Introduction:
Transfer of Property Act, 1882 deals with the transfer of movable and immovable property. Like, other acts in this act also some rules are governed by the doctrines laid down in precedents. Lis pendens is also a doctrine that applies to section 52 of the act. The section says that during the pendency of a suit regarding the title of the property, any new interest in respect of that property should not be created, except with permission of the Court.
What is the doctrine of Lis Pendens?
Lis pendens, “lis” means “litigation” and “pendens” means “pending” hence “pending litigation”, it is based on the Latin phrase “pendente lite nihil innovetur” which means “during a litigation nothing new should be introduced”
It protects the rights and interests of the parties involved in a suit and also the rights and interests of the third person regarding the immovable property.
The doctrine of lis pendens is based on necessity, when litigation is pending concerning the right of a property such property cannot be transferred, however, if the transfer had been made during the pendency of litigation the person to whom such property is transferred shall be bound by the decision of the Court, therefore his interest become contingent to the order of the Court.
In Faiyaz Husain Khan v. Munshi Prag Narain, the Privy Council held that the doctrine is based on the necessity for the final order.
Origin of the doctrine:
The doctrine of lis pendens was first used in the case Bellamy v. Sabine by Lord Justice Turner, where he said “This is a doctrine common to law and equity courts, which I apprehend, on the grounds that, if alienation pendente lite was allowed to prevail, it would simply not be possible for any action or suit to be resolved successfully. In any case, the Plaintiff will be responsible for the Defendant who alienated the property before the judgment or the decree and must be obliged, according to the same course of action, to initiate these proceedings de novo.”
In Rajendra Singh and Ors. v. Santa Singh and Ors., the Court held that “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 judgement therein.”
Applicability of the doctrine of lis pendens:
According to the section 52 of the Transfer of Property Act, 1882 the pendency of the suit will initiate from the date on which the plaint has been presented or the proceeding of the suit instituted in a Court of competent jurisdiction and remain until the final order or decree has been obtained by such Court.
The Court held in the case of Abdul Aziz and Ors. v. District Judge, Rampur and Anr., that pendency of the suit continues until the final decree or order in a suit is completely satisfied or discharged, in fact, the execution proceeding is a part of the proceeding of the suit.
In Sardara Singh v. Mohan Lal and Ors., and Iqbal Singh v. Mahender Singh and Anr., held that the doctrine of lis pendens is also applicable in the arbitration proceedings.
Essentials of the doctrine of lis pendens:
There are some essential conditions for the application of the doctrine of lis pendens, those are-
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Pending of suit or proceeding.
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Suit or proceeding must be pending in the competent Court.
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The right of immovable property must be directly or specifically involved in the suit.
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The suit or proceeding shall not be conclusive.
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Disputed property must be transferred.
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Transfer of that property shall affect the right of the parties to litigation.
In the case of Dev Raj Dogra and Ors. v. Gyan Chand Jain and Ors., Honourable Justice A. N. Sen has laid down a few essential conditions as
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The right of property must be in question in the suit or proceeding.
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The suit or proceeding must not be conclusive.
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The property in dispute cannot be transferred unless the Court has permitted to transfer.
