The fundamental principle lying in Section 52 is that, the status quo should be preserved in a case which is still pending in the light of its judgment and which should not be altered by the act of one of the claimants to the suit. Specifically, it states that in situations where the conflict between any of the occurrences includes the ownership to any immovable property, such goods can-not be transferred using any of the claimants in a suit and, as a result, may also affect the rights of the other disputant. And after the litigation has been disposed of, there will be no replenishment of the statute. The clarification provided by the Section makes it very clear that the case is deemed to have began on the date on which the case is brought before the court and will continue to occur until all proceedings have been concluded. Furthermore, a final decree shall be released with due fulfilment or discharged of that court judgment.
The word Lis means ‘an action or a suit’ and pendens is the present part of the term Pendo, which means ‘continuing or pending’, thus Lis Pendens means “the pendency of a suit”. Therefore, the Lis pendens doctrine can be characterized as the power, authority, or control that courts have during the pending action on the property involved in it (Govind Pillai vs. Aiyyappan Krishnan ). The principle is based on the fact that the decision of the court is not only a matter for the parties involved, but also for those who receive the title during the proceedings.
The principle in this section is based on the maxim of English common law – ut lite pendent nihil innovator i.e., during litigation no new rights should be introduced (Bellamy vs. Sabine ). The entire maxim is a rule founded on the need for concluding settlement and on the sole premise that, if alienation is allowed during the seires of the case, I it shall not be possible to carry the suit to an effective conclusion.
Now let us have a glimpse at the basis, the Section 52 of the Transfer of property Act’1882, the basic components of the principle, the status of the transfer u/s.52 of Transfer of property Act’1882, non-application of the principle, and the judicial pronouncements in India.
BASIS OF DOCTRINE
It’s an old lineage doctrine. The basis of the common law rule based on which the judgement in a real action was considered to have entered into an alienation, over time, the doctrine of more effective and more regular administration of justice by fairness has been adopted. In most traditional systems of jurisprudence, the purchaser is to take possession of the property as it stands in the person of the seller. A claim is rendered in the course of an action for which the intention is to take the possession.
In Bellamy vs. Sabine (1857), the significance of this law was properly explained by Lord Turner in the following words: “it is…a doctrine common to the courts both at law and Equity, and rests…upon this foundation that it would plainly be impossible that they any action or suit could be brought to a successful termination, if alienation pendente lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings de novo subject again to be defeated by the same course of proceedings.”
S.52 OF THE TRANSFER OF PROPERTY ACT’1882
52. Transfer of property waiting suit in relation to any court
In any court having jurisdiction Government or formed outside those limits the Central Government may bring any legal action which is not precise and in which any right to immovable property is directly and clearly at issue, the property may not be transferred or otherwise dealt with by any party.
Explanation.—For the requirements of this section, an action or proceeding shall be considered to begin on the date of referral to the Court of competent jurisdiction of the applicant or organisation of the proceeding and to continue until the action or proceeding has been determined by a final decree or order and the full fulfilment or discharge of that order or decision has been given.
Section 52 specifies that the sale or deal with the estate at issue during the awaiting suit shall not take place.
In 1929, the S.52 was revised to replace the word “pendency” with the phrase “active prosecution” and the phrase “any suit or proceeding which is not collusive” with the terms “a contentious suit or proceeding” and to add an explanation defining the period within which the case is deemed to be pending under that section.
COMPONENTS OF THE DOCTRINE OF LIS PENDENS
For the proper application of the principle of lis pendens as stated under section 52, the following condition is necessary:
1. Pendency of proceeding specially related to realty must be there.
2. The rights to land, directly or indirectly, must be at issue in that proceeding.
3. This kind of a matter must not be of a collusive kind, the suit must be awaited.
4. The suit must be pending before the court of law.
5. The transfer must affect the rights of the other party to the litigation.
6. Period of Pendency: From the day plaint is filed in court till execution of decree, is lis pendens.
Where the above demands are fulfilled, the transferee is bound by a decision of the court. If the ruling of the court is in favour of the transferor, the transferee shall have rights in the estate transferred to him. If a decision is made against the transferor, the transferee can- not receives any interest in the land.
STATUS OF TRANSFER
Section 52 in essence is prohibitive. It uses the expression “it is impossible to move or otherwise deal with the land”. Also, the progress is not invalid during the suit’s pendency. Only the result of the case is subject to it. Thus, at the instance of the affected party, the transfer is voidable, except to the degree that it may conflict with the rights acknowledge by the decree held to be valid. The transferor shall only take the title of the transferor subject to the outcome of the litigation pending. Law states that alienation can in no way affect the rights of the other party unless the property has been alienated with the court’s approval. Transferee does not deprive the fair claimant of the fruits of the declaration if the transferee has purchased the property.
