Author Details:-

Ankur Vaibhav Gautam
2nd year LLB Student
Law centre-2, Faculty of Law ,Delhi University.

ABSTRACT

The following article talks about the doctrine of Lis pendens which is defined under Section 52 of the Transfer of Property Act, 1882. The following doctrine is based on the Latin maxim “pendente lite nihil innovetur” which means that during the pendency of a litigation nothing new interest should be introduced or created in respect to the property. The idea behind the incorporation of this particular doctrine was to protect the rights of the particular parties involved in the litigation rather than creating new parties to the already pending suit in the court. The basic principles of the doctrine is based on the theory of justice, equity and good conscience. Many countries around the globe have adopted this doctrine in their countries’ property laws including India. However with time the doctrine had evolved in the Indian judicial system through the judicial precedents and different case laws. The doctrine also carries certain exceptions to it which will also be discussed in the article with the relevant case laws and judgement.

INTRODUCTION

The Transfer of Property Act came into existence in the year 1882 which was drafted by Sir Whitley Stokes a British lawyer and he was also the member of the Viceroy’s Council in India, he headed the Third law commission of India appointed by England. Many of the sections codified under the Act were based on the equitable principles, Section 52 of the Act was also one of them. The section titled “transfer of property pending suits related thereto.” which means this section is related to the pending suits of the property. It is a clear cut fact that the owner of the particular property has a full right to alienate the property whenever he desires but under some situations the law restricts him from doing so one of the situations is explained in Section 52 of Transfer of Property Act, 1882. This section is not of the binding nature in general but it binds certain parties to it which are involved in a suit i.e. the original party to the suit.

Property in the western countries in a broader sense just means as the fruits of one’s hard work and labour but in the Indian aspect it is closely related to one’s social status and and it also has a very economic importance in one’s life however in India after the 44^th Amendment in the year 1978 the right to property has been excluded from the category of the fundamental rights but still is very much related to one’s personal reputation and social status.

The problem with regards to this section has been seen for a very long time. For the first time in 1929 the issue arose related to the meaning for the phrase “pendency of suit.” after which the amendment in the Act was made and the explanation part was added to section 52. The explanation added to the section was to explain the word pendency and also if we look to the explanation part of the section 52 which gives us the time from which we can conclude the status of the suit as pending in the court. Later on in the case of Dev Raj Dogra v. Gyan Chand¹ Jain honorable Justice A.N. Sen has listed the essential condition for the implementation of the doctrine which firstly that the suit must be pending in the court of a competent jurisdiction secondly that the suit filled must not be collusive in nature and lastly that the subject matter of the suit must be related to the right to immovable property.

EMERGENCE OF DOCTRINE

The development of the doctrine in India can be tracked down to the case of Rajender Singh v.Santa Singh² in the year 1973 where the honorable supreme court laid down the definition of the word Lis Pendens which goes as Lis-pendens 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 judgement therein. Through the judicial pronouncement the court made it clear how much doctrine the Indian laws will allow.

Mainly there are two theories associated with the doctrine of Lis Pendens which are coined by scholars and many jurists. The first theory is the theory of Notice and the second one is theory of Necessity. The First theory explains that the pending suit in the court will serve as constructive notice of the land or property which is involved in the suit. And it could be considered as a warning to the new purchaser of the disputed property. On the other hand the theory of Necessity says that none of the party to the suit could alienate the property to affect the other party and it should also not interfere with the proper execution of the courts decree.

One of the most significant English case related to the doctrine of Lis Pendens is Bellamy v. Sabine³ case where the clarification on the basic doctrine was explained it said that If parties to dispute aren’t prevented from transferring any of the property, then it would be impossible for any action/suit to be successfully terminated. Thus foundation for this doctrine doesn’t rest upon constructive notice rather it rests entirely upon necessity, where one party to litigation shouldn’t alienate the property so as to affect the opponent party to the suit. The objective of the doctrine is to avoid endless litigation and to protect one of the parties to the litigation against the act of the order and also to avoid abuse of legal process. The purpose of the doctrine is to protect either party to the suit against the act of another, to avoid misuse of legal process and to restrict endless litigation.

