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Doctrine Of Lis Pendens

The doctrine of lis pendens is an old doctrine which has been in operation from the period of English common law. In the word lis pendens, 'lis' means litigation and 'pendens' means pending. Therefore the word lis pendens means pending litigation. This doctrine has been expressed in the maxim: "pendente lite nihil innovature" which means nothing new should be introduced during the pendency of litigation. This doctrine prohibits the transfer of property in pending litigation.

The principles contained in this doctrine 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 avail. This doctrine was adopted y equity for a better and regular administration of justice.

The basis of lis pendens has been explained in the case of Bellamy V. Sabine. It has been observed in this case that it is scarcely correct to speak of lis pendens as affecting the purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation.

It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others pending the litigation rights to the property in dispute so as to prejudice the opposite party. This is applied in a case to prevent the right of third party and it is a statutory right made for the third party in order to set aside the alienation with the aim of protection of his own rights. But if the court deems it fit, it can permit any of the suits to transfer the property on such terms that are fit and proper to impose which is an exception to this doctrine.

Section 52 of the transfer of property act was based on this doctrine. Section 52 of the act states that" 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."

The idea of this section is to in a suit which is pending in terms of determination, status quo should be maintained and it should remain unaffected by the act of any parties to the dispute.

Conditions For Applicability Of Doctrine:

The apex court in the case of Amit Kumar Shaw V. Farida Khatoon stated the required elements for the applicability of rule of lis pendens under section 52.
They are as follows:
  • The suit must be in proceeding.
  • The instituted suit should be filed under court with competent jurisdiction.
  • The right of title of an immovable property is directly and specifically in question.
  • The suit directly affects the rights of the other party.
  • The property which is in question is being transferred by either party.
  • The suit must not be collusive in nature.
  • The court has explained the difference between collusive and fraudulent proceeding. It was held in the case of Awadesh Pradesh V. Belarani that, "the rule of lis pendens does not apply to the collusive suit or a suit in which a decree is obtained by a fraud or collusion".

Non Applicability Of Doctrine Of Lis Pendens:

This doctrine is not applicable in certain cases. They are as follows:
  • Sale made by mortgager in exercise o his power conferred under the deed.
  • In case where only transferor is only affected.
  • In cases where proceedings are collusive in nature.
  • When the property is not described correctly and makes it unidentifiable.
  • When the right to the said property is not directly in question and alienation is permit table.
This doctrine fails to apply when a court orders restoration of immovable property under rule 63 of order 21 under civil procedure code, 1908.


Effect Of Doctrine Of Lis Pendens:

  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
  3. Section 52 create 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.
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 litigation.

Judicial Preceedents On Doctrine Of Lis Pendens:

  • The privy council in the case of Faiyaz Hussain V. Munshi Prag Narrain has followed the theory enumerated in the case Bellamy V. Sabine and emphasized the significance of final adjudication and observed that otherwise there would be no end to litigation
     
  • It was held in the case of Iqbal Singh V. Mahendar Singh the Hon'ble High Court of Delhi observed tht once the arbitration proceedings begin, the suit property becomes sub-judice and any transfer made during the pendency of arbitration proceedings would be subjected to section 52 of the transfer of property act.
     
  • It was stated by the high court of Punjab and Haryana in the case of Swaran Singh V.Arjun Singh and Ors. That lis pendens will apply to the arbitral proceedings if the award has the status of a decree enforceable in a court of law.
     
  • The impact of judgment upon parties to alienation during the pending suit has been decided in the case of Simla Banking Industrial Co. Ltd. V. Firm Luddar Mal, Tek Chand. It was stated in this case that lis pendens rule sets out to the person who has bought property under the pendency of suit is bound to the judgment that might be made against the individual from whom he inferred his title despite the fact that such a buyer was not allowed involved with the activity or had no notice of pending prosecution. The ultimate aim of this doctrine is to contribute the court to the court with unlimited oversight over alienations in pending suits.
     
  • The meaning of lis pendens has also been expressed in the case of Kn. Aswathnarayana Setty V. State of Karnataka & Ors that this principal depends upon justice, equity and good conscience as they rest upon an equitable and just foundation which will be impossible to bring an action or suit to a succesfull termination if alienations are permitted to prevail. A litigating party is exempted from taking the notice of a title acquired during the pendency of litigation.
     
  • It was held by the apex court in Hardev Singh V. Gurmail Singh that section 52 does not declare a pendente lite transfer by a party to suit as void or illegal but makes him bound by the judgment.
     
  • The high court of Madhya Pradesh has observed the underlying principle under section 52 of the act in the case of Gouri Datt Maharaj V. Sheikh Sukur Mohammed & Ors that this section is to maintain the status quo, unaffected by act of any party to the pending litigation.

Conclusion:
The essence of this section is that a transaction made during the pendency of suit by a party to the suit should not prejudice the interest of the other party. The doctrine of lis pendens is strictly based on the theory of necessity. It ensures that justice will be provided without injuring the rights of the either party.

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