Lis Pendens
Chapter Twenty-Four
Syllabus topic 1.2, "Lis Pendens"
Pages 121 to 125 of 378
In one line
While a court is deciding who owns a property, a party to that case cannot sell it in a way that damages the other side's chances of getting what the court awards.
In exam wording: section 52 provides that during the pendency of any suit or proceeding which is not collusive, in a court having authority in India or established beyond its limits by the Central Government, in which any right to immovable 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 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.
Why the rule exists
The Latin is lis pendens, a pending suit, and the maxim is pendente lite nihil innovetur, meaning nothing new should be introduced while a suit is pending.
The reason is not that a litigant is dishonest. It is that litigation would be pointless without the rule. If a defendant could sell the disputed land during the case, the successful plaintiff would win a decree against a man who no longer had the property, and would have to sue the buyer, who could sell it on again. There would be no end. The rule keeps the subject matter of the suit within the court's reach until the court has finished with it.
That explains the shape of the rule and the two things students most often get wrong about it, dealt with below: the transfer is not void, and notice is irrelevant.
The provision itself, broken down
One, there must be a pending suit or proceeding. In a court having authority within India, or established beyond those limits by the Central Government.
Two, the suit must not be collusive. A collusive suit is one the parties have arranged between themselves rather than a genuine contest. The words were added deliberately: a sham suit cannot be used to freeze property.
Three, a right to immovable property must be directly and specifically in question. Both words matter. A suit for money, even one in which land is mentioned as an asset, does not attract the section. A suit for possession, for partition, for specific performance or for a declaration of title does.
Four, the transfer must be by a party to the suit. A stranger's dealing is untouched.
Five, the transfer must be such as to affect the rights of any other party under the decree or order that may be made. The section is aimed at prejudice to the other side's decree.
Lis Pendens
Six, unless made under the authority of the court, which may permit the transfer on such terms as it imposes.
The Explanation: when pendency begins and ends
This is the part most often misstated, and the Act is precise.
The pendency of a suit or proceeding is 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 its execution.
Three things follow, and each is worth a separate line in an answer.
It begins at presentation of the plaint, not at service of summons on the defendant and not at the first hearing. So a defendant who sells the day after the plaint is filed, before he has heard anything about the case, is still caught.
It does not end with the decree. It continues until the decree has been completely satisfied or discharged, which means through the execution stage. A judgment-debtor cannot defeat the decree by selling the property while execution is pending.
It also ends where satisfaction has become unobtainable because the period of limitation for executing the decree has run out.
The effect: the transfer is valid but subordinate
The section does not say the transfer is void. It says the property cannot be dealt with so as to affect the rights of any other party under the decree.
So the transfer is good between the transferor and the transferee. It passes whatever the transferor had. What it cannot do is prejudice the other party to the suit. The buyer takes subject to the result of the litigation: if the seller wins, the buyer keeps the property; if the seller loses, the buyer's title falls with his seller's, and he is bound by the decree although he was never a party to the case.
The practical position of the buyer is therefore that he has bought a lawsuit. His remedy, if the seller loses, is against the seller on the covenants for title, not against the successful plaintiff.
Notice is irrelevant
This is the sharpest contrast with the rest of Module I. Sections 39, 40 and 41 all turn on the transferee's notice. Section 52 does not.
A purchaser who searched every register, asked every question and could not have discovered the suit is bound just as much as one who knew. The reason follows from the purpose of the rule: it exists to preserve the court's power over the subject matter, not to punish a buyer for carelessness. If notice mattered, a defendant could defeat every decree by selling to someone genuinely ignorant.
Lis Pendens
A worked example
Chetan sues Dilip in the Bombay City Civil Court, presenting the plaint on 4 January, claiming a declaration that a flat at Ghatkopar registered in Dilip's name is really Chetan's and asking for possession. A right to immovable property is directly and specifically in question and the suit is genuine.
On 9 January, before the summons has even been served on him, Dilip sells the flat to Esha for full value. Esha searches the sub-registrar's records, finds nothing about the suit, and knows nothing of it.
Is the sale void? No. It is valid as between Dilip and Esha and passes what Dilip had.
Is Esha protected by her ignorance? No. Section 52 does not turn on notice, and the pendency began on 4 January when the plaint was presented, five days before her purchase.
