Is transfer of property during pending litigation Valid (Lis Pendens)
Transfer of property during pending litigation
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.
- ”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.