The Doctrine of Lis Pendens

The term ‘Lis’ means ‘litigation’ and ‘Pendens’ means ‘pending’. The concept of lis pendens is based on a Latin maxim “pendent lite nihil innovature”  means “during the pendency of litigation, nothing new should be introduced.” 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. It is a very old doctrine and has been operating in the English Common Law. This concept is laid down in Section 52 of the Transfer of Property Act. A pending suit is regarded as constructive notice of the fact the disputed title of the property under litigation. Therefore any person dealing with that property must be bound by the decision of the Court. Thus the doctrine of lis pendens is based on necessary and is a matter of public policy because it prevents the parties from disposing of a disputed property in such a manner as to interfere court’s proceeding.  It may be said that this doctrine is based on notice because a pending suit is regarded as constructive notice of the fact of the disputed title of the property under litigation. The basis of the doctrine of lis pendens is ‘necessary’ rather than actual or constructive notice. Therefore, any person dealing with that property, pending litigation, must be bound by the decision of the Court.

Section 52 of the Transfer of Property Act states that: “During the pendency of any court having authority within the limits of India excluding the state of Jammu and 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 immovable directly or substantially 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 the Court and on such as may be prescribed.”

For the purpose of this section the  dependency 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.

Objects of the Doctrine:

The preliminary assumption behind the doctrine of lis pendens is that if the parties to a dispute are not prohibited from transferring any of the property then successive alienations and litigations shall take place. In such a situation it would become impossible that the action or suit be successfully terminated. With this as a consequence, the court would be unable to dispense its function of protecting the suitors from future injuries.  Hence the real aim of this doctrine is to prevent the multiplicity of suits. It would be plainly impossible that any action could be brought to a successful termination if pending litigation were permitted to prevail. The plaintiff would be liable to be defeated in every case and would be driven to commence his proceedings afresh subject against to be defeated by the same course of proceedings. Thus the object of doctrine is to avoid endless litigation, protect either party to the litigation against the act of the other, and to avoid abuse of legal process.

 in Bellamy v. Sabine, (1857) 1 De G & J 566 case, the Court observed: “ “It is, as I think, a doctrine common to the Courts both of law and Equity and rests as I apprehend, on the foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendent lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendants 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 proceedings.”  

In Rajender Singh v. Santa Singh, AIR 1973 SC 2537 case, the Supreme Court observed that the doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court’s power to decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during the pending litigation, are held to be bound by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which are the subject matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated.

In Lov Raj Kumar v. Dr. Major Daya Shanker, AIR 1986 Del. 364 case, the Delhi High Court observed that the ‘principles contained in Section 52 of Transfer of Property Act are in accordance with the principle of equity, good conscience or justice, because 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. Allowing alienations made during the pendency of a suit or an action to defeat the rights of a Plaintiff will be paying a premium to cleverness of a Defendant and thus defeat the ends of justice and throw away all principles of equity’.

Essential Ingredients of Lis pendens:

Pendency of Suite:

To apply this doctrine there must be a suit or proceeding pending before the court. Section 52 of Transfer of Property Act, 1882 or the Doctrine of lis pendens only applies when the property transferred during the pendency of suit or proceeding. Pendency of suit or proceeding is that period during which a suit remains before a court for its final disposal. A suit is instituted by filing a plaint, that is the first step of a suit and the last step of the suit is passing decree by Court. So a suit starts with filing a suit and ends with passing a decree by court. So, the pendency of suit begins from the date on which the plant is presented and pendency of suit terminates on the date when the final decree passed by Court.

Pendency of suit in a court of competent jurisdiction:

The suit or proceeding must be pending before a competent court having jurisdiction to try it. When a suit is pending before a court which has no proper jurisdiction to entertain it, the doctrine of lis pendens shall not apply.

Right to immovable property must be involved:

The subject matter of the suit or proceedings must be directly or substantially related to the right of immovable property. The litigation should be regarding the title or interest of that property. Where the question involving the suit or proceeding does not relate to the title or interest in immovable property, the doctrine of lis pendens is not applied.