NON-APPLICATION OF THE DOCTRINE
In any case, it is not the rule that the doctrine of lis pendens is valid. Rather, there are several cases in which this doctrine is not valid. These are the instances below:
1. The doctrine of lis pendens mentioned in the section does not affect the private selling by a mortgagee in the exercise of the power granted by a mortgage deed, and the selling is valid if it is made within the time of payment of the redemption suit filed by the mortgagee.
2. In suits of Review.
3. When the rights of transferor of immovable property is affected.
4. As an effective remedy in such situations, the order handed down to the intervener in the execution proceedings is an intervention under the Order. 21 rule. 63 of the Code of Civil Procedure, 1908.
5. When the suit is of collusive nature.
6. To annual leases and other actions, such as the required or ordinary fair incidents of an interim beneficial enjoyment.
7. The theory of lis pendens is not applicable to an individual who acquire a mortgage on the property at the time of the mortgage action, in view of the money paid by him and used by the mortgage holder to pay off the mortgage of the action.
8. Where alienations are not inconsistent with the privileges that may be decided in the suit by the decree.
9. If in the plaint there is mis-description of the immovable property.
10. To the time between a suit’s dismissal and a new suit on the same cause of action.
In Hardev Singh vs. Gurmail Singh , The Apex Court noted that Section 52 of the Act does not declare a pendente lite transfer as invalid or unlawful by a party to the suit, but merely makes the pendente lite purchaser bound by the pending litigation decision. The other parties’ rights are not to be affected by such a transfer under a decree.
In case of Fayaz Husain Khan vs. Prag Narain , A mortgage claimed to enforce its mortgage, but the mortgage impacted a subsequent mortgage before the summons was issued. Without making the subsequent mortgagee, a party to the subsequent mortgagee, a party to the litigation, the former mortgagee pursued his litigation and received a sale order from the court. The sale got to hold to have revoked the right of the future mortgagee to redeem the previous mortgage.
In T.G. Ashok Kumar vs. Govindammal & Anr , The Apex Court noted that if the title of the transferor pendente lite is upheld concerning the property transferred, the title of the transferor would not be affected. On the other hand, Pendente lite transfers can only be made in respect of a part of the property transferred. Title of the transferor must be maintained only to that degree. If the property transferred pendente lite is wholly allocated to some other party or parties, or if there is no right or title to the property held by the transferor, the transferor would not have any title to the property.
In Rajender Singh and Ors. vs. Santa Singh and Ors. , The principle of lis pendens was meant to strike private transactions at the attempts of the parties to a lawsuit to circumvent the jurisdiction of a court, says the Apex Court. The doctrine may exempt the subject-matter of the lawsuit from the limits of the Court’s jurisdiction. The lis pendens doctrine gives the Court the power and authority to prevent the object of a pending action from being defeated.
Depending on the information, i) what privileges or interests are transferred, (ii) who is the party concerned, (iii) how and in what way the move is likely to ‘affect’ any party to the pending ‘proceedings,’ the right referred to in Section 52 will certainly be used as both a sword and a shield. It can be used as a shield in a subsequent or related phase between the same parties. However, any person who wishes to use it as a sword must first determine his or her right to do so when an appeal is brought against his or her claim to do so in any subsequent proceedings. Indeed, if the transfer has not been stopped by one of the parties to the earlier proceedings likely to be affected by the transfer, it is not forbidden for the transferee to argue that the opportunity to delay the transfer has been lost and that nothing remains to be done.
In order for a step to be invalid as covered by the provisions of Section 52, it must be established that the rights of any other party to the action have been covered. If, on the ground work of the rule of lis pendens, a party challenges a transfer, it must prove that the transfer has been made in order to influence and circumvent the rights of the claimant by virtue of a decree or order that may be passed in case and that it has been refused. According to this doctrine, it is intended, in the interests of the parties to the case, to limit the jurisdiction of the Court by means of private transactions which exclude the subject-matter of the case from the jurisdiction of the court in order to settle the unresolved dispute and to thwart its judgement.
1. BOOK REFERRED:
• PROPERTY LAW, DR. POONAM PRADHAN SAXENA.
• TEXTBOOK ON TRANSFER OF PROPERTY, DR. AVTAR SINGH
• THE TRANSFER OF PROPERTY ACT, DR.T.P. TRIPATHI