“DOCTRINE OF LIS PENDENS“(DLP)UNDER TRANSFER OF PROPERTY ACT, 1882
- Section 52 of the Transfer of Property Act, 1882 (TPA) incorporates doctrine of “lis pendens”. (DLP)
- This doctrine is based upon the doctrine of necessity, expediency and public policy. (UKJ-2005).
- DLP is based on the maxim ‘Pendente lite nihil innovature’. It means during pendency of litigation nothing new should be introduced.
- Lis pendens means pending litigation under the consideration of court of law. (BJS-2009).
- This doctrine prohibits transfer of property during the pendency of litigation. If property is transferred during pendency, the transferee is bound by the decision of the court. It is immaterial that whether or not transferee had notice of the suit or proceedings.
- It is to be noted that normally decree of a court binds only the parties to the suit. However, under the principle of lis pendens, a person who purchases during the pendency of the suit is also bound by the decree.
- Section 52 does not invalidate the transfer but renders it subservient or subject to the rights of the parties to the suit.
- Bellamy vs. Sabine (1857) is a leading case on the doctrine of lis pendens.(UKJ-2011). In this case Justice Turner held that basis of Section 52 is expediency and public policy.
- Essentials:(CGJ-2004/ MPJ-2010)-
- Pendency of suit—There is a pendency of suit before the competent court regarding title of immovable property. As per Section 52, pendency of suit is deemed to begin from the date of presentation of the plaint and continues till disposal of the suit. (MPJ-1996)
- The suit must not be collusive.
- We know that TPA does not apply to transfer by operation of law. However, the Privy Council in Nilkant vs. Suresh Chander (1885) settled the position and held that Section 52 is applicable to transfers inter-vivos (voluntary transfers) and transfer by operation (involuntary transfers) of law both. As such the auction purchaser in sale by court is bound by the decision of the pending legislation.
- Applicability of Lis Pendens—Section 52 is applicable in following cases—
- A suit for specific performance of contracts to transfer the immovable property. (MPJ-2006)
- A suit for partition.
- A suit for pre-emption.
- Easement suit.
- A suit on mortgage.
- A suit for maintenance out of immovable property by Hindu-widow.
- Non-applicability of Lis Pendens—Section 52 is applicable only in those cases where there are disputes regarding title of immovable property. Thus, in following cases DLP is not applicable—
- A suit for claim of money.
- A suit for recovery of movables.
- A suit for recovery of rents.
- A suit for an account.
- Doctrine of lis pendens does not apply to transfer/ transaction with Court’s permission in which the suit is pending. (MPHJS-2010)
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