LIS PENDENS:
THE MEANING AND APPLICATION OF THE DOCTRINE IN
By:
AATIR RIZVI§
‘There should be an end
to litigation’ is a famous and well known maxim, which stresses upon making
such policies and laws, which tend to help in minimizing the chances of series
of suits taking birth from one suit, except in the shape of appeal, which is
continuation of same legal proceeding. Doctrine like lis
pendens or lite pendente have surfaced to check the potential future
litigations stemming out from a law suit regarding the property, subject matter
of the suit, if during litigation further transfers are not restricted.
Furthermore, as the speedy justice is required, therefore legal process should
not be defeated by the private dealings of the parties especially during
pendency of the suit in a competent court of law[1].
In this brief article on lis pendens,
I have tried to summarize the rules of this doctrine in the light of prevailing
law and dicta of superior courts, as applicable in
Lis Pendens [Latin] literally
means pending suit or cause, where ‘Lis’ means an action or suit, while ‘pendens’ means continuing or
pending, and the doctrine of lis pendens has been defined as jurisdiction, power and
control which the court acquires over the property which is subject matter of
litigation[2].
In order to ensure effectiveness of legal remedy throughout the legal process,
the rules like lis pendens
have been evolved over time. The transfer made pedente lite does not ipso facto become void;
rather such transfer can not affect the rights of other parties to the suit.
The lis pendens doctrine is
based on public policy and equally applies to bonafide
transfers for consideration and without notice affected pendent lite[3].
As per some authorities, this doctrine is based upon
doctrine of notice i.e. once a suit is instituted; it is presumed that whole
world has its notice of pendency. On the other hand[4],
some classical authorities are of the view that this rule is founded on the
necessity and not on notice[5],
to prevent litigants from disposing property during pendency and checking them
from interfering into the process of execution by the court of law. This
doctrine has ancient roots, which can be traced back to Civil Law[6],
from where it was adopted by equity and then incorporated into Lord Bacon’s
Ordinances[7].
This doctrine is based on Common Law maxim; “Pendente lite nihil innovetur[8]”
i.e. during litigation nothing new should be introduced. The real aim is to
avoid multiplicity of suits and to protect the parties to litigation against
alienations by their opponents during the pendency of the suit. The pendency of
suit will start from the date of presentation of plaint in competent court and
will last till the final disposal of that suit[9].
Even appeal and execution proceedings are considered as pendency within the
meaning of this rule. It has been observed that the effect of this doctrine is
in its nature, the same as that of registration. It charges the subsequent
purchaser with the constructive notice of the pendency of the suit and the
rights are subject to decision of the court. It serves to maintain status quo[10].
So, if during the pendency of the suit regarding an immovable property, it is
transferred by any of the parties to the suit and the right to that property is
directly in question in the suit, the transfer will not affect the right of
other party to the suit under any decree or order of the court. Further, no
party can deal with property, subject matter of a pending suit, except with the
permission of the court[11].
Also, the only effect of the doctrine of lis pendens on the sale transaction is to make it subject to
the decree or order to be passed in the suit[12].
In fact, doctrine of lis pendens bars the transfer of encumbering any right to
immovable property during pending suit or proceeding[13]
before a court of law[14].
However, where transaction is completed before filing of suit, lis pendens does not apply[15].
Hence, Section 52 Transfer of property Act, 1882 (TPA) only applies to
transactions which are entered into after filing of suit[16].
This rule applies to a number of transactions, including but not limited to
preemption[17], sale[18],
leases[19],
mortgages[20],
partition suits[21],
specific performance[22],
declarations,[23] etc.
TPA lays down a precondition for the applicability of
principle of lis pendens
that the proceedings during which the transaction took place were not of
collusive nature. Principle of lis pendens, therefore, would be applicable in absence of
collusiveness[24]. The
prerequisites for the invocation of this doctrine are:--
The doctrine, ‘Pendente Lite Nihil Innovetur[28]’,
has been derived from the natural law rule “Jus
Gentium[29]”
which has its roots in the Roman law,
where we find the maxim, ‘A thing concerning which there is a controversy is
prohibited during the suit from being alienated’.
