52. Transfer of property pending suit relating thereto.

SECTION 52
TRANSFER OF PROPERTY ACT, 1882

Transfer of property pending suit relating thereto

DECEMBER, 2022
LLB - 3 YEARS (3RD SEM)
SUBMITTED TO: DR. NISHA JINDAL

UNIVERSITY INSTITUTE OF LAWS, REGIONAL CENTRE, LUDHIANA

 52. Transfer of property pending suit relating thereto.
2

SECTION 52 UNDER TRANSFER OF PROPERTY ACT,1882

AN
ASSIGNMENT
SUBMITTED TO
THE UNIVERSITY INSTITUTE OF LAW
PUNJAB UNIVERSITY REGIONAL CENTRE, LUDHIANA
IN PARTIAL FULFILLMENT OF REQUIREMENT FOR
DEGREE OF
BACHELOR OF LAWS

SUPERVISED BY: Submitted By:

Dr. Nisha Jindal Ruhani Sharma
Professor of Laws Roll no. 73/21

UNIVERSITY INSTITUTE OF LAWS, REGIONAL CENTRE, LUDHIANA

 52. Transfer of property pending suit relating thereto.
3

ACKNOWLEDGMENT

Man can do what a man has done, but it not only needs to be sustained and consistent
endeavour but also needs blessings and Guidance of the only Supreme power the Almighty god which at
last leads us to Rich Dividends. Just as in a battle test not only one’s patience, stamina & unremitting effort
over a sustained period supplemented by self Confidence and Consistent Endeavour is needed to bring
success over &above, it also needs Self Determination which is essentially buttressed by love and warm
affections of our peers and Well Wishers which clinch the issue & lead us to success after success for which
one rightly crave. By this time our inward mirth had reached the zenith and we gladly acknowledge all the
help offered to us. To start with, we firstly bow our heads in reverence to the almighty god.

I avail this privilege to express our deep sense of gratitude and immense respect to our esteem supervisor,
Professor Nisha Jindal. I am glad that her choice of work & conceptualization & articulation of ideas
permitted me to make this emphatic work done. I gratefully extend my thanks for her invaluable guidance,
constant moral support, and encouragement, suggestions, and inspiration throughout our entire work.
Once, again from the core of my heart, eulogize her help and guidance.

In the end, I would like to express my heartfelt thanks to my parents and family
members and all the peers without whose wholehearted support & inspiration wouldn’t be possible to
astonishingly continue with the swift pace of work.

Dated: 12/11/2022

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 52. Transfer of property pending suit relating thereto.
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Table of Contents
List of Abbreviations .................................................................................5
List of cases .............................................................................................6

Introduction ..............................................................................................7-8

1. Doctrine of Lis Pendens.......................................................................9-10

2.1 Basis ............................................................................................9

2.2 Features of the doctrine ..............................................................10

2. Applicability of Lis Pendens in India u/s 52.........................................11-16

3.1 Essentials .....................................................................................12-14

 Pendency of suit

 Competent court

 Immovable property

 Not collusive

 The property in dispute must be alienated

or otherwise dealt with by any party to suit

 The transfer must affect the rights of the other party to litigation

3.2 Effect of the doctrine...................................................................14-15

3.3 Non-applicability of Lis Pendens ................................................15-16

4. Conclusion ..........................................................................................17

Bibliography ............................................................................................18

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 52. Transfer of property pending suit relating thereto.
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List Of Abbreviations
AIHC All India High Court Cases
AIR All India Reporter
Art. Article
Cl. Clause
Ed. Edition
SC Supreme Court
SCC Supreme Court Cases
TPA Transfer of Property Act, 1882
v. Versus
No. Number
& And
Ors. Others
SCR Supreme Court Reporter
Anr. Another
Vol. Volume
Civ Civil Division
UOI Union of India
U/s Under Section
Dt. Dated
Guj Gujrat
Ltd. Limited
Ker Kerala
All. Allahabad
Bom. Bombay
SCJ Supreme Court Journal
LJ Lord Justice

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 52. Transfer of property pending suit relating thereto.
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List of Cases

