1

Section 52, Transfer of Property Act, 1882

Project Report
On
Doctrine of lis pendens

Submitted to- Submitted by-

Prof. Rajinder Sative Chauhan

UILS 102/14

Semester VII

B.A.Ll.B (h)
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Section 52, Transfer of Property Act, 1882
ACKNOWLEDGEMENT

I want to thank my teacher, Prof. Rajinder for guiding me through this project topic and
explaining it so well such that the efforts divided to half due to the concept clarity. I also
want to thank all my friends without their cooperation this project might not have been
possible.

At finally yet importantly I would like to thank my parents for all the support.
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Section 52, Transfer of Property Act, 1882

Index

Bare Provision 4

The doctrine of lis pendens 5

Meaning of the words 6

Basis of the doctrine 8

Scope of the rule of lis pendens 9

Essential Requirements 9

I) There must be a pending suit or proceeding 10

II)The suit or proceeding must be pending in a competent court 12

III)The suit or proceeding must not be collusive 13

IV)A right to immovable property must be directly and specifically in question in that suit or
proceeding 15

V) The disputed property must be transferred or otherwise dealt with by any party to the suit 18

VI) The alienation must affect the rights of any other party to the dispute 23

Latest Cases 27

Conclusion 28
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Section 52, Transfer of Property Act, 1882

Bare Provision

Transfer of property pending suit relating thereto.During the [pendency] in any Court having
authority [within the limits of India excluding the State of Jammu and Kashmir] or established
beyond such limits] by [the Central Government] of [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.

[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.]
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Section 52, Transfer of Property Act, 1882

The doctrine of lis pendens

The principle of the maxim penden lite nihil innovetur is incorporated in the section. The
section provides day during the pendency of any suit in which right to immovable property is
in question, neither party to the litigation can transfer or otherwise deal with such property so
as to affect the rights of the opponent.The explanation makes it clear that the lis shall be
deemed to commence from the date of the presentation of the plaint and to continue until the
suit or proceeding has been disposed of by final decree or order and complete satisfaction or
discharge of such decree or order has been obtained.1

For attracting section 52, it must be shown that :

i) the suit is pending in one of the Courts as envisaged in section 52

ii) suit is not collusive

iii) that is the suit in which any right to immovable property is directly and specifically in
question

iv) property is 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 or order which maybe made
therein.

Explanation makes it clear that the suit would be said to be pending, till complete satisfaction
or discharge of such decree or order has been obtained.

Bennet defines the term lis pendens as follows:

The word lis and pendens, lite and pendent lite, mean precisely what their Latin
significations are:

Lis means an action, a suit , a cause, a controversy

Pendens is the present participle of pendo meaning continuing or pending

Pendente lite means during the pendency of the suit.

1
Basavegowda Vs S Narayanaswami, AIR 1986 Kant 225
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Section 52, Transfer of Property Act, 1882
The principle on which the doctrine of lis pendens has been rested is explained in the
leading case, Bellamy Vs Sabine2, where Turner, LJ said:

It is as I think, a doctrine common to the Court both of law and equity and
rests as I apprehend upon this foundation- that it would plainly be impossible
that an action could be brought to a successful termination, if alienations
pendent lite were permitted to prevail.

The judgment was followed by Privy Council in Faiyaz Hussain Khan Vs Prag
Narain3 which is the leading case on the doctrine of lis pendens in India.

Meaning of the words

During the pendency means during the pendency for determination of the suit in
Court of Justice. No suit can be said to be pending which has not been instituted,
although the claimant may have used efforts to bring about the suit. Pendency of
proceedings would be deemed to commence from the date of the presentation of the
plaint.4

Having Authority means that suit must have been pending in a court of competent
jurisdiction in India i.e., the court must have jurisdiction to grant the relief claimed.

Immovable property, the doctrine of lis pendens applies only to cases where
immovable property is the subject-matter of the suit. Where movable property is in
dispute, a protecting order from Court must be obtained under Order XXXIX, rule 1.5

Directly and specifically in question emphasizes that the subject-matter must be

clearly and pointedly in question. Lis pendens will be created where property
involved in suit is described either by definite and technically legal description, that
its identity can be made out by the description alone or where there is such general
description of its character or status and by such reference that upon enquiry the
identity of the property involved in litigation can be ascertained.

2
Bellamy Vs Sabine, 44 ER 842
3
Faiyaz Hussain Khan Vs Prag Narain, ILR 29 All. 339
4
Kanshi Ram Vs Kesho Ram Bahna, AIR 1961 Punj 299
5
Palaniappa Mudaliar Vs Shivmalai, 71 MWN 391
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Section 52, Transfer of Property Act, 1882
Suit or proceeding- A suit is a proceeding which terminates in a decree and a
proceeding in execution under Section 47, is held to be a suit. Proceeding must refer
to a civil proceeding for in a criminal proceeding, the Courts are not empowered to
determine the rights between the parties.

Otherwise dealt with i.e., not only transfer of the property but also otherwise
dealing with the property is also prohibited. It is sufficiently wide to embrace the
case of a partition pendente lite prejudicing the rights of a litigant.

Party to the suit: the rule affects only the alienations made by one of the parties to
the suit and not strangers or persons claiming by the title paramount to the parties to
the suit.