This doctrine does not allow the litigant parties, to
give to others, pending the litigation, any right relating to the property in
dispute, so as to prejudice the other party[30].
The real scope of this section is that it does not prevent the vesting of a
title in the transferee in a transfer pedente lite but it only makes it subject to the rights of
other parties as decided in the suit[31].
Ordinarily, it is true, the decree of the court binds
only the parties to the suit. But he, who purchases during the pendency of the
suit, is bound by the decree that may be made against the person, from whom he
derives title[32]. Hence,
the purchaser lis pendens
will be bound by the judgment[33],
made against person from whom he purchases[34]. Lis pendens, applies on exparte cases or compromise cases, provided no fraud or
collusion is there and decree is obtained honestly and bonafidely.
It must be noted that pendency of suit before a wrong court does not attract
principle of lis pendens[35].
Pendency starts from the
date of presentation of the plaint, till disposal by final decree or order and
complete satisfaction or discharge of that 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. Doctrine of lis pendens
is also applicable in cases, where matter is pending before the High Court[36]
as well as, an application for restitution of suit[37].
Following points must also be kept in mind:-
Following acts of parties
are not treated as transfer for the purposes of this doctrine:
Furthermore, transfer of
property during pendency is also barred, either directly or by implication,
under different provisions of Civil Procedure Code, 1908.[43]
These include section 64[44]
which puts complete ban on alienation of property after attachment; section 74[45]
which bars any resistance or obstruction to execution of a decree without any
just cause and; rules 97 to 104 of Order 21[46]
also recognize the principle of lis pendens.
The rule embodied in
section 52 TPA has nothing to do with movable property. However, the same
principles can be applied by the courts in such matters. Turner, LJ expressed
in Bellamy versus Sabine[47],
“it would be plainly impossible, that a suit could be brought to a successful
termination, if alienation pendente lite, were permitted to prevail.” Hence, in the absence
of rules like lis pendens,
parties foreseeing their defeat in a law suit, having possession of the
property, the subject matter of the suit, will tend to transfer the same to
others before the decision and the successful party will not be able to execute
the decree. So, an endless Pandora’s Box of litigation will be opened and party
esp. decree holder shall not be able to get the fruits of the decree and will
completely destroy the very concept of doctrine of lis
pendens[48].
Hence, the whole scenario will run counter to the basic object of the system of
administration of justice if the decree of the court is allowed to be rendered
nugatory during the execution proceedings.
§. M A; LLM (Cantab); Principal,
[1]. See Jayaram Mudaliar versus Ayyaswami AIR
1973 SC 569, where Indian Supreme Court observed, “expositions of the doctrine
indicate that the need for it arises from th every
nature of the jurisdiction of courts and their control over the subject matter
of litigation, so that parties litigating before it may not remove any part of
the subject matter outside the power of the court to deal with it thus make the
proceedings infructuous’.
[2]. See Black’s Law Dictionary. Also see, Jayaram Mudaliar versus Ayyaswami [AIR 1973 SC 569 para
47] which defines it as, “Lis Pendens
literally means a pending suit, and the doctrine of lis
pendens has been defined as the jurisdiction, power,
or control which a court acquires over property involved in a suit pending the
continuance of the action, and until final judgment therein’.
[3]. NLR 1995 Civ. 106.
[4]. See for example, http://indiankanoon.org/doc/1945829/
last visited on 05-05-12 at 09:30 am PST, stating, ‘the doctrine of lis pendens is not based on the
equitable doctrine of notice but on the ground that it is necessary to the
administration of justice that the decision of the court in a suit should be
binding not only on the litigant parties but on those who derived title from
them pendent lite whether with notice of the suit or
not’.