 Rajendra Singh & Ors.v. Santa Singh & Ors.,1973 AIR 2537 1974 SCR (1) 381 1973 SCC (2) 705
 Narendrabhai Chhaganbhavi Bharatia v Gandevi Peoples Co-op Bank Ltd, AIR 2000 Guj 209:
2002(3) Guj LR 2066: 2003(1) Civ LJ 499.
 Bellamy v. Sabine, (1857) 1 De G & J 566
 Amit Kumar Shah v Farida Khatoon, AIR 2005 SC 2209 [LNIND 2005 SC 369] : (2005) 11 SCC 403
[LNIND 2005 SC 369]
 Govinda Pillai v Aiyyappan Krishnan, AIR 1957 Ker. 10.
 Faiyaz hussain Khan v Prag Narain, (1907) 29 All. 389
 Gangubai v Pangubai , A.I.R. 1939 Bom. 493.
 Dev Raj Dogra & Ors. v. Gyan Chand Jain & Ors, AIR 1981 SC 981 [Para 35]
 Thakur Prasad v Gaya Prasad, 20 All. 349.
 Amit Kumar Shaw v Farida Khatoon, AIR 2005 SC 2209: (2005) 11 SCC 403 :(2005) 3 Supreme 670.
 Awadesh Prasad v Belarani, ILR 33 Pat. 389.
 Nagubai v B. Sham Rao, (1956) SCR 451
 Rambhadra v Daulu, 27 bom. L.R. 38.
 Usha Rani banik v Haridas Das, AIR 2005 Gau. 1.
 Amarnath v. Deputy Director of Consolidation, AIR 1985 All 169
 Fayaz Husain Khan v. Prag Narain, (1907) 29 All 339
 Karupanna Gounder v Rasammal, AIR 2007 Mad. 101.

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 52. Transfer of property pending suit relating thereto.
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CHAPTER 1: INTRODUCTION

The Transfer of Property Act, 1882, was promulgated embodying the principles of English Common Law,
namely equity, good conscience, and justice underscored by the provisions of the Indian Contract Act,
1872, and came into force from July 1, 1882.
Property or ownership are synonymous with each other, and ownership interest is automatically created
when a right is vested.
Ownership has to be:
 Indefinite in point of the user – The owner may use the property subject to some restrictions without
injuring the rights of other persons, but at no point in time will it negate the ownership in the property
even if the rights may be curtailed.
 Unrestricted in the point of disposition – The owner has an unfettered right to dispose of the property.
However, there are exceptions to this as minors (those below the age of 18) can be owners but cannot
alienate the property. Also, the Government may acquire the property for specific purposes
irrespective of the property owner’s consent.
 Unlimited in the point of duration – As long as the property in question exists, the property rights are
heritable. Again, the Government can, at any point, acquire the property and terminate the owner’s
rights.

The Transfer of Property Act covers transfers inter vivos, i.e., between two living persons. A transfer is
defined as an act by which living persons convey the property to one or more living persons.
The transferee can get the transferor’s rights and nothing more, where the owner is the transferor, and the
transferee is the person or persons to whom the rights are conveyed.
The first amendment to the Transfer of Property Act, 1882, was in 1929, whereby the definition of living
persons was amended to include companies, associations, and bodies of individuals, whether incorporated
or not.

Transfer of property pending suit relating thereto.—

During the [pendency1] in any Court having authority 2[3[within the limits of India excluding the State of
Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit
or proceedings which is not collusive and in which any right to immoveable 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 rights of any other party thereto under any decree or order which may be
made therein, except under the authority of the Court and on such terms as it may impose.

1
Subs. by Act 20 of 1929, section 14, for “active prosecution”.
2
Subs. by the A.O. 1950, for “in the Provinces or established beyond the limits of the Provinces”.
3
Subs. by Act 3 of 1951, section 3 and Sch., for “within the limits of Pt A States and Pt C States” (w.e.f. 1-4-1951).
4
Subs. by the A.O.1937, for “the Governor General in Council”.
5
The words “or the Crown Representative” rep. by the A.O. 1948.
6
Subs. by Act 20 of 1929, section 14, for “a contentious”.
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 52. Transfer of property pending suit relating thereto.
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7
[Explanation.—For the purposes of this section, the pendency 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 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.]