ANALYSIS OF THE DOCTRINE

In India the doctrine was adopted to ensure that justice is to be served and there would not be the violation of the rights of any of the individuals. The doctrine with time evolved in India and had and it is also bound with certain expectations in India there are also certain loopholes and problems in the practical implementation of the doctrine. Time and again many problems arose with respect to the specific conditions of the doctrine which are discussed below:

There is always a issue related to the competency of the court and whether the doctrine of Lis Pendens is applicable in the arbitral proceedings as the bare language of the section States Courts, suits and proceedings but it is not very clear in what it’s excludes and it’s includes one of the very landmark judgement related to the competency of the court is Govinda Pillai Gopala Pillai v Aiyappan⁴ 1957 the appellant filed a suit for delivery of one acre of property with building the main issue was that at first the case was filed in the court which was not competent to make a decision so it referred the case to the court of competent jurisdiction and in between the time gap between the case filling in the court of competent jurisdiction the land was gifted by the owner to his son now the petitioner or the appellant content that the doctrine of Lis Pendens should be applied and the alienation of the land must be held invalid but the honorable court in this case decided that when the property was gifted the case was not pending as it loses one major essential which was that the case was not pending in the court of competent jurisdiction thus the gift deed is valid.

The point of debate that also arose is with regard to the type of the transfer, that the definition of the this Pendens covers which type of transfers whether it covers involuntary transfers or not, because with the plain reading of section 52 it only applies to the private transfers which are made by either of the party which are the party to a particular suit. Involuntary transfer means the transfer which are made by the order of the court however in case of Mathura Prasad Sahu v. Desai Sahu⁵ 1922 privy council had settled a very well established law on point that the principal of this doctrine are also applicable to the involuntary transfers i.e. transfers or sale executed by Court.

Further the next issue related to the doctrine is what will be the status of the transfers which are made during the pendency of the suit will they be considered as legal or illegal. Section 52 does not allow such kind of transfer will pendency of the suit but this transfer if made what will be the status the section is silent on this but in the case of Sarvinder Singh vs. Dalip Singh⁶ 1996 court held the transfer would be illegal but after this several decisions have been established in which Indian courts have drawn limitations to the said doctrine and overturned this case where the transfer during the pending litigation can be held valid some of which are as follows: Nagubai Ammal v. Sharma Rao⁷ stated that the phrase affect the right made therein clarifies that transfer is good except to the extent that it doesn’t conflict with rights of the parties to litigation and held the transfer as valid.

The Supreme Court in T.G. Ashok Kumar v. Govindamma⁸ has expressed its concern over the lack of a mechanism for bona fide property purchasers to verify if the property they intend to buy is disputed and pending judgement in a court of law. The Court opined that this results in unnecessary litigation for the prospective buyers. Further, the Court also observed and advised that the Parliament should amend the Section 52 Transfer of Property Act, 1882 by introducing the condition of a mandatory registration of the notice of pendency of court proceedings of the property as under Section 18 of Indian Registration Act.

LAW COMMISSION 157th REPORT ON LIS PENDENS

The law commission in its 157th report came up with a certain set of amendments in the present section which could be made to make the doctrine more inclusive and more trustworthy. The commission also said that the following benefits will flow from the proposed amendments such as:

1. It will prevent the persons from unnecessary litigation as the people will beforehand know of the pendency of suit in the court and might not purchase the property in dispute.
2. The proposed amendments will be a great assistance to the people in finalizing the purchase of any particular property.
3. The proposed amendment will ultimately have the effect of preventing multiplicity of proceedings by putting persons on notice before indulging in dealings of disputed property⁹.

