What is doctrine of lis pendens?
Meaning of Doctrine of Lis Pendens: – The Doctrine of Lis Pendens states that no fixed property may be transferred when a lawsuit relating to it is pending. Under Section 47, from the date of execution, a recorded sale deed of a fixed property is considered to exist upon registration. ‘Lis’ means ‘litigation’ and ’pendens’ means ‘pending’. So, here the Doctrine of Lis Pendens means that nothing new should be introduced in property whose litigation is pending.
The doctrine of Lis Pendens is strictly based on the theory of necessity rather than on the theory of notice governed by the principles enshrined in common law, namely Justice, Equity and Good Conscience. It is, therefore, pivotal in ensuring that justice is provided without injuring the rights of either party.
- The doctrine of lis pendens is expressed in a very popular maxim; ‘Pendente lite nihil innovetur’, which means ‘during the pendency of litigation, nothing new should be introduced’.
- This doctrine means that during the pendency of any suit regarding the title of a property, no new interest should be created in relation to that property. Therefore, in essence, the doctrine of lis pendens prohibits the transfer of property whose litigation is pending.
- This is a very old doctrine and has been operating in the English Common Law.
Doctrine of Lis Pendens
“When there is an ongoing lawsuit in any Court having authority within the limits of India, a suit or proceeding in which any right to immovable property is precisely in question, the property cannot be conveyed by any party to the lawsuit which can influence the rights of any other party thereto under any order which may be rendered therein, unless under the jurisdiction of the Court and on such conditions as it may enforce.“
Doctrine of Lis Pendens states that the transfer of property shall be restricted when there is a litigation pending on the title or any rights that arise directly thereof involving an immovable property.
- ‘A’ sues ‘B’ in respect of a house in B’s possession. During the pendency of the suit, ‘B’ sells the house to ‘C’. A’s suit is dismissed. The transfer to ‘C’ holds good position. Thus, here, the purchaser ‘C’ is bound by the result of the litigation.
- ‘A’ sues ‘B’ in respect of a house in B’s possession. During the pendency of the suit, ‘B’ sells it to ‘C’. A’s suit is decreed. The transfer to ‘C’ is voidable and A’s right to take the house is not affected.
What are the essentials of doctrine of lis pendens?
The following are the essentials of the doctrine of lis pendens as given in Section 52: –
- There should be pendency of proceedings of a case;
- The case or proceeding should be pending in the competent court;
- Right to the title of immovable property is directly and specifically involved in the suit;
- The suit or proceedings should not collusive;
- The suit should directly affect the rights of the other part;
- Transfer should affect the litigation rights of the other party.
- The property in question is being transferred by either party.
Non-applicability of doctrine of lis pendens
Doctrine of Lis pendens is not applicable in every case. There are some examples in which this principle does not apply: –
- Sale by mortgage in the exercise of the power conferred by the mortgage deed.
- In cases of review;
- In cases where the transferor is the sole party affected;
- In cases of favorable suits;
- In cases where proceedings are collusive;
- The suit’s case involves a pending transfer by a person who is not a party to the suit;
- In cases where the property is not properly described in the plaint;
- Cases where the subject matter of the rights concerned in the suit and which are alienated by transfer are different.
The purpose of the doctrine of Lis Pendens
Doctrine of Lis Pendens is essential as it prevents Transfer of the title of any disputed property without the Court’s consent, there can be endless litigation, and it will become impossible to bring a lawsuit to a successful termination if alienations are permitted to prevail, and covenants are not imposed.
The ‘Transferee pendente lite’ is bound by the verdict just as if he were a party to the suit and the transfer shall be subservient to the result of the pending lawsuit.
Applicability of Section 52 of Transfer of Property Act: – Conditions to be Satisfied
In a three-judge bench the Supreme Court in “Dev Raj Dogra vs. Gyan Chand Jain and others” established the meaning of Section 52 of the Transfer of Property Act and laid down the following conditions: –
- A suit or a proceeding in which any right to immovable property is directly and clearly in question must be pending;
- The suit or the proceeding should be pending in a court of competent jurisdiction;
- The suit or the proceeding need not be a collusive one;
- Litigation should be one in which the right to immovable property is directly and clearly in question.
Case laws under Doctrine of Lis Pendens
The Court of Madhya Pradesh observed that the purpose of section 52 is not to defeat any just and equitable claim, but only to subject them to the authority of the court dealing with the property for which the claims are put forward.
- Lov Raj Kumar vs. Dr.Major Daya Shanker and Ors.
In this case, Delhi High Court observed that the principles contained in section 52 of the Transfer of Property Act are in accordance with the principle of equity, good conscience or justice, as they rest on a just and equitable basis, that it would be impossible to bring an action or suit to a successful termination if alienation is permitted to prevail. Allowing alienation’s made during the pendency of a suit or an action to defeat the plaintiff’s right will pay a premium to the cleverness of a Defendant and thus defeat the ends of justice and throw away all principles of equity’.
The Supreme Court discussed and amended the law concerning the Doctrine of lis pendens in Har Narain vs. Mam Chand, in compliance with Section 47(2) of The Registration Act, 1908. The lis pendens doctrine states that no fixed property may be transferred when a lawsuit relating to it is pending. Under Section 47, from the date of execution, a recorded sale deed of a fixed property is considered to exist upon registration. The Court made it clear that the fiction produced pursuant to Section 47 does not prohibit lis pendens from functioning. Thus, if the civil action starts and is registered later, the Court held that land sales are still subject to the principle of lis pendens.