Transfer of Property broadly infers the transfer of title, ownership as well as the possession of the property to some other person. And, the term ‘Property’ could be generally referred to as the ‘Bundle of Rights’, the reason of which is as soon as the property gets transferred from one person to another, the person to whom the property is transferred, acquires all the exclusive rights of that property unless there are some reasonable rights which the transferor has reserved for himself regarding the property to be transferred.
The act which deals with the transferring of the property is- The Transfer of Property Act, 1882. This legislation mainly deals with the transfer of immovable property but there are some sections i.e. Section 5-37 of the act which deals with the transfer of both the movable as well as the immovable property.
The person who transfers the property is known as ‘Transferor’ and the person to whom the property is going to be transferred is called the ‘Transferee’. The act is of its own unique kind and deals with various kinds of transfers through its various provisions.
In this Article, we are going to discuss the Doctrine of lis pendens and how it is linked to the Transfer of Property Act, 1882 in lieu of the Section 52 of the Act and what it actually infers with the help of some of the landmark Case Laws related to the same.
Doctrine Of Lis Pendens
The Doctrine of lis pendens is made of two words– ‘lis’ which means ‘a suit or an action’ and ‘pendens’ means ‘during the pendency’. So the term lis pendens generally means ‘during the pendency of the suit’.
This principle has been recognized under the Section 52 of the Transfer of Property Act, 1882 which is just to secure the right of the parties in case of the immovable property and to prevent the transfer of property to anybody else during the pendency of the suit in the court of law.
This is just to retain the justice and equity concept and so that the purpose of justice should not miscarriage and all the litigation proceedings should not go into vain. The decision of the court is not only pending upon the parties to the suit but also on the persons who derive the title upon that property during the pendency of the suit.
The principle of lis pendens is based on the legal maxim ‘ut pendent nihil innovetur’ which means that during the pendency if the suit, nothing new should be introduced which means that nothing new should be done till the final disposal of the suit so that the rights of the parties are not affected.
This way, Section 52 applies to the suits which are related to the immovable property and this section prohibits any kind of transfer, disposal, alienation of the property till the litigation is pending and the judgment or decree or any order from the court is pending in that suit or case.
The underlying principle of Doctrine of lis pendens can be found firstly in the leading case of Bellamy v/s. Sabine[1] in which the following observation was laid down by Turner, L.S :
“It is, as I think, a doctrine common to the courts of law and equity, and rests, as I apprehend, upon this foundation- that it would plainly be impossible that any action should or 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.”
In the case namely Hardev Singh v/s. Gurmail Singh[2], in this case the husband transferred some of the properties to wife in lieu of providing maintenance to her. The wife filed the case claiming the ownership over the property but the husband sold the property to some other person during the pendency of the suit but the judgment came against him.
It was held by the Court that the transfer against the provisions of Section 52 is prohibitive in nature but is not illegal as it do not state anything like the transfer pending the suit of the disputed property would amount to illegality.
In Swaran Singh v/s. Arjun Singh and Ors[3]., the Punjab and Haryana High Court held that the doctrine of lis pendens would be applicable to the award passed in the Arbitral proceedings if they have the stature of the decree passed by the competent court.
Conclusion
After analyzing the Doctrine, its essentials and applicability as per the Section 52 of the Transfer of Property Act, 1882, we could infer that the Doctrine of lis pendens is based on the the justice, equity and good conscience. This doctrine seeks to protect the rights of the parties who have the genuine right over the property.
Also it seeks to protect the purpose of filing the suit in the court of law so that the purpose of filing the case could not be defeated due to the disposal or transfer of the property in any manner during the pendency of the suit.
There by this doctrine serves a triple purpose- Firstly it protects the right and saves the litigation expenses of the parties so that their efforts made on bringing the suit into the court should not be wasted, Secondly, it saves the purpose of bringing the suit in the court and Thirdly, it saves the time of the court because if the property is sold during the pendency of the suit, then it would waste the time of the court who tried the case.
[1] Civil Appeal No. 6222 of 2000
[2] 2013 SCC Online P&H 26883
[3] (1857) 1 Dec. & 566