INTRODUCTION:

Lis Pendens' generally means "pendency of a suit in a Court". It embodies the principle that

the subject matter of the suit should not be transferred to third party during the pendency of

the suit. The transferee is bound by the result of the suit in a case when such property is

transferred during the pendency of the suit.

This doctrine aims at the final adjudication of the dispute. Nothing new should be brought in

a litigation. It helps to prevent multiplicity of suits.

The essential condition for the application of this doctrine is that the right to immovable

property must be directly and specifically in question in the suit. The doctrine is mainly based

upon the principles of equity, justice and good conscience. It is applicable to all cases

between co-heirs. It applies to ex-parte judgements, compromise decrees etc. It applies to

both voluntary transfers and involuntary transfers. The doctrine is contained in Section 52 of

the Transfer of Property Act.

It is of some interest that a solution has been found to this problem in the States of

Maharashtra by an appropriate local amendment to section 52 of the Act, by Bombay Act 4

of 1939. Section 52, as applicable in the Maharashtra and Gujarat, reads thus (the amendment

is shown in italics):

 “52. (1) During the pendency in any court having authority within the limits of India

excluding the State of Jammu and Kashmir established beyond such limits by the Central

Government, of any suit or proceeding which is not collusive and in which any right to

immoveable property is directly and specifically in question, if a notice of the pendency of

such suit or proceeding is registered under section 18 of the Indian Registration Act, 1908,

the property after the notice is so registered 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 thereto 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.

(2) Every notice of pendency of a suit or proceeding referred to in sub-section (1) shall

contain the following particulars, namely:-

(a) the name and address of the owner of immoveable property or other person whose right to

the immoveable property in question;

(b) the description of the immoveable property the right to which is in question;

(c) the court in which the suit or proceeding is pending;

(d) the nature and title of the suit or proceeding; and

(e) the date on which the suit or proceeding was instituted.

The suit must be pending in a court of competent jurisdiction. So if the suit is filed in a court

not of competent jurisdiction, it is not a suit pending as per Section 52 of the Transfer of

Property Act.

The doctrine of lis pendens is an expression of the principle of the maxim “ut lite pendent

nihil innovetur (pending litigation nothing new should be introduced).

PURPOSE OF LIS PENDENCE

To protect the rights of the party causing the registration of the lis pendens

To advise third persons who purchase or contract on the subject property that they do so at

their peril and subject to the result of the pending litigation

May involve actions that deal not only with title or possession of a property but also with the

use and occupation of a property

The litigation must directly involve a specific property which is necessarily affected by the

judgment

The notice of lis pendens is a notice to the whole world that a particular real property is in

litigation. The inscription serves as a warning that one who acquires interest over litigated

property does so at his own risk, or that he gambles on the result of the litigation over the

property

A purchaser who buys registered land with full notice of the fact that it is in litigation

between the vendor and third party stands in the shoes of his vendor and his title is subject to

the incidents and results of the pending litigation

n Jayaram Mudaliar v. Ayyaswami (AIR 1973 SC 569) this court held that the purpose of

Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to

the authority of the court which is dealing with the property to which claims are put forward.

This court in Hardev Singh v. Gurmail Singh (2007) 2 SCC 404 held that Section 52 of the

Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only

makes the pendente lite purchaser bound by the decision in the pending litigation.

OBJECTIVE:

Rights depend upon remedies. This also holds as good regards the right to property. Since

speedy and efficient remedies are of utmost importance, it has to be ensured that once the

person has initiated legal process in court to seek remedy against any invasion on his right or

threat of invasion thereto, the legal process should not be defeated on account of private

deals. Or any transaction, that is transfer of property in dispute or on account of any other

action of any party to such legal process, otherwise the very purpose of seeking relief against

any grievance would be meaningless and ineffective. In order to ensure that the legal remedy

remains efficient throughout the legal process, jurist have evolved a general principle known

as ‘lis pendens’ basing it on the necessity that neither party to the litigation should alienate

the property in dispute so as to affect his opponent.

The principle on which the doctrine of lis pendens rests explained in the leading acse of

Bellamy v Sabine where Turner L.J. observed “It is, as I think, a doctrine common to the

Courts both of Law and Equity, and rests, as I apprehend, upon this foundation – that it would

plainly be impossible that any action or suit could be brought to a successful termination, if

alienations pendente lite were permitted to prevail. The plaintiff would be liable in every

case to be defeated by the defendant’s alienating before the judgment or decree, and would be

driven to commence his proceedings de novo, subject again to be defeated by the same course

of proceeding.”

NOTICE OF LIS PENDENS

Section 76. Notice of lis pendens. No action to recover possession of real estate, or to quiet

title thereto, or to remove clouds upon the title thereof, or for partition, or other proceedings

of any kind in court directly affecting the title to land or the use or occupation thereof or the

buildings thereon, and no judgment, and no proceeding to vacate or reverse any judgment,

shall have any effect upon registered land as against persons other than the parties thereto,

unless a memorandum or notice stating the institution of such action or proceeding and the

court wherein the same is pending, as well as the date of the institution thereof, together with

a reference to the number of the certificate of title, and an adequate description of the land

affected and the registered owner thereof, shall have been filed and registered.

