The Doctrine of Lis Pendens: Section 52 of the Transfer of Property Act

The Doctrine of Lis Pendens: Section 52 of the Transfer of Property Act

The doctrine of Lis Pendens: Section 52 of the Transfer of Property Act

Chapter II of the Transfer of Property Act, 1882 pertains to the transfer of property through acts of parties; it deals with property transfer disputes. Section 52 in this chapter delineates the doctrine of Lis Pendens.

What is Lis Pendens?

Simply put, the doctrine of Lis Pendens states that if a property dispute is pending in any court, then the parties involved are not at the liberty to sell or transfer it. Though, there is the added condition that this doctrine would not apply if the legal suit is a result of collusion between the parties to the suit. The dispute should be genuine, and not merely a ruse to hinder the transfer of property by embroiling it in a legal suit. In some instances, the court hearing the suit may allow the property in dispute to be transferred, however, it remains subject to the authority of the court, and such terms and conditions that it may impose.

The pendency (under the consideration of the court) of the legal suit is deemed to begin on the date the plaint was brought to the court, and it continues till a final decree, discharge or order is pronounced. This doctrine (section 52) of the transfer of property act is based on the legal maxim “ut lite pendente nihil innovetur”, meaning that nothing new should be introduced to a matter which is already pending before a court. In general, civil law is lenient to purchasers of property who bought it for consideration (price) and without notice regarding any charges or encumbrances attached to it. However, lis pendens affects purchasers even if they are unaware of a suit pending on it. This principle is meant to strictly maintain the status quo while the matter is being heard in court. Equity, justice, and good sense demand that this ought to be so. In Bellamy vs Sabine, Turner LJ, observed, ‘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 proceeding.” What Turner LJ observed is not hard to imagine- a defendant could easily frustrate the plaintiff by constantly passing the disputed property among his friends and relatives, thus forcing the plaintiff to file new suits over and over. Even if this doctrine was not embodied in section 52 of the Transfer of Property Act, justice, sense of equity and good conscience would have compelled the courts to apply it in practice. 

Faiyaz Husain Khan v Prag Narain is a famous case of lis pendens in India. In this case, a mortgagee brought a suit against his mortgagor to enforce his mortgage but even before the summon could be served, the latter affected a puisne mortgage to avoid it. The question before the court was whether the person who had agreed to become the puisne mortgagee would be affected by the suit. Relying on the doctrine of lis pendens, the court held that he would be affected. 

In Govindapillai v Alyyappan Krishnan, the transferee of the disputed property tried to take the ground that he had been unaware of the legal suit. In this case, the court once again clarified that lack of proper notice cannot be a ground to avoid the implementation of the doctrine of lis pendens. In general, courts have favored applying it with little or no clemency. Further, in KV Rajsekhar v Kedarnath Co-op Housing Society Ltd, AIR 2018 Hyd 71, the court clarified that a transferee of the kind described above cannot even claim to be a party to the suit; though the court reserves the discretion to allow him to do so.  Though, it is pertinent to add here that the doctrine does not say that a transfer of property lis pendens is illegal or even void. In Hardev Singh v Gurmail Singh, AIR 2007, SC 1058: (2007) 2 SCR 141 the court observed that the transaction holds valid, though it would be subject to the final verdict given by the court.

In Karupanna Gounder v Rasammal, AIR 2007 Mad 101: 2007 (4) CCC 40: 2007 (2) Mad LW 352 lis pendens was applied to a suit for maintenance by a wife. Following a family dispute, the wife approached the court with the demand that a charge should be created in her favor on her husband’s property. During the pendency of the case, some other members of the extended family transferred portions of the family property. The court ruled that this transfer was liable to be hit by the doctrine of lis pendens.