M. S. MENON J. – In execution of the decree in the suit the appellant applied for delivery of one
acre of property in survey plot No. 201/1 of the Kanjirappally North Pakuthy together with the
building thereon. The contentions of the respondent (102nd defendant) as summarised by the court
below are:
“That the 35th defendant, his father, had no rights over the property even on the date of
the suit that the 35th defendant has gifted this property under Ext. I to himself and his mother
on 3-6-1095, long before the suit, that the mother in turn gifted her rights over the property
to him under Ext. II in 1101, that ever since that date, he is in possession of the property in
his own independent title, that neither he nor his mother was a party to this decree, that the
decree is not binding on him and his property and that therefore the plaintiff is not entitled to
get possession of the property”.
2. The only question, as can be seen from the summary of contentions extracted above, that arises
for consideration is whether the gift deed dated 3-6-1095 is affected by the rule of lis pendens.
3. The plaint, however, was returned for want of pecuniary jurisdiction for presentation to the
proper court and was filed in the District Court of Kottayam only on 29-11-1095. If 29-11-1095 is the
material date then it is equally clear that Ext. I is not affected by the rule and that the conclusion of the
lower court to that effect has to be sustained.
4. Section 52 of the Transfer of Property Act, 1882, reads as follows:
“During the active prosecution in any Court having authority in British India or
established beyond the limits of British India by the Governor-General in Council, of a
contentious suit or proceeding 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 section was amended by Act 20 of 1929 by substituting the word “pendency” for the words “
active prosecution” and the words “ any suit or proceeding which is not collusive” for the words “a
contentious suit or proceeding” and by the addition of an Explanation which fixes the time during
which a suit is deemed to be pending for the purposes of the section. The section as amended reads as
follows:
“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 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.
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
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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.”
5. There was no Transfer of Property Act in force in the Travancore State at the relevant time and
so what we are concerned with in this case is not so much the application of a specific statutory
provision as of the general principle governing such matters. “Lis” means an action or a suit,
“Pendens” is the present participle of “Pendo” meaning continuing or pending, and the doctrine of Lis
pendens may be defined as “the jurisdiction, power, or control that courts have, during the pendency
of an action over the property involved therein”. (34 American Jurisprudence 360).
6. The basis of the doctrine in given as follows in the said volume:
“Two different theories have been advanced as the basis of the doctrine of lis pendens.
According to some authorities, a pending suit must be regarded as notice to all the world, and
pursuant to this view it is argued that any person who deals with property involved therein,
having presumably known what he was doing, must have acted in bad faith and is therefore,
properly bound by the judgment rendered. Other authorities, however, take the position that
the doctrine is not founded on any theory of notice at all, but is based upon the necessity, as a
matter of public policy, of preventing litigants from disposing of the property in controversy
in such manner as to interefere with execution of the court’s decree. Without such a principle,
it has been judicially declared, all suits for specific property might be rendered abortive by
successive alienations of the property in suit, so that at the end of the suit another would have
to be commenced, and after that, another, making it almost impracticable for a man ever to
make his rights available by a resort to the courts of justice”. (34 American
Jurisprudence 363).
And its origin and history;
“The doctrine of lis pendens is of ancient lineage. Originating, it is said, 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 time the doctrine was adopted by equity,
being embodied in one of Lord Bacon’s ordinances “for the better and more regular
administration of justice in the court of Chancery”. This ordinance, commonly known as
Bacon’s Twelth Rule, provides ‘that no decree bindeth any that cometh in bonafide by
conveyance from the defendant, before bill is exhibited, and is made no party neither by bill
nor order; but where he comes in pendente lite, and while the suit is in full prosecution and
without any color of allowance or privity of the court, there regularly the decree bindeth; but
if there were any intermission of the suit, or the court made acquainted with, the court is to
give order upon the special matter according to justice’. The principle thus adopted at an early
period in the history of chancery jurisprudence has been followed and acted on by various
successive chancellors, and is admitted by writters on the subject to be the established
doctrine”. (34 American Jurisprudence 365)
7. Bennet, in his Treatise on the Law of Lis Pendens was not inclined to accept notice as the
basis of the rule. He quoted Lord Chancelor Cranworth Bellamy v. Sabine [ (1857) I De. G & J 566].
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“It is scarcely correct to speak of lis pendens as affecting the purchaser through the
doctrine of notice, though undoubtedly the language of the courts often so describes its
operation. It affects him not because it amounts to notice, but because the law does not
allow litigant parties to give to others pending the litigation rights to the property in dispute
so as to prejudice the opposite party… The necessities of mankind require that the decision
of the court in the suit shall be binding not only on the litigant parties, but also on those who
derive title under them by alienation made pending the suit, whether such alienees had or
had not notice of the pending proceedings. If this were not so there could be no certainty
that the litigation would ever come to an end, and said:
“The foundation for the doctrine of lis pendens does not rest upon notice, actual or
constructive; it rests solely upon necessity – the necessity, that neither party to the
litigation should alienate the property in dispute so as to affect his opponent”.
8. In Mulla’s commentary to S. 52 of the Transfer of Property Act, 1882, (4th Edition, page 228)
it is stated:
“If the plaintiffs valuation is disputed and the plaint returned after inquiry for
presentation to a Court of higher grade, an alienation effected in the interval is affected by
the doctrine of lis pendens”.
If this proposition embodies the correct principle then Ex. I is affected by the said doctrine and the
appeal has to be allowed.
