SECTION 52 OF TRANSFER OF PROPERTY ACT:LIS PENDENS by PURNIMA NAIDU @ LexCliq

SECTION 52 OF TRANSFER OF PROPERTY ACT:LIS PENDENS

The law incorporated in Section 52 is based on the doctrine of lispendens. ‘Lis’ means ‘litigation’ and ‘pendens’ means ‘pending’ so, lispendens means ‘pending litigation’. The doctrine of lispendens is expressed in the well known maxim; pendent lite nihil innoventure, whichmeans ‘during the pendency of litigation nothing new should be introduced’ under this doctrine, the principle is that during pendency of any suit regarding title of a property, any new interest in respect of that property should not be created. Creation of new title or interest is known as a transfer of property. Therefore in essence, the doctrine of lispendens prohibits the transfer of property pending litigation.

  • Provision of section 52:- 

The doctrine of lispendens as laid down in section 52 is as follows: (a) During the pendency of suit or proceeding. (b)Property cannot be transferred or otherwise dealt with, and (c) If so transferred the transferee is bound by the decision of the court whether or not he had notice of the suit or proceeding.

  • Essential conditions for application of section 52:- 

Following conditions are necessary for the application of the doctrine of lispendens as provided in section 52:

  1. There is a pendency of a suit or proceeding.
  2. The suit or proceeding must be pending in a court of competent jurisdiction.
  3. A right to immovable property is directly and specifically involved in the suit.
  4. The suit or proceeding must not be collusive.
  5. The property in dispute must be transferred or otherwise dealt with by any party to suit.
  6. The transfer must affect the rights of the other partly to litigation.

When the above mentioned conditions are fulfilled, the transferee is bound by the decision of the court. If the decision of the court is in favour of the transferor, the transferee has rights in the property transferred to him. If the decision goes against the transferor, the transferee cannot get any interest in the property.

  1. Pendency of suit or proceeding:- the section applies only where a property is transferred during pendency of litigation. Pendency of a suit is which that period during which the case remains before a court of law for its final disposal. If a case is instituted in court, the first step is presentation of the plaint, and the last step is passing of a decree. So, the pendency of a suit begins form the date on which the plaint is presented and terminates on the date when final decree is passed.
  2. Pendency in court of competent jurisdiction:- the suit or proceeding during which property id transferred, must be pending before a court of competent jurisdiction. Where the suit is pending before a court which has no proper jurisdiction to entertain it, the lispendens cannot apply.
  3. Rights to immovable property must be involved:-another condition for applicability of this section is that in the pending suit, right to immovable property must directly and specifically be in question. The litigation should be regarding title or interest in an immovable property. Where the question involved in the suit or proceeding does not relate directly to any interest in an immovable property, the doctrine of lispendens has no application. Following suits have been held involve question of rights in immovable property are within the scope o f this section: (i) A suit for mortgage. (ii) A suit for pre-emption.  (iii) Easement suit.
  4. Rights in movables: the doctrine lispendens does not apply where the suit involves rights in movable properties. Standing timber is movable property; therefore this section cannot apply where the issue before the court is right in respect of standing timber.

5. Suit must not be collusive:- LisPendens is inapplicable if the suit is collusive in nature. A suit is collusive if it is instituted with a                   mala fide intention. Mala fide intention behind instituting a suit is inferred from the fact that parties to the suit know their respective               rights in the property and there is no actual dispute. Such suit is therefore, fictitious and the very purpose of filing the suit is to get                     judicial decision for some evil designs e.g. defrauding a third party.

6. Property is transferred or otherwise dealt with:- During pendency of suit, the property must be transferred or otherwise dealt              with by any of the parties to suit. ‘Transfer’ includes sale, exchange, lease and mortgage. Thus, during pendency of suit if the disputed               property is sold or given exchange, is leased or is mortgaged either by plaintiff or by defendant, doctrine of lispendens shall apply on it             and the transfer would be subject to decision of the court.

7. Transfer affects rights of any other party:-  the last condition for applicability of section 52 is that the transfer during pendency              must affects the rights of any other party to suit. The principle of lispendens is intended to safeguard the parties to litigation against                  transfers by their opponents. So, the words ‘any other party’ here does not mean stranger to suit. It means any other party between                    whim and the party who transfers; there is an issue for decision which might be prejudiced by alienation.

8. Effects of the principle of lispendens:- When the condition necessary for the applicability of this section are fulfilled the result is              that transferee is bound by the decision of the court. It may be noted that normally decree of a court binds only the parties to the suit,              under the principle of lispendens, a person who purchase during pendency of the suit is also bound by the decree made against that                  party from whom he had purchased.

Doctrine of Lis Pendens also known as Lite Pendens was defined under section 52 of Transfer of Property Act,1882. The doctrine is expressed in the maxim “ut lite pendente nihil innovateur”, meaning, nothing new should be introduced during the pendency of a suit. Important point to remember about the doctrine is, the doctrine of lis pendens applies only when the property has been transferred by a party to the litigation and it does not apply when property has been transferred by a stranger i.e. the person who is not a party to litigation.

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