In India, the statutory provision for the doctrine of lis pendens is mentioned in the Transfer of Property Act.
Lis pendens is based on the latin maxim which when interpreted means litigation pending. It is documented
burden that implies litigation is pending as it relates to an estate or interest in specific property. It is
registered, so the seller doesnt transfer the property to a third party. The supreme court held that “The
doctrine of lis pendens prevented the rights to the defendants-respondents from maturing by adverse
possession”8 Section 52 states that if any suit or proceeding is pending in any court having authority within
India, or in any court established by the Central Government outside India, any immovable property that is
part of that suit or proceeding cannot be transferred or otherwise dealt with, by any party to the suit, in
such a way that such transfer or dealing would affect the rights of any other party to the suit or proceeding.
Such a transfer or dealing can only be affected if the Court allows it and it may impose certain conditions as
it may deem necessary. Moreover, the suit or proceeding that is instituted should not be collusive in nature
and must involve a right to the immovable property that is in question. This section does not apply to the
State of Jammu and Kashmir.
The explanation to this section provides the pendency of proceeding would begin on the date the plaint is
presented as well as instituted in court of competent jurisdiction, and it would end on the date the final
decree or order is passed by the court, or if it has become unobtainable because of expiry of the limitation
period9. Moreover, it is also important to understand that the doctrine does not becomes eradicated when
the suit is disposed. It still remains into existence till the time when the suit is dismissed and an appeal is
not yet filed, thus leaving no loophole to prejudice any party to the suit. But, if at all the transfer has taken
place, the law does not wipe off the sale by invalidating it but only renders the purchaser subservient to the
court’s decision10.As per Section 52, the effect of doctrine of lis pendens is not to invalidate the transfer, but
to make it subject to litigation.
The doctrine’s goal, which is to maintain the status quo unaffected by the actions of any parties to the
ongoing litigation. The tenets of this doctrine are the tenets of equity, a good conscience, or justice because
they are founded on the just and equitable tenet that it will be impossible to successfully conclude an
action or suit if alienations are allowed to avail.11

7
Ins. by Act 20 of 1929, section 14.
8
Rajendra Singh & Ors.v. Santa Singh & Ors.,1973 AIR 2537 1974 SCR (1) 381 1973 SCC (2) 705
9
Under explaination in Section 52, Transfer of Property Act,1882
10
Pratheek Maddhi Reddy, Indian Law On Lis Pendens: Hassles And Solutions, International Journal of Law and Legal Jurisprudence
Studies :ISSN:2348-8212:Volume 3 Issue 2 accessed on 6th February, 2020.
11
Narendrabhai Chhaganbhavi Bharatia v Gandevi Peoples Co-op Bank Ltd, AIR 2000 Guj 209: 2002(3) Guj LR 2066: 2003(1) Civ LJ 499. The
section is an expression of the principle “pending a litigation nothing new should be introduced”.
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CHAPTER 2: THE DOCTRINE OF LIS PENDENS

Lis’ means ‘litigation’ and ‘Pendens’ means ‘pending’. So, Lis Pendens would mean ‘pending litigation’. The
doctrine of Lis Pendens is expressed in the well known maxim:- Pendente lite nihil innovature12, which
means ‘during pendency of litigation, nothing new should be introduced’.The principle on which it rests is
explained in Bellamy v. Sabine,13 where LJ Turner said:

“It is, as I think, a doctrine common to the Courts both of law and Equity and rests as I apprehend, on the
foundation that it would plainly be impossible for any action or suit could be brought to a successful
termination, if alienation pendente lite were permitted to prevail. The plaintiff would be liable in every case
to be defeated by the defendants alienating before the judgment or decree, and would be driven to
commence his proceedings de novo, subject again to be defeated by the same course of proceedings.” 14

The doctrine of lis pendens has been fully expounded by the Privy Council in this case of Faiyaz Hussain
Khan v Prag Narain15 where their lordships quote with approval of Lord Justice Turner in Bellamy’s case. It
has been held that the foundation for the doctrine does not rest upon notice; it rests solely upon necessity-
the necessity that neither party should alienate the property in dispute so that you can affect his opposite
parties16.
Under this doctrine, it is provided that during pendency of any suit regarding title of a property, any new
interest in respect of that property should not be created. Creation of new title or interest is known as a
transfer of property. Therefore, in essence, the doctrine of Lis Pendens prohibits the transfer of property
pending litigation. It is a very old doctrine and has been operating in the English Common Law. Under this
doctrine the judgements in the immovable properties were regarded as overriding any alienation made by
the parties during pendency of litigation. Later on, this doctrine was adopted also by equity for a better and
more regular administration of justice.
In current practice, a lis pendens is a written notice that a lawsuit has been filed concerning real estate,
involving either the title to the property or a claimed ownership interest in it. The notice is usually filed in
the county land records office. Recording a lis pendens against a piece of property alerts a potential
purchaser or lender that the property’s title is in question, which makes the property less attractive to a
buyer or lender. After the notice is filed, anyone who nevertheless purchases the land or property
described in the notice takes subject to the ultimate decision of the lawsuit.
A foreclosure will wipe out a lis pendens. If the lis pendens does not end in a foreclosure at auction, then it
will stay a lis pendens where the subsequent buyer will have constructive notice.

