DOCTRINE OF LIS PENDENS
INTRODUCTION-
The
doctrine of Lis Pendens is incorporated in The Transfer of Property Act,
1882 under sec.52. ‘Lis’ means ‘litigation’ & ‘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
the 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 vs. Sabine [1857], wherein Justice Turner 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 proceeding.
The doctrine of lis pendens is a very old doctrine of
common law, since speedy & effective remedies are the requisites of a
judicial system, it is important to ensure that there is no invasion of any
right or title of any party interested in the property. The litigation process
should not be defeated because of private transactions, otherwise, the purpose
of seeking relief from the court would be rendered useless & ineffective.
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 & 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 & 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. Sec.52 states that if
any suit or proceeding is pending in any court having authority within 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 & it may deem necessary. Moreover, the suit or proceeding that is
instituted should not be collusive in nature & must involve a right to the
immovable property that is in question. This section does not apply to the
state of Jammu & Kashmir.
The explanation to this section provides the pendency would begin on the
date the plaint is presented as well as instituted in court of competent
jurisdiction, and it would end on the date the final decree or order is passed
by the court, or if it has become unobtainable because of expiry of the
limitation period. As per sec.52, the effect of doctrine of lis pendens is not
to invalidate the transfer, but to make it subject to litigation.
According to the view, taken by Indian courts, it has
been held that the foundation for the doctrine of lis pendens does not rest
upon notice, actual or constructive, it rests solely upon notice necessity. The
necessity that neither party to the litigation should alienate the property in
dispute so as to affect his opponents [Govind Pillai vs. Aiyappan Krishnan,1957].
In Rajendar Singh vs. Santa Singh [1973], the apex court observed that
the doctrine of lis pendens intends to strike any attempts made by the parties
to the suit to curtail the jurisdiction of the court through dealings, which
affect the subject matter of the suit & prevent the court from deciding a
dispute in relation to that property & hence, frustrate the decree.
Essentials of Doctrine of lis pendens-
The basis of the Doctrine is necessity, so it is immaterial as to whether the
transferee had any notice of suit pending in the court or not. The transferee
is bound by the order of the court even if he had no actual or constructive
notice of the pending suit [Rappel Augusthi vs Gopalan Ramakrishna, 1970].
The pendency of the suits starts from the date on which the paint is filed in
the court & ends on the date on which the final decree is passed by the
Court, as mentioned in the explanation to sec.52,
The essentials are following-
1.
There must be a pendency of a suit or
proceeding.
2.
The suit must be pending in a court, which
has jurisdiction to try it.
3.
A right to immoveable property is
either directly or indirectly involved in the suit or proceeding.
4.
The immoveable property in dispute is
transferred or dealt with, by any party to the suit.
5.
Such transfer affects the rights of
the other party`s involved in the suit or proceeding.
Transfer of property may either be done by the act of parties
or by operation of law. Transfers by operation of law are called involuntary
transfers. The matter was settled by the Privy council in the case of Nilkant
vs Suresh chander [1885], & now the doctrine is applicable to both
kinds of transfers. Further, the supreme court, in Samrendra Kumar Sinha vs.
Krishna kumar nag [1967], stated that although sec.52 does not strictly
apply to involuntary alienations, for example court states, but it is well established
that the doctrine of lis pendens applies to such transfers.
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 the transfer.
If the decision is against the transfer, the transferee does not get any right because
the transferor has no right to transfer the property anymore. Although, it must
be noted that sec.52 does not invalidate any transfer but makes it subject to
the rights of the parties involved in the suit. In Gauri Dutt Maharaj vs.
Sheikh Sukur Mohammad & others [AIR 1948 PC 147], it was held that the principle
underlying sec.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 malafide intention. This means, there is no actual dispute but
the suit filed for some evil motive, for example, defrauding a third party.
In Nagubai vs. B. Shama Rao [1956 AIR 593], the
Apex court observed, “In such(collusive) a proceeding the claim put forward is
fictitious, the contest over it is unreal, & the decree passed therein is a
mere mask having the similitude of a judicial determination & won by the
parties with the object of confounding third parties”. However, the doctrine is
applicable in cases where the litigation is ultimately compromised & a
compromised/consent decree is passed, i.e where there is a compromise suit. Such
a 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 immoveable property involved in the
suit. The suit itself should be regarding the dispute in an immoveable
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 & a suit of easement.
In Clifford George Pinto vs. M.R. Shenava &
Ors. [2005], it was held that sec.52 could be applied to cases wherein a
sale is made of an immoveable property through private negotiations, during
pendency of litigation process. In Faiyaz Hassain khan vs. Prag Narain [1907],
a mortgagee sued the mortgager for enforcement of his loan, but before the summons
could be served to the mortgager, he initiated a subsequent mortgage. The prior
mortgagee continued his suit without making the subsequent mortgagee a party to
the suit, & obtained a sale decree from the court. The subsequent mortgagee
did not have any right to redeem the previous mortgage.
The inalienability of immoveable property in dispute
while litigation is pending is subject to the power of the court. If the court
decides, it can exempt the property from the application of sec.52 & may
impose conditions accordingly [Vinod Seth vs. Devinder Bajaj, 2010]. In Ramjidas
vs. Laxmi kumar & Ors. [AIR 1987 MP 78], the court observed that sec.52
does not defeat any claim that is just & equitable, instead it subjects
them to the authority of the court. The courts are required to interpret the
section strictly. Any transfer of immoveable property which is made outside the
period of the litigation process will not be covered under the doctrine of lis
pendens.
Moreover, there are certain instances where the doctrine
of lis pendens is not applicable-
1.
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.
2.
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.
3.
Where there is a suit for maintenance
payments to be ascertained transparently, the doctrine of lis pendens will not
apply because the property is not directly in question.
4.
Where a court orders restoration of
an immovable property under order 21, rule 63 of CPC,1908, the doctrine of lis
pendens is not applicable.
5.
Where a transfer is affected by a person,
who is not a party to the suit.
6.
Where the transferor is only party
affected because of the transfer.
CONCLUSION-
So from above article, we get the conclusion that the
provision mentioned in sec.52 of the Transfer of property Act, 1882 is made for
protecting the rights of a party which is a party to the suit filed in a civil
court relating to property dispute. When a suit is pending in a court & its
decision is yet to come, none of the parties may transfer the property to any
other person. This provision also tends to prevent the malafide intention of
the party & to prevent the multiplicity of proceedings & to give finality
to the suit.