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
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
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
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.
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
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
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
- The right of title of an immovable property is directly and specifically
- 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
- 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:
- A transfer or dealing by a party to a suit during the pendency of the suit/
proceeding is not ispo facto void
- 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
- 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
- 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
- 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
- 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
- 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.
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
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