University Institute of Law,

PURC, Ludhiana

Law of Property
(project file)

TRANSFER OF PROPERTY PENDING

SUIT RELATING THERETO
(DOCTRINE OF LIS PENDENS)

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Introduction

The term ‘lis’ means ‘litigation’ and ‘pendens’ means ‘pending’.

Thus lis pendens means pending litigation. This doctrine has
been expressed in an well-known pendente principle “pendent
lite nihil innovature” which means “during the pendency of
litigation, nothing new should be introduced.”
The principle embodying the said doctrine is that the subject
matter of a suit should not be transferred to a third party during
the pendency of the suit. In case of transfer of such immovable
property, the transferee becomes bound by the result of the suit.

Lis Pendens is captured under Section 52 of the Transfer of

Property Act, 1882 (the “Act”). The Section essentially prohibits
alienation of immovable property when a dispute relating to the
same is pending in a competent court of law. It is based on the
principle that the person purchasing an immovable property from
the judgment debtor during the pendency of the suit has no
independent right to property to resist, obstruct or object
execution of a decree. So, under this doctrine, the principle is
during the pendency of any suit regarding the tittle of the property,
any new interest should not be crated.

The doctrine of Lis Pendens esstentially aims at:

(i) avoiding endless litigation,

(ii) protecting either party to the litigation against the act of

the other,

(iii) avoiding abuse of legal process

 Object of the Section

The object of S. 52 is to subordinate all derivative interests or all

interests derived from parties to a suit by way of transfer of
pendente lite to the rights declared by the decree in the suit and
to declare that they shall not be capable of being enforced
against the rights acquired by the decree-holder. A transferee in
such circumstances therefore takes the consequence of the
decree which party who made the transfer to him would take as
the party to the suit. The principle of lis pendens embodied in
Section 52 being a principle of Public Policy, no question of good
faith or bona fide arises1.
The broad principle underlying S. 52 of the Transfer of
Property Act is to maintain the status quo unaffected by the act
of any party to the litigation pending its determination-even after
the dismissal of a suit, a purchaser is subject to lis pendens, if an
appeal is afterwards filed-if after the dismissal of a suit and
before an appeal is presented, the ‘lis’ continues so as to prevent
the defendant from transferring the property to the prejudice of
the plaintiff-no reason to hold that between the date of dismissal
of the suit plainly be impossible that any action or suit could be
brought to a successful termination if alienations pendent lite
were permitted to prevail-The doctrine of lis-pendens is founded
in public policy and equity and if it has to be read meaningfully
such a sale until the period of limitation for second appeal is over
will have to be held as covered under S. 52 of the TP Act 2.

1
Lis pendens avalaible at www.srdlawnotes.com
2
Doctrine of lis pendens available at www.artismc.com
Basis of Lis Pendens
1. The basis of lis pendens is ‘necessary’ rather than actual or
constructive notice.

2. It may be said that this doctrine is based on notice because a

pending suit is regarded as constructive notice of the fact of
disputed title of the property under litigation. Therefore, any
person dealing with that property, pending litigation, must be
bound by the decision of the Court.

3. For administration of justice it is necessary that while any suit is

still pending in a Court of law regarding title of a property, the
litigants should not be allowed to take decision and transfer the
disputed property.

4. Lis pendent is, therefore, based on ‘necessity’ and as a matter

of public policy it prevents the parties from disposing of a disputed
property in such manner as to interfere with Court’s proceedings.

The basis of the doctrine is explained in Bellamy v. Sabine3

Turner, LJ: “It is, as I think, a doctrine common to the Courts both
of law and Equity and rests as Iapprehend, on the foundation that
it would plainly be impossible that any action or suit could be
brought to a successful termination, if alienations pendent lite
were permitted to prevail. The plaintiff would be liable in every
case to be defeated by the defendants alienating before the
judgment or decree, and would be driven to commence his
proceedings de novo, subject again to be defeated by the same
course of proceedings.”

