doctrine of lis pendens (Section 52 of The Transfer of Property Act)

Doctrine of Lis Pendens (section 52 of the Transfer of Property Act) :-

According to this section during the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits of the Central Government , of any suit or proceeding which is not collusive and in which any right to any immovable property is directly and separately in question , the property can not 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 the Court and on such terms as
it may impose .

It has been explained further by the section 52 that 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 reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force .

In order to constitute Lis pendens the following conditions must be satisfied :-

1) There should be a pending suit or proceeding .

2) The suit or proceeding must not be collusive one .

3) The suit or proceeding must be pending in a Court of competent Jurisdiction .

4) The suit or proceeding must be one in which a right to immovable property is directly and specifically in question .

5) The property directly and specifically in question must be transferred during such pendency .

6) The transfer must affect the right of other party .

The effect of a transfer during pendente lite is that the transfer is not ipso facto void but is only voidable at the option of the party whose interests are affected thereby and the parties to the transfer are bound to abide by the decree eventually passed in the suit .

The doctrine of lis pendens may be explained by an example .

Let us suppose that A mortgaged his property to B . B filed a suit on the mortgage and obtained a decree for sale . While this decree was being executed , A leased the property to X for ten years . During sale of the property B purchased the property himself . As the lease to X was affected by the rule of Lis pendens B was entitled to evict X .

There is one exception to this rule of lis pendens .

It is quite open to the Court to permit any party to the suit to transfer the property on such terms which it may think fit and proper to impose .

The doctrine of Lis pendens emerged out of the maxim ut lite pendent nihil innoveteur which means that nothing new should be introduced in a pending litigation .

The principle of finality of litigation of the doctrine of Lis pendens will be found in the judgment of Lord Justice Turner in the leading case of Bellamy Vs. Sabine , where the Learned Judge said so ,”…. It is , as I think , a doctrin common to the Courts of both law and equity , and rests , as I apprehend upon this foundation ----that it would be plainly be impossible that any action should or could be brought to a successful termination , if alienation pendent lite were to prevail . The plaintiff would be liable in every case to be defeated by the defendan’s alienating before the judgment or decree , and would be driven to commence his proceedings de novo , subject again to be defeated by the same course of proceeding ………”