CLAT PG Exam  >  CLAT PG Notes  >  Property Law  >  Doctrine of Lis Pendens

Doctrine of Lis Pendens | Property Law - CLAT PG PDF Download

Section 52 of the Transfer of Property Act, 1882, is based on the doctrine of lis pendens.

Doctrine of Lis Pendens | Property Law - CLAT PG

Meaning of the Doctrine of Lis Pendens

  • 'Lis' refers to 'litigation,' and 'pendent' means 'pending.'
  • Therefore, 'lis pendens' signifies 'pending litigation.'
  • The doctrine of lis pendens is encapsulated in the maxim: 'pendent lite nullum innovator,' meaning 'nothing new should be introduced during the pendency of litigation.'
  • According to this doctrine, during the pendency of a suit concerning the title of a property, no new interest in that property should be created.
  • Essentially, the doctrine of lis pendens prohibits the transfer of property while litigation is ongoing.
  • This doctrine is ancient and has been a part of English Common Law.
  • In the context of immovable properties, judgments were considered to override any alienation made by the parties during the litigation period.

Basis of Lis Pendens

  • The basis of lis pendens is 'necessity' rather than actual or constructive notice.
  • While it may seem that this doctrine is based on notice because a pending suit is seen as constructive notice of the disputed title of the property, the correct view is that lis pendens is founded on 'necessity.'
  • For the effective administration of justice, it is essential that during the pendency of a suit regarding the title of a property, the litigants should not be allowed to make decisions or transfer the disputed property.
  • Lis pendens is, therefore, based on 'necessity' and serves as a matter of public policy to prevent parties from disposing of a disputed property in a manner that interferes with the Court's proceedings.
  • The rationale behind this doctrine is explained in the case of Bellamy v. Sabine Turner, LJ, where it is stated that allowing alienations pendant lite would hinder the successful conclusion of any action or suit.

Question for Doctrine of Lis Pendens
Try yourself:
Which doctrine is based on the principle that no new interest should be created in a property during the pendency of litigation?
View Solution

Principle of Lis Pendens

  • Section 52 embodies the doctrine of lis pendens (pending litigation) as expressed in the maxim Ut lite pendent nullum innovetur, meaning nothing new should be introduced in pending litigation.
  • As a principle of equity, justice, and good conscience, this rule applies even where the Act does not apply.

Applicability of Lis Pendens

  • Section 52 of the Transfer of Property Act reflects the principle that during pending litigation, nothing new should be introduced.
  • It states that pendant lite, neither party in a litigation concerning any right to immovable property can alienate or deal with such property in a way that affects their rights.
  • In a scenario where the land in dispute was initially recorded in the name of the petitioner's husband, and after his death, his brother 'G' filed a suit seeking declaration of Khatedari rights without including his brother's wife, the sole legal heir, the litigation ensued.
  • Despite the prohibition on alienation or transfer of the suit property during the pendency of the suit, the respondent brother proceeded to transfer the land, and subsequent purchasers continued to transfer the land as well.
  • Such transfers would be subject to the doctrine of lis pendens.
  • Section 52 would apply in cases where sales are made through private negotiations during the pendency of a suit.

Ingredients of Lis Pendens

The essential ingredients for the application of the doctrine of lis pendens as outlined in Section 52 are as follows:

  1. Pendency of a suit or proceeding.
  2. The suit or proceeding must be pending in a court of competent jurisdiction.
  3. A right to immovable property is directly and specifically involved in the suit.
  4. The suit or proceeding must not be collusive.
  5. The property in dispute must be transferred or otherwise dealt with by any party to the suit.
  6. The transfer must affect the rights of the other party to the litigation.

Question for Doctrine of Lis Pendens
Try yourself:
Which of the following is an essential ingredient for the application of the doctrine of lis pendens?
View Solution

Effect of the Doctrine

  • A transfer or dealing by a party to a suit during the pendency of the suit or proceeding is not automatically void.
  • It only cannot affect the rights of any other party to the suit under any decree or order that may be made in the suit or proceedings.
  • Section 52 creates only a right to be enforced to avoid a transfer made pendant lite because such transfers are not void but voidable, and that too at the option of the affected party to the proceeding, pending which the transfer is effected.
  • Thus, the effect of the rule of lis pendens is not to invalidate or avoid the transfer but to make it subject to the result of the litigation.

Lis Pendens and Doctrine of Notice

  • The rule in Section 52 of the Transfer of Property Act is not based on the doctrine of notice but on expediency.
  • The lis pendens rule does not annul the transfer but makes it subordinate to the rights of the parties in the litigation.
  • According to this rule, anyone who purchases a property during the pendency of a suit is bound by the judgment that may be rendered against the person from whom they derived title, even if such a purchaser was not a party to the action or had no notice of the pending litigation.

