Lis pendens

Question- Discuss the principle underlying doctrine of Lis pendens ?

Right short note on list pendens .

or
Explain the doctrine of lis pendens.
what are the exceptions to this rule?

                Section. 52 Transfer of Property Act, provides  doctorine of Lis pendens . It is a Latin term it means transfer during pending litigation. This doctrine puts restriction on the Transfer of Property during the pendency of the suit in a court competent to try it.

Transfer of Property pending suit relating thereto -  Section.52- during the pendency in any Court having authority within the limits of excluding the state of Jammu and Kashmir, or established beyond such limits, by the central government of any suit  or proceeding which is not Collusive  and in which any right to removable 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 right of any other party thereto  under any decree which maybe made therein , except under the authority of the court and on such terms as it may impose .

Explanation -

          for the purpose of this section the  dependency 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 degree 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.

  
3. The Object of this Doctrine -
           I. avoid endless litigation.
          II. To protect one of the parties to the litigation against the act of the order .
         III. to avoid abuse of legal process.

4.Essential to constitute Lis pendens.

a .there should be a suit or proceeding.

b. Such suit or proceeding is pending before competent court having jurisdiction to try it .

c. Such suit or proceeding  is not collusive.

d. The suit or proceeding  must be such a which the question of immovable property is directly or substantially in issue.

e. The suit or proceeding must be pending .

f . then neither party to the suit or proceeding  shall transfer or otherwise deal with immovable property,  which is the subject matter of such a suit.

g . so as to defeat the right of party.  provided  (exception ) with the leave or permission of the court even during dependency of the suit property can be transferred . But while granting such  permission the court may impose certain conditions,  which are to be obeyed by the parties. Generally in such case  Court can the security from such parties to whom such permission  is granted.  If any transfer is made in violation of this provision then such transfer are not recognised by law as proceeding de novo (fresh) not necessary .
The Court discretionary powers. The Court may give  permission or not.

Illustration

A, who is landlord has filed  a Suit against a tenant B for the recovery of possession of the premises . B knows that he will lose the Case.  he is debarred or prevented form creating any third party interest in the property,  during the pendency of the suit . suppose B creates the interest in C in respect  of the property which is subject matter of suit then if suit is decided and decree in  favour of A the decree cannot be executed against C who is in possession of the property now . this will defeat the provision  of law .

5. Exception to the rule of Lis pendens.
               The bonafide   purchaser for value without notice.  Bonafide  purchaser is the purchaser who in the good faith,  after due enquiry from the Seller  who has taken proper precaution. for value- he has become purchaser for consideration without notice for example . without knowledge of defective title of the Seller .
if he is not a bed of Bonafide  purchaser for value without notice then transferee  shall not be entitled to any protection where is where in he purchased the property at his own risk and Peril .

6.Amendment to Indian registration (Bombay Amendment Act 1939)

    as per the amendment it is necessary in the state of Maharashtra and Gujarat that in event Of such  Suite there must be notice of pendency of the suit or proceeding to be registered under the provision of section .18 of the registration act . The amendment to section 52 provides for a notice of Lis pendens . is mandatory and shall be registered under section.18 of the Indian registration act.

  The notice shall  following particulars-

first- such a notice is mandatory.
second - such notice shall be  registered under section.18 of the Indian registration act.
Third -  in such a notice following particulars shall be incorporated -

1) the name and address of the owner of immovable property

2)  the name and address of the person whose is right to the immovable property is in question.

3) the description of the immovable  property .

4) the nature of right in respect  of such  immovable property.

5) the court in which such a suit for proceeding depending.

6) the nature and title of suit of proceedings

7) the date on which the suit the suit or  proceeding was instituted .

Case Law :-

A) M/s Supreme general films Exchange Limited. vs brijnath Singh AIR, 1975 SC 1810.

A theater Plaza Talkies,  was attacked execution of a decree against the owner of theatre . A lease  of the same  theatre was excluded in favour of appellant  company during the attachment . Supreme Court held that the lease  is to be struck by doctrine Lis pendens.

Jayaram mudaliyar vs Ayyaswami  and others  AIR 1973 . Supreme Court 569 .
Supreme Court held that  the purpose of S. 52 of Transfer of Property Act , is not to defeat in any just and equitable claim but only subject them to  the authority of the court  which is dealing with the property to which claims are put forward .

Conclusion

             the purpose of doctrine or lease tender is not to affect any just equitable claim.  this section protect the rights of the parties who claim interest in the property by filing a suit . The rule of Lis pendens is based on the maxim  that "nothing new should be introduce in a pending litigation."  the application of this role does not depend upon the transferee who had knowledge of the  pendency of the Proceeding.
              According to this rule during the pendency of the litigation , no party to the litigation can transfer the suit property with intention to affect the right of the opposite party