial, he can be made as a proper party to the
suit. But his rights or title would be subject to the decision of the court, and any
condition that it may impose. The purchaser is entitled to be impleaded in the suit
or any other proceeding where his predecessor was party to the litigation.
The doctrine of lis pendens is in consonance with public policy, and with the
principles of justice, equity and good conscience. The provision under section 52
bars any party to the suit to take decisions of alienation of property themselves
and interrupt the working of the court. It further ensures that no person’s right is
curbed due to another’s will.