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What is Doctrine of Lis Pendens? |Section 52 of TPA, 1882

Introduction

On July 1, 1882, the English common law principles of fairness, good conscience, and justice were incorporated into the Transfer of Property Act, which had been underlined by the Indian Contract Act, 1872.

Transfers inter vivos, or between two people who are still alive, are covered under the Transfer of Property Act. The phrase “transfer” refers to the act of one or more live persons transferring property to another. When there can be only one transferee and one recipient of the transferor’s rights when the transferor owns them and the recipient is the person or individuals to whom they are given.

The Transfer of Property Act (1882) was amended for the first time in 1929 when the term “living people” was expanded to cover corporations, organisations, and groups of individuals, whether registered or not.

Section 52 of the Transfer of Property Act (1882) codifies the lis pendens doctrine. The term “Lis” implies active litigation, whereas the term “Pendens” indicates delayed litigation, whereas the complete phrase “lis pendens” refers to an ongoing legal proceeding.

The phrase “Pendente lite nihil innovature” encapsulates this theory wonderfully, stating that “new ideas should not be provided during a moment of contention.” The doctrines guiding concept is to preserve the status quo while avoiding any changes that might adversely affect any of the parties involved in the case.

According to this view of property law, no new interest should be created in relation to the property at issue in a legal case. It is considered a transfer when the property is given to a new owner or holder of a new title. Lis pendens prohibits the transfer of property relevant to a lawsuit.

Origin of the doctrine of Doctrine of Lis Pendens

It was in the case of Bellamy v. Sabine that Turner, L.J., declared that the theory of lis pendens was a doctrine common to both the courts of law and equity, since it would be practically impossible for the action that has been brought in court to be resolved if alienations pendente lite were allowed to proceed.

In this case, the defendant was a corporation. It would be impossible for the plaintiff to win the case before the judgement was issued, and he or she would have to start a fresh legal action each and every time.

The Doctrine of Lis Pendens is a common law doctrine that dates back hundreds of years. In order to provide quick and efficient remedies in a court system, it is essential that no person interested in the property’s rights or title be violated. Legal action cannot be rendered meaningless or ineffective as a result of private activities.

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In order to keep the court proceedings from being disrupted, the doctrine of lis pendens prohibits parties from selling property that is in dispute. The court’s ruling must be respected and adhered to by all parties involved in the case. Because of the absence of an anti-alienation law, all subsequent transactions would be null and void and no one would be able to resolve his or her ownership rights.

Applicability in India

The doctrine of lis pendens is included in the Transfer of Property Act in India. It is stated in Section 52 that while a suit or process is being heard in any court of law in India or a court created by the government in any country outside of India, it is prohibited from being filed, any immovable property subject to the action or process cannot be transferred or otherwise dealt with in a way that would be harmful to the interests of any other party.

Such a transfer or trade may occur only with the court’s permission and subject to any restrictions the court deems appropriate. The litigation or procedure must also be non-cooperative and must entail a right to the property at issue in order to be admissible. This section does not apply to the state of Jammu & Kashmir.

As stated in the explanation of this section, the pendency of the proceeding would commence on the day the petition is submitted as well as started in a court of competent jurisdiction, and it would cease at that point, unless the limitation time has expired. As mentioned in Section 52, lis pendens does not invalidate a transfer, but rather subjects it to court review.

Lis pendens is not based on actual or constructive notice, but rather on the imperative that neither party to the action should sell the property in question so as to harm his opponents, according to the court’s interpretation of this doctrine, in the case of Govinda Pillai v. Aiyappan Krishnan.

With regard to lis pendens and its application to private affairs, the Supreme Court said in Rajendar Singh v. Santa Singh that the doctrine aims at preventing the court from settling a dispute relating to the property in question and thereby preventing the decision from being implemented.

Essentials to Doctrine of Lis Pendens

It doesn’t matter whether the transferee had any notification of a lawsuit pending in the court or not, since the basis of the doctrine is need. Even though the transferee was not made aware of the litigation, he is nonetheless bound by the court’s ruling in this situation. When the plaintiff files his or her case in court, a lawsuit is said to be “pending” until the court’s decision is made, which could take weeks or months at this time.

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In accordance with Section 52, the following are the basic principles of the doctrine of Lis Pendens:

  1. A lawsuit or other legal action must be pending.
  2. The case must be pending in a court with jurisdiction over the subject matter before it may be heard by a court.
  3. A claim to real estate is at the core of the dispute, whether it’s brought up in the lawsuit or not.
  4. The disputed property can be transferred or dealt with by any of the lawsuit’s parties.
  5. This transfer or dealing has an impact on the rights of the other parties involved in the suit or proceeding.

Exceptions to Doctrine of Lis Pendens

In spite of the doctrine, the court is free to allow any party to the suit to transfer the ownership of the property in accordance with the terms that they deem appropriate. The defendant was allowed to deal with the property while the suit under Section 52 of the Transfer of Property Act, 1882, was pending in Vinod Seth vs. Devinder Bajaj.

The court said that justice and equality are at the foundation of Section 52 of the Transfer Property Act (1882).

Under Section 52 of the Transfer of Property Act, 1882, the bar may set such restrictions as it deems appropriate. Courts may transfer property without regard to any party’s rights, as long as they do it in accordance with whatever terms they choose.

The facts and circumstances of this case make it appropriate to exclude the suit property from Section 52 of the Transfer of Property Act, 1882, subject to a reasonable security requirement, so that the defendant may deal with the property in any way they see fit, despite the suit being pending.

Case laws related to Doctrine of Lis Pendens

Koyalee v. Rajasthan District

In a case known as Koyalee v. Rajasthan District, the land held by Koyalee’s spouse was originally registered in his name. When his brother realised and realised that his brother’s wife was still alive and the sole legal successor, he filed a lawsuit to get the Khatedari rights.

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The wife was forced to challenge that she was the only heir of the documented Khatedar. Under Section 52 of the Transfer of Property Act and the doctrine of lis pendens, the brother’s failure to obtain court approval before transferring the land voided the transfer.

Hardev Singh v. Gurmail Singh

Section 52 of the Transfer of Property Act does not invalidate any transaction, but rather puts a buyer beyond the confines of the final judgement in the case of Hardev Singh v. Gurmail Singh.

Har Narain v. Mam Chand

After reviewing and amending Section 47(2) of the Registration Act of 1908, the Supreme Court addressed and clarified the doctrine of lis pendens in Har Narain v. Mam Chand. It is illegal to transfer property while a lawsuit is pending, according to the lis pendens concept. It is regarded to be in existence as soon as a documented sale deed for a fixed property is registered.

Section 47 does not bar the use of lis pendens, according to a Supreme Court ruling. Consequently, the Court concluded that even if a civil action commences but is not registered until after a property transaction, the concept of lis pendens still applies.

Conclusion

Even if the doctrine is important to safeguard the parties’ property rights, technology must also be used to prevent the property title at issue from being transferred while the case is underway. Aadhaar cards and property records have been fully digitised in India, thus this data’s integrity and anonymity can be assured at all times thanks to these measures.

Each property may be given a unique identification number as a way to do this. As a result, it will be easier to prevent situations in which the property cannot be located.

This information is included in the encumbrance certificate (EC). If a litigation is already in progress, the registration authority and the parties involved should be notified. In other words, the concept of Lis Pendens relies on the theory of necessity rather than the theory of notice guided by the common law standards of Justice, Equity, and Good Conscience to determine whether an act is permissible. Justice must be delivered without jeopardising either party’s constitutional rights.

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