Doctrine of Lis Pendens

The doctrine of Lis Pendens has its origin in Bellamy V. Sabine, 1857 Where the Court observed the
following:
“It is as I think, a doctrine common to the courts both of law and equity and rests, as I apprehend, upon this
foundation that it would plainly be impossible that any action or suit could be brought to a successful
termination, if alienations pendente lite was allowed to prevail, it would simply not be possible for any action
or suit to be resolved successfully. In any case, Plaintiff will be responsible for 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 (a fresh) subject again to be defeated by the same course of proceedings.”
Lis Pendens literally means ‘litigation pending’ or ‘pending suit’ and is drawn from the concept based on the
maxim “Pendente lite nihil innovetur” which means that nothing new must be introduced while litigation or
suit is pending.
The Doctrine states that the Transfer of property shall be restricted when there is litigation pending on the title
or any rights that arise directly thereof involving immovable property. Indian courts have taken the view
that the doctrine is based upon the necessity that neither party to litigation should alienate the property
to dispute so as to affect its opponents.
In Faiyaz Hussain Khan v. Prag Narain 1907; a mortgagee sued to enforce his mortgage, but before service
of summons, the mortgager affected another mortgage of the same property. The prior mortgagee continued
Section 52 in The Transfer of Property Act, 1882
52. During the pendency in any court having authority [[within the limits of India 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 immovable 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 rights of any other party thereto under any decree or order which may be made therein, except
under the authority of the court and on such terms as it may impose.
Explanation : For the purposes of this section, the pendency 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 decree 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.
•A suit or proceeding must be pending.
•The above suit is brought to a competent court within the jurisdiction.
•The right to the title of immovable property must be directly and specifically in question in that suit or
proceeding.
•The suit or proceeding must not be collusive.
•The property in dispute must be transferred or otherwise dealt with by any party to the litigation.
•The suit should directly affect the rights of the other party to the dispute.
1.Litigation should be pending in a court of competent jurisdiction. The suit commences on the date of
presentation or filing of the plaint (and accepted by the court for consideration) and it is deemed to continue
until a final decree or order has been passed determining that matter. That means the suit is considered to be
pending even if there is a chance of appeal against the decree determining that suit or the execution of
the decree is pending. Example: A dispute regarding the title of property X arose between A and B. A was
then in the possession of X. The matter was brought before the District court. The District Court passed the
decree in favor of A. While the decree was appealable, A sold the property X. The transfer would be
considered via Section 52 or the Doctrine of Lis Pendens.
 any proceeding before it has no sanctity in the eye of the law, in such a case alienation pending such a
proceeding will not be affected by Section 52. Where the suit is instituted in the wrong court and returned
for presentation to the proper court, the pendency would commence from the date on which the plaint is
presented to another court having jurisdiction. Transfer made during the interval is not affected by Lis
pendens.
• Where a plaint was presented before the court insufficiently stamped, and rejected by it to be presented
only after making good the deficiency the transfer between these two dates would not be affected by the
lis pendens. But, if the court, instead of returning the plaint, requires the person concerned to make good
the deficiency, a transfer of property before the date the deficiency is supplied would be affected by this
section.
• Execution proceedings are in fact part of the proceedings in the suit.
In N.C. Bhartia v Gandevi Peoples Co-operative Bank Ltd AIR 2002 Guj. 209: an order of attachment of
judgment- debtor’s property was passed during execution proceedings. Subsequently, the relatives of the
judgment- debtor objected to the attachment and claimed a share in that property. They also sold that
property and this sale deed was executed during the pendency of the execution proceedings.
Gujarat High Court held that the sale deed was hit by the doctrine of lis pendens as given in section 52. After
a final decree, the defendant has a right to appeal within the period of limitation. . Lis (litigation) in a
mortgage suit continues after the decree and does not terminate till the security is realized for the satisfaction
of the decree. After a final decree, the defendant has a right to appeal within the period of limitation. Where
an appeal is preferred within limitation period, the appeal would be a continuation of the suit and the lis
shall be deemed to continue during the appeal. Transfer of property made during an appeal shall be a
transfer during the pendency of the suit and the provisions of section 52 shall apply to it.
