Philosophy

Doctrine of Lis Pendens - Anushka Gupta

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This paper seeks to address the meaning and importance of “DOCTRINE OF LIS PENDENS” , which is well stated under section 52 of The Transfer of Property Act, 1882. This section basically forbids alienation of immoveable property, where a dispute
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  Abstract This paper seeks to address the meaning and importance of “DOCTRINE OF LIS PENDENS” , which is well stated under section 52 of The Transfer of Property Act, 1882. This section basically forbids alienation of immoveable property, where a dispute relating to the same property is pending in a court of law. In simpler words, where the person purchasing an immovable property from the judgment debtor , while the suit is pending in a court of law has no independent right to property to resist, hinder or object execution of a decree. Lis Pendens means “a suit pending under any court of law ” , where Lis means the ‘suit’ and Penden s me ans ‘continuing or pending’. This  doctrine of lis pendens has been derived from a latin maxim i.e “ Ut  pendent nihil innovetur  ” which means that during litigation nothing should be changed.  This principle signifies that the subject matter of a suit should not be transferred to a third party during the  pendency of the suit. If a transfer of such immovable property is made, the transferee becomes bound by the result of the suit. The doctrine of Lis Pendens esstentially aims at: (i)   avoiding endless litigation, (ii)    protecting either party to the litigation against the act of the other, (iii)   avoiding abuse of legal process.  Doctrine Of Lis Pendens Introduction The doctrine of lis pendens is well defined in section 52, of The Transfer of Property Act, 1882. It states as:-  52. Transfer of property pending suit relating thereto.-  During the pendency in any court having authority 3[4[within the limits of India excluding the State of Jammu and Kashmir] Government 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 impose.  Explanation : For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the  proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in  force. 1   General Principle In any general dispute between any two parties with respect to a specific immovable property, normally the decision of the court in binding on the parties involved in the dispute, but this doctrine is not of a general binding nature. This can be explained with a help of an example, A is the owner of a house and permits B to stay in it. B without the consent of A sells it to C. A files a suit against B for reclaiming the possession and a declaration of title. Soon, after the suit was instituted B delivers the property to C. A fails to involve C as a party. The suit was decided in favor of A, but it was binding only on B, as the possession of the party was now with C, A would have to file a new fresh suit against C. Soon after a new suit was filed against C by A, C sells the  property further to D. Again, suit was decided in favor of A but also it was binding upon C only, and this time possession of the property on with D. And again, A would have to file a fresh suit against D. And this way the cycle continues, this chain may go on indefinitely and the very  purpose of justice to be accorded peacefully through the medium of the courts, will be frustrated. This is why, this section 52 incorporates a rule that makes all alienation of the property that is the subject matter of the dispute, pending in a court, awaiting disposal, subject to the decision of this 1  The Transfer of Property Act, 1882  court. In simpler words, whosoever takes a property by a transfer, during the pendency of the suit in any court, would be automatically by the decision of the court and would be enforceable as against him, irrespective of whether he was formally inculcated as a part or not. Keeping in mind the same illustration, this time suit was decided in favor of A, but by the use of section 52 of the act, it is not only binding on B but also on C, D and E. as the transfer of  property at the instance of B was during the pendency of this litigation. A would not have to have file a fresh suit against C, D and E as the decision of the court would be enforceable as against them also. The doctrine of lis pendens is presented in the well-known maxim; i.e ‘  pendente lite nihil innovature ’ which means ‘during pendency of any suit  in any court regarding title of an immovable property, no new interest in respect of that property can be created. The section  provides adequate protection to the parties from any transfer pendent lite. The transferee is neither required to be impleaded nor claim impleadment. In order to better understand the doctrine of lis pendens, there’s a case to be refered i.e  Kachhi  Properties, Satara vs. Ganpatrao Shankarao Kadam 2  , in this case a suit was filed, properties were owned by the respondents, respondents agreed to sell it to the appellants and were paid earnest amounts. Respondents sought to refund by sending drafts which Plaintiffs did not encash. Before agreement to sell Respondent entered into agreement with another developers. Appellants filed suits for specific performance and direction to obtain permissions from the authorities. Appellants prayed for injunction to restrain Respondent from creating third party interests while the suit was pending in a court. A question raised, whether, appellants made out prima facie case to support plea. Appellant did not make out a case for grant of injunction. Appellant claimed that Defendant agreed to sell suit property and executed agreement of sale. In response to that, defendant claimed to have repaid amount. Defendant refused to execute sale deed. AT the end, it was held that appellant had not even