Related section
The law incorporated in Section 52 of Transfer of Property Act, 1882 is based on the doctrine of lies pendent.
Meaning
1. ‘Lis’ means ‘litigation’ and ’pendent’ meaning ‘pending’.
2. So, lis pendent would mean ‘pending litigation’.
3. The doctrine of lis pendent is expressed in the well-known maxim: pendent lite nail innovator, which means ‘during pendency of litigation, nothing new should be introduced”.
4. Under this doctrine, the principle is that during pendency of any suit regarding title of a property, any new interest in respect of that property should not be created.
5. Therefore, in essence, the doctrine of lis pendent prohibits the transfer of property pending litigation.
6. It is a very old doctrine and has been operating in the English Common Law.
7. Under this doctrine the judgments in the immovable properties were regarded as overriding any alienation made by the parties during pendency of litigation.
Basis
1. The basis of lis pendent is ‘necessary’ rather than actual or constructive notice.
2. It may be said that this doctrine is based on notice because a pending suit is regarded as constructive notice of the fact of disputed title of the property under litigation.
3. Therefore, any person dealing with that property, pending litigation, must be bound by the decision of the Court.
4. But, the correct view is that lis pendent is founded on ‘necessity’.
5. For administration of justice it is necessary that while any suit is still pending in a Court of law regarding title of a property, the litigants should not be allowed to take decision and transfer the disputed property.
6. Lis pendent is, therefore, based on ‘necessity’ and as a matter of public policy it prevents the parties from disposing of a disputed property in such manner as to interfere with Court’s proceedings. The basis of the doctrine is explained in Bellamy v. Sabine[1] Turner, LJ: “It is, as I think, a doctrine common to the Courts both of law and Equity and rests as Iapprehend, on the foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendent lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendants alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceedings.”
Principle
1. Section 52 embodies the doctrine of lies pendent (pending litigation) as expressed in the maxim Ut lite pendent nail innoveteur which means nothing new should be introduced in pending litigation.
2. As a principle equity, justice and good conscience, this rule applies even where the Act does not apply[2].
Applicability
1. Section 52 of the Transfer of Property Act is an expression of the principle ’pending litigation nothing new should be introduced’.
2. It provides that pendent lite; neither party to the litigation in which any right to immovable property is in question can alienate or otherwise deal with such property so as to affect his appointment[3].
3. Originally, the land in dispute was recorded in the name of petitioner’s husband and after his death his brother ’G’ knowing it well that his brother’s wife was alive and being sole legal heir, without impleading her, filed a suit seeking declaration of Khatedari rights, and thereafter she has been litigating being sole legal heir of the recorded Khatedar. Despite the pendency of the suit and suit property is being prohibited” from being alienation or transfer during pendency of suit, yet the respondent brother went on transferring the land and thereafter subsequent purchasers went on transferring land. Such transfer would be hit by doctrine of lis pendent.[4]
4. Section 52 would apply in a case where the sales are made by way of private negotiations and during the pendency of suit.
Ingredients
Following are essential ingredients for the application of the doctrine of lis pendent as provided in Section 52:
1. There is a pendency of a suit of proceeding.
2. The suit or proceeding must be pending in a Court of competent
3. A right to immovable property is directly and specifically involved in the suit.
4. The suit or proceeding must not be collusive.
5. The property in dispute must be transferred or otherwise dealt with by any party to suit.
6. The transfer must affect the rights of the other party to litigation.
Effect of the doctrine
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[5].
3. 52 creates 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 effected.
4. Thus the effect of the rule of liespendent is not to invalidate or avoid the transfer, but to make it subject to the result of the litigation.
Lis pendent and Doctrine of Notice
1. The rule contained in Section 52 of the Transfer of Property Act is, however, not based on the doctrine of notice, but on expediency.
2. The lis pendent rule does not annul the transfer but renders it subservient to the rights of the parties to the litigation.
3. 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[6]
Illustrations
1. A, B, C are brothers; C is residing in a distant town while A and B are residing together. A files a suit for partition and does net implead C or his father X. Though X and C are not parties to the suit, yet the subject-matter of suit is the same, and neither X nor C can legally and validly transfer or alienate his share to a third party. .In such cases the ultimate decree is likely to affect the shares of X and C too. Thus, there may be cases where a party may not be locked in a civil suit or proceeding, yet such a party may be affected by the judgment/decree in such a suit.
