DOCTRINE OF LIS PENDENS

The doctrine of lis pendens gives effect to Justice must not only be done but also seen to be
done by maintaining the status quo of the property. In general parlance, lis pendens refers to a
“pending legal action or a formal notice of a legal action” wherein Lis means the ‘suit’ and
Pendens means ‘continuing or pending’. The doctrine has been derived from a latin maxim
“Ut pendent nihil innovetur” which means that during litigation nothing should be changed.

The doctrine of Lis Pendens has been inscribed in the Indian Legislative regime by way of
Section 521 of The Transfer of Property Act, 1882. This doctrine is not expressly mentioned
in the said section but it can be constructively interpreted ,i.e, it is implied in the same.

Under this doctrine, the principle is during the pendency of any suit regarding the title of the
property, any new interest should not be created. Thus the doctrine of lis pendens prohibits
the transfer of property pending suit.

The basis of doctrine is necessary rather than actual or constructive notice, it may be said that
this doctrine is based on notice because a pending suit is regarded as a constructive notice of
the fact the disputed title of the property under litigation. Therefore any person dealing of that
property must be bound by the decision of the Court. For the administration of justice, it is
necessary that while any suit is pending in a court of law regarding title of the property, the
litigant should not be allowed to take decision themselves and transfer the disputed property.
So, the doctrine of lis pendens is based on necessary and is a matter of public policy, because
it prevents the parties from disposing a disputed property in such a manner as to interfere
court’s proceeding.

1
Section 52- During the pendency in any court having authority within the limits of India excluding the state of
Jammu & Kashmir or established beyond such limits by the Central Government of any suit or proceeding
which is not collusive and in which any right to immoveable property is directly and specifically in question, the
property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the
rights of any other party thereto under any decree or order which may be made therein, except under the
authority of court and on such terms as it may impose.
Explanation: For the purpose of this section, the pendency of a suit or proceeding shall be deemed to
commence from the date of the presentation of the plaint or the institution of the proceeding in a court of
competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or
order and complete satisfaction or discharge of such decree or order has been obtained, or has become
unobtainable by the reason of the expiration of any period of limitation prescribed for the execution thereof by
any law for the time being in force.
Meaning of Section 52

From a plain reading of Section 52, it is clear that the underlying aim of the same is to protect
the sanctity of court proceedings, the subject matter of which is immovable property. To
elaborate, there will be instances when two parties will go to court with a dispute at the centre
of which lies immovable property. Once, they approach the court, the property in question is
assigned a special status. This is so as the determination of the court ultimately decides the
rights of the parties over the property. With this material determination at stake, it would be
extremely prejudicial to the rights of any party, if the other transferred the property in
question, before the court arrives at an outcome in the pending litigation. Such an act would
defeat the entire purpose of the litigation process and would render the determination of the
court null and void.

Object of lis pendens

 To Avoid endless litigation.

 To protect one of the parties to the litigation against the act of the order.
 To avoid abuse of legal process.

Scope of lis pendens

The scope of lis pendens even though wide, does not actually bar transfers effectuated by the
parties during the pendency of the suit. It merely keeps all transfers on hold and its validity is
dependent on the outcome of the pending suit. this section aims to maintain status quo ante
until the final determination is made by the court. Only after this pendency comes to an end
after the passing of the decree or order will the rights of the parties to the suit and if the case
demands, of the alienee be decided conclusively.

Illustration
A, who is landlord has filed a Suit against a tenant B for the recovery of possession of the
premises . B knows that he will lose the Case. he is debarred or prevented form creating any
third party interest in the property, during the pendency of the suit . suppose B creates the
interest in C in respect of the property which is subject matter of suit then if suit is decided
and decree in favour of A the decree cannot be executed against C who is in possession of
the property now . this will defeat the provision of law .
Essential conditions for the application of doctrine of lis pendens:

Following are the essential condition to be fulfilled for the application of doctrine of lis
pendens as provided in the Section 52 of the Transfer of Property Act, 1882.

 There is a pendency of suit or proceeding.

 The suit or proceeding must be pending before a competent court of jurisdiction.
 A right to immovable property is directly or specifically involved in the suit.
 The suit or proceeding must not be collusive.
 The property in dispute must be transferred or otherwise dealt with by any party to
suit.
 The transfer must affect the rights of the other party to litigation.

