DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

TRANSFER OF PROPERTY PROJECT

Evolution of the Doctrine of Lis pendens: Contemporary

Principles and Legal Impacts

SUBMITTED TO: SUBMITTED BY:

Dr. Vipul Vinod Divyansha Verma

Assistant Professor Enrolment No. 220101068

(Law) Section ‘A’

 Declaration

I hereby declare that this project titled “Evolution of the Doctrine of Lis pendens: Contemporary
Principles and Legal Impacts” is my original work and has been prepared by me in accordance with
the guidelines provided. This project has not been submitted previously for any other course or
examination. All sources and references utilized in this project have been duly acknowledged, and I
have ensured the integrity and originality of the work.

I understand that any form of plagiarism or misrepresentation may lead to disciplinary actions in
accordance with the academic policies of this university.

Divyansha Verma
 Acknowledgement

I would like to express my heartfelt gratitude to all those who have contributed to the successful
completion of this project titled “Evolution of the Doctrine of Lis pendens: Contemporary
Principles and Legal Impacts”. I extend my sincere appreciation to my professor, Dr. Vipul Vinod,
for his invaluable guidance, support, and encouragement throughout this project. His insights and
expertise have significantly enriched my understanding of the subject matter. I also wish to thank my
peers and colleagues for their assistance and constructive feedback, which helped enhance the quality
of this project. Lastly, I am grateful to my family and friends for their unwavering support and
encouragement during this endeavour.

Divyansha Verma
 Table of Contents
Introduction..............................................................................................................................................5

Emergence of the Doctrine......................................................................................................................6

Essential Conditions to Apply the Doctrine.............................................................................................7

Non-applicability of the Doctrine............................................................................................................9

Recent Judicial Developments...............................................................................................................11

Conclusion.............................................................................................................................................12

Bibliography..........................................................................................................................................13
Introduction

Lis pendens means “a pending suit”.1 This doctrine finds place under Section 52 of the Transfer of
Property Act, 1882 (hereinafter ‘Act’), which provides that if there is any transfer of any immovable
property pending litigation, the same shall not affect the rights of the parties in respect to the
immovable property. Any decision made by a court with the authority to handle the case would be
final for the purchaser who purchased the property while the case was pending. This doctrine is based
on the common law principle of “ut lite pendente nihil innovator” which means ’during the pendency
of litigation, nothing new interest should be introduced or created in respect of the property’.2

This doctrine states that when there is a suit or proceeding pending between two persons with respect
to immovable property and one of these parties sells or otherwise transfers the subject matter of the
litigation, then the transferee will be bound by the result of the suit or proceeding whether he had the
notice of the suit of proceeding or not. Recent judicial developments have provided additional clarity
on the application of lis pendens. These developments illustrate a contemporary approach to
interpreting the doctrine, particularly in response to the rapid growth of real estate practices.

1
‘lis pendens’, Merriam-Webster OnLine Dictionary (11th edn, 2024) https://www.merriam-webster.com/legal/lis
%20pendens accessed 7 October 2024.
2
Black's Law Dictionary (2nd Edition) Co. Litt. 344.
Emergence of the Doctrine

The emergence of this doctrine can be traced back to the case of Rajendra Singh and Ors. v. Santa
Singh and Ors.3 in which the Apex Court stated as follows:

“Lis- pendens means a pending suit and the doctrine of lis-pendens has been defined as the
jurisdiction, power, or control which a Court acquires over property involved in a suit pending
the continuance of the action, and until final judgment therein.”

This reasoning was further reiterated in Jayaram Mudaliar v. Ayyaswami and Ors.4 Furthermore,
through judicial pronouncements, two theories have emerged. First is the ‘Theory of Notice’ and the
‘Theory of Necessity’; these theories have been formulated by jurists in order to construe the basis of
this doctrine. The former theory words that pending litigation will serve as a constructive notice of
dispute being pending on the said immovable property to everyone. Thus, it could be considered as a
warning to third parties against buying the said property. On the other hand, the latter theory suggests
that for fair adjudication, it is essential to restrict the litigants from transferring the property during the
pending suit in order to ensure that no interference with the execution of the court’s decree occurs.

