What is the Doctrine of Lis Pendens?

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Overview:

The Supreme Court recently held that the non-applicability of the provisions of Section 52 of the Transfer of Property Act, 1881 (TPA) wouldn't bar the applicability of principles of lis-pendens, which are based on justice, equity, and good conscience.

About Doctrine of Lis Pendens: 

  • “Lis Pendens,” when translated, means “pending suit or cause.”
  • This doctrine has been expressed in the maxim: "pendente lite nihil innovature" which means nothing new should be introduced during the pendency of litigation.
  • This doctrine prohibits the transfer of property in pending litigation.
  • It is dealt with in Section 52 of the Transfer of Property Act, 1882, in India.
  • It serves to protect the rights and interests of parties involved in a pending law suit concerning a specific property.
  • The doctrine of lis pendens can be defined as the legal authority, control, or jurisdiction that a court holds over the property in question during the entire duration of a lawsuit, extending until a final judgment is reached.
  • The underlying rationale behind the doctrine of lis pendens is to prevent the subject matter of a lawsuit from being transferred to a third party while the case is still pending.
  • Conditions for Applicability: The Supreme Court has stated the required elements for the applicability of the rule of lis pendens under Section 52. They are as follows:
    • The suit must be in proceeding.
    • The instituted suit should be filed in court with competent jurisdiction.
    • The right of title of an immovable property is directly and specifically in question.
    • The suit directly affects the rights of the other party.
    • The property in question is being transferred by either party.
    • The suit must not be collusive (a suit in which a decree is obtained by a fraud or collusion) in nature.
  • Non-Applicability of Doctrine: This doctrine is not applicable in certain cases. They are as follows:
    • Sale made by mortgager in exercise of his power conferred under the deed.
    • In cases where only the transferor is affected.
    • In cases where proceedings are collusive in nature.
    • When the property is not described correctly and makes it unidentifiable.
    • When the right to the said property is not directly in question and alienation is permitted.
    • This doctrine fails to apply when a court orders the restoration of immovable property under Rule 63 of order 21 under the Civil Procedure Code, 1908.
  • Effect of Doctrine of Lis Pendens:
    • The effect of the rule of lis pendens is not to invalidate or avoid the transfer but to make it subject to the result of the litigation.
    • According to this rule, therefore, whosoever purchases a property during the pendency of a suit is bound by the judgment that may be made against the person from whom he derived title, even though such a purchaser was not a party to the action or had no notice of the pending litigation.

Q1: What is the Transfer of Property Act, 1882?

In India, the Transfer of Property Act 1882 is a crucial law regulating the transfer of movable and immovable property from one person to another. It's a crucial law since it protects the integrity of property sales and purchases. The Act aims to establish a sound legal basis for the transfer of ownership and to spell out the steps for the transfer to be recognised by the law. Individuals, corporations, and non-profits alike will find the conveyance of their property simplified by this Act. This law safeguards the rights of all parties involved in a real estate transaction, from the seller to the buyer.

Source: 'Lis Pendens' Doctrine Can Be Applied Even If S.52 Transfer Of Property Act Is Not Strictly Applicable In A State : Supreme Court