2. 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. Thus, here, the purchaser (C) is bound by the result of the litigation.
3. 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.
Frequently Asked Questions
Q1. What are the essential conditions for lis pendent to apply?
Following conditions are necessary for the application of the doctrine of liespendent as provided in Section 52:
1. There is a pendency of a suit of proceeding.
2. The suit or proceeding must be pending in a Court of competent
3. A right to immovable property is directly and specifically involved in the suit.
4. The suit or proceeding must not be collusive.
5. The property in dispute must be transferred or otherwise dealt with by any party to suit.
6. The transfer must affect the rights of the other party to litigation.
Q2. Is there any exception to the doctrine of lis pendent? If yes, Explain with the help of case law.
Exception to the doctrine can be explained with the help of case as follows:
1. In Vinod Seth v. Devinder Bajaj[7], the court permitted the defendants to deal with the property during the pendency of the suit, under Sec. 52.
2. The court observed: “The principle underlying Sec. 52 is based on justice and equity. The operation of the bar under Sec. 52 is however subject to the power of the court to exempt the suit property from the operation of Sec. 52 subject to such conditions it may impose.
3. That means that the court in which the Suit is pending has the power to transfer the property which is the subject-matter of the suit without being subjected to the rights of any party to the suit, by imposing such terms as it deems fit.
4. Having regard to the facts and circumstances, the present ease is a fit one where the suit property should be exempted from the operation of Sec. 52, subject to a condition relating to reasonable security, so that the defendants would have the liberty to deal with the property in any manner. they may deem fit, in spite of the pendency of the suit.”
Q3. What is involuntary transfer in context of doctrine of lis pendent?
Transfer of property may either be by act of parties or by operation of law. Transfers by operation of law are known as involuntary transfers e.g. Court sale or transfer made by order of Court.
1. Section 52 is applicable to both the kinds of transfer’s pendent lite. Formerly there was some doubt whether this section applies to transfers made by operation of law because this Act does not apply to such transfers. But the Privy Council had settled the law that the principle of liespendent is applicable also to transfers by operation of law[8].
2. In Samarendra Nath Sinha v. Krishna Kumar Nag,[9] the Supreme Court has also held that it is true that Section 52 strictly speaking does not apply to involuntary alienations such as Court sales but, it is well established that the principle of liespendent applies to such transfers.
3. Therefore, the doctrine of liespendent applies where the sale is made by order of the Court. Though an attachment is not a transfer, but a sale in pursuance of an attachment comes within the scope of this section[10].
4. The principle of liespendent applies to execution sales as well as sales for non-payment of Government revenue[11].
Q4. Doctrine of lis pendent based on equity, good conscience and justice. Comment.
The principles specified in Section 52 of the T.P. Act are in accordance with equity, good conscience or justice because:
1. 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 prevail.
2. A transferee pendent lite is bound by the decree just as much as he was a party to the suit. The principle of liespendent embodied in Section 52 of the T.P. Act being a principle of public policy, no question of good faith or bona fide arises.
3. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject-matter of the suit.
4. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree Which may be passed in the suit unless the property was alienated with the permission of the Court[12].
Edited by Parul Soni
Approved & Published – Sakshi Raje
Reference
[1](1857) 1 De G & J 566 cited in Shah’s Principles Of The Law Of Transfer. Ed.III p. 106.
[2] Lov Raj Kumar v Daya Shankar AIR 1986 Del 364.
[3]Praveen Kumar v. Baljinder Kaur AIR 2010 P& H 40.
[4]Koyalee v. State of Rajasthan, AIR 2009 Raj. 28.
[5]Prabbakar v Antonio AIR 1971 Goa 42.
[6] Hari Bachhan Singh v. Har Bhajan Singh, AIR (1975) P & H 205.
[7](2010) 8 SCC 1.
[8]Nilkant v. Suresh Chander, (1885) 12 Cal. 414 : 12 IA 171,Motilal v. Karrabulam, (1897) 25 CAL . 179 :241A 170.
[9]AIR 1967 SC 1440.
[10]Shiv Shankarappa v. Shivappa, (1943) Bom. 27.
[11]Mathura Pmsad Sahu v. Dasai Sahu, (1922) Pat. 542.
[12] Sanjay Verma v. Manik Roy , A.I.R. 2007 S.C. 1332 at 1334.