[5]. For example, Bannet
in his Treatise on the Law of Lis Pendens
is not inclined to accept notice as the basis of the rule.
[6]. Also termed as, ‘res litigiosae’ meaning, things that are
in litigation; property or rights that are subject of
a pending action.
[7]. Lord Bacon’s Twelfth Rule states, “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 pendent lite and while the suit is in full prosecution and without
any colour 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 the justice…”.
[8]. Also termed as, “ut
lite pendent nihil innovetur” meaning, ‘pending litigation nothing new should
be introduced’.
[9]. See 1989 Law Notes 238.
[10]. See 2005 CLC 925.
[11]. 2004 YLR 487.
[12]. AIR 1994 Kar
122.
[13]. Proceeding means any action, hearing,
investigation, inquest or inquiry (whether conducted by a court, administrative
agency, hearing officer, arbitrator, legislative body or any other person
authorized by law) in which, pursuant to law, testimony can be compelled to be
given. See, M. Mahmood, p-283.
[14]. 1995 MLD 1553.
[15]. NLR 1994 UC 332.
[16]. NLR 1994 UC 332.
[17]. 1994 MLD 2139.
[18]. PLD 1995 Lah 405; PLD 2010 Pesh.
96.
[19]. PLD 1954
[20]. PLD 1965 SC 274.
[21]. PLD 1969
[22]. PLD 1954
[23]. 2000 SCMR 45.
[24]. M. Mahmood,
Transfer of Property Act, PLT Publications, 2007, p-274; see also ILR 31 Bom. 393.
[25]. Collusive in judicial proceeding is a
secret arrangement between two persons that one should institute a suit against
the other in order to obtain the decision for some sinister purpose. Hence, the
claim put forward is fictitious, the contest over it is unreal, and the decree
passed therein is mere mask having the similitude of a judicial detriment and
worn by the parties with the object of confounding third parties.
[26]. This court, whether within or outside
[27]. As transfer which
is made during pendency of suit filed by the appellants without leave and
permission is hit be principle of lis pendens. See, PLD 2010 Pesh. 23.
[28]. As held in Metcalfe versus Pulvertoft (1813) 2 Ves. & B.
204 that the effect of the maxin pendent lite nihil innovetur,
understood as making the conveyance wholly inoperative, not only in the suit
depending but absolutely to all purposes in all future suits and all future
time, is founded in error.
[29]. [Latin, Law of Nations] The body of law,
taken to be common to all civilized people and applied in dealing with the
relations between Roman citizens and foreigners. See, Black’s Law Dictionary.
[30]. 2000 MLD 495; 2010 YLR
1666.
[31]. PLD 2001 SC 449.
[32]. The Bishop of
[33]. NLR 2005 Civ. 586; NLR
1995 Civ. 116.
[34]. Landon Versus
Morris (1832) 5 Sim. 263.
[35]. 1990 CLC 366.
[36]. 2000 MLD 1581.
[37]. PLD 1987 AJ&K 139.
[38]. See Section 11 CPC, 1908.
[39]. See 1988 Law Notes 1136; also see, 1989
Civil Lah. 190.
[40]. 2002 SCMR 2003; PLJ 2002
Lah. 1878.
[41]. NLR 1991 CLJ 452.
[42]. However, it might hit by rule of res-subjudice (see, section 10 CPC, 1908).
[43]. For detailed discussion on these
provisions, please see http://lawcommissionofindia.nic.in/101-169/Report157.pdf
last visited on 04-05-12 at
[44]. Private alienation of
property after attachment to be void.
[45]. Resistance to execution.
[46]. It is regarding execution of decrees and
orders.
[47]. (1857) 1 De G. & J.
585. Also as per Lord Cranworth,‘…law does not
allow litigant parties to give to other, pending litigation, rights to the
property in dispute, so as to prejudice the opposite party’.
[48]. See, 2010 YLR 1666.