12
Amit Kumar Shah v Farida Khatoon, AIR 2005 SC 2209 [LNIND 2005 SC 369] : (2005) 11 SCC 403 [LNIND 2005 SC
369]
13
(1857) 1 De G & J 566
14
supra
15
Faiyaz hussain Khan v Prag Narain, (1907) 29 All. 389
16
Govinda Pillai v Aiyyappan Krishnan, AIR 1957 Ker. 10.
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2.1 Basis of the Doctrine:

The basis of this doctrine is ‘necessary’ rather than ‘notice’. This doctrine is clearly based on notice as a
pending suit is regarded as constructive notice of the fact of disputed title of the property under litigation.
Therefore any person dealing with that property pending litigation must be bound to abide by the decision
of the Court. But, the correct view is that this doctrine is founded on necessity. For proper adjudication it is
essential that in case of a pending suit regarding title of a property, the litigants should not be permitted to
take decision regarding that property themselves and alienate the disputed property. Therefore, lis
pendens is based on necessity and as a matter of public policy it prevents the parties from disposing off a
disputed property in such manner as to interfere with the Court’s proceedings. Where a litigation regarding
the right of a particular estate is pending between a plaintiff and a defendant, the necessities of mankind
require that the decision of the Court in the suit shall be binding on both the litigating parties as well as
those who derive title under them by transfer made pending the suit whether such alienees did or did not
have any notice of the pending proceedings. There could be no certainty that those would ever come to an
end if not for this.17A mortgage or sale made before the final decree to someone who had no awareness of
the pending proceedings could usually render a brand new in shape necessary and so indeterminable
litigation might be the result.18

2.2 Salient Features:

 Even if it is taken for granted that the provision of section 52 of the Transfer of property Act, 1882 were
not applicable as such, the principles contained in it were applicable. It is well established that
wherever Transfer of Property Act, 1882 is not applicable, such principles in the provisions of the said
Act, which are based on justice, equity and good conscience are applicable.

 The applicability of section 52 of the Transfer of Property Act, 1882 cannot depend matters of proof or
strength or weakness of the case on one side or the other in bona fide proceedings. To apply any such
test is to misconceive the object of the enactment.

 In the case of a transfer which is hit by doctrine of lis pendens under section 52 the Transfer of
Property Act, 1882 the question of good faith which is essential to be established before an equitable
relief can be granted in favour of a subsequent vendee under 41 or section 51 of the Transfer of
Property Act, 1882 is totally irrelevant.

 Though by the making of the decree there was no lis, still once the application for execution is filed and
proceeding commenced, the property becomes the subject-matter in dispute and therefore, it may fall
within the meaning of “the proceeding in respect of the property” 1920

CHAPTER 3: APPLICABILITY OF LIS PENDENS IN INDIA u/s 52

17
Dr RK Sinha, The Transfer of Property Act (12th edn, Central Law Agency 2011) 190
18
Gangubai v Pangubai , A.I.R. 1939 Bom. 493.
19
Narendrabhai Chhaganbhavi Bharatia v Gandevi Peoples Co-op Bank Ltd, AIR 2000 Guj 209: 2002(3) Guj LR 2066: 2003(1) Civ LJ 499.
20
Dr. Avtar Singh & Dr. Harpreet Kaur, The Transfer of Property Act (6th Edn, lexisnexis,2022), 143
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 52. Transfer of property pending suit relating thereto.
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In Hardev Singh v. Gurmail Singh21, the Supreme Court observed that Section 52 of the Act does not declare
a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser
bound by the decision of the pending litigation. Thus, if during the pendency of any suit in a court of
competent jurisdiction which is not collusive, in which any right of an immovable property is directly and
specifically in question, such immovable property cannot be transferred by any party to the suit so as to
affect the rights of any other party to the suit under any decree that may be made in such suit.

In T.G. Ashok Kumar v. Govindammal & Anr 22, the Supreme Court observed that if the title of the pendente
lite transferor is upheld in regard to the transferred property, the transferee’s title will not be affected. On
the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part
of the transferred property, then the transferee’s title will be saved only in regard to that extent and the
transfer in regard to the remaining portion of the transferred property will be invalid and the transferee
will not get any right, title or interest in that portion. If the property transferred pendente lite, is entirely
allotted to some other party or parties or if the transferor is held to have no right or title in that property,
the transferee will not have any title to the property.

