| introduction | jurisprudence |
| sections | section 52 |
| relevant case laws | Supreme General films vs Maharaja SIr Govinda Pillai vs Aiyyappan krishnan Dalip Kaur vs Jeewan Ram |
| present problem | question related |
| conclusion | decision as per our reasoning |
The Latin term lis pendens translates as “suit pending.”“Lis pendens” is construed to be the jurisdiction, power, or control which courts acquire over property involved in a suit, pending the continuance of the action, and until final judgment.It permits the dismissal of the later action filed when two or more lawsuits are pending.
This principle is based on maxim ut lite pendent nihil innovator, i.e., during pending litigation no new rights should be introduced. A lis pendens is usually filed by the plaintiff to a lawsuit, though it may be filed by a defendant who files a counterclaim. It prohibits the transfer of property when a dispute relating to the same is pending in the court of law awaiting disposal of same.
Section 52 TPA:
Transfer of property pending suit relating thereto.—
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 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.
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.
Essentials:
- There must be pendency of suit or proceeding.
- The suit or proceeding pending must be in competent jurisdiction.
- The suit or proceeding must not be collusive
- Right to immovable property must be directly and specifically in question
- the property in dispute must be transferred or otherwise dealt with by any party to suit
- the transfer must affect the rights of the parties to litigation.
- – Pendency of a suit or legal proceeding commences from the date of the presentation of the plaint or institution of the proceedings in a competent court of law. If the plaint is presented in a wrong court or it is insufficiently stamped or it is rejected and then represented after correcting the deficiency, a transfer between the two dates of presentation will not be subject to doctrine of lis pendens.
- – The doctrine of lis pendens does not operate where the transfer was made during the suit by a person who was not a party to the suit at the time of transfer but who was subsequently made a party in the case on the point.
- – The doctrine of lis pendens will not apply if the right of the transferor alone is affected and not of other party to the suit. The doctrine of lis pendens does not affect the pre-existing rights. This doctrine is only concerned with the fact that during pendency of a suit a new interest can not be created in respect of that property.
- – The main motive of this section or doctrine is that to safeguard a party from being deprived of the fruits of litigation by reason of a third party setting up rights independently on the basis of transfer or dealing during the pendente lite.
Relevant Case Laws:
Supreme General Films vs Maharaja sir
facts:
Bhatia, the owners of an immovable property had borrowed a sum of Rs. 2,50,000 from plaintiff, Maharaja, by mortgaging the immovable property (theatre) in favour of plaintiff. Bhatia was unable to repay the loan and plaintiff filed a suit in 1954 that ended in a compromise in 1960, as per which the theatre was to be sold and the loan amount was to be realised from the sale proceeds. This theatre was in occupation of a tenant who had its possession since 1940. However, this possession since 1940, was under an unregistered lease deed for the purposes of running a cinema and had expired in 1946. Since then, no further lease deed had been executed in their favour till 1956. It was only in 1956 that Bhatia executed a registered lease deed in the tenant’s favour for a period of eight years with an option for renewal till 1970. It should be remembered that this property, with respect to which the lease was executed, was the subject matter of a dispute in a court of law from 1954 till 1960. Plaintiff asked the tenant to vacate the theater after the settlements.
issue:
Whether lease deed had been executed in 1956 would be hit by lis pendens?
judgement:
The Supreme Court held that since the earlier right created in favour of the tenant was with the help of a document that was incapable of taking effect in law, the lease of 1956, for the first time created an interest in the property in their favour.
If he had an antecedent right created in his favour prior to the commencement of the suit, then he would have been able to retain the possession of the premises as per the terms of the lease.
But in the present situation, since the lease was executed in their favour, while the suit was pending in a court of law awaiting decision, the rights of the tenant were subject to the decision of the court.
Since this creation was pendente lite, this transfer of a right would be hit by the rule of lis pendens.
Consequently, the tenant was to take the lease in his favour subject to the outcome of the decision of the court. The result would be that he would have to vacate the premises.
It was concluded that the lease deed was void from the outset due to doctrine of lis pendens.
Govinda Pillai vs Aiyyappan Krishnan
facts:
A dispute with respect to the rights over a property was presented in court. However, the plaint was returned after a preliminary finding that the court, where it was presented, did not have the necessary pecuniary jurisdiction to try it. Before it could be filed in the District Court of Kottayam, which was the competent court, A, who had its possession, executed a gift of the same in favour of his wife and son.
issue;
The issue before the court was, whether the gift deed would be hit by the rule of lis pendens?
judgement:
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.
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.
A suit instituted in a higher court where it should have been instituted in a lower court is a court having no jurisdiction to try the case.
The court held that on the material date, when the gift was executed, it can be said that there was no suit pending in a court of competent jurisdiction, and therefore, the doctrine of lis pendens will not apply to this gift.
Dalip Kaur vs Jeewan Ram
facts:
Lachhman had filed a suit for possession by way of pre-emption of a land that was sold to respondent. The lower court granted a decree for pre-emption and in pursuance of it, he took the possession of the property. An appeal filed by the opposite party in the High Court was dismissed. Lachhman second appeal was filed to the Supreme Court, which was again dismissed.
Thereafter, he filed a special leave petition under 136 of the Constitution of India. Not only was the leave was granted, but the appeal was also accepted by the Supreme Court. During this period, Lachhman sold the property to appellant, who raised an objection that a decree of restitution could not be invoked against him.
issue:
Whether the proceedings in a civil appeal before the Supreme Court in pursuance of the grant of special leave under 136 of the Constitution of India are a continuation of proceedings in the original suit, and if the principle of lis pendens applies to such proceedings?
judgement:
It is held that proceedings before the Supreme Court are a continuation of those in the original suit and that the principle of lis pendens as well as restitution shall apply to the proceedings.
The mere fact that the leave to appeal has to be obtained under the Constitution does not mean that the doctrine of lis pendens would not apply or that the decree holder shall not be entitled to the restoration of possession.
The court held that as the matter was decided in favour of the other party by the Supreme Court; they were entitled to a decree of restitution of possession and a sale pending disposal of the case before the Supreme Court was definitely hit by the rule of lis pendens.
Appeal dismissed by helding that this case is hit by lis pendens.
Present Problem:
‘A’ mortgage his house to ‘B’ and secure a loan of 10 lakh rupees. As per the terms of agreement, ‘A’ failed to repay the loan within stipulated time. ‘B’ filed a suit for foreclosure of the mortgage. During the pendency of this suit, ‘A’ makes a gift of the house to ‘C’ by a registered deed. The Court decreed the suit in favour of ‘B’. ‘B’ wants to execute the decree. Decide.
Answer: The gift made by A to C is not valid and this case is hit by lis pendens, B can execute the decree.
Ajay, a member of joint family instituted a suit for partition of the joint family property against his father. However, the plaint was filed before the Court which did not have the jurisdictions to try it. Before it could be filed with the competent Court, father executed the mortgage of the same property. Will the mortgage be hit by the Rule of Lis pendent? Discuss the doctrine with the help of case laws.
Answer; No, the mortgage will not hit by lis pendens as the doctrine says alienation should be made during pending litigation and there is also no competent jurisdiction to file the case.
