Lis Pendens Essay

CHAPTER 1INTRODUCTIONThe philosophy of lis pendens1contained in plane section 52 of the modify of office Act, 1882 ( hereinafter TPA) and expressed by the maxim ut fat-free pendente nihil innoveturem bodies the principle of equity that pending a litigation nonhing new should be introduced, and provides that pendente lite2, neither party to the litigation, in which every ripe to immovable space is in top dog, can alienate or other than deal with much(prenominal) property so as to assume his opponent.3 The basis of this ism rests on the idea that the very purpose of desire relief against whatever grievance through a judicial deed would be empty and ineffective4 if alienations pendente lite were permitted to prevail5 as disdain having a legislation of the coquet in his favor, the plaintiff would have to mother legal proceeding de novo in order to reclaim his right wings from the person to whom the property right was carry-overred by the defendant. The philosophy can be express to be an face of the principle of res judicata6and has its basis in expediency and necessity of first-rate adjudication7 and the need of having last-placeity in litigation.8The principle is found on the notions of justice, equity and good conscience9 and has emerged step to the fore of human race policy considerations.10 This motif deals with the doctrine of lis pendens as it is contained in the Transfer of space Act 1882 and analyses the doctrine nether the following heads (A) Theoretical Basis (B) Essential Conditions and (C) Effect of a transfer pendente lite.STATEMENT OF PROBLEMWhy this foresee? This is a project in the subject of Property jurisprudence for the completion of assessment and paygrade as it is part of the curriculum. The above project entitled Doctrine of Lis Pendens ( piece 52) A Critical Analysis is part and parcel of course of Property Law subject in eighth semester. The project lies for the complete analysis of the point through w hich we exit be able to find out and play up the basis and their relevance in the subject.SCOPEThe project deals with some of the questions arising out of slit 52 of the Transfer of Property Act, 1882 which deals with the transfer of immovable property pendente lite. The research bequeath be restricted to the given topic and petty(a) sources be used for the purpose of this research.OBJECTIVEThe objective of the research is to sketch in depth instalment 52 and tinyly analyze it referring to confused books and Law Commission Report. Also, to find out the limitations and loopholes which ar there in the Section in light of different case laws and judicial pronouncements. shotPendency of a suit or a proceeding sh every last(predicate) be deemed to incubate until the suit or a proceeding is disposed of by terminal rewrite or order, and complete satisf legal action or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration o f each hitch of limitation prescribed for the motion thereof by any law for the time being in forceRESEARCH METHODOLOGYDoctrinal ResearchThis project is in the main the outcome of the library establish research. The research is of the systematic exposition, analysis and critical evaluation of legal regularizes and their inter-relationships. Articles, books, case study and secondary data are referred for the literature review and reference and based on it analysis and ratiocination are drawn.CHAPTER 2THEORETICAL BASISThis part will marvel into the theoretical basis of the doctrine of lis pendens. The broader question that is sought to be answered here arises in a situation when a person unknowingly acquires title to a property which is involved in a civil engagement which is yet to be decided upon. In this situation, the question that is often embossed is that on what basis the rights of the ignorant transferral can be subverted chthonic the doctrine of lis pendens in orde r to recognize the rights of the victorious party in thedispute over the disputed property. Two theories have been out forwards in this regard. The first theory states that a pending suit is a constructive recognise to the entire world and and soce an ignorant transport is consequently deemed in law to be aware of the disputed former of the property and is barred from making the claim that s/he was a bonafide purchaser.11 However this theory is being increasingly displaced by another(prenominal) which relies on public policy considerations to justify the doctrine of lis pendens. Accordingly the doctrine is not founded on any theory of notice at all, but is based upon the necessity for preventing litigants from disposing of the property insuch manner as to deputize with functioning of the courts decree. Without such a principle all suits for specific property might be rendered abortive by ordered alienations of the property in suit, so that at the end of the suit another wou ld have to be commenced, and after that, another, making it almost impracticable for a man ever to make his rights available by a hangout to the courts of justice.12This theory does away with need of inferring a constructive notice from fact of existence of the dispute. The transferees rights are not bear upon because the suit amounts to a constructive notice but because law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party.13 The intention of the doctrine is to identify the judicature with complete control over alienations in the res which is pendente lite, and thus to render its judgment binding upon the alienees, as if they were parties, notwithstanding the hardship in individual cases.14 It has been argued that such a stringent version of this doctrine imposes an undue burden on innocent purchasers who buy disputed property. This is especially so in cases where the lis is not du ly registered chthonic Section 18 of the Indian Registration Act, 1908. The states of Maharashtra and Gujarat have enacted state amendments which restrict the application of this doctrine to the cases where the parties to the dispute have registered the lis under the Indian Registrations Act 1908. This affords protection purchasers who whitethorn