2. Court of competent jurisdiction:
The suit or proceeding during which the property is transferred must be pending before a Court of
competent jurisdiction. Where a suit is pending before a Court that has no proper jurisdiction to entertain it,
the lis pendens cannot apply. The courts in India have been segregated on the basis of territorial, pecuniary
jurisdiction or subject matter, etc. Hence, the suit must be pending in the court having the jurisdiction to try
the suit. If the suit is presented before a court not having the competent jurisdiction to try it, a transfer during
the pendency of such a suit would not be hit by the rule of Lis Pendens.
3. Right to Immovable property must be involved: It is important for the application of Section 52 that
in the pending suit, the 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 immovable property, the doctrine of Lis
Pendens has no application. The doctrine does not apply to movable property.
For example, where a suit is pending between landlord and tenant regarding payment of rents and during
litigation the landlord transfers the property, the transfer is not affected by lis pendens because the
litigation is not with regard to any interest in the property but involves payment of rents. Similarly, where
a Hindu widow filed a suit against her stepson for maintenance and specifies certain immovable
properties in possession of such stepson, it was held that right to immovable property is not directly in
issue and this section cannot apply.
The mere mention of immovable property in the plaint is not enough, rights in respect of that immovable
property must directly and substantially be in question. In a suit for specific performance
4. The suit should not be collusive. The term collusive suit depicts ‘the suit filed with conspiracy’. It is a
sham suit. Here, the parties to the suit enter into an agreement with the intention to defeat the rights of the
transferee. The suit presented or pending must be genuine and not a collusive one.
For Instance: A and B secretly agree that B would file a suit against A for the possession of land X in A’s
occupation that he would not contest the suit seriously and during the pendency of the suit B would sell the
land to C, and money received from C will be divided between them. If B files the suit and during its
pendency, A sells the land to C, he (C) would not be affected by a decree in favor of B, because the suit was
a collusive one.
5. Property should not be transferred or otherwise dealt with The term transfer includes absolute
transfer as well as partial transfer. The doctrine applies to the sale, a grant under the lease, mortgage, etc. the
transfer here means the transfer covered by the Transfer of Property Act, 1882. The term ‘otherwise dealt
with’ includes the cases which are not covered by the Transfer of Property Act, 1882 but there is the transfer
of an interest in the property. Accordingly, sale, exchange, lease, mortgage, or partition would be regarded
as transfer for purposes of this section. A contract of sale has been regarded as a transfer within the
meaning of ‘otherwise dealt with’.
Hence, a partition of the property which is a subject matter of the suit, affected during the pendency of the
suit would be subject to the rule of Lis Pendens. Any transfer made with the permission of the court and in
accordance with the term imposed by it, will not be subject to the rule of Lis Pendens.
Entering into compromise with a third party pending litigation respecting the disputed property with a third
person is also dealing with the property otherwise.
6. Transfer by any party to the suit The parties to the suit include the ones who file the plaint or petition
i.e. the plaintiffs and the ones against whom the relief is prayed for i.e. the defendants, or their
representatives on their demise. The transfer made by a person before he is made a party to the suit is not
affected by the doctrine of Lis Pendens.
For instance: A is the owner of property X, which is managed by B with the permission of A. B sells the
property to C. A files a suit against B reclaiming the possession of the property X and C is not made the
party to the suit. Meanwhile, C sells the property to Y. As C is not the party to the suit, the transfer made by
him will not be affected by the doctrine of Lis Pendens.
The last requirement of this section is that the transfer during pendency must affect rights of any other
party to the suit. Any other party here does not mean a stranger to the suit. It means the opposite party
whose interest is affected by the transfer pendente lite. Example: A, the landlord filed a plaint against B
(tenant), that he hasn’t paid the rent for two months. Meanwhile, A transfers the property which is the subject
matter of the suit, to C. It does not fall under Section 52 as it does not affect the rights of another party. The
test to determine the applicability of Section 52 is the nature of the claim in the suit and not the property in
dispute.
EFFECT OF THE PRINCIPLES OF LIS PENDENS
The presence of a lis pendens does not prevent or necessarily invalidate a transfer of the property, although it
makes such a transfer subject to the outcome of the litigation. Section 52 does not invalidate the transfer but
renders it subservient or subject to the rights of the parties to the litigation. E.g. in a suit between A and B
respecting the title of a house if B transfers the house to C during the pendency and the judgment is
subsequently in favor of B., then C would be entitled to the house. But if the decree is passed against B, then
it is binding not only on B but also on C with the result that C cannot get the house. Under this section, C
cannot take the plea that he had no notice of pending litigation. It may be noted that normally decree of a