For example, where a suit is pending between landlord and tenant regarding payment of rent, and during that time landlord transfers his property, the transfer shall not affect by the doctrine of lis pendens because the litigation was not regarded to the title or interest of immovable property. The suit involves the payment of rents.

The Suit must not be collusive:

A suit is collusive if it was instituted with a mala fide intention. To apply the doctrine of lis pendens the suit or proceeding must not be collusive. However if any suit at the beginning was bona fide, but during the pendency of suit there is a secret agreement between the parties in form of compromise, in that case too lis pendens is applicable.

Property is transferred or otherwise dealt with:

Either party to the suit or proceeding shall transfer or otherwise deal with immovable property, which is the subject matter of such a suit. The transfer includes sale, exchange, lease, and mortgage. In such cases the doctrine of lis pendens is applicable and the transfer would be the subject of the decision of Court. Surrender, release or partition as transfer, a contract of sale has been regarded as a transfer within the meaning of “otherwise dealt with.”

Transfer affects the rights of any other party:

The transfer by any party to the suit must affect the right of other parties till the time the case is finally disposed of. The principle of lis pendens is intended to safeguard the parties to litigation against transfers by their opponents.

 Case Laws:

In Dev Raj Dogra and others v. Gyan Chand Jain, AIR 1981 SC 981 case, the Court construed the meaning of Section 52 of the Transfer of Property Act and laid down following conditions:

1. A suit or a proceeding in which any right to immovable property is directly and specifically in question must be pending;
2. The suit or proceeding should be pending in a court of competent jurisdiction;
3. The suit or the proceeding should not be a collusive one;
4. Litigation must be one in which the right to immovable property is directly and specifically in question;
5. Any transfer of such immovable property or any dealing with such property during the pendency of the suit is prohibited except under the authority of Court, if such transfer or otherwise dealing with the property by any party to the suit or proceeding affects the right of any other party to the suit or proceeding under any order or decree which may be passed in the said suit or proceeding.

In Jayaram Mudaliar vs. Ayyaswami, AIR 1973 SC 569 case, the Court 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 Hardev Singh v. Gurmail Singh, Civil Appeal No. 6222 of 2000  case, the Court 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 judgment that shall be pronounced on the disposal of dispute. 

In Koyalee v. State of Rajasthan, AIR 2009 Raj. 28 case, the land in dispute was originally recorded in the name of petitioner’s husband and after his death his brother ’G’ knowing it well that his brother’s wife was alive and being sole legal heir, without impleading her, filed a suit seeking declaration of Khatedari rights, and thereafter she has been litigating being sole legal heir of the recorded Khatedar. Despite the pendency of the suit and suit property is being prohibited from being alienation or transfer during the pendency of the suit, yet the respondent brother went on transferring the land and thereafter subsequent purchasers went on transferring land. Such transfer would be hit by the doctrine of lis pendens.

Effect of the Doctrine:

Section 52 of the Transfer of Property Act 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 effected. Thus the effect of the doctrine of lis pendens is not to invalidate or avoid the transfer, but to make it subject to the result of the litigation.

Non – applicability of the Doctrine of Lis Pendens:

Lis pendens does not necessarily get applied in every case. Following are Certain instances where this doctrine does not get applied:

• A sale made by the mortgagee in the exercise of the power as conferred by the mortgage deed.
• In matters of review;
• In cases where the transferor is the only party affected;
• In cases of friendly suits;
• In cases where the proceedings are collusive;
• In cases of execution proceedings where the order is passed against the intervener. In such matters, an appropriate remedy shall be a suit filed under the Order 2, rule 63 of the Code of Civil Procedure, 1908;
• In case of suits involving pending transfers by a person who is not a party to the suit;
• In cases where the property has not been properly described in the plaint;
• In cases where the subject matter of rights concerned in the suit and that which are alienated by transfer are different.