So as to affect the rights of any decree, etc. means that the transfer is not absolutely
void but only inoperative as against the parties to the suit affected by it. It assumes
that the parties rights must first be established.

Any other party thereto does not mean only any opposite party or any party who has
opposing interest, the words are unconditional.

Order means those orders which are appropriate to the suit having regard to the
nature of the property involved and the nature of the proceedings. The order of the
Court must relate to rights which the parties claim or which they might have claimed
in the property.

By any party to the suit or proceeding: the words are wide enough to include even
the party against whom no relief in particular may be granted.

Except under the authority of the Court: If a transfer is to be made free from defect
this clause authorizes the parties to apply to the court before whom the suit or
proceeding is pending and any transfer made by permission of the Court and in
accordance with the terms imposed by it, will not then be subject to the rule.
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Section 52, Transfer of Property Act, 1882
Basis of the doctrine

The principle of lis pendens embodied in Section 52 being a principle of public

policy, no question of good faith or bona fides arises. Such being the position, the
transferee from one of the parties to the suit cannot assert or claim any title or interest
adverse to any of the rights and set interests acquired by another party under the
decree in suit, the principle of lis pendens prevents anything done by the transferee
from operating adversely to the interest declared by the decree.6

The doctrine of restitution which the section incorporates is based on the principle
that the acts of the Court should not be allowed to work injury on the suitors.
According to the doctrine of restitution on the reversal of a judgment the law raises an
obligation on the party who received the benefit of the erroneous judgment, to make
restitution to the other party for what he had test, and that it is the duty of the Court to
enforce that obligation unless it is shown that restitution would be clearly contrary to
the real justice of the case.7 This obligation arises automatically on the reversal or
modification of the decree and necessarily carries with it the right of restitution of all
that has been done under the erroneous decree and the Court in making restitution is
bound to restore that the parties, as far as they can be restored, to the same position
they were in at the time when the Court by its erroneous action had displaced them
from.8

The principle of lis pendens owes its origin to the maxin of Roman Law rem decree
question controversia prohib mur in acru decicare. This means that where subject in
dispute owing to contest in between parties passes into custody of the court, parties
are under an obligation not to withdraw it from the protection of the court and that is
why it was provided that the property involved in a suit cannot be transferred or
otherwise dealt with by any party so as to affect so as to affect the rights of any other
party thereto under any decree or order which may be made therein.

6
Mobammed Alienation Abdul Chanimomin Vs Kisahemi Kom Abdulla Sahab Momin, AIR 1973 Mys 131
7
Bhagwant Singh Vs Kissen Das, AIR 1953 SC 136
8
Jagdish Lal Arora Vs M.E. Periera, AIR 1977 Delivery 12
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Section 52, Transfer of Property Act, 1882

Scope of the rule of lis pendens

The doctrine of lis pendens was intended to strike attempts by parties to a litigation to
circumvent the jurisdiction of a Court in which a dispute on rights or interest in
immovable property is pending by private dealings which may remove the subject-
matter of litigation from the ambit of Courts power to decide the pending dispute or
frustrate its decree. Alienees acquiring any immovable property during a litigation
over it 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 is to subject parties to the litigation as well as others, who seek to acquire
rights in immovable property, which are the subject- matter of litigation, to the owner
and jurisdiction of the court so as to prevent the object of pending action from being
defeated.9

Essential Requirements
The following conditions must be fulfilled for applicability of this section-

1) There must be a pending suit or proceeding

2) The suit or proceeding must be pending in a competent court
3) The suit or proceeding must not be collusive
4) A right to immovable property must be directly and specifically in question in
that suit or proceeding
5) The disputed property must be transferred or otherwise dealt with by any party
to the suit
6) The alienation must affect the rights of any other party to the dispute.

9
Khemchand Shankar Choudhari Vs Vishanu Hati Patif, (1983) 1 SCC 18
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Section 52, Transfer of Property Act, 1882

I) There must be a pending suit or proceeding

The first essential ingredient for the application of the doctrine of lis pendens is that a suit
must be pending in a court of law. The term pendency means from the commencement of
the case till the final disposal.

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.

The suit commences on the filing of the plaint and it is deemed to continue so long as the suit
or proceeding is pending in appeal or execution.

A sale or a mortgage executed after the filing of the plaint, but before issue of summon would
be hit by lis pendens but not in case of an amendment of the plaint, even where the
amendment relates to a reference to the property, unless the property is transferred after an
application for amendment has already been made to the court. Where the plaint is
insufficiently stamped and rejected by the court and is then filed after making good the
deficit, an alienation between the two dates is not hit by lis pendens, unless the court does not
return the plaint but recovers the deficit fees. When an application to sue in forma pauperis is
admitted the suit is pending from the date of the presentation of the application to the court,
but not when it is rejected. Lis in such cases does not commence only after application is
admitted and the plaint is registered as a suit. Similarly, where a suit for declaration is title is
dismissed for default, and a revival application filed a day after the dismissal of the suit is
admitted, a few days thereafter, a sale of the property effected a day after the revival
application is filed will be subject to the rule of lis pendens.