3
Bellamy v. Sabine (1857) 1 De G & J 566 cited in Shah’s Principles Of The Law Of Transfer. Ed.III p. 106.
Transfer of property pending suit
relating thereto (S.52)
Section.52- during the pendency in any Court having authority
within the limits of excluding the state of Jammu and Kashmir or
established beyond such limits by the central government of any
suit or proceeding which is not Collusive and in which any right
to removable 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 right of any
other party thereto under any decree which maybe made therein,
except under the authority of the court and on such terms as it
may impose .

Explanation -
for the purpose of this section the dependency 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 degree 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.

In Ramjidas v. Laxmi Kumar and Ors.4 the Madhya Pradesh Court

observed that the purpose of Section 52 is not to defeat any just
and equitable claim but only to subject them to the authority of
Court which is dealing with the property to which the claims are
put forward.

4
Ramjidas v. Laxmi Kumar and Ors AIR 1987 MP 78
Essential Conditions for application of
S.52
Following are the essential condition to be fulfilled for the
application of doctrine of lis pendens as provided in the Section
52 of the Transfer of Property Act, 1882.
 There is a pendency of suit or proceeding.
 The suit or proceeding must be pending before a competent
court of jurisdiction.
 A right to immovable property is directly or specifically
involved in the suit.
 The suit or proceeding must not be collusive.
 The property in dispute must be transferred or otherwise
dealt with by any party to suit.
 The transfer must affect the rights of the other party to
litigation.
When these above mentioned conditions are fulfilled, the
transferee is bound by the decision of the court. If the decision of
Court is in favour of the transferor, the transferee has right
transferred on him, but if the decision of the Court goes against
the transferor, the transferee will not get any interest on that
property.
Illustration:
A sues B in respect of a house in B’s possession. During the
pendency of the suit B sells the house to C. A’s suit is dismissed.
The transfer to C holds good. Thus, here, the purchaser (C) is
bound by the result of the litigation.
(1) Pendency of suit:
Section 52 of Transfer of Property Act, 1882 or the Doctrine of lis
pendens only applies when the property transferred during the
pendency of suit or proceeding. Pendency of suit or proceeding is
that period during which a suit is remains before a court for its
final disposal. A suit is instituted by filing a plant, that is the first
step of a suit and the last step of suit is passing decree by Court.
So a suit is starts with filing a suit and ends with passing a decree
by court. So, the pendency of suit begin from the date on which
the plant is presented and pendency of suit terminates on the
date when final decree passed by Court.
In Jayaram Mudaliar v. Ayyaswami5,The Supreme Court explain
the scope of lis pendens as, ‘It is evident that the doctrine, as
stated in section 52, applies not merely to actual transfers of
rights which are subject-matter of litigation but to other dealings
with it by any party to the suit or proceeding, so as to affect the
right of any other party thereto. Hence it could be urged that
where it is not a party to the litigation but an outside agency such
as the tax collecting authorities of the Government, which
proceeds against the subject-matter of litigation, without anything
done by a litigating party, the resulting transaction will not be hit
by Section 52. Again, where all the parties which could be
affected by a pending litigation are themselves parties to a
transfer or dealings with property in such a way that they cannot
resile from or disown the transaction impugned before the Court
dealing with the litigation the Court may bind them to their own
acts. All these are matters which the Court could have properly
considered.’

5
Jayaram Mudaliar v. Ayyaswami Civil Appeal No. 10325 of 2010
(2) Pendency of suit in a court of competent jurisdiction:
The suit or the proceeding during which the property is
transferred, must be pending before a court of competent
jurisdiction. When a suit is pending before a court which has no
proper jurisdiction to entertain it, the doctrine of lis pendens shall
not apply.
In Rajender Singh and Ors. v. Santa Singh and Ors.6, it was
observed by the Supreme Court that the doctrine of lis pendens
was intended to strike at attempts by parties to a litigation to
circumvent the jurisdiction of a Court, in which a dispute on rights
or interests in immovable property is pending, by private dealings
which may remove the subject matter of litigation from the ambit
of the court's power to decide a pending dispute or frustrate its
decree. Alienees acquiring any immovable property during
pending litigation, are held to be bound by an application of the
doctrine, by the decree passed in the suit even though they may
not have been impleaded in it. The whole object of the doctrine of
lis pendens is to subject parties to the litigation as well as others,
who seek to acquire rights in immovable property, which are the
subject matter of litigation, to the power and jurisdiction of the
Court so as to prevent the object of a pending action from being
defeated.
(3) Right to immovable property must be involved:
Another condition for the applicability of this doctrine is that the
suit right to immovable property directly or specifically in question.
The litigation should be regarding the tittle or interest of that
property. Where the question involving the suit or proceeding
does not relates to the tittle or interest in an immovable property,
the doctrine of lis pendens has no application.

