Section 52 of the Transfer of Property Act, 1882, is based on the doctrine of lis pendens, which translates to "pending litigation." The term is derived from Latin, where "lis" means litigation and "pendens" means pending. The doctrine essentially states that when a dispute regarding immovable property is pending before a court, no new interests should be created in that property. This principle is encapsulated in the Latin maxim “pendent lite nihil innovature,” meaning "nothing new should be introduced during the pendency of litigation." The doctrine of lis pendens prevents the transfer of property while a suit is ongoing, ensuring that the outcome of the case is not undermined by transactions carried out during the pendency of the proceedings.
Basis of the Doctrine
The foundation of the doctrine of lis pendens is not based on whether the transferee had notice of the pending litigation. Instead, it is rooted in the principle of necessity and public policy. The objective is to prevent third parties from interfering with judicial proceedings and to ensure that the final judgment is effective and binding. This idea was explained by Turner, L.J., in the landmark case of Bellamy v. Sabine (1857), where it was emphasized that the doctrine is essential to prevent the transfer of rights during litigation. Similarly, in Faiyaz Husain Khan v. Prag Narayan (1907) and Achut v. Shivaji Rao (AIR 1937 Bombay), it was held that the doctrine’s basis is public policy and expediency, rather than notice to the transferee.
Essentials of Section 52:
- Pendency of a Suit or Proceeding: The litigation must be ongoing in a court of competent jurisdiction. The pendency starts from the date the plaint is filed or the proceedings are initiated and continues until the final decree is satisfied or discharged.
- Subject Matter Involves Immovable Property: The dispute must specifically involve the transfer or rights related to immovable property.
- Suit Not Collusive: The suit must not be collusive or fraudulent. A collusive suit is one where parties institute proceedings with malicious intent or to achieve an unlawful purpose.
- Transfer During Pendency: The property in question must be transferred or dealt with by a party involved in the suit while the litigation is ongoing.
- Affecting Rights of the Other Party: The transfer must have the potential to affect the rights of the opposing party in the litigation.
If these conditions are met, any transfer made during the pendency of the suit is subject to the final decision of the court.
Pendency of a Suit or Proceeding
The explanation to Section 52 clarifies that the pendency of a suit begins from the moment the plaint is presented or the proceedings are initiated in a court with competent jurisdiction. This period continues until the final decree is either satisfied or discharged. Even execution proceedings, which follow after the passing of the decree, are considered part of the original suit. Therefore, any transfer made during the pendency of such proceedings is governed by the doctrine of lis pendens. However, if a transfer is made after the conclusion of the proceedings, it is not affected by this doctrine.
Suit Must Not Be Collusive
The doctrine of lis pendens does not apply if the suit is collusive or instituted with malafide intentions. A collusive suit is one where the parties involved fabricate the proceedings to obtain a judgment for wrongful purposes, such as defrauding a third party. Since such suits are fictitious, the doctrine does not protect transfers made during their pendency.
Effect of the Doctrine of Lis Pendens
The general rule is that a court’s decree binds only the parties involved in the suit. However, under the doctrine of lis pendens, a person who purchases the property during the pendency of a suit is also bound by the court’s decision. This means that even if the transferee acquires ownership of the property, their rights are subject to the outcome of the litigation.
Importantly, Section 52 does not invalidate a transfer made during the pendency of a suit. Instead, it makes such a transfer subject to the rights of the parties in the litigation. The title of the transferee is not automatically nullified, but it remains subordinate to the final decision of the court. However, if a transfer is made during the pendency of a suit with the court's permission, the doctrine of lis pendens does not apply.
Conclusion
The doctrine of lis pendens, as codified in Section 52 of the Transfer of Property Act, is a critical safeguard to ensure that the outcome of litigation involving immovable property is not rendered meaningless by transfers made during the pendency of the suit. While it does not invalidate such transfers, it binds the transferee to the final decision of the court, thereby protecting the interests of the litigating parties. By preventing third parties from acquiring rights in disputed property, the doctrine upholds the principles of justice, public policy, and judicial efficiency.
