A Latin maxim “Ut pendent nihil innovetur” means during litigation nothing should be changed. The doctrine of Lis Pendens has been derived from the same Latin maxim. Literally speaking, Lis means the ‘suit’ and Pendens means ‘pending or continuing’. Therefore the doctrine of Lis Pendens is based upon a principle that during the pendency of suit, the subject matter of it should not be transferred to a third party. But if it does happen, i.e. the immovable property is transferred, the transferee will become bound by the result of the suit. Since the basis of this doctrine is necessary so the person dealing with the disputed property during continuance of the litigation is bound by the decisions of the court.
This doctrine is based on Section 52 of Transfer of property Act 1882. This section prohibits transfer of immovable property during dispute of the same in the court. According to this section during the suit nothing new should be introduced. However this section would apply in cases where transfer is made by private negotiations and during when the suit is pending.
The principle behind Section 52 of Transfer of Property Act is to maintain status quo, not affected by the act of any party to the litigation pending its determination. The Doctrine of Lis pendens is founded in public policy and if read carefully, it means such a sale until the period of limitation for second appeal is over will have to be held as been covered under Section 52 of the TP Act.
The main purpose of Section 52 is to subordinate all interests derived from the parties to a suit by way of transfer of pendent lite to the rights declared by the decree in the suit and to declare that they shall not be capable of being enforced against the rights acquired by the decree holder.
PURPOSE OF DOCTRINE OF LIS PENDENS :-
To protect either party to the suit against the act of another; To avoid misuse of legal process; To restrict endless litigation.
CONDITIONS TO BE SATISFIED UNDER SECTION 52 IF THE ACT:-
A suit must be pending in relation to immovable property which is in question. The suit must be pending in a court of appropriate jurisdiction. The proceeding must not be unlawful. The transfer must affect the rights of the opposite party to the litigation.
NON APPLICABILITY OF THIS DOCTRINE:-
· In the matter of review;
· In cases of friendly proceedings;
· In case where the sale is made by the mortgagee as conferred by the mortgage deed;
· Where transferor is the only party affected;
· Where suits are collusive;
· Cases where proceedings involving pending transfers by a person who is not a party to the suit.
The principles mentioned in section 52 of Transfer of Property Act are according to the principles of justice, equity and good conscience:-
1. They depend upon an equitable and just principle that it will be impossible to bring upon an action against successful termination if transfer is permitted to prevail.
2. A transferee during a case is bound by the decree is the same manner as he was bound when he was a party to the suit.
3. According to section 52, mere pendency of a suit does not restrict any of the parties from dealing with the property which includes the subject matter of the suit.
4. The section also says that the transfer in no manner will affect the rights of the other party under any decree which may be passed in the suit unless the property was transferred with the permission of the court.
The rights under Section 52 can be used both ways as a sword and a shield, which totally depends on the facts such as:-
1. What interest or right is transferred
2. Who is the affected party
3. How and in what manner the transfer will affect any party to the pending case.
This section can be used as a shield in the same or subsequent proceedings between the same parties. For using this section as a sword, a person must however, first know his right to do so when, in any proceedings an objection is taken to his claim to do so.
Transfer can be void as per the provisions of this section only when it is established that is has affected the rights of any other party to the suit. If the party challenges such transfer on the basis of doctrine of Lis pendens, it has to establish that transfer was made with a view to affecting the rights of the plaintiff under an order which may be passed in the case.
With the view of this doctrine, it has been intended to strike at attempts by the parties to the suit to reduce the jurisdiction of the Court by private dealings which may remove the subject matter of litigation from the Court to frustrate its decree.
-  Dev raj dogra and others v. Gyan chand Jain and others.
Author Details: Gitika Jain (3rd year BBA LLB, Amity University, Kolkata)