Illustrations of Lis Pendens

  • A, B, and C are brothers; C lives in a distant town while A and B reside together. A files a suit for partition and does not include C or their father X. Although X and C are not parties to the suit, the subject matter of the suit is the same, and neither X nor C can legally and validly transfer or alienate his share to a third party. In such cases, the ultimate decree is likely to affect the shares of X and C too. Thus, there may be cases where a party may not be locked in a civil suit or proceeding, yet such a party may be affected by the judgment or decree in such a suit.
  • A sues B regarding a house in B's possession. During the pendency of the suit, B sells the house to C. If A's suit is dismissed, the transfer to C holds good. In this case, the purchaser (C) is bound by the result of the litigation.
  • A sues B concerning a house in B's possession. During the pendency of the suit, B sells it to C. If A's suit is decreed, the transfer to C is voidable, and A's right to take the house is not affected.

Fraudulent Transfer

Fraudulent transfer aims to protect the creditor and subsequent transferee. It is voidable at the option of the creditor and transferee. Section 53 consists of two parts: the first part deals with the transfer of immovable property made with intent to defeat or delay the creditors of the transferor, while the second part concerns transfer made with intent to defraud a subsequent transferee.

  • Every transfer of immovable property made with intent to defeat or delay creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.
  • Every transfer of immovable property made without consideration, with intent to defraud a subsequent transferee, is voidable at the option of such transferee.

Fraudulent Transfer under Section 53

  • When consideration for the transfer and good faith on the part of the transferee are present, the intention of the transferor to defeat or delay his creditor becomes irrelevant.
  • Section 53 has a limited scope, restricted to immovable property and not applicable to movable property.
  • The benefit of this section is not limited to existing creditors; it extends to subsequent creditors as well.
  • Section 53 does not make the transaction void ab initio but only voidable at the option of the person defeated, delayed, or defrauded.

Under the Transfer of Property Act

  • A transfer of immovable property by a debtor may be set aside by his creditor if the transferee is not a transferee in good faith for the transferor's creditor and if the transferee is not a transferee in good faith for consideration.
  • A transferee from such debtor will be protected if he acquires property for value in good faith without knowledge of the transferor's intention or if he himself is a creditor and the transfer is made in satisfaction of his pre-existing debt.
  • If the creditor establishes that the transfer was made with the object of defeating him, the burden shifts to the transferee to prove that he had paid a fair price and that he was not a party to the fraud.

Question for Doctrine of Lis Pendens
Try yourself:
Which of the following is true regarding the effect of the Doctrine of Lis Pendens?
View Solution

The document Doctrine of Lis Pendens | Property Law - CLAT PG is a part of the CLAT PG Course Property Law.
All you need of CLAT PG at this link: CLAT PG
10 docs|10 tests

Top Courses for CLAT PG

FAQs on Doctrine of Lis Pendens - Property Law - CLAT PG

1. What is the Doctrine of Lis Pendens?
Ans. The Doctrine of Lis Pendens is a legal principle that prevents the transfer of property that is currently under litigation. It serves to protect the rights of the parties involved in the ongoing lawsuit by ensuring that any changes to the ownership of the property cannot be made during the pendency of the case, thereby maintaining the status quo.
2. How does the Principle of Lis Pendens operate in property disputes?
Ans. The Principle of Lis Pendens operates by providing notice to all potential buyers or parties interested in the property that it is subject to legal action. This means that any subsequent transfer of the property during the pendency of the suit will be subject to the outcome of the litigation, and such transfers cannot affect the rights of the parties involved in the case.
3. What are the effects of the Doctrine of Lis Pendens on third-party purchasers?
Ans. The effects of the Doctrine of Lis Pendens on third-party purchasers include the inability to claim ownership of the property if they purchase it while it is under litigation. Any transfer made during this period is considered void and will not affect the rights of the parties in the ongoing case, meaning the purchaser may lose their investment.
4. What constitutes a fraudulent transfer under the Transfer of Property Act?
Ans. A fraudulent transfer under the Transfer of Property Act occurs when a property owner transfers their asset with the intent to defraud, hinder, or delay creditors. Such transfers are deemed voidable, meaning that they can be annulled by the creditors or the court if it is proven that the transfer was made with fraudulent intent.
5. How does the Doctrine of Lis Pendens relate to the concept of fraudulent transfer?
Ans. The Doctrine of Lis Pendens relates to fraudulent transfer in that both concepts aim to protect the rights of parties involved in legal disputes. While Lis Pendens prevents changes in property ownership during litigation, fraudulent transfer addresses scenarios where a property owner may attempt to hide or dispose of assets to evade creditors or legal claims, ensuring that such actions do not undermine the judicial process.
10 docs|10 tests
Download as PDF
Explore Courses for CLAT PG exam

Top Courses for CLAT PG

Signup for Free!
Signup to see your scores go up within 7 days! Learn & Practice with 1000+ FREE Notes, Videos & Tests.
10M+ students study on EduRev
Related Searches

Doctrine of Lis Pendens | Property Law - CLAT PG

,

past year papers

,

Objective type Questions

,

Sample Paper

,

Previous Year Questions with Solutions

,

Important questions

,

shortcuts and tricks

,

Free

,

Doctrine of Lis Pendens | Property Law - CLAT PG

,

Doctrine of Lis Pendens | Property Law - CLAT PG

,

Viva Questions

,

Semester Notes

,

practice quizzes

,

mock tests for examination

,

pdf

,

Summary

,

Extra Questions

,

MCQs

,

video lectures

,

study material

,

ppt

,

Exam

;