9. The statement is based on Ma Than v. Maung Bagyan [ AIR 1927 Rang 145]. In that case a
suit was instituted in the Township Court at Bogale which could only deal with suits up to Rs. 500 in
value. The defendant filed a written statement in which he pleaded inter alia that on a correct
valuation the suit will be found to be beyond the pecuniary jurisdiction of the court. The court framed
a preliminary issue as to the proper valuation of the suit, took evidence as to the acreage of the
holding and the value per acre, and on the 14th of May 1920 recorded a finding that the proper
valuation of the suit would be Rs. 750. On the basis of that finding it directed that the plaint be
returned for presentation to the proper court. The proper court was the Sub-Divisional Court at
Pyapon, and the plaint was presented in that court on the 21st May 1920.
10. On the 20th May 1920 the defendant executed a conveyance of the land and the question
before the court was whether the said conveyance was vitiated by the rule of lis pendens. Heald, J.,
stated the question for decision as follows:-
The question which thus comes before us in this appeal is whether in a case where the
subject matter of the suit is land and the valuation which the plaintiff puts on the land is
disputed and where the proper valuation is after enquiry found to be beyond the pecuniary
limits of the Court in which the plaint was presented, so that the plaint is returned for
presentation in another Court, and where further the plaint is so presented without undue
delay, a transfer made in the interval between the return of the plaint and its presentation to
the proper court is a transfer which is prohibited by S. 52 of the Transfer of Property Act
and answered the question in the affirmative.
11. In the course of his judgment, he also referred to Tangor Majhri v. Jaladhar Deari, [AIR
1919 Mad 755] and said:
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“It is, clear that neither of these decisions is an authority on the question before us, which
is in effect whether a plaintiff who has presented his plaint in a wrong court can be regarded
as actively prosecuting a suit or proceeding in the interval between the return of the plaint for
presentation in another Court and its actual presentation in that Court”.
Cunliffe, J, on the other hand, thought that Tangor Majhri case was a direct authority on the
point:
“There is a direct authority on this very point in the case . There it was held that the rule
of lis pendens will operate in favour of a plaintiff, who, at the time of the transfer was
erroneously prosecuting his suit in a Court which from defect of jurisdiction was unable to
entertain it and in consequence returned it for presentation to the appropriate Court, which
Court ultimatelly decreed the suit on the basis of a lawful compromise. The decision in
question appears to me to be based on a sound principle of equity. And said:
“From the commencement the plaintiff in the words of S. 52 was engaged in
‘actively prosecuting’ her suit. I am of the opinion that even if a person actively
prosecutes a suit in a Court which from defect of jurisdiction is an inappropriate
tribunal yet such active prosecution is contemplated by the section under regard”.
12. Whatever may be the correctness of the decision on the basis of Section 52 before the
amendments effected by Act 20 of 1921 it cannot be considered as a correct interpretation of the
section as it stands today. In Gouri Dutt v. Shanker [AIR 1933 Sind 117], Rupchand, AJC, said:
“The legislature has thought fit to amend the provisions of S. 52, T.P. Act, by Act 20 of
1929, two years after the case in AIR 1927 Rang, 145 was decided to make it abundantly
clear that the pendency of the suit or proceedings for the purpose of the doctrine of lis
pendens shall be deemed to commence from the date of presentation of the plaint or the
institution of the proceedings in the Court of competent jurisdiction. The Rangoon case in
therefore no longer good law”. And added :
“If a suit remains a suit though a Court cannot entertain it for want of jurisdiction and has
to return the plaint to the Court in which the suit should have been presented, as held in the
Rangoon case, the provisions of S. 14 (The Indian Limitation Act, 1908), so far as they
provide for extending the period of limitation in such cases would be redundant. But this is not
so. In a number of rulings it has been held that where the suit had been instituted in a wrong
court and the plaint has been ordered to be returned, the period of limitation does not
commence from the date when the plaint was first presented but from the date when it was
subsequently presented in the proper Court, although it is open to the plaintiff to rely upon the
provisions of S. 14 to claim exemption for the time during which he was prosecuting with due
diligence and in good faith his first suit”.
13. In Nathusingh v. Anandrao [AIR 1940 Nag 185]: a minor member of a joint Hindu family
instituted a suit for partition against his father in a wrong court and the father executed a mortgage
subsequent thereto and before the plaint was presented to the proper court. It was contended that the
doctrine of lis pendens as enunciated in section 52 applied to the case. Pollock, J., said:
“The mortgage was executed after S. 52 was amended by the Transfer of Property
(Amendment) Act, 20 of 1929. The only order that was made in the proceedings pending at
the time when the mortgage was executed was an order that the plaint should be returned for
presentation in a proper Court. The suit in which the decree for partition was passed was not
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instituted until after the mortgage was executed, and therefore the doctrine in lis pendens
cannot apply”.
14. We take the view that Section 52 of the Transfer of Property Act, 1882, as it stands today
embodies a correct version of the rule of lis pendens and that it is that rule that should be applied in
this case. If the said rule is applied there can be no doubt that there was no suit pending in a court of
competent jurisdiction prior to 29-11-1095 and that Ext. I dated 3-6-1095 should hence be held as not
vitiated by the rule of lis pendens.
15. It follows that the lower court’s decision is correct and has to be affirmed. The appeal falls
and is hereby dismissed with costs.