In Jayaram Mudaliar v. Ayyaswami23, the Supreme Court held that the purpose of Section 52 of the Act is
not to defeat any just and equitable claim, but only to subject them to the authority of the Court which is
dealing with the property to which claims are put forward. The Supreme Court went on to further explain
the scope of lis pendens as, ‘It is evident that the doctrine, as stated in section 52, applies not merely to
actual transfers of rights which are subject-matter of litigation but to other dealings with it by any party to
the suit or proceeding, so as to affect the right of any other party thereto. Hence it could be urged that
where it is not a party to the litigation but an outside agency such as the tax collecting authorities of the
Government, which proceeds against the subject-matter of litigation, without anything done by a litigating
party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be
affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way
that they cannot resile from or disown the transaction impugned before the Court dealing with the
litigation the Court may bind them to their own acts. All these are matters which the Court could have
properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and
equitable claim but only to subject them to the authority of the Court which is dealing with the property to
which claims are put forward.’

In Rajender Singh and Ors. v. Santa Singh and Ors. 24, it was observed by the Supreme Court that the
doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the
jurisdiction of a Court, in which a dispute on rights or interests in immovable property is pending, by
private dealings which may remove the subject matter of litigation from the ambit of the court's power to
decide a pending dispute or frustrate its decree. Alienees acquiring any immovable property during
pending litigation, are held to be bound by an application of the doctrine, by the decree passed in the suit
even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to
subject parties to the litigation as well as others, who seek to acquire rights in immovable property, which
21

22

23

24

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 52. Transfer of property pending suit relating thereto.
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are the subject matter of litigation, to the power and jurisdiction of the Court so as to prevent the object of
a pending action from being defeated

{3.1} Essentials for applicability of Section 52:

Hon’ble Supreme Court in Dev Raj Dogra & Ors. v. Gyan Chand Jain & Ors 25. construed the meaning of
Section 52 of the Transfer of Property Act and laid down following conditions to be fulfilled to fall under
Section 52:

 A suit or a proceeding in which any right to immovable property is directly and specifically in question
must 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;
 Litigation must be one in which right to immovable property is directly and specifically in question;
 Any transfer of such immovable property or any dealing with such property during the pendency of
the suit is prohibited except under the authority of Court, if such transfer or otherwise dealing with
the property by any party to the suit or proceeding affects the right of any other party to the suit or
proceeding under any order or decree which may be passed in the said suit or proceeding. 26

{3.1.1} There must be a pendency of suit or proceeding-

This doctrine only applies when the property transferred during the pendency of a suit or a proceeding.
Under the Explanation added by the Amending Act 20 of 1929, the pendency of a suit begins from the date
when the plaint is presented or institution of proceedings in a court of competent jurisdiction. Pendency of
suit or proceeding is that period during which a suit remains before a court for its final clearance. The
pendency of suit begins from the date on which the plant is presented and terminates on the date when
final decree is passed by the Court. Still there lies a question as to how long can the “pendency” of a suit
continue. It was held that there could hardly be said to be active prosecution if after filing the plaint,
plaintiff had taken no steps to effect service of summons, or if after a decree dismissing his suit, he took no
steps to file an appeal. The amendment section omits the words “active prosecution” and adds explanation
to make it clear. The lis pendens extends right upon the conclusion of the litigation including the appellate
stages and execution proceedings. Therefore, this section applies to transfers made during the pendency of
execution proceedings, as held in the case of Thakur Prasad v Gaya Prasad 27

25
AIR 1981 SC 981 [Para 35]
26
The Supreme Court restated these elements thus: (1) there must be a suit or proceedings pending in a court of competent jurisdiction (2) Suit
or proceedings must not be collusive (3) the litigation must be one in which right to immovable property is directly and specifically in question
(4) There must be a transfer of property in dispute by any party to litigation (5) Such transfer must affect the rights of other party that may
ultimately accrue under the terms of decree or order, Amit Kumar Shaw v Farida Khatoon, AIR 2005 SC 2209: (2005) 11 SCC 403 :(2005) 3
Supreme 670.
27
Thakur Prasad v Gaya Prasad, 20 All. 349.
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{3.1.2}The suit or proceeding must be pending before a court of competent

jurisdiction-
This doctrine would not be valid if the plaint is presented in a wrong Court and a transfer takes place during
such pendency. The suit or the proceeding during which the property is transferred, must be pending
before a court which has the competent jurisdiction. For example, where the property is situated outside
the jurisdiction of the Court, it cannot pass a valid decree so as to effect a transfer of property made with
pending litigation.