1. Proceedings in Civil Appeal before the Supreme Court

The Supreme Court, at the head of the pyramid of the judicial system in this country,
exercises both original and appellate jurisdiction. It has the power to pass such decree or
make such order as it thinks fit, and any decree so passed or order so made shall be
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Section 52, Transfer of Property Act, 1882
enforceable throughout India. Proceedings before the Supreme Court are a continuation of
those in the original suit, and the principle of lis pendens as well as restitution applies to
them.

2. Suit or Proceedings

The term `suit' indicates a measure taken for a legal action or proceedings initiated by a
person who claims relief invoking the judicial mechanism set up by the state for a peaceful
relief of his grievance. It includes a suit for a temporary or permanent Injunction, an
easement suit, partition suit, a suit for foreclosure of a mortgage, a suit for redemption of the
mortgaged property, a pre-emption suit, a suit for specific performance10, a writ petition11but
does not include a review petition if there is a delay in applying for the same12. Proceedings
include a revenue proceeding,13 or before the Registrar of cooperative society14, but not a
proceeding before a Settlement Officer15. The filing of an application for a private award,
creating a charge for maintenance is a plaint, and is covered under the expression 'suit or
proceedings'.

3. Appeal and Execution

Lis pendens continues during appeal with decree passed in the suit. Dismissal of a suit does
not negate the application of lis pendens if an appeal is filed later, but not where it is reversed
in appeal. The suit continues even after passing of the decree till its execution. The section
uses the term from the date of the presentation of the plaint or the instituted of the
proceedings complete satisfaction or discharge of such decree or order.

4. Execution Sales

The doctrine of lis pendens applies to transfers effected by parties to the suit and, therefore
does not, in terms, apply to court sales but has been applied to execution sales16 and to a
purchase at a court sale in execution of a money decree17 pending a suit on a simple

10
Nagappa Cherry v. Maung Po Gwe, 12 IC 849.
11
Velayudu Mudali v. Cooperative Rural Credit Society, MR 1934 Mad 40.
12
Nata Padan v. Banchha Baral, AIR 1968 Ori 36.
13
Jaglal Rai v. Makhna Kuar, (1888) All WN 246.
14
Digambarrao v. Rangarao, MR 1949 Born 367.
15
Lalitha Kariappa v. Sanjeevi. AIR 2006 Kant 25.
16
Nilkanta v. Suresh, (1886) ILR 12 Cal 414
17
Rajkrishna v. Radhamohun, 21 WR 349.
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Section 52, Transfer of Property Act, 1882
mortgage, as it involves a question of right to immovable property18. The principle is,
therefore, not applicable to the transfers made under the authority of the court and on such
terms that it may impose19.

5. Application for Review or Revision

The explanation would appear to exclude applications for review or revision. Alienation in
the interval between a final decree and an application for review or revision would not, it
seems, be subject to the rule of lis pendens. However, an alienation while such an application
was pending would no doubt be subject to the order made thereon.

II) The suit or proceeding must be pending in a competent court

1. Court of Competent jurisdiction

The courts in India are segregated on the basis of their pecuniary, territorial, extra-ordinary
jurisdiction, etc. There are special courts dealing in a specified subject matter. For the
purposes of s. 52, the suit must be pending in a court having competent jurisdiction20. If it is
presented to a court that does not have the competency to try it, a transfer during the
pendency of such a suit would not be hit by the rule of lis pendens.

For instance, A, has a house in Lucknow. He comes to Delhi in search of a job and decides to
live there. Trespassers encroach upon his house in Lucknow. With respect to immovable
property, a suit with respect to this property can be filed only in the courts at the place where
the property is located. It cannot be filed elsewhere. If A files a case relating to this property
at a court in Delhi, transfer of the property during the pendency of such a suit will not be
subject to the rule of lis pendens, as the courts in Delhi will not have the jurisdiction to try the
dispute. If the property in question is partly situated in the area where the suit is filed, and
partly in another state, the court of the former area is competent to try the case.21

The pendency of a suit in a foreign court does not create the bar of lis pendens,22 nor would
the doctrine apply to property situated outside India.23 The Privy Council is not a foreign

18
Tinnoodhan it Trailokha, (1912) 17 Cal WN.
19
Sham Lai v. Sohan Lal, MR 1928 All 1.
20
Nathu Singh v. Anand Rao, AIR 1940 Nag 185
21
Kiernander v. Benimadhub, AIR 1931 Cal 763.
22
Palani v. Subramanya, (1896) ILR 19 Mad 257.
23
Sivaramakrishna v. K Mammu, AIR 1957 Mad 214.
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Section 52, Transfer of Property Act, 1882
court.24 A suit on a mortgage of land25, or a lease26 filed with respect to the property situated
in the moffusil area in the erstwhile Supreme Court of Calcutta, which had no jurisdiction to
try the case, will not be hit by the rule of lis pendens. A suit instituted in a higher court where
it should have been instituted in a lower court is a court having no jurisdiction to try the
case.27 A transfer pending proceedings before a registrar of cooperative society28 or revenue
court,29 is affected by rule of lis pendens.

In Shyam Lal v. Shyam Lal,30 the court observed, "Where a court has jurisdiction to deal with
the property having regard to its nature, character and valuation, the mere fact that it was not
originally included in the plaint would not oust the jurisdiction of the court when it was
acting upon the agreement of the parties".

