By Ritabh Singh, 4th Year Law Student, Government Law College, Mumbai,
ritabhsingh44@gmail.com | January 09, 2023
Introduction
The principle of Lis Pendens – ‘Lis’ meaning litigation/dispute and ‘Pendens’ meaning pending – is embodied in this maxim, and it finds itself codified in Section 52 of the Transfer of Property Act, 1882. While the doctrine was found in the English case of Ballamy v. Sabine, Privy Council has observed its purpose as follows[1]:
“Broad purpose of Section 52 is to maintain status quo unaffected by act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or strength or weakness of the case on one side or other in bona fide proceedings. To apply such test is to misconceive the object of the enactment”.
In simple words, the doctrine of Lis Pendens rules that neither party to the suit can transfer, or otherwise deal in anyway with the suit property in a manner which affects the rights of the other party. The doctrine thus, restricts alienation of the suit property, to avoid creation of any third party rights which further prolongs justice due to endless litigation.
Application of doctrine
The doctrine of Lis Pendens is applied as mentioned under section 52 of the Transfer of Property Act, 1882. However, it is paramount to note that by certain state amendments, it is mandatory to also register a notice of Lis Pendens in order to give effect to the doctrine.
Section 52 of Transfer of Property Act, 1882 was amended in the State of Maharashtra by Bombay (Amendment) Act 14 of 1939 [2] and the same reads as follows:
52. (1) During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir 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, if a notice of the pendency of such suit or proceeding is registered under section 18 of the Indian Registration Act, 1908, the property after the notice is so registered 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.
(2) Every notice of pendency of a suit or proceeding referred to in sub-section (1) shall contain the following particulars, namely:-
(a) The name and address of the owner of immovable property or other person whose right to the immovable property is in question;
(b) The description of the immovable property the right to which is in question;
(c) The Court in which the suit or proceeding is pending;
(d) The nature and title of the suit or proceeding; and
(e) The date on which the suit or proceeding was instituted.
In its application in the State of Maharashtra, Section 18 of the Registration Act, 1908 has been amended as follows:
a) Delete the word “and” after clause (e)
b) After “and” in (e), add – notices of pending suits or proceedings referred to in Section 52 of the Transfer of Property Act, 1882
The effect is same in the State of Gujarat [3].
Thus, following are the necessary conditions for the application of the doctrine:
a) The suit shall be pending in a competent court.
b) The suit shall not be collusive/friendly in nature.
c) A right to immovable property must be directly and specifically in question.
d) A notice of Lis Pendens shall be registered under section 18 of The Registration Act, 1908 with the concerned Registrar/Sub-Registrar. [Applicable in the State of Gujarat and Maharashtra]
Effect of doctrine
On the application of the doctrine, any transfer made during the pendency of the suit is not void ab initio or illegal, but only makes the purchaser bound by the decision of the court [4]. The rights of the parties are only subservient to the decision of the court. If the transferor’s title is upheld, the sale will be valid and the transferee’s title will not be affected [5]. The doctrine of Lis Pendens is thus intended to strike at attempts made by parties to circumvent jurisdiction of court through private dealings to create third party rights [6].
Removal of Lis Pendens
In certain circumstances, a notice of Lis Pendens is filed to intentionally drag parties to litigation, and delay transactions of the immovable property. In such cases, court has the discretionary power to lift the operation of Section 52. The court itself has provided the aspects be borne by it when it considers exemption of operation to deprive plaintiff of fruits of litigation [7], though these are not exhaustive:
a) Can party be relieved only on a court imposing conditions? Is imposing conditions a prerequisite?
b) On facts pleaded by the plaintiff, will he prima facie, be entitled to the relief of specific performance of the contract?
c) If court concludes that specific relief cannot be granted, then while considering the alternative relief of damages which the plaintiff in the suit for specific performance is entitled to, should the plaintiff be secured?
d) If to be secured, should it only be the market value of the property on the date of the suit at time when the suit is filed be considered?
In a case, where there is no concluded contract between the parties, it would be highly inequitable to continue the cloud on the title of the property, especially when even if the plaintiff leads evidence, the chances of success are very dismal. Thus, operation of section 52 is lifted off from the suit premises, even if the notice of lis pendens was registered and fulfilled all conditions to be valid [8].
Conclusion
While registration of the notice is compulsory in Gujarat and Maharashtra, it is not so in rest of the states. This creates a peculiar problem. Transferors in a pending suit sell off the premises to unsuspecting purchasers who do not have any means to check if the premises are subject to any pending litigation. This jeopardizes the subsequent purchaser, who after investing all his earnings gets dragged in litigation, the result of which may deprive him out of the money invested as well as the possession of the suit [9].
The solution to this is that every state must make it compulsory to register a notice of Lis Pendens with the local registrar while filing a suit to dispute title of property. This will enable the subsequent purchaser to check if any litigation is pending on the premises. In cases where a Lis Pendens if filed to intentionally cloud genuine title, the courts have the power to remove the same after considering all the facts of the case, and the nature of the suit.
[1] Gouri Datt Maharaj v. S K Sukur Mohammed [AIR 1948 PC 147]
[2] The Transfer of Property and The Indian Registration (Bombay Amendment) Act, 1939
[3] Act 11 of 1960, S. 87; Gujarat A.L.O 1960
[4] Hardev Singh v. Gurmail Singh (2007)
[5] T G Ashok Kumar v. Govindammal & Anr. [2010 (Civil Appeal No .10325 of 2010)]
[6] Rajendra Singh & Ors. v. Santa Singh & Ors. [1973 AIR 2537, 1974 SCR (1) 381]
[7] Shantilal J Khona v. Anandrai Shivlal Dave [ 2002 (3) Bom. C.R. 346]
[8] Ambaji Developers & Ors v. Mukundrai D Sanghavi (2019)
[9] 12th Report by Law Commission of Karnataka (18.8.2010)