When these above mentioned conditions are fulfilled, the transferee is bound by the decision
of the court. If the decision of Court is in favour of the transferor, the transferee has right
transferred on him, but if the decision of the Court goes against the transferor, the transferee
will not get any interest on that property.

The Supreme Court in the case of Jayaram Mudaliar vs. Ayyaswami2 has held that the
objective of this section is not to deprive the parties of any just or equitable claim but to
ensure that the parties subject themselves to the jurisdiction and authority of the court which
shall decide the claims that are put before it. In another case of Hardev Singh v. Gurmail
Singh3, it was held that the Section 52 does not render any transfer of a disputed property
void or illegal, but instead brings the purchaser within the binding limit of the judgement that
shall be pronounced on the disposal of dispute. In any case where a transfer is made during
the pendency of the suit, if the suit is disposed off in favour of the transferor then the
transferee rights shall prevail whereas on the other hand if the rights of the transferor are
recognised only to a certain extent or part of the property then the transferee’s right shall also
extend up to the limit till which the right of transferor exists.

Effect of the doctrine

2
1972 (2) SCC 200.
3
Civil Appeal No. 6222 of 2000.
1. A transfer or dealing by a party to a suit during the pendency of the suit/ proceeding is not
ispo facto void.

2. It only cannot affect the rights of any Other party to the suit under any decree or order that
may be made in the suit or proceedings.4

3. Section 52 creates only a right to be enforced to avoid a transfer made pendent lite,
because such transfers are not void but voidable and that too at the option of the affected
party to the proceeding, pending which the transfer is affected.

4. Thus the effect of the rule of lis pendent is not to invalidate or avoid the transfer, but to
make it subject to the result of the litigation.

Doctrine of lis pendent based on equity, good conscience and justice

The principles specified in Section 52 of the T.P. Act are in accordance with equity, good
conscience or justice because:

1. 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.

2. A transferee pendent lite is bound by the decree just as much as he was a party to the suit.
The principle of lis pendent embodied in Section 52 of the T.P. Act being a principle of
public policy, no question of good faith or bona fide arises.

3. The principle underlying Section 52 is that a litigating party is exempted from taking
notice of a title acquired during the pendency of the litigation. The mere pendency of a suit
does not prevent one of the parties from dealing with the property constituting the subject-
matter of the suit.

4. The Section only postulates a condition that the alienation will in no manner affect the
rights of the other party under any decree Which may be passed in the suit unless the property
was alienated with the permission of the Court5

4
Prabbakar v Antonio AIR 1971 Goa 42.
5
Sanjay Verma v. Manik Roy , A.I.R. 2007 S.C. 1332 at 1334.
Exception of lis pendent

The section provides that it is open to the court to permit any party to the suit to transfer the
property to on terms which it may think fit to impose.

In Amarnath v. Deputy Director of Consolidation6, it was held that party is said to be a party
to the suit if the decision or judgement is likely to affect the share of such a party and the
decision would be binding on him too. Thus A,B,C, are brother; C is residing in a distant
town while A and B are residing together. A files a suit for partition and does not implead C
or his father X.

Though X and C are not parties to the suit, yet the subject matter of the suit is the same, and
neither X nor C legally and validly transfers or alienate his share to a third party. In such case
the ultimate decree is likely to affect the shares of X and C too. Thus, there may be a case
where a party may not be locked in a civil suit or proceeding; yet such a party may be
affected by the judgment/decree is such a suit.

In Fayaz Husain Khan v. Prag Narain7, a mortgage sued to enforce his mortgage, but before
the summons was served, the mortgagor affected a subsequent mortgage. The prior
mortgagee continued his suit and obtained a sale order from the court, without making the
subsequent mortgagee, a party to the suit. It was held that the sale extinguished the
subsequent mortgagee’s right to redeem the prior mortgagee.

In Vinod Seth v. Devinder Bajaj 8, the court permitted the defendants to deal with the
property during the pendency of the suit, under Sec. 52.

The court observed: “The principle underlying Sec. 52 is based on justice and equity. The
operation of the bar under Sec. 52 is however subject to the power of the court to exempt the
suit property from the operation of Sec. 52 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.

4. Having regard to the facts and circumstances, the present ease is a fit one where the suit
property should be exempted from the operation of Sec. 52, subject to a condition relating to
6
AIR 1985 All 169.
7
(1907) 29 All 339.
8
(2010) 8 SCC 1.
reasonable security, so that the defendants would have the liberty to deal with the property in
any manner. they may deem fit, in spite of the pendency of the suit.”

