ABSTRACT
The doctrine of Lis pendens, embodied in Section 52 of the Transfer of Property Act, functions as a crucial principle in property law. As it is a known fact and an established right of any owner to transfer or dispose of the property. However, under certain situation the law can restrict him to alienate the property. This paper explores the historical development of the doctrine, beginning with its roots in the landmark English case Bellamy v. Sabine, and analyses its adoption into Indian legal practice through significant judgments such as Jayaram Mudaliar v. Ayyaswamy and Rajender Singh v. Santa Singh. At the same time, it acknowledges the doctrine’s drawbacks, especially its potential to disadvantage Bonafide purchasers who may be unaware of pending litigation, resulting in extended legal conflicts and hardship. The paper concludes by recommending reforms that improve transparency and better protect bona fide buyers, thereby aiming to strike a balance between preserving judicial authority and safeguarding third-party interests.
KEYWORDS: Lis pendens, ownership, suit pending, doctrine, transfer of property, Bonafide purchaser.
INTRODUCTION
The doctrine of Lis pendens, which is derived from the Latin term which means “pending litigation,” is a legal principle that deals with the transfer of property during the pendency of a suit or legal proceedings. Section 52 of the Transfer of Property Act, 1882, finds its roots in the age-old doctrine of ‘Lis Pendens’, which literally translates to ‘pending litigation’. This doctrine is based on the common law principle of “utile pendente nihil innovetur,” which means during the pendency of litigation, nothing new in interest should be introduced or created in respect of the property.[1] The doctrine works through the idea of constructive notice, which implies that anyone dealing with the property is presumed to know that a legal dispute affecting the property is underway. This presumption acts as a safeguard for a bona fide purchaser or Lender.
In practice, once a lawsuit affecting the title of a particular property is filed, a notice of Lis pendens can be entered in the public records of the area where the property is situated. This recorded notice informs bona fide purchasers or Lender that the property is subject to ongoing litigation and that the court’s final judgment may alter the rights associated with the property. Consequently, any transaction involving the property during the pendency of the suit will remain subject to the court’s decision.
DOCTRINE OF LIS PENDENS UNDER SECTION 52 OF THE TP ACT
Section 52[2] The Transfer of Property Act, 1882, deals with the doctrine of Lis pendens, which is Latin for “pending litigation”. This section is based on the maxim ‘Ut lite pendente nihil innovetur’, which means that nothing new should be introduced into a pending litigation.[3] This section embodies the principle that any transfer of immovable property, made during the pendency of a suit or proceeding that affects the property, is void against the plaintiff in the suit.
Essentially, Section 52 operates on the concept of constructive notice, ensuring that anyone dealing with the property has deemed notice of the pending legal action. If a case concerning an immovable property is ongoing between two parties, one of them decides to sell or transfer that property, the person who receives the property(purchaser) will still be bound by the final outcomes of the case, regardless of whether they know about the litigation. This forms the essence of the rule of Lis pendens. The principle protects the interest of both parties by preventing one litigant from altering rights in the disputed property during the pendency of the suit in a way that may harm the other side.[4]
[1] Black’s Law Dictionary (2nd edition) co. litt.344
[2] Transfer of property pending suit relating thereto
[3] Narendra Bhai chhanganbhai bharatia vs Gandiva people’s co-op bank ltd, AIR 2002
[4] Dr. Avtar Singh, prof (dr)Harpreet Kaur, Transfer of Property Act, Sixth Edition