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Is transfer of property during pending litigation Valid (Lis Pendens)

 

What is the meaning of ”Lis Pendens”? Is the transfer of property valid, which is made during the pendency of the suit relating thereto?

Section 52 of the Transfer of Property Act enacts the doctrine of ”lis pendens”. Put simply, it means any right to immovable property, which is the subject matter of a legal proceeding, cannot be transferred or dealt with so as to defeat the rights of any party to the suit, except under the order of the court hearing the proceeding.

This is necessary because otherwise, the plaintiff”s right in every such suit would be defeated by reason of the defendant transferring before the judgment or decree. The plaintiff would then have to file another suit against the new purchaser, and repeat the process indefinitely, because every defendant would sell to a new purchaser before the judgment or decree. Thus, the plaintiff would never be able to succeed in his suit.

State amendment: In Gujarat and Maharashtra, an amendment has been made as follows:

  • that the plaintiff must register a notice of pendency of such suit or proceeding, under Section 18 of the Indian Registration Act containing the following:
    • the name and address of the owner of immovable property or other person whose right to the immovable property is in question;
    • the description of the immovable property the right to which is in question;
    • the court in which the suit or proceeding is pending;
    • the nature and title of the suit or proceeding; and
    • the date on which the suit or proceeding was instituted.
  • the bar against the transfer or alienation of the property which operates after the notice is registered.

Commencement of the suit -

A suit is commenced by the filing of a plaint and, appeals and execution proceedings are the continuation of the suit.

Illustrations

  • ”A” mortgages property first to B, and then to C. ”C”sues A on his mortgage and, pending the sui,t to B. The sale, having being made pendente lite, is subject to the decree in C”s suit. But A”s right, under the prior mortgage, is not affected.
  • ”A” makes a gift of land to B. ”C” sues A for the possession of the land. While this suit is pending, B transfers the land to D; A dies and C obtains the decree for the possession against B as the legal representatives of A. In the above circumstances, the title of D is not affected by the rule of lis pendens, subject to B”s decree, because of two reasons. Firstly, A’s gift was before the suit. Secondly, B was not a party to the suit at the time of the transfer by B to D.

The rule of lis pendens does not apply to any transfer made before the filing of the suit. The doctrine does not apply to immovable property.

 

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About the author

"The Disputes Settlement Trust" (Regd.No.2959), is a NGO [Non-Government Organization] registered under "the Indian Trust Act, 1882". We provide free legal advice on this web-site. Besides this; we take up cases of Beneficiaries of the Trust, in any Authority, Arbitration, Forum, Commission, Registrar or Court, High Court or Supreme Court of India.

3 Comments

  • Shubhashish Sen Gupta. says:

    Respected Sir,

    One of our neighbours forcibly encroached a portion of our leased out govt. land on the western side at Sri Krishna Nagar, Patna on 23.12.79 at the dead of the night at around 3.00 am with the help of many anti-social elements. We loged a case u/s 144 Cr.Pc. and finally being converted into 145 Cr.Pc we won the case on 04.04.92. After this, the owner of the adjoining private plot Mrs. Kalindi Devi filed a Criminal Revision in the Civil Court of Patna, but it was dismissed on this recent 01.06.13 after a lapse of 20 long years clearing our way to justice.

    A separate Eviction Suit was also lodged by the Govt, against Mrs. Kalindi Devi probably in 1981 in the court of the Competant Authority, BSHB, which she also finally lost in the High Court of Patna on 21.04.09 and never appealed as she fled away on 22.10.99 after illegally selling the disputed property on 11.10.99 to two related people, the disputed property on which there are four Injunction Orders pending still.

    Now there are two cases pending in the Civil Court one instituted by us in 1982 under the Municipal Corporation Act for making unauthorised construction without a Building Plan and the other which is a Title Suit by Mrs. Kalindi Devi to thwart the legal proceedings of the govt of Bihar. For the last 35 years we have won every move except the remaing two cases as stated above. But still the possession has not yet been given to us for which I have written to the govt. many times.

    The new fake owners of Mrs. Kalindi Devi’s plot have been giving false attendances in the cases since 11.10.99 since they have taken possession of the disputed plot including our encroached land.

    It now seems that there is no justice in this country at all. Even after winning all the major cases
    sacrifycing 35 years of our precious lives spending most of our hard earned money we still remain deprived till date awaiting justice.

    Please help us now as they are putting pressure on us to compromise which we would never do. In the remaining two cases also their position is becoming very silly day by day as they cannot submit any petition or rejoinders or replies as it all would require affidavits of Mrs. Kalindi Devi when she has already fled with her whole family members on 22.10.99 just after selling the disputed property. That is why they are thinking to forcibly compromise on their terms.

    I await your reply.

    Prof. Sen Gupta.

    • Dear Prof. Sen Gupta, Justice delayed is justice denied. Due to this factor only, you think that the justice is not there in this country. Secondly, competent & skilled lawyers only can handle such complex cases and that requires lot of money to engage such lawyers. Various direct & indirect methods are required to win or lose a case by legal means itself. Therefore, either you should engage such lawyer Or contact our legal experts by click of mouse here. The choice is yours.

      • Shubhashish Sen Gupta. says:

        It is now not possible for me to spend anymore money on the cases due to extreme hardships. I am already a diabetic with high blood pressure and my only son is mere 13 years of age due to married late due to unavoidable circumstances. Kindly help me if you can. Had I got money I would not have left to depute the best lawyers in town when only a very little push is required to teach a good lesson to the offenders of law who take this for granted that they can play it on their fingers. I await your kind response. Prof. Sen Gupta.

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