In Nathu Singh v. Anand Rao,31 a minor member of the joint family instituted a suit for
patition of the joint family property against his father in a wrong court and the father
executed a mortgage of the same property subsequent thereto, but before the plaint was
presented to the proper court. The minor contended that the mortgage was hit by the rule of
lis pendens. Dismissing his contention and holding that the doctrine applied, the court said:

The only order that was made in the proceedings pending at the time when the
mortgage was executed was an order that the plaint should be returned for
presentation in a proper court. The suit in which the decree for partition was passed
was not instituted until after the mortgage was executed and therefore the doctrine of
Iis pendens cannot apply.

III) The suit or proceeding must not be collusive

1. Collusive Suits

The suit or proceedings must be a genuine proceedings and not a collusive one. If the suit is
collusive, a transfer during its pendency would not be hit by the rule of lis pendens. The term

24
Bowles v. Bowles, (1884) ILR 8 Born 571.
25
Anundo Moyee v. Dhonendro Chunder, (1872) 14 Mad IA 101.
26
Bisonath v. Radha Kristo, (1869) 11 WR 554.
27
Govinda Pillai v. Aiyyappan Krishnan, AIR 1957 Ker 10.
28
Velayudu v, Cooperative Rural Society, AIR 1934 Mad 40.
29
Jairam v. Maifiedi, (1948) Nag 324.
30
AIR 1933 Alf 649, 651
31
AIR 1940 Nag 185.
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Section 52, Transfer of Property Act, 1882
'collusive suit' means a suit filed with conspiracy', a sham suit or a pretentious suit. The
original section did not contain the words collusive, rather it used the expression 'a
contentious suit or proceedings' in its place. The term collusive was added to the section in
1929.

When the parties to a suit enter into an agreement for the express purpose of defeating the
rights of a transferee and obtains a decree in terms of the agreement, the suit is collusive and
the rule of lis pendis will not apply32. Lis pendens applies from the very moment of the
institution of a suit which is not collusive.33 A collusive suit is a mere pretense but a suit does
not become a collusive suit only because it is compromised34 or results in a consent decree,35
or is an ex parte decree,36 provided it is honest37 and not tainted with fraud or collusion.38 If
the suit is withdrawn and a compromise is then recorded in a conveyance between the parties,
such compromise would not be subject to the rule of lis pendens.39 An abandoned suit is very
much like a collusive suit, which is statutorily excepted from the application of the rule of lis
pendens.40 Where, during the pendency or a collusive maintenance suit by a Hindu wife
against her husband, a person bona fide purchases property of her husband, the charge
subsequently created in favour of the wife on such property will not prevail against the
purchasers right.

2. Compromise or Consent Decree

The fact that a suit results in consent is no bar to the application or the doctrine of lis
pendens.41 As was observed in a Calcutta case:42

Unless a compromise is collusive, the very fact that there is a compromise shows that the suit
was in its origin and nature contentious, otherwise there would be nothing to compromise.

However, if the compromise had not been fairly and honestly obtained, the suit which ended
in the compromise will not operate as a lis pendens.43 If, however, the suit is withdrawn and a

32
Periamurugappa v. Manicka, AIR 1926 Mad 50;
33
Shafiqullah v. Samiullah, AIR 1929 All 943;
34
Ramachandraguru v. Kamalabai, AIR 1944 Bonn 191;
35
Nathu Ram v. Ram, MR 1946 B0171 462
36
Braja V. Meajan, 13 Cal WN 1138
37
Juthan v. Parasnath, MR 1934 Pat 270
38
Annamaki v. Mayayandi, (1906) ILR 29 Mad 426
39
Subramaiam Chesty v. Mohan Ali, 52 IC 624.
40
Annammal v. Chellakutti, AIR 1963 Mad 300
41
Dhiraj Singh v Dina Nath 8 IC 288, 6 Nag LIZ 140.
42
Bharat Ramanuj v Srinath Chandra (1922) ILR 49 Cal 220, p 229, 66 IC 273,A1R 1922 Cal 358.
43
Juthan v Parasnath Singh 151 IC 70,AIR 1934 Pat 270
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Section 52, Transfer of Property Act, 1882
compromise is then recorded in a conveyance between the parties, such compromise would
not be protected by the doctrine of lis pendens.44

In a partition suit, a compromise decree was passed. During the pendency of suit, a transfer
by way of gift was made. The transferor who was the plaintiff in the suit had admitted the
claim of contesting the opposite party regarding the share in property. It was held that the
transferee could not claim any right. The fact that it was a compromise decree did not matter.
The transfree is as much bound by the decree, as when he was a party to the suit. He puts
himself in privity with the suit, and cannot be treated as a stranger45.

3. Difference between collusive and fraudulent transactions

The distinction between fraudulent and collusive transation have been set out by Supreme
Court in Nagubai Ammal Vs B. Shama Rao46-

There is a fundamental distinction between a proceeding which is collusive and one which is
fraudulent. "Collusion in judicial proceedings is a secret arrangement between two persons
that the one should institute a suit against the other in order to obtain the decision of a judicial
tribunal for some sinister purpose".In such a proceeding, the 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 is that the
claim made therein is untrue, but that the claimant has managed to obtain the verdict of the
court in his favour and against his opponent by practising fraud on the court. Such a
proceeding is started with a view to injure the opponent, and there can be no question of its
having been initiated as the result of an understanding between the parties. While in collusive
proceedings the combat is a mere sham, in a fraudulent suit it is real and earnest.

