DOCTRINE OF LIS PENDEN S Essays - Lis Pendens, Real Property Law

DOCTRINE OF LIS PENDEN S Essays - Lis Pendens, Real Property Law DOCTRINE OF LIS PENDEN S INTRODUCTION The broad principle underlying S. 52 of the Transfer of Property Act is to maintain the status quo unaffected by the act of any party to the litigation pending its determination-even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed-if after the dismissal of a suit and before an appeal is presented, the lis' continues so as to prevent the defendant from transferring the property to the prejudice of the plaintiff . MEANING The term Lis means an action or a suit, Pendens is the present participle of " pendo "meaning continuing or pending. Lis Pendens literally means a pending suit ; and the doctrine of Lis Pendens has been defined as the jurisdiction, power or control which a court acquires over property involved in a suit pending, the continuance of the action ., and until final judgment therein. Exposition of the doctrine indicate that the need for it arise from the very nature of the jurisdiction of Curt and their control over the subject -matter of litigation so that parties litigating before it may not remove any part of the subject matter outside the power of the Court to deal with it and that make the proceedings infructuous . The Supreme Court in its recent decision in T.G. Ashok Kumar v. Govindammal explained the concept in the following terms; 9. Section 52 dealing with lis pendens is relevant and it is extracted below: "Transfer of property pending suit relating thereto.During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right of 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." OBJECT OF THE DOCTRINE The object of S. 52 is to subordinate all derivative interests or all interests derived from parties to a suit by way of transfer of pendente 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. A transferee in such circumstances therefore takes the consequence of the decree which party who made the transfer to him would take as the party to the suit. The principle of lis pendens embodied in Section 52 being a principle of Public Policy, no question of good faith or bona fide arises. Such being the position, the transferee from one of the parties to the suit cannot assert or claim any title or interest adverse to any of the rights and set interests acquired by another party under the decree in suit, the principle of lis pendens prevents anything done by the transferee from operating adversely to the interest declared by the decree. In Jayaram Mudaliar v. Ayyaswami ( AIR 1973 SC 569) this court held that the purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to the authority of the court which is dealing with the property to which claims are put forward. This court in Hardev Singh v. Gurmail Singh (2007) 2 SCC 404 held 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 the pendente lite purchaser bound by the decision in the pending litigation HISTORY The doctrine is of ancient lineage .Originating in the Civil Law, it seems to have been operative at an early date as the basis of the common law rule by virtue of which the judgment in a real action was regarded as over- reaching any alienation made by the Defendant during its pendency. In the course of the doctrine was adopted