{3.1.3} A right to immovable property is involved directly or specifically in the

suit-
Another condition for applicability of the doctrine is that the suit should involve a valid question of right to
immovable property. The suit should be regarding the title or interest of that property. This doctrine has no
applicability where the question involved in the suit or proceeding does not relate to the title or interest in
an immovable property.
Illustration- Where there is a pending suit between a landlord and a tenant regarding payment of rent, and
the landlord transfers his property during that time, the transfer shall not be affected in any manner by the
doctrine of lis pendens because the suit was not regarding the title or interest of an immovable property, it
was regarding the payment of rents.

{3.1.4} The suit or proceeding must not be collusive in nature-

Doctrine of lis pendens is inappropriate if the suit is collusive in the nature. A suit is collusive if it was
instituted with a mala fide intention i.e., in which there is a fraudulent secret understanding between the
plaintiff and the defendant that the suit would not be contested with a view to defeat the rights of the
transferee of either parties. The transferee is not bound by the suit where a property is transferred during
the pendency of collusive suit. However, if any suit was bona fide at the beginning, but during pendency of
suit there is a secret agreement between the parties in form of negotiation; in that cases lis pendens is
applicable. Therefore, it is clear that the rule of lis pendens does not apply to a collusive suit or a suit in
which the decree is obtained by fraud or collusion, as held in the case of Awadesh Prasad v Belarani 28. In
Nagubai v B. Sham Rao29, Venkatarama Aiyyar, J., while explaining the distinction between a collusive and a
fraudulent proceeding, observed: “ In such (collusive) proceeding a claim put forward is fictitious, the
contest over it is unreal, and the decree passed therein is a mere mask having the similitude of a judicial
determination and worn by the parties with the object of confounding third parties. But when a proceeding
is alleged to be fraudulent, what is meant that the claim made therein is untrue, but the claimant has
managed to obtain the verdict of the court in his favor and against his opponent by practicing fraud on the
court…. While in a collusive proceeding the contest is a mere sham, in a fraudulent suit it is real and
earnest.”30

28
Awadesh Prasad v Belarani, ILR 33 Pat. 389.
29
Nagubai v B. Sham Rao, (1956) SCR 451
30
DrGP Tripathi, The Transfer of Property Act (17th edn, Central Law Publications 2011) 245
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{3.1.5} The property in dispute must be alienated or otherwise dealt with by

any party to suit-
During pendency of the litigation, the property must be alienated or otherwise dealt with by any of the
parties in a suit. Such a transfer includes sale, exchange, lease and mortgage. Thus, during pendency of a
suit if the undecided property is sold or given lease or mortgaged both by the plaintiff or the defendant,
this doctrine shall apply and the alienation would be the subject to the judgment of Court. It was held in
the case of Rambhadra v Daulu 31 that the doctrine does not apply where the transfer was made, during the
suit, by a person who was not a party to the suit at the time of the transfer but who was subsequently
made a party in a case on that point.
The word transferred refers to sales, mortgages, leases and exchanges. The words “otherwise dealt with”
include surrender, release or a partition. But an adoption of pendent lite is not taken to be dealing with
property.32

{3.1.6} The transfer must affect the rights of the other party to litigation-
The last condition for the applicability of doctrine of lis pendens is that the transfer during which pendency
must affect the right of any other party to the suit as it does not apply to a case where the parties are
ranged on the same side. This principle is intended to safeguard the parties to litigation against transfers by
their opponents, so as to affect the rights of any other party thereto under any decree or order which may
be made therein.
Illustration- A sues B in respect of a house in B’s possession. B sells the house to a certain person C during
the pendency of the suit. A’s suit is decreed. The transfer to C is voidable and A’s right to take the house is
not affected.33

It is evident that the doctrine, as stated in Section 52, applies not merely to actual transfers of right which
are the subject-matter of litigation but to other dealing with it “by any part to the suit or proceeding, so as
to affect the right of any other party thereto”. Hence, it could be urged that where it is not a party to the
litigation but an outside agency, such as the tax collecting authorities of the Government, which
proceedings against the subject-matter of litigation, without anything done by a litigating party, the
resulting transaction will not be hit by Section 52.34