This clarification has been properly put forward in the case of Bellamy v. Sabin,5 as:

“If parties to a dispute aren’t prevented from transferring any of the property, then it would be
impossible for any action/suit to be successfully terminated. Thus, the foundation for this doctrine
doesn’t rest upon constructive notice; it rests entirely upon necessity, where the party to litigation
shouldn’t alienate the property so as to affect the opponent.”

Based on convenience and the necessity for final adjudication, this view has been consolidated in the
case of Faiyaz Husain Khan v. Munshi Prag Narain.6

To further understand why the notion of notice and the ‘Theory of Necessity’ has been so widely
accepted and credited, it is important to consider the public policy objectives that aim to protect the
rights of plaintiffs. Without such protection, the plaintiff risks being disadvantaged by defendants who
may transfer the title of immovable property before a judgment is reached. If a plaintiff ultimately
wins their case, they could find themselves trapped in a cycle of filing multiple lawsuits to regain
possession of the property. This situation could also complicate the application of res judicata, as lis
pendens is often seen as an extension of this principle.7

3
Rajendra Singh and Ors. v. Santa Singh and Ors. AIR 1973 SC 2537.
4
Jayaram Mudaliar v. Ayyaswami and Ors. AIR 1973 SC 569.
5
Bellamy v. Sabine 1857 Eng R 808.
6
Faiyaz Husain Khan v. Munshi Prag Narain (1907) 9 BOM LR 656.
7
Digambarrao Hanmantrao Deshpande v. Rangrao Raghunathrao Desai AIR 1949 Bom 367.
Essential Conditions to Apply the Doctrine

This doctrine does not apply mechanically as soon as there is a suit pending concerning immovable
property, but rather there are certain essential conditions that need to be fulfilled. From the language
of the Act, the following conditions can be made out:8

i. There must be a pendency of suit or proceedings;

ii. It must be in a competent court;
iii. Suit must not be collusive;
iv. Right to immovable property must be directly and specifically in question in the suit;
v. Property must be transferred or otherwise dealt with;
vi. Alienation must affect the rights of the other party.

Alternatively, in the case of Dev Raj Dogra and Ors. v. Gyan Chand Jain and Ors. 9 Hon’ble Justice
A. N. Sen listed down three essentials for the implementation of this doctrine as:

i. A suit or a proceeding in which any right to immovable property must directly and
specifically in question must be pending;
ii. The suit or the proceeding shall not be a collusive one;
iii. Such property during the pendency of such a suit or proceeding cannot be transferred or
otherwise dealt with by any party to the suit or proceeding so as to affect the right of any
other party thereto under any decree or order which may be passed therein except under the
authority of Court. In other words, any transfer of such property or any dealing with such
property during the pendency of the suit is prohibited except under the authority of the 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.

Therefore, in order for the application of the doctrine of Lis pendens the aforementioned criteria need
to be met, and thus during the pendency of a bona fide suit in a court of competent jurisdiction, where
the rights over immovable property are directly and substantially is involved, such property cannot be
transferred without the leave of the court, and if transferred without such leave, the purchaser of such
property would be bound by the decree of the court.10

However, while analysing these conditions, certain controversies have emerged. For example, there
was much debate surrounding the ‘competency of the court’ as to whether the competency expands to
include arbitral proceedings. This was later clarified in the case of Sardara Singh v. Mohan Lal

8
Dr. Poonam Pradhan Saxena, Property Law (3rd edn, LexisNexis 2023) 254.
9
Dev Raj Dogra and Ors. v. Gyan Chand Jain and Ors. AIR 1981 SC 981 (Sen J).
10
Balwant Singh Son of Phoola Ram v. Buta Ram Son of Shankar Dass AIR 2009 (NOC) 2942 (P&H).
Major11 and subsequently, through a string of other cases 12 wherein the doctrine was extended to
arbitration proceedings as the Arbitral Tribunal had legal effects, having been constituted by a
competent Court of law under the provisions of the Arbitration and Conciliation Act, 1996.

