Doctrine of Lis Pendens – Essentials & Exceptions

Doctrine of Lis Pendens

Introduction to doctrine of lis Pendens

Section 52 of Transfer of Property Act, 1882 embodies the doctrine of lis Pendens (pending litigation) as expressed in the maxim ut lite nihil innoveteur ( nothing new should be introduced in a pending litigation).

The doctrine of lis Pendens is of ancient lineage. Originating, it is said in the civil law , it seems to have been operative at an early date as the basis of the common law rule by virtue of which the judgement in a real action was regarded as over reaching any alienation made by the defendant during its pendency. In the course of the time the doctrine was adopted by equity.

Meaning of lis Pendens

lis means an action or suit, ‘pendens’ is the present participle of pendo meaning continuing or pending, and the doctrine of lis Pendens may be defined as the jurisdiction, power, or control that courts have during pendency of an action over the property involved therein ‘

Essentials of doctrine of lis Pendens

1) Pendency of suit

According to explanation to Section 52 of Transfer of Property Act, 1882, the pendency of a suit or proceeding begins from the date of presentation of the plaint or institution of the proceedings in a court of competent jurisdiction .A suit instituted in a higher court where it should have been instituted in a lower court is a court having no jurisdiction to try the case ( govinda pillai gopala pillai vs aiyyappan krishnan )

The pendency if a suit in foreign court does not create the bar of lis Pendens. Similarly, the doctrine does not apply to property situated outside India ( Sivaramkrishna vs K mammu AIR 1957)

2) Bonafide litigation ( collusive suits )

The suit or proceeding must not be collusive; it must be a genuine proceeding. 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 transferee’s of either parties .

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3) Right to property must in dispute

The right to an immovable property must be directly and specifically in issue in the suit or proceeding.

4) Transfer by a party to the litigation

The property must be transferred or otherwise dealt with by any of the parties to the suit or proceeding. “parties to the suit ” includes the plaintiff and the defendant and / or their demise. Where a legal representative on their demise. Where a legal representative of a defendant in a pending suit effects a transfer and a subsequently substituted in a place of the defendant after his death, lis Pendens will apply ( Nallakumara vs pappya

5) Or otherwise dealt with

The property that is the subject matter or otherwise dealt with ( eg sale, partition , release, surrender , etc)But that does not include any forcible taking possession.( Dhanisingh vs sushilabhai AIR 1968).

6) Transfer must affect the other party

The doctrine is not applicable where the rights of the transferor alone are affected and not of other party to the suit.( Sripal singh vs naresh)

Exceptions for doctrine of lis Pendens

In spite of the doctrine, however , it is quite open to the court to permit any party to the suit to transfer the property in terms which may think fort to impose. In vinod Seth vs Devinder Bajaj the court permitted the defendant to deal with the property during the pendency if the suit under Section 52 of Transfer of Property Act, 1882. The court observed : “the principles underlying Section 52 of Transfer of Property Act, 1882 is based on justice and equity .

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The operation of the bar under Section 52 of Transfer of Property Act, 1882 is subject to such conditions it may impose. That means that the court in which the suit is pending has the power to transfer the property which is the subject matter of the suit without being subjected to the rights of any party to the suit , by imposing such terms as it deems fit.

Having regard to the facts and circumstances, the present case is a fit one where the suit property should be exempted from the operation of Section 52 of Transfer of Property Act, 1882 , subject , to a condition relating to reasonable security, so that the defendant would have the liberty to deal with the property in any manner they may seem fit , inspite of the pendency of the suit .

Author: Harshita Swami,
Guwahati University BALLB9th sem

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