LIS Penden: The Pending Litigation

TABLE OF CONTENTS

• Key Takeaways
• Introduction
• Origin
• Conditions for the applicability of Lis Penden
• Judicial Precedents
• Conclusion

KEY TAKEAWAYS

• The Latin words "Lis" and "pendens," means "pending and "litigation” respectfully
• Pendente lite nihil innovature, which roughly translates to "nothing should be introduced during the pendency of litigation," is the adage that effectively captures this doctrine.
• The origin of doctrine of Lis Pendens can be traced back to Lord Justice Turner’s judgement for the case of Bellamy Vs. Sabine, 1857
• The Supreme Court in Amit Kumar Shaw v Farida Khatoon, stated the elements required for the applicability of rule of lis pendens
• The principles outlined in Section 52 of the Transfer of Property Act can be concluded to be in accordance with the principles of equity, good conscience, and justice.

The lis pendens theory is covered in Section 52 of the Transfer of Property Act, 1882. The Latin words "Lis" and "pendens," means "pending and "litigation” respectfully. When a legal action or procedure is still pending in a court of law, it is referred to as lis pendens.

Pendente lite nihil innovature, which roughly translates to "nothing should be introduced during the pendency of litigation," is the adage that effectively captures this doctrine. This doctrine's guiding premise is to maintain the status quo and refrain from taking any actions that might have an impact on any party to the dispute. In other words, nothing new should be added to an ongoing lawsuit.

ORIGIN

The origin of doctrine of Lis Pendens can be traced back to Lord Justice Turner’s judgement for the case of Bellamy Vs. Sabine, 1857 where it was observed by the court:

“This is a doctrine common to law and equity courts, which I apprehend, on the grounds that, if alienation pendente lite was allowed to prevail, it would simply not be possible for any action or suit to be resolved successfully. In any case, the Plaintiff will be responsible for the Defendant who alienated the property before the judgment or the decree and must be obliged, according to the same course of action, to initiate these proceedings de novo.”

This doctrine is essential and it’s major aim is that it bans the transfer of any contested property's title without the court's permission. Without it, disagreements can drag on indefinitely and it will be impossible to bring a lawsuit to a successful conclusion.

The "Transferee pendente lite" is subject to the judgement in the same way as if he were a party to the action, and the transfer will be governed by the outcome of the ongoing litigation.

Conditions for Applicability of the Doctrine

The Supreme Court in Amit Kumar Shaw v Farida Khatoon, restated the elements required for the applicability of rule of lis pendens stimulated from Section 52.

The essentials are as follows:

i. There must be a suit or proceedings pending in a court of competent jurisdiction;

For the purposes of this section, the commencement of a suit or proceeding shall be deemed to be the date of the filing of the complaint or the institution of the proceeding in a Court of competent jurisdiction, and shall continue until the suit or proceeding has been resolved by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable due to the expiration of any limitation period.

ii. Suit or proceedings must not be collusive;

When defining the difference between a collusive and fraudulent proceeding in Nagubai v. B. Sham Rao, Venkatarama Aiyyar, J, 1956 AIR 593 made the following observation:

In such (collusive) proceedings, the claim advanced is fictitious, the dispute over it is unreal, and the decree passed therein is merely a mask worn by the parties with the intention of confusing third parties. However, when a procedure is accused of being fraudulent, what is meant is that the claim made therein is false, but the claimant has managed to sway the court's decision in favour of him and against his opponent by engaging in court fraud. In contrast to a false litigation, when the dispute is only a farce, a collusive proceeding

iii. The litigation must be one in which right to immovable property is directly and specifically in question;

iv. There must be a transfer of property in dispute by any party to litigation;

v. Such transfer must affect the rights of other party that may ultimately accrue under the terms of decree or order.

Some examples for Non-Applicability:

• This does not apply to a private sale by a creditor who holds the right to dispose of the property that is mortgaged to it even when the borrower has a redemption suit pending.
• The Doctrine also does not apply when the property is not described correctly, making it unidentifiable.
• In a maintenance suit, where the property is mentioned only so that maintenance payments can be determined transparently; the Doctrine does not apply when a right to the said immovable property is not directly in question and alienations are thereby permitted.
• The Doctrine fails to apply when a Court orders restoration of immovable property under the Civil Procedure Code, Order 21, Rule 63.

JUDICAL PRECEDENTS

1. In KN Aswathnarayana Setty v. State of Karnataka &Ors, ILR 2002 KAR 4077

Dr. B.S. Chauhan, J. expressed the meaning of lis pendens by saying that:

The lis pendens concept is in line with equity, good conscience, and justice because it is based on the idea that if alienations are allowed to succeed, it will be difficult to bring a case or action to a successful conclusion. A transferee pendente lite is just as liable for the ruling as if he had participated in the lawsuit. A litigating party is excused from having to take notice of any titles they acquire while the lawsuit is still pending.

However, it must be made clear that the simple fact that a lawsuit is pending does not bar one of the parties from engaging with the property that serves as its subject. The law only presupposes a requirement that, unless the property was alienated with the Court's approval, the alienation would not in any way impact the rights of the opposing party under any decision that may be issued in the litigation. If the victorious plaintiff bought the property pendente lite, the transferee cannot take the rewards of the decree away from him.

2. In Hardev Singh v. Gurmail Sing, 2007 2 SCC 404

The Supreme Court observed 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 of the pending litigation. Thus, if during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such immovable property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit.

3. Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors.,(1948) 50 BOMLR 657 it was held that:

The broad principle underlying Section 52 of the Transfer of Property Act,1882 is to maintain status quo, unaffected by act of any party to the pending litigation.

4. In Ramjidas v. Laxmi Kumar and Ors.,AIR 1987 MP 78the Madhya Pradesh Court observed that:

The purpose of Section 52 is not to deny any reasonable and equitable claim; rather, it is to subject them to the jurisdiction of the court that is handling the property in question.

CONCLUSION

The principles outlined in Section 52 of the Transfer of Property Act can be concluded to be in accordance with the principles of equity, good conscience, and justice because they are founded on an equitable and just basis, and it will be impossible to bring a case or suit to a successful conclusion if alienations are allowed to prevail. Allowing alienations committed while a lawsuit or other legal action is pending to undermine a plaintiff's rights will be rewarding a defendant's cunning and will undermine the goals of justice and nullify all equitable considerations.

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