Doctrine of Lis Pendens by Yaminee Verma @LEXCLIQ

The Transfer of Property Act, 1882 follows the principles equity, good conscience, and justice. Based on three principles the Doctrine of Lis Pendens was created that literally means ‘litigation pending’ or ‘pending suit’ and is based on the maxim “Pendente lite nihil innovature” which means that nothing new must be introduced while a litigation or suit is pending. In this article we will discuss about the Doctrine of Lis Pendens in detail.

According to this Doctrine any transfer of an immovable property cannot take place if there is a pending suit over the title or any rights that arise directly from the same property in court of law. The suit commences the moment a complaint is presented or the day of commencement of proceedings in the appropriate court and shall be terminated by order of the court. The sale of immovable property can take place through private negotiations, but the said Transfer will be subservient to the verdict of the competent Court i.e., the parties will be bound by the decision of the court.

It is important to note that the court can permit any party to the suit to transfer the property (that is being litigated) on such terms which the court may think fit and proper to impose.

Therefore, evolving the Doctrine of Lis Pendens Section 52 of The Transfer of Property Act, 1882, was born and is as follows:

When there is an ongoing lawsuit in any Court having authority within the limits of India, a suit or proceeding in which any right to immovable property is precisely in question, the property cannot be conveyed by any party to the lawsuit which can influence the rights of any other party thereto under any order which may be rendered therein, unless under the jurisdiction of the Court and on such conditions as it may enforce.

The purpose of the doctrine of Lis Pendens-

This Doctrine helps to prevent transfer of any immovable property or its title without the consent of the court. The process of litigation is long and endless, and it will become impossible to bring a lawsuit to a successful termination if alienations are permitted to prevail, and covenants are not imposed.

The parties are always bound by the verdict of the court. Even if the property is transferred when the suit is pending in the court, the transferee has to follow the final decision of the court.

Conditions necessary for Application of the Doctrine as per Section 52-

  1. A suit or proceeding is pending.
  2. The above suit is brought to a competent court within the jurisdiction.
  3. The right to the title of an immovable property is directly in question.
  4. There cannot be any collusion.
  5. The suit should directly affect the rights of the other party.
  6. The property in question is being transferred by either party.

Non-Applicability of the Doctrine of Lis Pendens-

  1. This does not apply to a private sale by a creditor who holds the right to dispose of the property that is mortgaged to it even when the borrower has a redemption suit pending.
  2. The Doctrine also does not apply when the property is not described correctly, making it unidentifiable.
  3. In a maintenance suit, where the property is mentioned only so that maintenance payments can be determined transparently; the Doctrine does not apply when a right to the said immovable property is not directly in question and alienations are thereby permitted.
  4. The Doctrine fails to apply when a Court orders restoration of immovable property under the Civil Procedure Code, Order 21, Rule 63.

Conclusion-

Doctrine of Lis Pendens is a doctrine based on three principles namely; equity, good conscience and justice. It says that a transfer of an immovable property cannot take place if a suit is pending related to the same property in court. Based on this doctrine, the section 52 was adopted and added to the Transfer of Property Act, 1882.

Written by Yaminee Verma @LEXCLIQ

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