IV) A right to immovable property must be directly and specifically in

question in that suit or proceeding

Not only the right to immovable property be directly and specifically in question in the suit,
but the description of the property in the plaint must be sufficient to identify the property.
The property transferred or dealt with must be property actually in litigation.

44
Subrarnanion Chetty v Mohan All 52 IC 624.
45
Amarnath v.Deputy Director Consolidation AIR 1985 All 163.
46
Nagubai Ammal Vs B. Shama Rao, AIR 1956 SC 593
 16
Section 52, Transfer of Property Act, 1882
1. Specific right in an immovable property

The litigation must involve a specific right in immovable property, such as a dispute with
respect to title, possession or a rights of alienation etc. where merely a charge is created on
immovable property by a consent decree in money suit, the suit does not involve any question
as to right in an immovable property directly and specifically and as such the doctrine of lis
pendens does not apply. The doctrine applies to sale, a suit for specific performance of
contract, suit for pre-emption, mortgage suits, to lease, to easement, to suit for maintenance
with a prayer that it be charged to a specific property, to suit for declaration of charge upon
specific immovable property and a suit for injunction.

The doctrine is not applicable to a suit for maintenance where no property is charged unless a
charge is claimed or claims to money demanded or a suit for rent or specific movables and all
personal actions and cases where no specific property is charged or to administration suits or
suits of accounts and suit for partition in which neither the shared nor the rights of the parties
are in dispute. However, the rights is disputed and shares are not ascertainable, the doctrine
applies.47

2. Suit for specific performance

The rule of lis pendens is applicable to suits for specific performance of contracts to transfer
immovable property Section 52 of the TP Act is not subject to s 19(b) of the Specific Relief
Act 1963, which provides that specific performance of contract cannot be enforced against
the transferee for value; who has paid his money in good faith, without notice of the original
contract. The subsequent transferee, even though he may have obtained the transfer without
notice of the original contract, cannot set up, against the agreement holder any right defeating
the rule of lis pendens, which is founded upon public policy. In case of a transfer hit by the
doctrine of lis pendens, 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 s 41 or s 51 of the
Transfer of Property Act, is totally irrelevant.48

Illustration

A was in possession of land as tenant of B. But B on 8 February 1907, agreed to grant a

permanent lease of the same land to C. C sued for specific performance of the agreement of
lease, and while this suit was pending against him, B sold the land to A. The suit was decreed
and C's title as permanent lessee related back to 8 February 1907.The sale to A was subject to

47
Sheikh Khan Vs Festoinji, 1 Cal WN 62
48
Shanu Ram v Bashestar Nath. (1966) 68 Punj LR 44
 17
Section 52, Transfer of Property Act, 1882
C's decree, and C as assignee of the reversion was entitled to recover rent from A from that
date.

3. Suit on mortgages

The rule applies to suits on mortgages but a suit which is based on mortgage and in which a
money decree is given, is not as long as the decree, stands unreversed, a suit in which a right
to immovable property is directly and specifically in question.

4. Suit for partition

A partition suit operates as lis pendens with the result that the purchaser of an undivided
share pending the suit takes only that property which is allotted on partition to his vendor.49
Thus when A mortgages property pending a partition suit between him and B, the mortgage
was effective as to the share allotted to A but void as to the share allotted to B.

5. Suit for maintenance

A suit by a Hindu wife for maintenance against her husband is ordinarily a personal suit, and
any purchaser of the family property during the pendency of the suit is not affected by the
rule of his pendens.50 But the doctrine of lis pendens does apply to a suit for maintenance by
a Hindu widow in which she claims to have her maintenance made a charge on specific
immovable property and a decree is passed creating a charge on such property , for in such a
case right to immovable property is directly and specifically in question.51

6. Suit for rent

A suit for rent is primarily a suit for money, and does not constitute a lis pendens for no right
to immovable property is directly and specially in question. This is is so even when, as
between a zamindar, a patnidar and a darpatnidar, the decree for rent is a charge on the
property. For, a suit for rent cannot be regarded as a suit to claim a charge on specific
property.52A purchase made during the pendency of execution proceedings in a suit for
arrears of rent is not affected by the rule of lis pendens.53

49
Joegendar Nath Vs Debendra Nath, (1898) ILR 26 Cal 127
50
Gangabai Vs Pagubai, (1939) 41 Bom LR 815
51
Mahesh Prasad Vs Mundar, (1953) ILR 1 All 284
52
Sheikh Bikala Vs Sheikh Alienation, (1950) ILR Cut 486
53
Sheolal Vs Balkrishna, 1948 ILR Nag 573
 18
Section 52, Transfer of Property Act, 1882
7. Suit for Pre-emption

A suit for pre-emption involves a right to specific immovable property and is therefore within
the section. An acquisition by the defendant by gift, during pre-emption suit, of a share in the
mahal will defeat the plaintiff pre-emptors suit.54

8. Suit for Injunction

Where the suit initially was only for an injunction and before it was converted into one for
specific performance, the suit property was sold, it was held that the provisions of s 52 could
be invoked by the plaintiff who even in the suit as it was initially filed claimed that there was
a valid sale agreement in his favour and, therefore, the right to the disputed property was
directly and specifically in question.55