6
Rajender Singh and Ors. v. Santa Singh and Ors AIR 1973 SC 2537
For example where a suit is pending between landlord and tenant
regarding payment of rent, and during that time landlord transfers
his property, the transfer shall not affect by the doctrine of lis
pendens because the litigation was not regard to the tittle or
interest of an immovable property. The suit involves payment of
rents.
(4) Suit must not be collusive:
Doctrine of lis pendens is inapplicable if the suit is collusive in the
nature. A suit is collusive if it was instituted with a mala fide
intention.
Where a property is transferred during the pendency of collusive
suit, the transfree is not bound by the litigation. However if any
suit at the beginning was bona fide, but during pendency of suit
there is a secret agreement between the parties in form of
compromise, in that cases too lis pendens is applicable.
In Hardev Singh v. Gurmail Singh7, the Supreme Court observed
that Section 52 of the Act does not declare a pendente lite
transfer by a party to the suit as void or illegal, but only makes the
pendente lite purchaser bound by the decision of the pending
litigation. Thus, if during the pendency of any suit in a court of
competent jurisdiction which is not collusive, in which any right of
an immovable property is directly and specifically in question,
such immovable property cannot be transferred by any party to
the suit so as to affect the rights of any other party to the suit
under any decree that may be made in such suit.

7
Hardev Singh v. Gurmail Singh Civil Appeal No. 6222 of 2000
(5) 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 in a suit. Transfer
includes sale, exchange, lease and mortgage.
Thus during pendency of suit if the disputed property is sold or
given lease or mortgaged either by plaintiff or defendant, this
doctrine of lis pendens shall apply, and the transfer would be the
subject of the decision of Court.
The expression “otherwise dealt with” has been interpreted to
means those transactions in which although there is transfer of
some interest in the property, but they do not come strictly as the
transfer within the meaning of Section 5 of Transfer of Property
Act, 1882. Accordingly surrender, release or partition as transfer,
a contract of sate has been regarded as a transfer within the
meaning of “otherwise dealt with.”
Involuntary transfer :
Transfer of property may either be by act of parties or by
operation of law. Transfers by operation of law are known as
involuntary transfers e.g. Court sale or transfer made by order of
Court.
1. Section 52 is applicable to both the kinds of transfer’s pendent
lite. Formerly there was some doubt whether this section applies
to transfers made by operation of law because this Act does not
apply to such transfers. But the Privy Council had settled the law
that the principle of liespendent is applicable also to transfers by
operation of law.
2. In Samarendra Nath Sinha v. Krishna Kumar Nag8, the
Supreme Court has also held that it is true that Section 52 strictly
speaking does not apply to involuntary alienations such as Court
sales but, it is well established that the principle of liespendent
applies to such transfers.
3. Therefore, the doctrine of liespendent applies where the sale is
made by order of the Court. Though an attachment is not a
transfer, but a sale in pursuance of an attachment comes within
the scope of this section[10].
4. The principle of liespendent applies to execution sales as well
as sales for non-payment of Government revenue[11].

(6) Transfer affects rights of any other party:

The last condition for the applicability of doctrine of lis pendence
is that the transfer during which pendency must affect the right of
any other party to the suit. The principle of lis pendens is intended
to safeguard the parties to litigation against transfers by their
opponents.
Illustration
A, who is landlord has filed a Suit against a tenant B for the
recovery of possession of the premises . B knows that he will lose
the Case. he is debarred or prevented form creating any third
party interest in the property, during the pendency of the suit .
suppose B creates the interest in C in respect of the property
which is subject matter of suit then if suit is decided and decree
in favour of A the decree cannot be executed against C who is in
possession of the property now . this will defeat the provision of
law .