The recommendation also includes the amendments in the Registration Act, 1908 particularly in section 8 and 78 of the Act. A new clause in section 8 should be included which make it compulsory to provide with the notice of the pending suits or proceeding referred to section 52 of the Transfer of Property Act, 1882. A new proviso must be added to section 78 of the Registration Act, 1908¹⁰ that the fee for the registration of notice of pendency must not exceed one hundred irrespective to the value of the property. These were the findings and the recommendation of the 157th law commission report on the doctrine of Lis Pendens.

CRITICAL ANALYSIS

In India at present the problem related to property law on doctrine of Lis Pendens is very serious as it directly affects the rights of a bona fide purchaser who has purchased the property with a good intention. Though the doctrine is based on the principle of justice, equity and good conscience, it does lack on its application while protecting the rights of the original party to the suit. The doctrine also does not provide the purchase any alternative remedy as he had paid the full consideration of the property with the willingness to own it and just being bound by an unnecessary litigation for several years waiting for the court’s decision which could also ultimately result to the denial of the ownership of the property hence the Indian law is totally unfair and unjust to these innocent purchasers.

The concerns raised about the doctrine are important and we need to protect the interest of these bonafide purchases firstly the law needs to be amended at a national level. The reason these innocent buyers are facing hardship and injustice are because of the lack of knowledge and the awareness of the pending litigation in the court as the present provision of law does not provide any easy way to obtain such information. The present doctrine focuses on the theory of Necessity which is only for the protection of the right of the original party to suit. Inducement of the doctrine of notice could avoid this situation of unfairness to the bona fide buyers of the property in dispute.

A new and a modern way to approach this problem will be to create a database online which could be accessed by the citizens by just giving basic information and the government could upload the data on that particular site about the disputed land which could help the buyers to see whether they are buying the right property or the disputed property for which a suit is already pending in the court of law.

CONCLUSION

After analysing the various aspects related to section 52 of the Transfer of Property Act, 1882, one can deduce that in order to attract the doctrine of Lis Pendens, the suit must be regarding an immovable property that directly and substantially involves questions about its rights the original party to the pending suit and this ensures that the doctrine can only be attracted when such conditions are met and cannot be misused by anyone by merely mentioning an immovable property in the suit. Secondly, the doctrine in its pith and substance prohibits transfer during the pendency of the suit. This protects the plaintiff to the extent that if any sale or transfer of title is made during the pendency of the suit, then any such action will be invalidated and the purchaser shall become bound by the result of the litigation. So in a way, the interest which would have otherwise been of a vested nature to the purchaser becomes a contingent interest when a transfer is made pendente lite.

The main principle underlying Section 52 of the act is to maintain and preserve the status quo in a pending case and prevent any alteration that can be brought to the case by the involved parties. The principle specially mentions cases where an immovable property is directly or indirectly involved. It prevents a party to a suit from being deprived of its rights regarding a certain property. It prevents changes being made, introduction of rights in between a pending litigation To protect either party to the suit against the act of another; To Avoid misuse of legal process; To restrict endless litigation.

However the recommendation of law commission report were never accepted but now I think it is high time with the problem being so general thus some legal framework or mechanism should be adopted as stated some in above points because only through such modes this in this section of Property Law of being arbitrary and unfair can be removed and foundations of equity and justice can become strong where presently it lacks.

ENDNOTES:

1. Dev Raj Dogra v. Gyan Chand Jain [1981] AIR 981 (SC)
2. Rajender Singh v.Santa Singh [1973] AIR 569 (SC)
3. Bellamy v. Sabine [1857] 1 De.G 566
4. Govinda Pillai Gopala Pillai vs Ayyappan Pillai And Ors.1969(1)UJ709(SC)
5. Mathura Prasad Sahu v. Desai Sahu, [1922] Pat. 542.
6. Sarvinder Singh vs. Dalip Singh [1996] 5 SCC 559
7. NagubaiAmmal v. Sharma Rao [1956] AIR SC 593
8. T.G. Ashok Kumar v. Govindamma [2010] 14 SCC 370
9. Law Commission of India One Hundred Fifty-Seventh Report
10. Registration Act, 1908