not have any means of determining the existence of a dispute in relation to the property they intend to deal with.15CHAPTER 3ESSENTIAL CONDITIONSThe following conditions have to be satisfied for the application of Section 52 of TPA (I) A suit or proceeding in which any right to immovable property is directly and specifically in question16 moldiness be pending in an appropriate Court (II) The suit should not be a covert one. In such a case, 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 to it under any decree or order which whitethorn be made therein, except under the authority of the court and on such terms as it may impose.17 The following parts deal with each of these elements in detail.pending guinea pigA suit is commenced by the filing of a plaint, and appeals and execution proceedings are a continuation of the suit.18 According to of Section 52 a transfer of property involved in a suit while the pendency of the suit is hit by the rule of lis pendens enshrined therein. For a suit to be pending the Court must have the necessity jurisdiction. In the absence of such jurisdiction, the decree pronounced by the Court will be a nullity19 and hence would not attract the rule of lis pendens. An appeal or execution is included in the continuation of the suit and the bar of lis pendens extends over such proceedings. The explanation to the said section indicates that the pendency of a suit would encompass the stage after the final decree till complete joy and discharge of such decree or order. It is, therefore, obvious that legislature has thought it fit to extend the sphere and ambit of the terminology suit even for covering the execution proceedings in connection with decrees passed in such suits20 A transfer made before the pendency of the suit is not subjected to this rule.21 A suit filed in a foreign court cannot be a lis pendens under this rule.22The rule cannot apply to properties situated outside India.23 Furthermore the right to an immovable property24 must be directly and specifically be involved in the suit.25Suit must not be collusiveSection 52 of TPA becomes in operation(predicate) as soon as a bona-fide suit is instituted which is not in any way collusive.26 A collusive proceeding27 is different from a unsound proceeding. In a fraudulent proceeding, the claims made are false and are instituted to injure the plaintiff. Whereas in a collusiveproceeding, there is a unfathomable arrangement between the parties to the suit and the object of instituting such proceedings is to use the judi cial forum to curtail the claims of bona-fide transferees over the disputed property.28 A collusive proceeding would bind the parties but not their transferees.29CHAPTER 4EFFECT OF conduct PENDENTE LITEThe transfer when it falls within the mischief of Section 52 of TPA will be deemed to be non est for the purpose of lis pendens.30 The right to the property will continue to vest in the transferor notwithstanding he transferred it. However, there is no indication in the section that the transfer is rendered void. Rather, the transfer has been held to be legitimate and operative as between the parties thereto.31 The doctrine of lis pendens merely subordinates the rights of the transferee to the rights primed(p) by the Court upon the completion of the proceedings. If the rights do not conflict, then the transfer would act as a valid transfer. This is can be inferred from the words, so as to affect the rights of any other party thereto under any decree or order which may be made there in.32CHAPTER 5CONCLUSIONThis paper reviews the doctrine of lis pendens under Section 52 of TPA. It is evident from the analysis of the doctrine that the basis of the doctrine lies in public policy considerations and the expediency to ensure finality of litigation. dapple the doctrine does invalidate a transfer pendente lite it renders the rights of the transferor subservient to those determined by the Court in the ongoing proceedings. The doctrine demonstrates a genuine case wherein individual rights of parties are rendered dormant to satisfy a public policy objective. The broad principle underlying Section 52 of the Transfer of Property Act, 1882 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed. If such a view is not taken, it would plainly be impossible that any action or suit could be brought to a successfulterm ination if alienations pendente lite were permitted to prevail. The explanation to Section lays down that the pendency of a suit or a proceeding shall be deemed to continue until the suit or a proceeding is disposed of by 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.INDEX OF AUTHORITIES1. Legislationsa. Transfer of Property Act 1882.2. Cases Citeda. Thakurai Bhup Narain Singh v. Nawab Singh And Ors. 1957 production line Pat 759 (HC). b. Bellamy v. Sabine 1857 (1) De G & J 566.c. Digambararao v. Rangarao 1949 AIR Bom 367 (HC).d. Lov Raj Kumar v. Daya Shankar 1986 AIR Del 364 (HC).e. Chanda Sab v. Jamshed Khan 1993 AIR Kant 338 (HC).f. Minakshi Saini v. Gurucharan Singh Sharma (2002) 2 Punj LR 439, 441 (HC).g. Simla Banking Industrial Co. Ltd. v. incorruptible Luddar M al 1959 AIR Pun 490 (HC). h. Ghantesher Ghosh v. Madan Mohan Ghosh and Ors.1997 AIR 471 (SC) .i. Umesh Chunder v. Zaboor Fatima 1956 AIR 593 (SC).j. Palani Chetti v. Subramanyam Chetti (1896) ILR 19 Mad 257. k. Sivaramakrishna v. K. Mammu (1957) 1 Mad LJ 14 (HC).l. Hans Nath v. Ragho Prasad (1932) ILR 54 All 159 (HC).m. Md. Shafiqullah Khan v. Md. Samiullah Khan 1929 AIR All 943 (HC). n. Gouri Dutt v. Sheikh Sukur Md. 1948 AIR PC 147 (PC).o. Nuzbat-ud Daula v. Dilband Begam 21 IC 570.p. Nagubai Ammal v. B. Sharma Rao 1956 1 SCR 451 (SC)3. Booksa. Sorabjee S, Darashaw J.Vakils Commentaries on the Transfer of Property Act (2nd Edn., Wadhwa Nagpur 2004). b. Bharuka G, Mulla The Transfer of Property Act 1882 (10th Edn., Lexis Nexis 2006).4. Dictionariesa. Black H.C., Blacks Law Dictionary (4th Edn, tungsten Publishing Company 1968).5. Law Commission Reportsa. Law Commission of India, Section 52 The Transfer of Property Act 1882 and Its Amendment (Law Com No. 157, 1998).