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The doctrine of lis pendens

The doctrine of lis pendens

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Doctrine of lis pendens (Hindi)

Lis pendens means a suit under consideration of any court of law. It is an action which is pending in any court. The doctrine is enshrined under Section 52 of the Transfer of Property Act, 1882. This section is based on the maxim ut lite pendente nihil innovetur' which means that nothing new should be introduced into a pending litigation. Therefore, the property which is in dispute should not either be sold or otherwise dealt in by any party to the dispute during the pendency of the suit or proceeding.


Section 52 of the Transfer of Property Act prohibits transfer of immovable property during the pendency of a suit relating to that property without the leave of the court. The operation of a transfer is affected by lis pendens, i.e., pendency of legal proceedings. Suppose A brings a suit against B for recovery of possession and declaration of title to certain immovable property. Pending this suit, B transfers the property to C. A proceeds with the suit and obtains a decree against B. When he tries to take possession, C objects and says that he was not a party to the suit and so is not bound by the decree. If this objection is well founded, it means A will have to file a suit over again this time against C. He may again be foiled by C in his turn selling the property to D while the suit is pending. Obviously the law cannot allow its proceedings to be rendered futile in this way. So it has enunciated the doctrine of Us pendens. According to this doctrine the transfer to C pendente lite, (while the suit is pending), cannot prevail over the rights declared by the court. The transferee pendente lite is as much bound by the decree as the transferor himself though the transferee was not himself made a party to the suit. The law does not prohibit a transfer of the property being made simply because there is a pending lis but it requires that the transfer should be subservient to such rights as may be declared by the court. The transferee takes the property subject to whatever decree the court may pass in that suit even in his absence so long as proceedings in court are not collusive. It is immaterial that he was not aware of the existence of the pending Us.


This is the doctrine of lis pendens. It has been embodied in section 52 of the Transfer of Property Act, 1882. The section was not as clear as it should have been and so it has been completely recast by the amending Act of 1929.


Rights depend upon remedies.

This also holds good as regards the right to property. Since speedy and efficient remedies are of utmost importance, it has to be ensured that once a person has initiated legal process in any court to seek remedy against any invasion on his right or threat of invasion thereto, the legal process should not be defeated on account of private deals or any transaction, that is, transfer of property in dispute or on account of any other action of any party to such legal process, otherwise the very purpose of seeking relief against any grievance would be meaningless and ineffective.


In order to ensure that the legal remedy remains efficient throughout the legal process, jurists had evolved a general principle known as lis pendens basing it on the necessity that neither party to the litigation should alienate the property in dispute so as to affect his opponent.


Whartons Law Dictionary defines lis pendens as pending suit. Lis means a suit, action, controversy, or dispute, and dispute is a conflict or contest, while controversy is a disputed question, a suit at law; and the pendens of the lis is not disturbed on in any manner affected by the fact of an appeal taken from one Court to another. The litigation or contest still goes on.


The principle of lis pendens embodied in Section 52 of the act being a principle of public policy, no question of good faith or bona fide arises. Such being the position the transferee from one of the parties to the suit cannot assert or claim any title or interest averse to any of the rights and interests acquired by the another party under the decree in suit. The principle of lis pendens has the object to prevent anything done by the transferee from operating adversely to the interest declared by the decree.


Moreover, it is also important to understand that the doctrine does not becomes eradicated when the suit is disposed. It still remains into existence till the time when the suit is dismissed and an appeal is not yet filed, thus leaving no loophole to prejudice any party to the suit. The explanation to the Section makes it very clear that the suit shall be deemed to have started from the date while the plaint will be supplied in the court and shall continue to exist until the time such proceeding has been decided by final order.


Concept Of Rule Of Lis Pendens

Basis of rule of lis pendens:

Doctrine of lis pendens is based on legal maxim ut lite pendente nihil innovetur which means during a litigation nothing new should be introduced. And the principle on which it rests is explained in Bellamy v. Sabine


Lord Chancellor Cranworth in the abovementioned case pronounced that:

It is scarcely correct to speak of lis pendens as affecting the purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others pending the litigation rights to the property in dispute so as to prejudice the opposite party.


The necessities of mankind require that the decision of the court in the suit shall be binding not only on the litigant parties, but also on those who derive title under them by alienation made pending the suit, whether such alienus had or had not notice of the pending proceedings. If this were not so there could be no certainty that the litigation would ever come to an end and said that:


The foundation for the doctrine of lis pendens does not rest upon notice, actual or constructive; it rests solely upon necessity-the necessity, that neither party to the litigation should alienate the property in dispute so as to affect his opponent.


The doctrine of lis pendens has been fully expounded by the Privy Council in this case of Faiyaz Hussain Khan v Prag Narain[6] where their lordships quoted with approval of Lord Justice Turner in Bellamy's case. It has been held that the foundation for the doctrine does not rest upon notice; it rests solely upon necessity- the necessity that neither party should alienate the property in dispute so that you can affect his opposite parties.


Meaning:

The doctrine of lis pendens incorporated under Section 52 of the 1929 Act, means to say that During the pendency of any suit or proceeding which is not collusive and in which any right to immoveable 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.


The Supreme Court in Jayaram Mudaliar v. Ayyaswami, and Rajendnr Singh v. Santa Singh,founded the following definition:

lis pendens literally means a pending suit, and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein.


As was observed by the Supreme Court in Jayaram's case:

Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the Court to deal with it and thus make the proceedings infructuous.










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