The expression Lis Pendens means a pending Litigation. “Lis” means an action or a suit, “Pendens” means continuing or pending.
This Doctrine of Lis pendens (Pending Litigations) is embodied in Section 52 of the Transfer of Property Act, 1882. The doctrine of lis pendens is expressed in the maxim ‘ut lite pendente nihil innovateur’ which means nothing new should be introduced during the pendency of a suit. In other words, Doctrine of Lis Pendens may be defined as the jurisdiction, power or control that courts have, during pendency of an action over the property involved therein.
Section 52: During the pendency in any court having authority [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. Doctrine of lis pendens provides that where a suit or proceeding is pending in any court between two persons with respect to any immovable property, the property cannot be transferred or otherwise dealt with by any party, except under the authority of the court. If any party transfers or otherwise deals with that property, the transferee will be bound by the result of the suit or proceeding, whether or not he had notice of the suit or proceeding.
Example:
There is a dispute between A and B with regard to ownership of property X. A file a suit against B in the court of Law. A may either win or lose the suit. If he wins, he gets the property. If he loses, B gets the property. Now suppose during the pendency of the suit, A, professing to be the owner of the property, sells it to C. If the suit ends in A‘s favour, no difficulty arises. If it ends in B‘s favour, C cannot retain the property. C is bound by the decree of the court and must return the property to B. He cannot even take a plea that he had no notice of the pending litigation.
Arguments behind the Doctrine
There are two schools of thought behind the Doctrine:
a) One school of thought says that a pending litigation should be known to all and if a party enters into an agreement with respect to such property then, it is considered as “bad faith” and therefore, bound by the judgement made.
b) The second school of thought says that this Doctrine is necessary to prevent the transfer of subject matter of litigation during a pending suit. It is more of a necessity as a matter of public policy i.e to prevent multiplicity of suits one after another making it practically impossible for the actual owner to avail his rights.
Effect of the Doctrine
The effect of the doctrine is that in case of transfer of property or any dealing by a party to a suit during its pendency is not ipso facto void. Section 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 affected. Thus, the effect of the rule of lis pendens is not to invalidate or avoid transfer, but to make it subject to the result of the litigation.
Following example will clear the effect:
– M sues N in respect of a house in N‘s possession. During the pendency of the suit N sells the house to P. M‘s suit is dismissed. The transfer to P holds good. Thus, here, the purchaser (P) is bound by the result of the litigation.
– X sues Z in respect of a house in Z‘s possession. During the pendency of the suit Z sells it to Y. X‘s suit is decreed. The transfer to Y is voidable and X‘s right to take the property is not affected.
Essential Aspects of the Doctrine
1) Pendency of a suit or proceeding.
2) Pendency of suit or proceeding in the competent court.
3) The suit or proceeding should be bonafide i.e. non-collusive.
4) A right to immovable property must directly be the subject matter of the suit or proceeding.
5) The property in dispute should be transferred or otherwise dealt with by any party to the suit or proceeding.
6) The transfer should affect the rights of the third party.
Case Law: Govind Pillai Gopala Pillai Vs Aiyyappan Krishnan (AIR 1957 Ker. 10)
In this case, a dispute with respect to the rights over a property was presented in court. However, the plaint was returned after a preliminary finding that the court, where it was presented, did not have the necessary pecuniary jurisdiction to try it. Before, it could be filed in the proper court, the person who had its possession, executed a gift of the same in favour of his wife and son. The issue before the court was whether the gift deed would be lit by the rule of lis pendens. Where a suit was incorrectly presented in a wrong court and before its presentation in the proper court, the property is transferred; the doctrine of lis pendens would not apply.