The filing of lis pendens in effect—

o Keeps the subject matter of litigation within the power of the court until entry of final

judgment so as to prevent the defeat of the latter by successive alienations

o Binds the purchaser of the land subject of the litigation to the judgment or decree that will

be promulgated thereon whether such purchaser is a bona fide purchaser or not

o Doesn’t create a non-existent right or lien

> Purpose of this rule is founded on public policy and necessity

EFFECT OF SUCH NOTICE

1. It keeps the subject matter of the litigation within the power of the court until the entry of

final judgment so as to prevent the defeat of the latter by successive alienations

2. It binds the purchaser of the land subject of the litigation to the judgment or decree that

will be promulgated thereon whether such purchaser is a bona fide purchaser or not

> It is not correct to speak of it as part of the doctrine of notice, the purchaser pendent elite is

affected not by notice but because the law doesn’t allow litigating parties to give to others,

pending the litigation, rights to the property in dispute so as to prejudice the other party

NOTICE IS ONLY AN INCIDENT IN THE MAIN CASE; MERITS THEREOF

UNAFFECTED

> A notice of lis pendens is ordinarily recorded without the intervention of the court where

the action is pending

> It is but an incident in an action, an extrajudicial one. It doesn’t affect the merits thereof.

NOTICE NEED NOT BE ANNOTATED ON THE OWNER’S COPY

> Annotation at the back of the original copy of the certificate of title on file with the RD is

sufficient to constitute constructive notice to purchasers or other persons subsequently

dealing with the same property

> One who deals with property subject of a notice of lis pendens cannot invoke the right of a

purchaser in good faith—neither can he acquire the rights better than those of his

predecessor-ininterest

NOTICE OF LIS PENDENS—WHEN APPROPRIATE

1. Action to recover possession of real property

2. Action to quiet title thereto

3. Action to remove cloud thereon

4. Action for partition

5. Any other proceedings of any kind in court directly affecting the title to the land or the use

or occupation thereof or the buildings thereon

NOTICE NOT PROPER IN THE FOLLOWING

1. Preliminary attachments

2. Proceedings for the probates o f wills

3. Levies on execution

4. Proceedings for the administration of estate of deceased persons

5. Proceedings in which the only subject is the recovery of a money judgment

CONTENTS OF NOTICE OF LIS PENDENS

1. A statement of the institution of an action or proceedings

2. The court where the same is pending

3. The date of its institution

4. A reference to the number of certificate of title of the land

5. An adequate description of the land affected and its registered owner

PRINCIPLE OF PRIMUS TEMPORE, POTIOR JURE; EFFECT OF LIS PENDENS

> The principle of primus tempore, potior jure gains greater significance in the law on double

sale of immovable property

> Reliance on the principle of constructive notice operates only such upon the registration of

the notice of lis pendens

> More fundamentally, a notice of lis pendens is only a warning to the prospective purchaser

or incumbrancer that the particular property is in litigation and that he should keep his hands

off the same, unless he intends to gamble on the results of the litigation

CARRY OVER OF NOTICE ON SUBSEQUENT TITLES

> In case of subsequent transfers or sales, the RD is duty bound to carry over the notice of lis

pendens on all titles to be issued

> Act of RD in erasing notice of lis pendens is in plain violation of his duty, constitutes

misfeasance in the performance of his duties for which he may be held civilly and even

criminally liable for any prejudice caused to innocent third persons and cannot affect those

who are protected by the notice inscribed in the original title

CANCELLATION OF LIS PENDENS

> Ordinarily a notice which has been filed in a proper case cannot be cancelled while the

action is pending and undetermined, except in cases expressly provided for by statute

> It may be cancelled upon order by the court or upon action by the Register of Deeds at the

instance of the party who caused the registration of the notice

> While the trial court has inherent power to cancel a notice of lis pendens, such power is

exercised under express provisions of law—

o If the annotation was for the purpose of molesting the title of the adverse party

o When the annotation isn’t necessary to protect the title of the party who caused it to be

recorded

Section 77. Cancellation of lis pendens. Before final judgment, a notice of lis pendens may be

canceled upon order of the court, after proper showing that the notice is for the purpose of

molesting the adverse party, or that it is not necessary to protect the rights of the party who

caused it to be registered. It may also be canceled by the Register of Deeds upon verified

petition of the party who caused the registration thereof.

At any time after final judgment in favor of the defendant, or other disposition of the action

such as to terminate finally all rights of the plaintiff in and to the land and/or buildings

involved, in any case in which a memorandum or notice of lis pendens has been registered as

provided in the preceding section, the notice of lis pendens shall be deemed canceled upon

the registration of a certificate of the clerk of court in which the action or proceeding was

pending

stating the manner of disposal thereof.