V) The disputed property must be transferred or otherwise dealt with

by any party to the suit

1. Transferred or Otherwise Dealt with

The word 'transferred' refers to sales, mortgages, leases and exchanges. But the meaning of
the words otherwise dealt with is not clear. They would probably include such transactions
as a release or surrender. They have been held to include a contract of sale, a partition
between co-defendants and putting up of constructions. They also include the handing over of
possession. They also apply to any collusive decree, or compromise by which the title of a
party is affected during the pendency of a suit, for the principle underlying the section is that
a litigating party is exempted from taking notice of a title acquired during the litigation. The
principle of the section has even been applied when in execution of a decree for an injunction
to remove an obstruction to a passage; it is found that another obstruction has also been
erected after the suit was filed. This other obstruction was also removed in execution, so that
the plaintiff should not be compelled to file another suit.56 An adoption, however stands on a
different footing and cannot be treated as a dealing with property pendente lite .57

54
Ram Saran Vs Bhagwat Prasad, (1929) ILR 51 All 411
55
Harbaksh Singh Gill and others Vs Ram Ratan & Anr, AIR 1988 P & H 69
56
Narain Singh Vs Imam Din, AIR 1934 Lah 978
57
Rambhat Vs Lakshman, 1881 ILR 5 Bom 630
 19
Section 52, Transfer of Property Act, 1882
2. Any Party

These words are not merely descriptive, but refer to the time when the transaction takes
place. A puisne mortgagee who is not joined as a party in a prior mortgagee's suit is not a
party and an assignment by him during the suit is not affected by lis pendens although the
assignee is subsequently joined in the suit.58 A transferee pendente lite is a representative in
interest of the transferor who is a party to the suit and is also a person bound by the decree,
even though he was not made a party to the suit.59 No person who has entered into possession
through the party obtaining an ex-parte decree or order can resist or obstruct restitution on the
ground that he is a bona fide transferee without notice.60

Section 52, however, does not make the transaction void. It merely makes any right created
by it inoperative against the party to the suit.61 The transfer is good and operative as between
the parties thereto except to the extent that it might conflict with rights decreed under the
decree or order.62

3. Lis pendens between co-defendants

At the same time, the party whose rights are affected must be a party between whom the party
alienating, there is an issue for decision. As in res judicata the rule of lis pendens will not
apply between co-defendants unless the relief claimed in the suit involves a decision between
them.

The plaintiff suit for declaration that he was not bound by his sale to A, nor by As mortgage
to B. In the suit, A and B made a common cause against the plaintiff and a decree was passed
affirming the sale but declaring that the plaintiff had lien for unpaid purchase money in
priority to Bs mortgage. During the pendency of the suit, the property was purchased in
execution of money decree against A. After the suit, B filed a suit, to enforce his mortgage
and contended that the execution purchase was barred by lis pendens from disputing it. But
the court held that the rule of lis pendens did not apply, as there was no issue between A and
B.

58
Sheoratan Koer v Kamla Prasad (1932) ILR 11 Pat 415, 139 IC 78, AIR 1932 Pat 270.
59
Narayan Laxman v. Vishnu Waman (1957) 59 Bom LR 205.
60
Chanda Sab v. Jam Shed Khan & ors. AIR 1993 Kant 338, p 346.
61
Nagubai Ammal v. B Shama Rao AIR 1956 SC 593.
62
Jayaram Mudaliar v. Ayyaswamy AIR 1973 SC 569.
 20
Section 52, Transfer of Property Act, 1882
4. Involuntary AlienationsCourt Sales

It is now settled law that though the section itself may not apply to involuntary alienations,
the principle of lis pendens applies to such alienation. This is the effect of three privy council
cases, which have been approved and followed by the Supreme court. That was also the view
adopted in a large number of high court cases.

The doctrine of lis pendens applies to involuntary sales. Merely because holder of a decree
for money is not, as such, a party to a decree in a maintenance suit creating a charge for
maintenance on the disputed property, he cannot claim that he is not bound by the decree
passed in the suit in which a charge had been prayed for. The decree holder for money cannot
contend that he was a bona fide purchaser for value without notice, and the court sale in his
favour cannot prevail over court sale in favour of the purchaser under the maintenance
decree.

5. Misdescription

Misdescription of the land in the pleadings will prevent the operation of the doctrine of lis
pendens but not if despite misdescription, the land is identified. An alienee who is aware of
the identity of the property will be affected by lis pendens despite the misdescription.63

6. Acquisition proceedings-

Section 52 applies only to voluntary transfers. This section does not apply to acquisition by
the state in exercise of its statutory powers.64

7. Revenue Sales

There is no doubt that the principle underlying section 52 relating to lis pendens does not
apply to cases for revenue sales for arrears of tax due on property.65

It is true that the principle underlying section 52 applicable to involuntary sales also but it
does not apply to revenues sales for arrears of land revenue or other dues which constitute
first charge on the property.66

The reason equally holds good for not extending the application of the doctrine of lis pendens
so as to affect the revenue sale held during the pendency of suit regarding title or ownership
of the property sold. It would create an impossible situation if the Court were to hold that the

63
Bepin Krishna Vs Priya Brata, (1921) 26 Cal WN 36
64
Rajaram Vs State of UP, 1983 AWC 419
65
Raman Nair Gopalan Nair Vs Lakshmi Amma Bharati Amma , AIR 1952 TC 96
66
Neelakantaru Narayanaru Vs Govinda Pillat Kuttan Pillai, 1952 Ker LT 420
 21
Section 52, Transfer of Property Act, 1882
State cannot sell property for arrears of land revenue due thereon when dispute about its
ownership is pending before Civil Court. The State is not expected to wait for the collection
of its dues until the dispute is settled once for all.

