Lis pendens, section 52 transfer of property act
karans
(Querist) 28 November 2019
This query is : Resolved
Is it compulsory to inform the third party before transferring of the property that a suit pending? Or does not informing, amount to fraud? Can- not informing- create a criminal liability on the transferor?
Kindly cite a ruling which says that the transferor needs to compulsorily inform the third party before transferring the said property that a suit is pending or a ruling which says one has not committed an offense by not informing. Thanks
SHIRISH PAWAR, 7738990900
(Expert) 28 November 2019
Dear Mr. Karans,
The transaction entered into during pendency are considered as illegal transactions.
Regards,
Guest
(Expert) 28 November 2019
Lis Pendens ---doesn't mean that transactions taking place during an litigation is going on as Illegal and such transactions could take place if there is No Stay ordered by Court.
Guest
(Expert) 28 November 2019
But such transactions will not affect the Court orders or such transactions will not have any binding on Court Orders
Guest
(Expert) 28 November 2019
Informing the Buyer about the pending case would be a Moral Responsibility and if the buyer is not informed about the pending litigation the Seller would be obviously responsible if the Case goes against the Seller. Better to inform the Buyer.
Guest
(Expert) 28 November 2019
Only for this reason Advocates advise for News Paper Publishing regarding the Purchases
SHIRISH PAWAR, 7738990900
(Expert) 29 November 2019
Dear karans,
Relevant section is as under. Read it carefully.
52. Transfer of property pending suit relating thereto.—During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immoveable 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. 7[Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]
It states that "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".
So the transaction which is not permitted under law is illegal.
Regards,
Dr J C Vashista
(Expert) 30 November 2019
Well explained and advised by expert Mr. Shirish Pawar, I agree and appreciate his acumen.
Any transaction qua suit property lis pendence is invalid and illegal.
What is the opinion and advise of the lawyer engaged by you, if you are a party to the suit ?
Guest
(Expert) 30 November 2019
Querist -- Just read my Reply once again and just proceed. Commenting on such transactions as illegal it self is illegal. No Where In Law it had been mentioned So
Guest
(Expert) 30 November 2019
First Understand the Meaning Of " STAY "
Guest
(Expert) 30 November 2019
Just by filing a Suit if the further transactions could be restricted then what is the purpose of Stay
Guest
(Expert) 30 November 2019
Dear Querist Please read my first three posts and proceed as per your wish please
K Rajasekharan
(Expert) 01 December 2019
A transfer of property during the pendency of a case, under Section 52 of the Transfer of Property Act (cited above), is not void or illegal.
What is prevented by the Section is that the transfer during the pendency of litigation should not prejudicially affect any of the rights of the other party in the pending case. That means the purchaser of the property would be bound by the decision in the pending litigation.
The purpose of the section is not to annul all voluntary transfers but to uphold the rights of the other party in the litigation unaffected. No criminal liability can be imposed on such a transfer. But many advocates are confused about this section because it is drafted in such a manner.
This matter is explained in every text book on Transfer of Property Act as well as in innumerable case laws, such as AIR 1994 Ker 122, (2012) 7 SCC 738, (2010) 13 SCALE 201, AIR 2013 SC 2389, etc
Raj Kumar Makkad
(Expert) 16 December 2019
I do endorse the wise advice of Rajashekhran and Vashishth Sir and need not add anything.
Raj Kumar Makkad
(Expert) 16 December 2019
10 replies in just in single line by a single expert? It shows his highest devotion to the author and his problem. Appreciable.
