An Introspective Analysis on the Doctrine of Lis Pendens

Abstract

Transferring or disposing of property is of the most important right the owner can possess. However, in certain circumstances, he may be restrained to alienate his property for a specific period time, like while a suit or proceeding regarding such property is pending. Such a circumstance is known as the Doctrine of Lis Pendens and is embodied under section 52 of the Transfer of Property Act, 18822. Section 52 of the Transfer of Property Act, 18823 allows the transfer of property under certain circumstances, like after the leave of the court has been obtained,4or where the suit itself was of collusive nature5etc. Certain circumstances are also not hit by the doctrine such as a suit for debt or damages where the claim is limited to money or suit for recovery of movables6etc. The Courts over the years have carved out certain circumstances where the doctrine is inapplicable such as in case of When the transferor alone is affected 7, or where the suit itself is of a collusive or friendly nature 8, or when a transfer is made by a person who is not a party to such suit 9etc. The Courts have also made it clear that certain suits involve question of rights in immovable property and thus the doctrine will apply, for example ina suit of partition10, in suit on mortgage11, in an easement suit12etc. This paper will examine the essentials for applicability of the doctrine of Lis Pendens as embodied in section 52 of the Transfer of Property Act, 188213 and shall also examine the judicial interpretation of certain key words of the section. Further, this paper would also explore the various situations in which the doctrine is applicable and the situations in which the doctrine is not applicable. 1 Author is a student at KIIT School of Law, Bhuvneshwar, India. 2Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882, 52 3Transfer of Property Act, 1882, No. 4, Acts of Parliament, 1882, 52 4DR. R.K. SINHA, TRANSFER OF PROPERTY ACT 203 (19th Ed., 2017). 5Gouri Dutta v. Jijibai, (1912) 36 Bom. 189 (India). 6DR. R.K. SINHA, TRANSFER OF PROPERTY ACT 199 (19th Ed., 2017) 7Shib Chandra v. Lachmi Narain, (1929) 33 CWN 1091 PC (India). 8Kathir v. Mremadiss, (1915) 38 Mad 450 (India); Ram Narain V. Sajid Ali Khan, AIR 1946 Oudh 99 (India). 9Pethu Ayyar v. Sankaranarayana, (1917) 40 Mad 955 (India). 10Jogendra Nath v. Debendra Nath, (1898) 26 Cal. 127 (India). 11Faiyaz Hussain Kh