{3.2} Effect of this doctrine-

The effect of Section 52 is not to wipe out a sale pendent lite altogether. It only operates as a bar to the
extent of right title and interest that may be determined in favor of the other party. In other words, the
essence of this Section is that a transaction made during the pendency of a suit by a party to the suit
cannot prejudice the interest of the other party. Therefore, the sale in the instant case in favor of the
review applicant will be valid to the extent it does not affect the right of the opposite party, if any,
determined or to be determined in title suit, as held in the case of Usha Rani banik v Haridas Das 35
31
Rambhadra v Daulu, 27 bom. L.R. 38.
32
SN Shukla, Transfer of Property Act (29th edn, Allahabad Law Agency 2016) 145
33
Ibid
34
Supra n 27
35
Usha Rani banik v Haridas Das, AIR 2005 Gau. 1.
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 52. Transfer of property pending suit relating thereto.
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{3.3} Non-applicability of the doctrine of Lis Pendens-

However, there are certain cases where in spite of fulfilling all the conditions mentioned above, remain out
from the purview of Section 52 i.e. the Doctrine of Lis Pendens will not applicable in certain situations, that
are:
 Cases of review,
 When transfer alone is affected,
 A friendly suit,
 Collusive proceedings,
 In cases of private sale made by a mortgagee in an exercise of power discussed in mortgage. Deed is
nor affected by the doctrine of Lis Pendens and since it is made during the pendency of a redemption
suit filed by the mortgagor the sale remains valid,
 To transfer pending suit by a person who is not a part to such suit,
 Personal property other than the chattel interests in land,
 Cases where the parties to the transfer are ranged on the same side,
 Cases in which the transfer affected by the order of the court in which suit or proceeding is pending,
 Cases in which there is no proper description of the property in the plaint.

Relief from lis pendens being discretionary relief, it will depend on several circumstances such as the nature
of the plaintiff’s case and the defense, the nature of property, market and the circumstances of the
defendants. If the Courts are certain on the affidavits and the pleadings regarding a very strong possibility
that the plaintiff will lose the matter even if all the evidence was led by the parties, it will be a very
important factor, possibly conclusive for granting relief. The Court will also have to consider the
inconvenience and injustice that is likely to be caused to the defendants if the relief is not granted, and
weigh it carefully against the inconvenience and injustice that is likely to be caused to the plaintiff if the
relief from lis pendens is granted.

It is not the law that the doctrine of lis pendens would be applicable in every case. Rather there are many
instances where this doctrine does not apply. For instance, a private sale by a mortgagee in exercise of
power conferred by mortgage deed is not affected by the doctrine of lis pendens embodied in the section
and the sale is valid, though made during the pendency of a redemption suit filed by the mortgagor This
doctrine also does not apply to the cases of review or to the cases where the transferor alone is affected.
This doctrine fails to be applied to an order passed against an intervener in execution a proceeding as the
proper remedy in such cases is a suit under Order 21 Rule 63 of the Code of Civil Procedure. It also does not
apply to suits which are collusive, which is an essential to this doctrine. It does not apply to a friendly suit
or to a case where there is misdescription of property involved. The doctrine of lis pendens does no longer
apply to the case of a person who, throughout the pendency of a loan in shape obtains a mortgage of the
belongings, in consideration for money paid via him and used by the mortgagor to pay off the suit
mortgage. This doctrine sees no applicability in yearly leases and such other acts as are either the vital or
the normal affordable incidents of a meantime beneficial enjoyment. Further, this doctrine does not apply
to cases regarding a transfer pending litigation by a person who is not a party to such litigation, non-public
properties other than the chattel interests in land, where the parties to the alienation are on the same side,
transfer affected by Court decree with pending litigation and where alienations are not inconsistent with
the rights which may be recognized through the decree in the litigation.

UNIVERSITY INSTITUTE OF LAWS, REGIONAL CENTRE, LUDHIANA

 52. Transfer of property pending suit relating thereto.
16

In Amarnath v. Deputy Director of Consolidation 36, it was held that party is said to be a party to the suit if
the judgment is likely to affect the proportion of such a party and the decision would be obligatory on him
too. Thus when A, B and C are brothers and C is residing in a city while A and B are residing jointly. A files a
suit for partition and does not implead either C or his father X.

Though X and C are not any parties to the suit, yet the subject matter of the suit is the same and neither X
nor C can legally and validly alienate his share to a third party. In such case the ultimate decree is very
much likely to affect the shares of X and C too. Thus, there may be a case wherein a party may not be
locked in a civil suit or proceeding as a valid party to the suit; yet such a party may be affected by the
judgment/decree in such a litigation.