The suit is decided in Chetan's favour in 2029. Esha is bound by the decree although she was not a party. She must give up the flat, and her remedy is against Dilip for the price and damages.
If Dilip had won, Esha would have kept the flat, because she takes subject to the result and the result was in her seller's favour.
If Dilip had applied to the court before selling and obtained its authority on such terms as it imposed, the sale would have been outside the section.
Now suppose the decree is passed in Chetan's favour and Dilip sells during execution. He is still caught. The Explanation continues the pendency until complete satisfaction or discharge of the decree, or until execution becomes time-barred.
Change the suit. Suppose Chetan had sued Dilip for a money debt of Rs. 40 lakh and Dilip had sold the flat to pay other creditors. No right to immovable property is directly and specifically in question in that suit, so section 52 does not apply, and Chetan's remedy, if any, is under section 53.
What it does NOT mean
The transfer is not void. It is valid between the parties to it and merely subordinate to the decree.
Notice is irrelevant. A bona fide purchaser for value without notice is bound.
It does not apply to a collusive suit. The section excludes one in terms.
It does not apply where the property is only incidentally involved. The right to immovable property must be directly and specifically in question.
It does not begin with service of summons. The Explanation fixes commencement at the presentation of the plaint.
It does not end with the decree. It runs until complete satisfaction or discharge, or until execution becomes time-barred.
Lis Pendens
It does not bind a stranger's transfer. Only a party to the suit is caught.
The court can permit a transfer, on its own terms.
Distinctions
| Section 52 | Section 41 | |
|---|---|---|
| Does the transferee's notice matter | No | Yes, reasonable care and good faith are essential |
| Effect on the transfer | Valid, but subject to the decree | Not voidable for want of authority |
| Purpose | To keep the subject matter within the court's reach | To protect an honest purchaser and place the loss on the real owner who created the appearance |
| Section 52 | Section 53 | |
|---|---|---|
| Trigger | A pending suit in which immovable property is directly in question | A transfer with intent to defeat or delay creditors |
| Intention of the transferor | Irrelevant | Essential |
| Effect | The transfer is subordinate to the decree | The transfer is voidable at the option of the creditor |
| Protection for a good faith purchaser | None | Yes, a transferee in good faith for consideration is protected |
Quick revision
- Lis pendens, pending suit. The maxim is pendente lite nihil innovetur.
- Conditions: a pending, non-collusive suit or proceeding; in a competent court; in which a right to immovable property is directly and specifically in question; a transfer by a party; which would affect the other party's rights under the decree; without the court's authority.
- Effect: the transfer is not void. It is valid but subject to the decree, and the buyer is bound by it though not a party.
- Notice is irrelevant. A purchaser for value without notice is bound.
- Explanation: pendency begins at the presentation of the plaint and continues until the decree is completely satisfied or discharged, or execution becomes time-barred.
- The court may authorise a transfer on such terms as it imposes.
- The buyer's remedy is against his seller, not against the successful party.
Test yourself
1. Does section 52 make a transfer during a pending suit void? No. The transfer is valid between transferor and transferee. It simply cannot affect the rights of any other party to the suit under the decree, so the transferee takes subject to the result.
2. When does the pendency begin and end? It begins on the date the plaint is presented, or the proceeding is instituted, in a court of competent jurisdiction. It continues until the suit is disposed of by a final decree or order and complete satisfaction or discharge of that decree has been obtained, or has become unobtainable because the period for executing it has expired.
3. A buyer searches every record, finds no trace of the suit and buys in complete good faith. Is he bound? Yes. Section 52 does not depend on notice. The rule exists to keep the subject matter of the suit within the court's control, and it would fail if an innocent purchase defeated it.
Lis Pendens
4. Does the section apply to a suit for recovery of a money debt? No, unless a right to immovable property is directly and specifically in question in that suit. A money suit does not attract section 52.
5. Can a party to the suit ever transfer the property lawfully? Yes, under the authority of the court and on such terms as the court imposes.
6. Why is a collusive suit excluded? Because the section is there to protect a genuine adjudication. If a sham suit attracted it, parties could freeze property by arrangement, which is the opposite of the section's purpose.
7. What is the position of a purchaser whose seller loses the suit? He is bound by the decree although he was not a party, and must give up the property. His remedy lies against his seller, not against the successful party.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.