DOCTRINE OF LIS PENDIS

    “Doctrine of lis pendens” has been propounded under Section 52 of the Transfer of Property Act, 1882. According to this doctrine “the transfer of the immovable property related to suit under consideration or proceedings can only be done by the order of the court otherwise not. In other words, it can be said that if there is a case pending or related to proceedings of immovable property in which the right of property is directly or specifically is in question and such suit or proceeding is not collusive then the parties of suit can only transfer or disposition can only be done under authority of court and under the imposed conditions, otherwise not. It can be cleared with this illustration. ‘A’ and ‘B’ owes a house with combined ownership. There is a conflict about their share in the house.  ‘A’ files a suit against ‘B’ to ensure/secure his share. The suit remains under consideration. ‘A’ and ‘B’ cannot transfer or dispose of the house or it’s any portion till the suit is under consideration. Section 52 reads as under:

    “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 by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable 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 the court and on such terms as it may impose.”

    OBJECTIVE

    The main object of this doctrine is to ensure the implementation of order or decree given by the court in the cases under consideration. If such arrangements were not, and the parties of disputed property were given permission to transfer or dispose of the property during the pendency of the case, then the orders or decree of courts were meaningless. The other objects of the doctrine of lis pendens are-

    1. Preventing creation of new interest in disputed property remaining the pendency of the case.
    2. To make the disputed property status quo till the settlement of the case.
    3. To prevent the multiplicity of suits.

    The mainstay of the doctrine is public policy and public welfare. In Augusti v. Gopalan[1], the Kerala High Court decided that “if there are no such arrangements, then many problems will arise from transfer and disposition of the disputed property and the quick and apt settlement of the case did not happen”.

    ESSENTIAL CONDITIONS

    Following are the essential conditions of the doctrine of lis pendens:

    The Immovability of Property

    The doctrine of lis pendens applies upon immovable property only and not upon movable property. So the property must be immovable. There are some suits like:

    (i) A suit for partition [2]

    (ii) A suit on mortgage[3]

    (iii) A suit for pre-emption[4]

    (iv) Easement Suit[5]

    Which are covered under the scope of this section.

    The Pendency of the Suit or Proceedings

    The case or proceedings must be that is pending in court. The suit is considered pending from the date of filing to final decree or passing of orders, the pendency of suit/ proceedings begin from the date, when such presentation of the plaint of the proceedings in a court of competent jurisdiction.  

    In Govind Pillai v. A. Krishnan[6], it was held that such suits are not considered pending which are filed in mistaken court or sufficient charges of court are not paid. If a suit is returned to proper court and accordingly in proper court then the time during the submission of the two cases will not be considered as pending time.

    Authority of Court

    It must be compulsory that the court in which the suit is filed should have competency for hearing the proceedings of such case. We can call it a competent court. It means such courts who have the authority of hearing the case. The Civil Procedure Code has provided us territory and valuation of subject matter of dispute as the jurisdiction for filing a suit under this section.

    The suits or proceedings must not be collusive 

    The suits or proceedings must not be collusive for the applicability of the ‘doctrine of lis pendens’. A Collusive suit is one which is not real. It is a fraudulent secret understanding between the plaintiff and the defendant that the suit would be contested for defeating the rights of the transferee.

    In Lalji Singh v. Rameshwar Mishra[7] , Allahabad High Court decided that the doctrine of lis pendens does not apply on the collusive cases or proceedings because in such cases the parties file suits for fradulous intention or to save themselves from provisions of law.

    It can be cleared by the following illustration- A’s house is in possession of ‘B’, ‘A’ and ‘B’ compromise secretly about the house that ‘A’ will file a suit against ‘B’ in competent court and ‘B’ will not object to. The house will be sold to third person for Rs. 20,000/- and they will share the amount half-half. This suit will be collusive and provisions of section 52 will not apply on such suits.

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    The Questionability of Right related to Property

    The rights related to immovable property in suits and proceedings are expected to be questionable directly and specifically. In the cases of Smt. Mukte Shri v. Haripad [8] and Harbaksh Singh v. Ram Ratan[9] , the suit of specific performance of the agreement of selling of immovable property were considered such suits.