8
Samarendra Nath Sinha v. Krishna Kumar Nag AIR 1967 SC 1440.
Effect of the doctrine

1. A transfer or dealing by a party to a suit during the pendency of

the suit/ proceeding is not ispo facto void.
2. It only cannot affect the rights of any Other party to the suit
under any decree or order that may be made in the suit or
proceedings[5].
3. 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 effected.
4. Thus the effect of the rule of liespendent is not to invalidate or
avoid the transfer, but to make it subject to the result of the
litigation.
“The effect of Section 52 is not to wipe it(transfer)
out altogether but to subordinate it to the rights based on the
decree in the suit. As between the parties to the transaction,
however, it was perfectly valid and operated to vest the title of the
transferor in the transferee.”
NON-APPLICABILITY OF DOCTRINE
It is not the law that the doctrine of lis pendens would be
applicable in every case. Rather there are many instances where
this doctrine does not apply. Following are the instances:

(a) A private sale by a mortgagee in exercise of power

conferred by mortgage deed is not affected by the doctrine of lis
pendens embodied in the section and the sale is valid, though
made during the pendency of a redemption suit filed by the
mortgagor.

(b) To cases of review.

(c) When the transferor alone is affected.

(d) To an order passed against an intervenor in execution

proceedings as the proper remedy in such cases is a suit under
O. 21, r. 63 of the Code of Civil Procedure, 1908.

I To a friendly suit.

(f) Where the proceedings are collusive.

(g) To yearly leases and such other acts as are either the
necessary or the ordinary reasonable incidents of an interim
beneficial enjoyment.

(h) To a transfer pending suit by a person who is not a party to

such suit.
(i) To personal property other than the chattel interests in land.

(j) To the interval that lapses between dismissal of a suit and a

fresh suit on the same cause of action.

(k) Where the parties to the transfer are ranged on the same
side.

(l) To transfer affected by order of the court in which suit or

proceedings is pending.

(m) Where there is misdescription of the property in the plaint.

(n) Where alienations are not inconsistent with the rights which
may be established by the decree in the suit.

(o) The doctrine of lis pendens does not apply to the case of a
person who, during the pendency of a mortgage suit obtains a
mortgage of the property, in consideration for money paid by him
and used by the mortgagor to pay off the suit mortgage.
CONCLUSION
The right contemplated under Section 52 no doubt can be used
both as a sword and a shield, depending on such facts as to (i)
what rights or interest is transferred, (ii) who the affected party is,
(iii)how and in what manner, the transfer is likely to ‘affect’ any
party to the pending ‘proceedings’. It can be used as a shield in a
subsequent or the same proceeding between the same parties.
Any person who would like to use it as sword, must however, first
establish his right to do so when, in any subsequent proceeding
an objection is taken to his claim to do so. Indeed if the transfer
was not avoided by any of the parties to the earlier proceeding
likely to be affected by such transfer, the transferee is not
prevented from claiming that the right to avoid the transfer was
lost and that nothing survived to be enforced.

In order that a transfer may be void as hit by the provisions of

Section 52, it has to be established that it has affected the rights
of any other party to the suit. If a party challenges a transfer on
the basis of doctrine of lis pendens, it has to establish that the
transfer was made with a view to affecting and defeating the
rights of the plaintiff under a decree or order which may be
passed in the case and that it has been defeated. By this doctrine,
it is intended to strike at attempts by the parties to a suit to curtail
the jurisdiction of the Court by private dealings which my remove
the subject-matter of litigation from the power of the court to
decide a pending dispute and frustrate its decree.
Bibliogararhy

 Dr. R.K. Sinha, The Transfer of Property Act, (Central Law

Agency, Allahabad)
 The Transfer of Property Act, 1882
 Doctrine of Lis Pendens: A critical evaluation available at
www.artismc.com
 Doctrine of Lis Pendens available at www.legallyindia.com
 Doctrine of Lis Pendens available at
www.lawtimesjournals.in