LIS PENDENS under Transfer of Property Act

The word ‘lis’ means a suit and the word ‘pendens’ means pending. In simple words, the meaning of those terms is that a written notice that a lawsuit has been filed which concerns the title to real property or some interest in that real property. If any case has been filed regarding any property then that property cannot be transferred while the suit is still on the court. The meaning of Lis Pendens is clear to us now let’s see what section of the Transfer of Property act has to say regarding this.

SECTION 52 OF THE TRANSFER OF PROPERTY ACT

Section 52 of the transfer of property act says During the 1 [pendency] in any Court having authority 2 [ 3 [within the limits of India or established beyond such limits] by 4 [the Central Government 5 ] of 6 [any] suit or proceeding 7 [which is not collusive and] in. which any right to immovable property is directly and specifically in question, the property 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.                                                       Source Indian kanoon.com

Now let’s try to understand what it says it clearly states that:-

1. The suit should not be of collusive nature that means it should not have been filed just to stop the transfer which was going to take place. If court finds out that any collusive nature is involved or any intention of collusive nature is found by the court then court can order the party to transfer the property to the party who deserve it and is the right.

• The immovable property has a case on it and that case has directly or specifically question related to that immovable property. Then the property cannot be transferred to any other party.

• Different courts in India has different jurisdiction and some has limited power till which they can act so any case regarding this should be brought in Competent court which can handle case or has been authorized to handle cases like this.

There are exceptions as well in many cases cases court can grant authority to either of the party to transfer the property but this exception is available in case of any legit emergency which will be decided by the court.

CASE LAW

There are numerous case laws relating to this let us try and understand.

In Hardev Singh v Gurmail Singh the Supreme Court observed that Section 52 of the act does not declare a pendente lite transfer by a party to the suit as void or illegal but only makes pendente lite purchaser bound by the decision of the pending litigation. Thus during the pendency of any suit in a court of competent jurisdiction, immovable property is in direct question and the party is not collusive, such immovable property cannot be transferred by any party to the suit so as to affect the rights of any other party.  

In Supreme General Flims Exchange Ltd v Sri Nath Singhji Deo a theatre was attached in execution of a decree against its owner. During attachment, the owner; eased the theatre to M/s. Supreme General Films Exchange Ltd. It was held by the Supreme Court that the lease was hit by the doctrine of Lis Pendens.

In Nagu Bai v B Sham Ra, Venkatarama Aiyyar, J. while explaining the describing a distinction between a fraudulent and a collusive proceeding, observed; “In such collusive proceedings a claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is mere mask having the similitude of a judicial determination and worn by the parties with the object of confounding the third parties. But when a proceeding is alleged to be fraudulent, what is meant that the claim made therein is untrue, but the claimant has managed to obtain the verdict of the court in his favour and against his opponent by practicing fraud on the court. While in collusive proceeding the contest is a mere sham, in a fraudulent suit it is real and earnest.

CONCLUSION

In the end, we can say that Lis Pendens has many positive sides as well as negative ones but overall this doctrine as most Supreme Court Judges said has mostly the bright sides and very few dark sides. It helps an unknown and innocent person from being framed and helps them to go on the other side of the river without getting mud on them.

SOURCE

1. https://www.latestlaws.com/articles/doctrine-of-lis-pendens-explained/
2. https://www.youtube.com/watch?v=E0jEMHEvmX8

BY- VAIBHAV PRAKASH

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