    Transfer of property

    It is compulsory that:

    •    The property must be transferred.
    •    Such transfer must be done in the pendency.
    •   Transfer must be done by the parties.

    In the case of Karooppanna Gondar v. Rasammi [10], a suit for maintenance by the wife against the husband was pending. A charge was created by the wife on the property of the husband. During this period, the property was transited by the husband. The court held it a violation of section 52.

    EXCEPTIONS

    In Spite of the doctrine, however, it is quite open to the Court to permit any party to the suit to transfer the property on terms which it may think fit to impose.

    Illustrations/Cases

    1. Where a party may not be locked in the suit/ proceedings, still that party may have effect of the court’s decree/judgment. For example there are brothers named X,Y&Z; Out of them, Z lives different from X & Y who live together. X files a suit for partition without impeding Z or his father A. Here, even though Z and A are not the parties to the suit, still the decree would be likely to affect the shares of both because the subject matter of property is the same. In the case of Amarnath v. Deputy Dir. Of Consolidation[11] also the court observed that if the judgment of the suit is likely to affect the share of any party then such would be treated as a party to the suit and the decision would be binding on them also.
    2.  A sold a house to B. C who was not the party to the contract challenged the power of A in selling the house. During the meantime, the suit was pending in the Court. The house was sold to D by B. In any condition or any judgment/decree of court, the title of D won’t be affected because the case was filed against A & B was not a party to the suit at the time when property is transferred from B & D. [12]
    3. In Faiyaz Husain Khan v. Prag Narain [13], the mortgagee effected a subsequent mortgage before the summons to enforce mortgagee’s right were served to him. The court observed for the sale of property, without making subsequent mortgagee as a party to the suit. It was observed by the court that the sale extinguished the subsequent mortgagee’s right to redeem prior mortgage. 
    4. A sues B to recover a house. After the filing of the suit but before the service of summons, B transfers the property to C. The suit is decreed against B. The question is: Is C bound by the decree? The explanation to Section 52 lays down in express terms that the lis (litigation) begins from the date of the presentation of the plaint. Thus, a transfer of property which occurs before the service of the summons, will be covered by Section 52. Thus, in the present case, C will be bound by the decree.
    5. If a suit is dismissed for default and then restored, the order of restoration relates back, and a transfer after dismissal and before restoration is subject to lis pendens.

    CONCLUSION 

    The Doctrine of Lis Pendens is incorporated under section 52 of the Transfer of Property Act, 1882. This doctrine has its origin from English law. The expression Lis Pendens denotes Litigation Pending. The doctrine of lis pendens is expressed in the well known maxim- Pendente Lite Nihil Innovature which means during the pendency of litigation, nothing new should be introduced. In other words, law does not allow transfer of any right related to property in dispute, which is prejudice to another party. The basis of this doctrine is necessity rather than notice. 

    The object of the rule is to protect one of the parties to suit against an Act of the other. Under this doctrine, the purchaser is bound by the result of the litigation. Any transfer by the party during the pendency of suit is non ipso facto void. Such transfers are not void but voidable at the option of the affected party.

    REFERENCES

    [1] AIR 1970 Kerala 188.

    [2] Jogendra Nath v. Debendra Nath, (1898) 26 Cal. 127; Ghantesher Ghosh v. Madan Mohan Ghosh, AIR 1997 SC 471.

    [3] Faiyaz Hussain Khan v. Prag Narain, (1907) 29 All. 339.

    [4] Madho Singh v. Skinner, AIR 1941 Lah.433.

    [5] Ramanamma v. Anthamma, AIR 1955 AP 199.

    [6] AIR 1957 Kerala 10.

    [7] AIR 1983 NOC 172 Allahabad.

    [8] AIR 1988 Kolkata 25.

    [9] AIR 1988 Punjab and-Haryana 60.

    [10] AIR 2007 Madras 101.

    [11] AIR 1985 All 169.

    [12] Bala Ramchandra v. Daula, 27 BLR 38.

    [13] (1907) 29 All 339.


    BY SWATI GOYAL | PANJAB UNIVERSITY , CHANDIGARH

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