made out prima facie case and theres nothing to show as to how protection under Section 52 of Act inadequate to secure interests of Appellant. And this way this appeal was dismissed. The principle is based on ruling in  Bellamy vs Sabine 3  , the crux is that when a litigation is  pending in any court relating to an immovable property, none of the two party shall be permitted to transfer the same property to any third party, without any permission of the court. Anybody  buying it would get the title which will be subject to Court’s decision in the suit that is pending. The third party may or may not be impleaded, but he is to honor the court verdict. Also in the same case, the importance of the doctrine of lis pendens is explained by Turner L.J, as follows: 2  M/s. Kachhi Properties, Satara & Others Versus Ganpatrao Shankarao Kadam & Others, AIR 2010 (5)BomCR 43 3  Bellamy Versus Sabine, 1875 1 De G. & J.566  It is a doctrine common to the courts both at law and equity, and, rest upon this foundation that it would be plainly be impossible that any action or suit could be brought to a successful termination, if alienation pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant’s alienation before the judgment or decree, and would  be driven to commence his proceeding de novo subject again to be defected by the same course of proceedings. 4  Section 52 protects the right of suitor to any immovable property. It forewarns the creation of third party’s interest in the said property, which has the effect of defecting the rig hts of a person in whose favor decree or order is passed by the court of competent jurisdiction. Ingredients The basis ingredients of the doctrine of lis pendens are: 1)   A suit should be pending in any court 2)   Competent court 3)    Not collusive 4)   Directly in issue 5)   Transfer by any other party to the litigation 6)   Transfer must affect the other party Pendency The first essential ingredient of the doctrine of lis pendens is that a suit must be pending a=in any court of law. The term pendency means from the commencement of the case till the final disposal. In  Hari Lal vs. Balvanti and Others 5  , it was held that if the plaintiff was entitled to get maintenance in the lifetime of her husband and could pray for charge against the property of her husband, later this right of the wife would not be affected by the sale deed executed during the  pendency of the suit on the transfer of such property to the defendants and the sale deed would  be hit by section 52 of the transfer of property act. In  Padmja vs Errathil Sajeev 6   , a suit for the specific performance of an agreement to sell was  pending. The suit property was sold to a third party. The third party filed an application claiming that she is bona fide purchaser for value without notice as such decree is not operative against her. She claimed that plaintiff is not entitled to get sale executed. He is not entitled to dispossess her. 4  Bellamy Versus Sabine, 1875 1 De G. & J.566 5  Hari Lal vs. Balvanti and Others, AIR 1998, Alld. 211 6  Padmja vs Errathil Sajeev, Air 2007 (NOC) 70 Ker.  In  Mangal Singh & Ors. Versus Hardial Singh & Ors., 7  no permission of the court was proved to have been taken before filling of suit, both parties were equally interested in the property, but through different parties agreements to sell, whether those transfers were genuine had to be decided after trail on the basis of evidence, in the meantime they were hit by section 52. Competent Court The second ingredient of the doctrine of lis pendens is that suit must be pending in a court of competent jurisdiction. Competent jurisdiction means having a competency to try the suit. Acc. to CPC, the suit regarding immovable property must be filed in the court which has the  jurisdiction of that where the property is situated. But in this doctrine it will be applicable to suits  pending before a court in India or in a court established beyond the limits of India by the Central Government. In  Paras Mal vs Sobhag Devi, 8   the defendant deliberately executed a sale deed of the property in dispute in revenue suit. The court held that section 52 of the transfer of property act will be applied. Sec. 52 does not envisage any notice of pending proceeding to the subsequent  purchasers. It is the duty of the seller to inform the buyer about pendency of suit. Sec 52 intends to protects the parties to the litigation against alienations by their opponents during the pendency of the suit. In Shyam Lal vs Shyam Lal  9  , the court observed, where a court has jurisdiction to deal with the  property having regard to its nature , character and valuation, the mere fact that it was not srcinally included in the plaint would not oust the jurisdiction of the court when it was acting upon the agreement of the parties. In  Mahendra Nath v. Parineswar  10  ,  it was held that if the plaint is inadequately printed and is rejected and then represented after making some lack, any transfer between the two dates of  presentation would not subject to lis pendens. In Sripal Snigh v Naresh 11 , it was held that the doctrine will not be applicable where the right of the transfer alone are affected and party to the suit are not. In  Fayaz Husain Khan v. Prag Narain 12 , a mortgage sued to enforce his mortgage, but before the summons were served, the mortgagor effected a subsequent mortgage. The prior mortgagee 7  Mangal Singh & Ors. Versus Hardial Singh & Ors. AIR 2007 P&H 526 : AIR 2007 P&H 203 : (2008) 1 AIR Kant R (NOC 68) 26 : (2008) 1 AIR Bom R (NOC 85) 27 8  Paras Mal vs Sobhag Devi, AIR 2007 Raj. 73 9  Shyam Lal vs Shyam Lal, AIR 1933 All 649,650 10  Mahendra Nath v. Parineswar, (1921) 60 IC 439 11  Sripal Snigh v Naresh, (1925) Pat 239 12  Fayaz Husain Khan v. Prag Narain, (1907) 29 All 339
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