8. Transfer before Suit

A transfer, including a mortgage, before the suit is not subject to lis pendens in Umesh
Chunder v. Zahoor Fatima,67 property was sold in execution of decree of a prior mortgagee.
The plaintiff claimed under puisne mortgages, executed, some before, and some after, the
prior mortgagee's suit. He had not been made a party and sued to redeem the prior mortgagee.
The Privy Council held that the right to redeem could be exercised only by virtue of the
puisne mortgages executed before the suit. As to the puisne mortgages executed during the
pendency of the suit, their Lordships said:

But if the transfer took place pendente lite, the transferee must take his interest subject to the
incidents of the suit; and one of those is that a purchaser under the decree will get a good title
against all persons whom the suit binds.

VI) The alienation must affect the rights of any other party to the
dispute.

Any other party means a person between whom and the party alienating there is an issue
for decision, which might be prejudiced by the alienation.

The rule of lis pendens is enacted for the benefit of the third party and not for the party
making the transfer. This statutory right is given to the party to the suit other than the
alienating party to have an alienation set aside so far as necessary for the protection of his
own rights.68

1. Rights created before filing of the suit

Transfers made or rights created under a transfer" before the suit" or a deed of transfer
registered after but executed before the filing of the suit, or the acquisition, or enforcement of

67
(1891) ILR 18 cal 164.
68
Achut Sitaram Vs Shivajirao, AIR 1928 All 3
 22
Section 52, Transfer of Property Act, 1882
a right existing prior to the institution of suit, or acquisition of property partly before and
partly after the suit, is not affected by the rule of lis pendens. 69

However for this, the rights must be created with the help of a document capable of taking
effect in law. A lease executed for more than a year, if executed without registered document
is not effective in law, and would not be called a transfer of property creating any rights in
favour of a third party.

In Supreme General Films Exchange Vs Brij Nath Singh Deo70, A, an owner of an

immovable property had borrowed a sum of Rs. 2,50,000 from B on the strength of the bales
of cotton. As this security was not sufficient, they mortgaged the immovable property
(theatre) in favour of B. A was unable to repay the loan and b filed a suit in 1954 that ended
in compromise in196, as person which the theatre was to be sold and the loan amount was to
be realized from the sale proceeds. This theatre was in occupation of a tenant who had its
possession since 1940. However this possession since 1940 was under an unregistered lease
deed for the purpose of running a cinema and had expired in 1946. Since then no further lease
deed had been executed in their favour till 1956. It was only in 1956 that in response to a suit
for specific performance of contract filed by the tenant as against A, that A executed a
registered lease deed in tenants favour for a period of 8 years with the option of renewal till
1970. The tenant contended that they had an antecedent rights on the property created with
the help of letter in 1948 itself, no new rights were created with the help of this registered
lease deed. It was a mere continuation of an antecedent right and therefore the same was not
hit by the rule of lis pendens even if it was executed during the pendency of the litigation.
This lease deed, that was executed in pursuance to a suit filed by the tenant against A in 1954
itself, was seven months later to the filing of the suit by the mortgagee. The Supreme Court
rejected the contention of the tenant and held that since the earlier right created in favour of
the tenant was with the help of a document that was capable of taking effect in law, the lease
of 1956, for the first time created an interest in the property in their favour. Since this
creation was pendente lite, this transfer of a right would be hit by the rule of lis pendens .
Consequently, the tenant was to take the lease in his favour subject to the outcome of the
decision of the court. The result would be that he would have to vacate the premises. If he
had an antecedent tight created in his favour prior to the commencement of the suit, then he
would have been able to retain the possession of the premises as person the terms of the lease.
But in the present situation, since the lease was executed in their favour while the suit was
pending in court of law awaiting decision, the rights of the tenant were subject to the decision
of the court
69
Umesh Chunder Vs Zahoor Fatima, (1891) ILR Cal 164
70
Supreme General Films Exchange Vs Brij Nath Singh Deo , AIR 1975 SC 1810
 23
Section 52, Transfer of Property Act, 1882
Where the filing of the suit and the transfer of the suit property takes place on the same day,
there is no presumption that the suit was filed earlier and it must be proved that it was so filed
and the onus of proving it is on the person who wants the benefit of lis pendens. A suit to
enforce a time barred pre-existing right is for the creation of a new right, and is therefore hit
by lis pendens.71

2. Impleadment of lis pendens transferee

In Bibi Zubaida Klzatoon v. Nabi Hasan72 the Supreme Court observed that there is
absolutely no rule that the transferee pendent lite without leave of the court should in all cases
contest the pending suit. Where a person who is the transferee pendent lite of the property
acquires interest in the property by an assignment, creation, or devolution, he can apply to the
court for leave to be impleaded and to continue the suit. Even so he would not be bound by
the result of the litigation, whether he is represented at the hearing or not unless it can be
shown that the litigation was not properly conducted by the original party or that he colluded
with the adversary. Following this principle, the Orissa High Court held that where the
transferor (defendant) after alienating property, and having no interest in it any more, does
not properly defend his title and colludes with the plaintiff the lis pendens purchaser may be
allowed to join as a party so as to enable him to defend his interest. He would be entitled to
be heard on merits of the case. The court cited the observation of the Supreme Court to the
effect that a transferee pendente lite has a vital interest in the suit irrespective of the fact
whether he has purchased the whole land or not.

