DOCTRINE OF LIS PENDENS

“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:-

> During the pendens of sued or proceeding

> Property cannot transfer or otherwise dealt with by any party to the suit.

> 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.