What is Sec 52 of Property Act Doctrine of Lis Pendens?
Sec 52 of the Transfer of Property Act, 1882, enumerates the doctrine of Les Pendens. Les Pendes simply mean a “pending legal action.” ‘Lis’ means the ‘suit’ and ‘Pendens’ means ‘continuing or pending’.
The doctrine derives itself from the latin maxim “Ut pendent nihil innovetur” meaning, during litigation nothing should change.
The principle embodying this doctrine implies that the subject matter of a suit should not be transferred to a third party during the proceedings of a suit. In case of the transfer of immovable property, the transferee becomes bound by the result of this suit.
The doctrine of Lis Pendens essentially aims at:
(i) avoiding endless litigation.
(ii) protecting either party to the litigation against the act of the other.
(iii) avoiding abuse of legal process.
The Section basically prohibits division of immovable property, when a dispute relating to a particular property is pending before a competent court of law. It’s follows the principle of when the person purchasing an immovable property during the pendency of a suit has no independent right to property. He cannot resist, obstruct or object the execution of a decree with relation to the property.
Application of Sec 52
Certain conditions require fulfillment for the application of the Doctrine of Les Pendens (Sec 52):
The Supreme Court in a three Judge Bench in the case of Dev Raj Dogra and others v. Gyan Chand Jain and other, construed the meaning of Section 52 of the Transfer of Property Act and laid down following conditions:
- A suit or a proceedings any right to immovable property, directly and specifically in question must firstly be pending.
- The suit or proceeding should be pending in a Court of competent jurisdiction,
- The suit or the proceeding should not be a collusive one (ulterior motives),
- Litigation must be one in which right to immovable property is directly and specifically in question,
- Any transfer of immovable property or any dealing with immovable property during the pendency of a suit is prohibited except under the authority of Court. However, if transfer or other dealings with the property by any party to the suit or proceeding should affect the rights of any other party to the suit or proceeding under any order or decree, which may be passed in the present suit or proceeding.
Non-applicability of thee doctrine of les pendens
The Doctrine of Lis Pendens does not apply to every case. There are certain instances wherein this doctrine does not apply like:
- Mortgagee makes a sale, in the exercise of the power conferred by the mortgage deed.
- In matters of review.
- Only affects the transferor party.
- In cases of friendly suits;
- where the proceedings are collusive in nature;
- Where the suit involves transfers by a person not party to the suit.
- Also the plaint does not properly describe the property.
- Moreover, the subject matter of rights concerned in the suit and those alienated by transfer are different.