NAME: MUKTA MISHRA

CLASS: FOURTH YEAR B.L.S/LL.B

DIV:A

ROLLNO: 31

SUBJECT: TRANSFER OF PROPERTY ACT

SUBMITTED TO: Prof. SUBHASH PATHAK

 INDEX

SR.No TITLE Pg.No

1 INTRODUCTION 1

2 ORIGIN OF THE DOCTRINE OF PENDENS 2

3 THE PURPOSE OF THE DOCTRINE OF LIS 3

PENDENS
4 UNDERSTANDING THE JURISPRUDENTIAL 4
EVOLUTION OF THIS DOCTRINE
5 SUGGESTIONS 5

6 CONCLUSION 6

7 REFERENCE 7
INTRODUCTION:

The Transfer of Property Act, 1882, was promulgated embodying the principles of English
Common Law, namely equity, good conscience, and justice underscored by the provisions
of the Indian Contract Act, 1872, and came into force from July 1, 1882.

Property or ownership are synonymous with each other, and ownership interest is
automatically created when a right is vested.

Ownership has to be:

1. Indefinite in point of the user – The owner may use the property subject to some
restrictions without injuring the rights of other persons, but at no point in time
will it negate the ownership in the property even if the rights may be curtailed.
2. Unrestricted in the point of disposition – The owner has an unfettered right to
dispose of the property. However, there are exceptions to this as minors (those
below the age of 18) can be owners but cannot alienate the property. Also, the
Government may acquire the property for specific purposes irrespective of the
property owner’s consent.
3. Unlimited in the point of duration – As long as the property in question exists,
the property rights are heritable. Again, the Government can, at any point,
acquire the property and terminate the owner’s rights.

The Transfer of Property Act covers transfers inter vivos, i.e., between two living persons.
A transfer is defined as an act by which living persons convey the property to one or more
living persons.

The transferee can get the transferor’s rights and nothing more, where the owner is the
transferor, and the transferee is the person or persons to whom the rights are conveyed.

The first amendment to the Transfer of Property Act, 1882, was in 1929, whereby the
definition of living persons was amended to include companies, associations, and bodies of
individuals, whether incorporated or not.
ORIGIN OF THE DOCTRINE OF PENDENS:

The doctrine of Lis Pendens has its origin by Lord Justice Turner in Bellamy Vs. Sabine,
1857 where the Court observed the following:

“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.”

The facts of the above case were the following:

A person, Mr X, sold an immovable property to Mr A.Mr X’s son, Mr Z, who was the heir
of Mr. X, sued Mr A in a competent court to declare the sale as void.However, while this
litigation was pending, Mr. A sold the property to Mr. B, who did not take notice of the
suit.The Court held that the son Mr. Z was entitled to the property and the sale was set
aside.Mr. B who purchased the property from Mr. A does not get any title as he purchased
the property from someone who did not have the title and therefore cannot convey
it.Therefore, evolving the principles of common law and 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.

Lis Pendens literally means ‘litigation pending’ or ‘pending suit’ and is drawn from the
concept based on the maxim “Pendente lite nihil innovature” which means that nothing
new must be introduced while a litigation or suit is pending.This Doctrine states that the
Transfer of property shall be restricted when there is a litigation pending on the title or any rights
that arise directly there of involving an immovable property.

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 Court may, however, permit any party to the suit to transfer the property on such terms
which it may think fit and proper to impose.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.

Now that the doctrine is clear, an inevitable question that may arise is – what is the
objective or purpose of this doctrine? Let us read on to find out.
THE PURPOSE OF THE DOCTRINE OF LIS PENDENS:

This Doctrine is essential as it prevents Transfer of the title of any disputed property
without the Court’s consent, there can be endless litigation, 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 ‘Transferee pendente lite’ is bound by the verdict just as if he were a party to the suit
and the transfer shall be subservient to the result of the pending lawsuit.

Let us understand the various conditions that need to be met for the doctrine to apply:

Conditions for Applicability of the Doctrine as provided in 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.

Some examples for Non-Applicability:

● 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.
● The Doctrine also does not apply when the property is not described correctly,
making it unidentifiable.
● 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.
● The Doctrine fails to apply when a Court orders restoration of immovable property
under the Civil Procedure Code, Order 21, Rule 63.
UNDERSTANDING THE JURISPRUDENTIAL EVOLUTION OF
THIS DOCTRINE:

In Ayyaswami vs Jayaram Mudaliar AIR 1973 SC 569, the Court held that the purpose of
this provision is not to deprive the parties of every just or fair argument but rather to
guarantee that the parties submit themselves to the jurisdiction and authority of the Court
which shall determine all claims that are placed before it to the satisfaction of the parties
concerned.

In the case of Hardev Singh v. Gurmail Singh, Civil Appeal No. 6222 of 2000, the Court
ruled that Section 52 of the Transfer of Property Act, would not make void or unlawful any
sale of the contested properties, but only puts the purchaser beyond the binding limits of
the judgement on the disposition of the conflict.

The Court’s positions on this pendente lite-transfers issue are explained in Ashok Kumar v.
Govindammal and Anr, 2010. The Supreme Court of India has here reaffirmed that a
pendente lite cannot be transferred for a property whose title is the subject of litigation.

These transfer payments would limit the rights of the party to whom the Court would
eventually have agreed that the property would be given the title. Where the right of the
pendente lite transferor to the property is upheld under the decree of the Court, then the
title of the transferee to the property is disregarded. However, if the title of the pendente
lite transferor is acknowledged only for a smaller portion of the property, only for that
portion of the property can a transferor have the title. The Transfer of the title of the rest of
the land, for which there is no right for the pendente lite transferor, is invalid. This means
that the transferee cannot claim the title or any other interest in the rest of the property.
Finally, if the transferor was found to have no right in the first place to the transferred land,
then the transferor would also not have gained rights on this property.
SUGGESTIONS:

To digitize all property records, while the Doctrine is necessary to ensure that the property
rights of the parties involved are protected, it is also imperative that technology be
employed so that the property title in question does not get transferred while the case is
pending. This can be achieved by the complete digitalization of property records wherein
all properties are accorded a property identification number, this along with the fact that
India has already created a Unique Identification System for all its citizens via the Aadhaar
card can be combined to ensure that the integrity and sanctity of the data are never in
question. This will also help in avoiding cases where the property cannot be identified.

When an encumbrance certificate (EC) is issued, it mentions any encumbrance. This can be
improved, so as to list any pending litigation(s) to alert the registering authority and the
parties concerned.
CONCLUSION :
The doctrine of Lis Pendens is strictly based on the theory of necessity rather than on the
theory of notice governed by the principles enshrined in common law, namely Justice,
Equity and Good Conscience. It is, therefore, pivotal in ensuring that justice is provided
without injuring the rights of either party.
REFERENCE:

https://www.ijilr.org/wp-content/uploads/An-Introspective-Analysis-on-the-D
octrine-of-Lis-Pendens.pdf

https://www.studocu.com/in/document/university-of-petroleum-and-energy-st
udies/criminal-law/doctrine-of-lis-pendens-anushka-gupta/30073953

https://www.legalserviceindia.com/legal/article-5254-doctrine-of-lis-pendens-
a-right-against-unauthorized-alienation.html

https://legalvidhiya.com/doctrine-of-lis-pendens/