Doctrine of lis pendens

1. Origin

Lis pendens means a pending suit. The doctrine was stated in Bellamy v. Sabine (1857), where Turner L.J. explained that it rests not on notice but on the necessity that neither party to a litigation should alienate the property in dispute so as to affect his opponent; otherwise no action could ever be brought to a successful end. The Indian rule in section 52 adopts the same basis: it applies whether or not the transferee knew of the suit.

2. Section 52: the text

Section 52 provides that during the pendency, in any court of competent jurisdiction, of any suit or proceeding 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.

The Explanation fixes the period. The pendency commences from the date of presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and continues until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of the decree or order has been obtained, or has become unobtainable by reason of the expiry of the period of limitation prescribed for its execution. An appeal is a continuation of the suit, so the doctrine applies during the appeal as well.

Some States, including Maharashtra and Gujarat, have amended section 52 to require a notice of the pending suit to be registered before the doctrine can bind a transferee. Elsewhere no registration is needed.

3. Essentials

• A suit or proceeding is pending in a court of competent jurisdiction. A suit filed in a court without jurisdiction does not attract the doctrine.
• It is not collusive. A sham suit between friends, filed to tie up property, does not count.
• A right to immovable property is directly and specifically in question. A money suit, or a suit in which the property is only incidentally involved, is outside the section. Suits for partition, possession, specific performance, pre-emption and redemption or foreclosure of a mortgage are within it.
• The property is transferred or otherwise dealt with by a party during the pendency. “Otherwise dealt with” covers mortgages, leases and charges, and also involuntary alienations such as court sales.
• The transfer affects the rights of another party under the decree that may be made.

4. Effect of a transfer pendente lite

• The transfer is not void. It is valid between the transferor and transferee, but it is subject to the result of the suit. If the transferor wins, the transferee keeps the property; if the transferor loses, the transferee loses it too.
• The decree binds the transferee even if he was not made a party, and can be executed against him.
• Good faith, payment of full value and absence of notice are no defence.
• A transfer made with the court's leave, and on its terms, is outside the bar.

In Thomson Press (India) Ltd. v. Nanak Builders & Investors P. Ltd., 2013 INSC 118, (2013) 5 SCC 397, the Supreme Court held that a transferee pendente lite is bound by the decree just as his transferor is, and that the court may, in its discretion, add him as a party under Order I Rule 10 of the Code of Civil Procedure, 1908 so that he can protect his interest; but the transfer does not give him a better position than the transferor had.

5. Leading Supreme Court cases

Jayaram Mudaliar v. Ayyaswami, 1972 INSC 107, (1972) 2 SCC 200. The Court held that the expression “transferred or otherwise dealt with” is wide enough to cover involuntary alienations, including court sales in execution, and not only voluntary transfers by a party. It also restated the basis of the doctrine as public policy and necessity rather than notice: the purpose is to prevent the jurisdiction of the court from being defeated by alienations of the property under dispute.

Rajender Singh v. Santa Singh, 1973 INSC 140, AIR 1973 SC 2537. The Court described the doctrine as intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of the court by private dealings that remove the subject matter from the court's power or frustrate its decree. It held that section 52 does not arrest the running of limitation: the question whether a claim to possession had become barred, or title acquired by adverse possession, is governed by the Limitation Act, not by the pendency of an earlier suit under section 52.

6. Section 52 and other doctrines

• Section 41. A transferee from an ostensible owner is protected if he took care and acted in good faith. Under section 52 good faith does not help him. Where both apply, section 52 prevails, because it is based on necessity, not on the conduct of the real owner.
• Section 19(b), Specific Relief Act, 1963. A transferee for value without notice of an earlier contract of sale is protected against specific performance. That protection does not extend to a transfer made after the suit for specific performance was filed, because section 52 then applies.

7. Problem

A sues B for possession of a plot, claiming title. While the suit is pending, B sells the plot to C, who pays full price without knowing of the suit. A gets a decree. C resists execution, saying he was a bona fide purchaser and not a party.

Issue. Whether the decree binds C, a transferee pendente lite who had no notice of the suit.

Law. Section 52: during the pendency of a non-collusive suit in which a right to immovable property is directly and specifically in question, a party cannot transfer the property so as to affect the other party's rights under the decree. The doctrine rests on necessity, not notice (Bellamy v. Sabine, Jayaram Mudaliar), and the transferee is bound by the decree (Thomson Press).

Application. A's suit for possession put B's title to the plot directly in issue. It was filed in a competent court and nothing suggests collusion. B sold while it was pending, without the court's leave. C's good faith and lack of notice are irrelevant. (If the property lay in a State that requires registration of a notice of lis pendens, A would need to show that he had registered one.)

Conclusion. The decree binds C and can be executed against him. C's remedy is against B for the price, on the ground that B had no title to sell.

How this is examined

“Explain the doctrine of lis pendens” appears as a 10-mark question or a short note. Write the origin (Bellamy v. Sabine), the text of section 52 and the Explanation, the five essentials, the effect (valid but subject to the decree), Jayaram Mudaliar, Rajender Singh and Thomson Press, and the state amendments in one line. The problem above is a common 6-mark question.