Lis pendent and Doctrine of Notice

1. The rule contained in Section 52 of the Transfer of Property Act is, however, not based on
the doctrine of notice, but on expediency.

2. The lis pendent rule does not annul the transfer but renders it subservient to the rights of
the parties to the litigation.

3. 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 litigation9

RECOMMENDATIONS BY THE LAW COMMISSION IN ITS 157TH REPORT

The Law Commission has recommended that there are certain changes that should be brought
in the section so as to protect the interest of the person making the purchase. There is a lot of
anxiety, loss and hardship faced by such people in lack of adequate means of knowing that
whether a suit or proceeding is lying in lieu of that property or not. If the state of affairs is
known to the purchaser after the deal is settled, it comes to him as a big shock. All these
inconveniences, risk and misery, should be reduced. Some satisfactory and reliable recourse
should be enacted so that all the details regarding pendency of a suit can be made known to
every prospective purchaser for example title verification and due diligent procedures etc.

CRITICAL EVALUATION

Status of the transfer

The language of the section is prohibitive in nature. Section 52 uses the phrase ‘the
property cannot be transferred or otherwise dealt with’. At the same time, the transfer

9
Hari Bachhan Singh v. Har Bhajan Singh, AIR (1975) P & H 205.
pendente lite is not void but is only subject to the outcome of the litigation. The transfer is
thus voidable at the instance of the affected party, except to the extent that it may conflict
with rights decreed under the decree held to be valid and operative as between the parties.
The transferee only takes the title of the transferor subject to the result of pending
legislation.

Right of alienee pendente lite to be pleaded as a party to the lis

The predominant view is that a transferee pendent lite cannot seek impleadment when
transfer was affected during the pendency of appeal without the permission of the court and
with full knowledge that the status quo order was in existence. The petitioner in the suit
would be dominus litus, and if he wants to take a calculated risk, the court may not exercise
its discretion to implead him, and he cannot contend that he has any independent right over
the suit property over and above the right of the seller who is a party to the lis. The reason
being that a person who violates the law can never be treated as holding a legal enforceable
right and thus a resistance at the instance of a transferee of judgment debtor during the
pendency of the proceedings cannot be said to be resistance or obstruction by a person in his
own right and he is therefore not entitled to get his claim adjudicated.

Right of any other party under the decree

The doctrine does not apply merely to actual transfers or rights which are the subject matter
of litigation but to other dealings with it ‘by any party to the suit or proceedings, so as to
affect the right of any other party thereto. ‘Any other party’ means a person between whom
and the party alienating there is an issue for decision, which might be prejudiced by the
alienation.
The rule of lis pendens is enacted for the benefit of the third party, and not for the party
making the transfer. This statutory right is given to the party to the suit other than the
alienating party, to have an alienation set aside so far as it is necessary for the protection of
his own rights.

CONCLUSION

The language used in this section in no way prohibits any of the parties from making a
transfer of the property. The only indication that it makes in lieu of such transfers is that the
new purchasing party shall also be subject to the final order that shall be pronounced by the
court of competent jurisdiction. The transferee shall be only entitled to the title so transferred.
The doctrine of lis pendens is applied to a case to prevent the right of a third party and not for
the person or party to the suit making such transfer. This statutory right is made for the third
party in order to set aside the alienation with the ultimate aim of protection of his own rights.
However, there is one exception that lies to this rule if Lie Pendens i.e. the Court if it deems
fit can permit any of the parties to the suit to transfer the property on such terms that are fit
and proper to impose.

The right contemplated under Section 52 no doubt can be used both as a sword and a shield,
depending on such facts as to (i) what rights or interest is transferred, (ii) who the affected
party is, (iii)how and in what manner, the transfer is likely to ‘affect’ any party to the
pending ‘proceedings’. It can be used as a shield in a subsequent or the same proceeding
between the same parties. Any person who would like to use it as sword, must however,
first establish his right to do so when, in any subsequent proceeding an objection is taken to
his claim to do so. Indeed if the transfer was not avoided by any of the parties to the earlier
proceeding likely to be affected by such transfer, the transferee is not prevented from
claiming that the right to avoid the transfer was lost and that nothing survived to be
enforced.