Looking at the incessant flow of cases on the subject, a Division Bench of the Andhra
Pradesh High Court decided to capture the applicable principles in terms of the following
points.73

Firstly, for the purpose of impleading a transferee pendente lite, the facts and circumstances
should be gone into and basing on the necessary facts, the court can permit such a party to
come on record either under Order I, rule 10, C.P.C., or under order XXII, rule 10, C.P.C., as
a general principle.

Secondly, a transferee pendente lite is not entitled to come on record as a matter of right.

Thirdly, there is no absolute rule that such a transferee pendente lite with the leave of the
court should, in all cases, be allowed to come on record as a party.

71
Bishan Singh Vs Khazan Singh, AIR 1958 SC 838
72
Bibi Zubaida Klzatoon v. Nabi Hasan , 2003 AIR SCW 5858
73
Chappidi Subbareddy Vs Chappidi Narapureddy, AIR 2005 SC 2209
 24
Section 52, Transfer of Property Act, 1882
Fourthly, the impleadment of a transferee pendente lite would depend upon the nature of the
suit and appreciation of the material available on record.

Fifthly, where a transferee pendente lite does not ask for leave and come on record that would
obviously be at his peril, and the suit may be improperly conducted by the plaintiff on record.

Sixthly, merely because such transferee pendente lite does not come on record, the concept of
his (transferee pendente lite) not being bound by the judgment does not arise and
consequently he would be bound by the result of the litigation, though he remains
unrepresented.

Seventhly, the sale transaction pendente lite is hit by the provisions of section 52 of the
Transfer of Property Act.

Eighthly, a transferee pendente lite, being as assignee of interest in the property, as envisaged
under Order XXII, rule 11, C.P.C. can seek leave of the court to come on record on his own
or at the instance of either party to the suit.

3. When impleadment necessary

The suit was for eviction, recovery of arrears of rent and mesne profit. During pendency of
the suit, the plaintiff sold her right, title and interest in the property to of transferee. She did
not pursue the suit thereafter. The Court held that the impleadment of the lis pendens
transferee become necessary in order to ensure effectual adjudication of the suit and avoid
multiplicity of litigation.74

74
Shuvam Constructions Pvt Ltd Vs Babita Mohanty, AIR 2010 Ori 65
 25
Section 52, Transfer of Property Act, 1882

Latest Case

In a recent decision, Har Narain V Mam Chand, (Civil Appeal No. 995-996/2003, judgment
dated Oct 08,2010) the SC has discussed and reviewed the law relating to the doctrine of lis
pendens. The essential facts were that the first respondent was the owner of certain property
(land) which he mortgaged to the appellant. Subsequently, the first respondent executed a
sale deed purporting to transfer the property to certain bona fide purchasers for consideration.
After the execution of the sale deed but before the registration of the same, the appellant filed
a suit seeking to restrain the first respondent from alienating the property. In other words, the
sequence of events was such, that on the date of the filing of the suit, a sale deed had been
executed but not had been registered. The registration was completed subsequently. The case
of the appellant was that as the registration was subsequent to the filing of the suit, the sale
was effected by lis pendens
 26
Section 52, Transfer of Property Act, 1882
Conclusion
To summarise it can be said that according to this section during the pendency in any Court
having authority within the limits of India excluding the State of Jammu and Kashmir or
established beyond such limits of the Central Government , of any suit or proceeding which is
not collusive and in which any right to any immovable property is directly and separately 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 .

It has been explained further by the section 52 that for the purpose 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 order toconstitute Lis pendens the following conditions must be satisfied :-

1) There should be a pending suit or proceeding .

2) The suit or proceeding must not be collusive one .

3) The suit or proceeding must be pending in a Court of competent Jurisdiction.

4) The suit or proceeding must be one in which a right to immovable property is directly and
specifically in question.

5) The property directly and specifically in question must be transferred during such
pendency.

6) The transfer must affect the right of other party.

The effect of a transfer during pendente lite is that the transfer is not ipso facto void but is
only voidable at the option of the party whose interests are affected thereby and the parties to
the transfer are bound to abide by the decree eventually passed in the suit.
 27
Section 52, Transfer of Property Act, 1882

Bibliography

Avtar Singh, The Transfer of Property Act, Universal law Publishing CO.
PVT. LTD., Allahabad, (2006).

Dr. G.P. Tripathi, The Transfer of Property Act, Central law Publications,
11thed, Allahabad.

Mulla, The Transfer of Property Act, Lexis Nexis, Nagpur, 9th Ed.

Dr. R.K. Sinha, The Transfer of Property Act, Central law Agency
Allahabad, 14th Ed.

Dr. Poonam Pradhan Saxena, Property Law, Lexis Nexis Butterworths

Wadhwa, Nagpur, 2nd Ed.