Another issue arose with the ‘type of transfer’ as to whether it includes involuntary transfers.
Involuntary transfer means to transfer/sale made by the court. On a plain reading of the doctrine, it
applies only to ‘private’ transfers made by the opponents of the parties to the suit; however, the Privy
Council settled a well-established law on this point that principles of this doctrine are applicable to
court sales and to execution sale purchasers 13 and also due to non-payment of government revenue
sale being made.14

11
Sardara Singh v. Mohan Lal and Ors. AIR 1990 P&H 254.
12
Iqbal Singh v. Mahender Singh and Ors. SCC OnLine Del 5852.
13
Nilakant Banerji v. Suresh Chandra Mullick and Ors. (1886) ILR 12 Cal 414; Karrab-ul-Din and Ors. v. Moti
Lal (1897) ILR 25 PC 179.
14
Mathura Prasad Sahu v. Dasai Sahu and Ors. AIR 1922 Pat 542.
 Non-applicability of the Doctrine

While the doctrine of lis pendens generally restricts property transfers during the pendency of a suit,
there are several exceptions where the doctrine does not apply. These exceptions arise from specific
situations that do not align with the intent of lis pendens to prevent the creation of new rights during
litigation. Some key instances where the doctrine may not be applicable are as follows:

I. Transfers Recognizing Pre-existing Rights

The doctrine of lis pendens is intended to prevent new rights from being created during the pendency
of a suit. However, there are exceptions where the doctrine does not apply, particularly in cases
involving pre-existing rights.

In the case of Bishan Singh v. Khazan Singh,15 the Supreme Court held that the doctrine of lis
pendens applies only to transfers made during litigation and does not affect pre-existing rights. If a
transfer recognizes a pre-existing and enforceable right, it is not impacted by lis pendens, as it does
not create a new right. However, if the pre-existing right has become unenforceable due to limitation
or other reasons, the transfer effectively creates a new right during the litigation, which lis pendens
would then apply to.

II. Collusive Suits and Intent to Defeat Rights

In some cases, lis pendens may not be applicable when there is a deliberate attempt to manipulate
legal proceedings through collusion. Such situations undermine the intent of the doctrine.

In Nuzbat-ud-Daula v. Dilbag Begum,16 the stated that the rule of lis pendens does not apply, and the
suit is collusive when the parties to a suit enter into an agreement for the express purpose of defeating
the rights of a transferee and obtaining a decree in terms of the agreement. This decision was followed
by the Madras High Court in the case of Periamurugappa v. Manicka.17

III. Statutory Regulation and Tenant Rights

The application of lis pendens is also limited when statutory regulations, rather than voluntary actions,
alter the rights of parties. In such instances, the doctrine may not be invoked.

In Sefali Roy Chowdhary v. A.K. Dutta,18 it was held that the doctrine of lis pendens did not apply as
the sub-tenant’s rights under Section 16(3) of the West Bengal Premises Tenancy Act, 1956 were not
considered an alienation of property during litigation. While lis pendens prohibits property transfers
during pending suits, the court clarified that the tenancy rights of the sub-tenant were altered through
15
Bishan Singh and Ors. v. Khazan Singh and Anr. 1958 AIR 838 [18].
16
Nuzbat-ud-Daula v. Dilbag Begum (1913) 16 OC 225.
17
Periamurugappa v. Manicka AIR 1926 Mad 50.
18
Sefali Roy Chowdhary v. A.K. Dutta (1976) 3 SCC 602 [5].
legislative action, not by a voluntary transfer under Section 5 of the Transfer of Property Act. Thus,
the statutory regulation of landlord-tenant relations did not invoke the doctrine of lis pendens.
Recent Judicial Developments

In the recent judgment of Shingara Singh v. Diljith Singh and Anr.,19 the Hon’ble Supreme Court
reiterated that when a transaction is affected by the doctrine of lis pendens, defences such as being a
bona fide purchaser and lack of notice regarding the sale agreement are unavailable. This legal
principle was underscored in the context of an appeal against a High Court ruling that granted specific
performance of a sale agreement, despite a subsequent sale deed executed during the suit’s pendency.
The Court emphasized that the doctrine of lis pendens, as articulated in Section 52 of the Transfer of
Property Act, applies to all transactions occurring during litigation, regardless of whether the
transferee had notice of the pending proceedings. The Court cited precedents reinforcing that a
transferee during the pendency of a suit is bound by the decree just as if they were a party to the suit.
Consequently, the Supreme Court found that the High Court was justified in overturning the lower
court’s decision and granting specific performance, as the defences based on bona fide purchase were
rendered moot by the application of lis pendens to the transaction in question.

