DOCTRINE OF LIS PENDENS

DOCTRINE OF LIS PENDENS

Introduction

‘Lis Pendens’ originated from English Common Law. ‘Lis’ means ‘Litigation’ and ‘Pendens’ means ‘Pending’ implying a pending litigation in the court of law. It originated from a legal maxim ‘ut lite pendente nihil innovetur’ which means nothing new should be introduced in pending litigation. The doctrine is based on the concepts of justice, equity, and good conscience It is mentioned in Section 52 of Transfer of Property Act, 1882. 

It was propounded by Lord Justice Turner in Bellamy v Sabina 1857. The facts of the case were as follows:

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

The observations given by Mr. Turner were applied by the Privy Council In the case of Faiyaz Husain Khan v Munshi Prag Narain, 1907 in India. 

Essentials

Supreme Court in Amit Kumar Shaw v Farida Khatoon summarised the essentials of Lis Pendens as follows:

1. Suit proceeding in a court of competent Jurisdiction: The proceeding shall be deemed to start on the date of presentation of the plaint or institution of proceeding in a court of competent jurisdiction and will continue till the final decree is pronounced. Presentation of a plaint in a court other than the court of competent jurisdiction will not attract the doctrine of Lis Pendens until the same is instituted in the court of competent jurisdiction. Similarly, doctrine will not follow if the suit is pending in a foreign court.
2. Bona Fide Litigation (Not a Collusive suit): The suit must be genuine and not the collusive suit is not real but is one in which there is a fraudulent secret understanding between the plaintiff and defendant to defeat the right of the transferee of the plaintiff or defendant. A compromised Suit, Consent Decree, or Ex Parte Decree is not a collusive suit. Gouri Dutt V Sheikh Sukar Mohd: During a collusive maintenance suit by a Hindu wife against her husband, a bona fide purchaser purchased the property of her husband, the charge subsequently created in favour of the wife on such property will not prevail against the purchaser right. I.e. The purchaser will succeed. 
3. Right to property must be in dispute: The right to an immovable property must be directly and specifically be in dispute in the suit. E.g., Suit for mortgage, suit for partition, suit for pre-emption where the share is not ascertained, etc. It should be kept in mind that the suit for rent in respect of agricultural land is not a suit for immovable property, hence during the pendency of such suit tenant can transfer the holding and the doctrine will not apply, the same is the case with suit for debt and damages except when the widow claims that her maintenance should be made a charge on the property.
4. Transfer by a party to the litigation: Parties to the proceeding are the plaintiff and defendant and on their demise their representatives, when such a party (defendant) or a legal representative effect a transfer of a property Lis Pendens will apply. Nallakumara V Pappyi. Therefore, transfer by a third person whose title is not in anyways concerned is not affected by the doctrine. For example, A is the owner of the property but allows B to manage it, B Sell the property to C, and now A sues B to reclaim the title and possession without making C a party to the suit, meanwhile, C sells the property to D, and as C is not the party to the suit the doctrine of Lis Pendens will not apply. The transfer includes both absolute and partial transfer. Transfer made by a person before he is made a party to the suit is not affected by Lis Pendens Ammayya V Narayana
5. Or otherwise dealt with: The property that is a subject matter of the suit cannot be transferred e.g., sale, lease, mortgage.

Exceptions

The doctrine is not applicable in cases where: 

1. Pre-emptors have obtained a decree before the filing of the suit.
2. The suit is brought by a mortgagee against another mortgagee because the mortgagee has sued the other mortgagee to enforce their rights. The mortgagee has rights against both the owner and the owner has rights against both of them. The title of each of the mortgagees and the owner of the mortgage goes back to the same date of the mortgage. 
3. The doctrine does not apply in cases where the sale was made before the suit was filed but registered after the suit was filed. 
4. The sale was made under a valid contract before the litigation began. 
5. The property is a misdescription and cannot be recognized. 
6. The doctrine will not apply in a suit for rent.
7. The sale is made to recover government taxes or local rates. 
8. The case is brought in connection with a conjugal relationship.

Conclusion: Lis Pendens is designed to protect the rights of the parties to a lawsuit by preventing them from transferring property in a way that could affect the outcome of the case. The doctrine of lis pendens ensures that the property remains in the same condition until the dispute has been resolved.

Author: Aditi Pandey, Campus Law Centre, Faculty of Law, University of Delhi