“Doctrine
of Lis Pendens” the law in cooperated in section 52 of the Indian Transfer of
property Act 1882 is based on the doctrine Lis Pendence, where lis means
litigation/sued. Pendens means pending/continuing. Therefore lis pendens means
pending litigation. The doctrine lis pendens is express in the well-known maxim
‘Pendente like nihel innovature’ which means, during pendens of litigation
nothing new should be introduce under this doctrine, the principle is that
during pendens of any sued regarding the tittle of a property in any case interest
in respected of that property. As such
as accents, the doctrine of lis pendens prohibits the transfer of property
during the pendens of any litigation.
The doctrine of lis pendens according to
section 52:-
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During the pendens of sued or proceeding
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Property cannot transfer or otherwise dealt with by any party to the suit.
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If so transfer the transferee is bound by the decision by the court whether or
not he had a notice of the suit/ proceeding.
The objective of the doctrine
1.
To avoid endless litigation
2.
To protect one of the parties to the litigation
against the act of the order.
3.
To avoid abuse the legal process.
Essential condition for the application for
the lis pendens
Following
are the necessary condition for the application of the doctrine lis pendens
under this section
1.
The sued should be pending
2.
The suit of act or proceeding must be pendent in
the competent jurisdiction
3.
Right to immovable property is directly and
specifically involved in the suit.
4.
The sued/proceeding must not be collusive
5.
The property in dispute must be transfer or otherwise
dealt with by the any party of sued
6.
The transfer must affect the rights of other
party to litigation
When
above mention conditions are fulfilled the transfer is bound by the decision of
the court. If the decision is in favor of the transfer, the transferee has a
right in the property transfer; the transferal cannot get any interest in the
property. The explanation to section 52 provided that the pendens of
suit/litigation is deem to begin from the date of presentation of the plaint or
institution of the proceeding in a competent court and continuous until the
sued has been dispose off by a final decree or order.
Proceeding
means a judicial activities whether civil or criminal in respect of the
determining the right in normal property. It must be noted here that when
transfer is made during the pendens of the sued with the permission of the court
the principle of lis pendens is not applicable.
The
principle doctrine may be explained with the help of the following example:
In
the suit between ‘A’ and ‘B’ regarding the title of the house. If ‘B’ transfer
house to ‘C’ during the pendens of the sued and the judgment is subsequently pass
favor of ‘B’ then ‘C’ could be entitle to the house and if the decree is pass against
the ‘B’ then it is binding not only on ‘B’ but also to the ‘C’ with the result
that ‘C’ can-not take get the house and ‘C’ cannot take the pledge that had no
notice of the pending litigation. Therefore, the effect of the lis pendens is
that it does not prevent the vesting of tittle in the transfer only makes its
subjects to the rights of the parties as seceded by the court in suit.