In Yogesh Goyanka v. Govind and Ors,20 it was held by the Apex Court that a registered sale deed
executed during the pendency of a suit cannot be declared void solely based on the lis pendens
doctrine under Section 52 of the Transfer of Property Act. This doctrine merely makes the rights of
the transferee subject to the outcome of the pending litigation and does not invalidate the transfer. The
Court further clarified that there is no prohibition against the transferee seeking impleadment in the
suit to defend their interest, even if they had knowledge of the ongoing litigation. Reversing the High
Court’s decision, the Court reiterated that impleadment is a discretionary process aimed at allowing
the transferee to protect their rights, especially when there is a risk that the transferor may not defend
the title or collude with the other party. The Court emphasized that such transferees, armed with a
registered sale deed, have the right to participate in the suit to safeguard their interests.

In Chander Bhan v. Mukhtiar Singh,21 the Hon’ble Supreme Court clarified that the principles of lis
pendens apply even if Section 52 of the Transfer of Property Act, 1881, is not strictly applicable,
asserting that these principles are grounded in justice, equity, and good conscience. The Court
emphasized that lis pendens serves to maintain the status quo during pending litigation and prevent
multiple proceedings regarding the same property. It ruled that the pendency of a suit commences
upon the plaintiff’s filing and continues until a final decree is executed. Consequently, if a party acts
against the injunction in place during the suit’s pendency, any subsequent transactions will be deemed
invalid. The Court reinforced that the doctrine of lis pendens binds all parties involved, disallowing
claims of being bona fide purchasers for value if such transactions occur during the pendency of the
suit.

19
Shingara Singh v. Diljith Singh and Anr. 2024 LiveLaw (SC) 795.
20
Yogesh Goyanka v. Govind and Ors. 2024 LiveLaw (SC) 457.
21
Chander Bhan (D) through LR Sher Singh v. Mukhtiar Singh and Ors. 2024 LiveLaw (SC) 347.
Conclusion

The doctrine of lis pendens plays a crucial role in maintaining the integrity of legal proceedings
concerning immovable property. Preventing the transfer of property during the pendency of litigation
protects the rights of the parties involved and ensures that court decisions are effectively executed.
The evolution of this doctrine, through judicial interpretations and contemporary legal principles,
underscores its significance in safeguarding against unfair practices that could undermine the judicial
process. While exceptions exist, the essential conditions for applying lis pendens remain critical for
upholding its core purpose. Recent rulings have further clarified its applicability, emphasizing that the
doctrine binds all parties, regardless of their awareness of pending litigation. As the legal landscape
continues to evolve, the principles of lis pendens will undoubtedly adapt to address new challenges,
reinforcing the need for equitable resolutions in property disputes.
Bibliography

Transfer of Property Act 1882

Dr Poonam Pradhan Saxena, Property Law (3rd edn, LexisNexis 2023)

Darashaw J Vakil, Commentaries on Transfer of Property Act, 1882 (5th edn, 2017)

Black’s Law Dictionary (2nd edn)

Muskan Sethi, ‘Indian Law on Lis Pendens’ (2023) International Journal of Law Management &

Humanities 4(2) 1967

Amartya Saha, ‘An Introspective Analysis on the Doctrine of Lis Pendens’ (2023) International

Journal of Integrated Law Review 2(1) 31

Pratheek Maddhi Reddy, ‘Indian Law on Lis Pendens: Hassles and Solutions’ (2023) International

Journal of Law and Legal Jurisprudence Studies 3(2) 325