In Fayaz Husain Khan v. Prag Narain37, a mortgagee sued to enforce his loan, but before the summons was
served, the mortgagor affected a subsequent loan. The previous mortgagee continued his suit and obtained
a sale order from the court, without making the consequent mortgagee a party to the suit. It was held that
the sale ceased the succeeding mortgagee’s right to redeem the preceding mortgagee.

The questions whether lis pendens applies during pendency of suit by wife claiming maintenance from
husband and suit property was charged with liability and whether a family member buying that property
during lis pendens is affected by Section 52 arose in the case of Karupanna Gounder v Rasammal 38where
the court held that it was a personal suit and property being purchased by a family member is not hit by
Section 52.39

36
Amarnath v. Deputy Director of Consolidation, AIR 1985 All 169
37
Fayaz Husain Khan v. Prag Narain, (1907) 29 All 339
38
Karupanna Gounder v Rasammal, AIR 2007 Mad. 101.
39
DrGP Tripathi, The Transfer of Property Act (17th edn, Central Law Publications 2011) 250
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 52. Transfer of property pending suit relating thereto.
17

CONCLUSION:
It can be concluded that the doctrine of lis pendens and its principles of public policy as enshrined under
Section 52 of The Transfer of Property Act, 1882 are in compliance with Justice, Equity and Good
Conscience as they rest upon a foundation which is equitable and just, i.e., alienations of properties having
pending litigation or suit cannot be allowed to prevail as it will be impossible to bring that suit to a
successful termination. It only postulates a condition that the alienation will in no manner affect the rights
of the other party under any decree which may be passed in the suit unless the property was alienated
with the permission of the Court.
It has the doctrine of necessity as its basis rather than the doctrine of notice. For the administration of
justice, it is far vital that at the same time as any suit is pending in a court of law concerning title of the
property, the litigant must not be allowed to take decision themselves and alienate or transfer the disputed
property. Hence, Section 52 of The Transfer of Property Act, 1882 plays a vital role to ensure that justice is
well served to the deserved and that no person’s right is curbed by another to his own satisfaction and will.

UNIVERSITY INSTITUTE OF LAWS, REGIONAL CENTRE, LUDHIANA

 52. Transfer of property pending suit relating thereto.
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Bibliography:

Statutes:
 The Transfer of Property Act, 1882, Acts of Parliament, 1882 (India) s.52.

Books:
 DrGP Tripathi, The Transfer of Property Act (17th edn, Central Law Publications 2011)
 DrRK Sinha, The Transfer of Property Act (12th edn, Central Law Agency 2011)
 SN Shukla, Transfer of Property Act (29th edn, Allahabad Law Agency 2016)
 Dr. Avtar Singh & Dr. Harpreet Kaur, The Transfer of Property Act (6th Edn, lexisnexis,2022)

Online database:
 Alba law offices, 'Doctrine of lis pendens ' (Legally India, 20 September 2016) accessed 25 March
2020
 Artis, 'Doctrine Of Lis Pendens : A Critical Evaluation' (Artismccom) accessed 24 March 2020
 Ina Pant, 'Doctrine of lis pendens ' (Legal Bites, 16 September 2019) accessed 28 March 2020
 Law corner, 'Doctrine of lis pendens ' (Lawcornerin, 16 November 2018) accessed 27 March 2020
 Pratheek Maddhi Reddy, Indian Law On Lis Pendens: Hassles And Solutions, International Journal
of Law and Legal Jurisprudence Studies :ISSN:2348-8212:Volume 3 Issue 2 accessed on 6th
February, 2020.
 Urwashi Ahuja, 'Doctrine of lis pendens ' (Law Times Journal, 18 May 2019) accessed 27 March
2020
 Sunil Tyagi, 'Pending litigation not always a cloud over property title' (Zeusfirmin, 11 July 2015)
accessed 30 March 2020
 Laurence, R., 1979. Lis Pendens. NDL Rev., 56, p.327.
 Varun Modasia, Doctrine of Lis Pendens: A Right Against Unauthorized Alienation, legalservice.com
 Zara Suhail Ahmed, Doctrine of Lis Pendens – Section 52 of Transfer of Property Act, 1882,
lawcorner.in

UNIVERSITY INSTITUTE OF LAWS, REGIONAL CENTRE, LUDHIANA