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Doctrine of lis pendens and the cycle of prolonged litigation
Introduction
The Doctrine of Lis Pendens translates into ‘pending legal action’ in Court of law. This principle has been personify in form of Section 52 in Transfer of Property Act[1] (the ‘Act’ from hereinafter), 1882. Even if it was not personified in form of aforementioned provision, it would still have been applicable by virtue of being an established principle based on justice, equity and good conscience[2]. This doctrine restricts either the parties to suit, to sell or otherwise transfer of an immovable property which is subject matter of dispute between such parties.
Development of Principle:
There were two theories that explains evolution of Doctrine of Lis Pendens, ‘Theory of Notice’ and the ‘Theory of Necessity’. But, theory on which doctrine was actually established has always been unclear. Previously, it was claimed that principle was developed on ‘Theory of Notice’[3]. This theory states that pending suit must serve as constructive notice to world that title of property is in dispute. It delivers likes an warning to third parties against buying of suit property until such time its title is settled.
Status Quo(existing state of affairs)
The general standpoint come out from cases holds interests of transferee pendente lite (during litigation) be obeyed by interests of original parties of litigation. Therefore, such transfers are not void, but are held to be voidable at option of party in whose favour Court has decreed. It was stated in case of Gouri Dutt Maharaj[7] that Section 52 ensures that existing state affairs(status quo) of parties to suit is maintained among notwithstanding such transfers.
In cases where either parties successfully manages to transfer of such suit property, the during litigation nothing new should be introduced is one whose interest may be handicapped as an outcome towards Court’s order. Such order is by and large in favour of one of parties of original suit. This paper aims to explore rights and options that such transferee’s have and remedies available to them.
Rights of Transferee Pendent Lite(during litigation)
There is plethora of Indian cases which explore judicial interpretation of Section 52 of ‘The Act’ and rights of different parties that are affected during litigation transfers. Earlier Supreme Court cases like Sarvinder Singh vs. Dalip Singh[8] (1996) interpreted aforementioned Section for hold transfers of all such suit properties to be void or illegal.
However, this was the wrong interpretation of Section, as has been proof in earlier case laws. The position of Court was overturned in cases that will be discussed in subsequent portions.
Relief of Specific Performance of obligation of Transferee Pendent Lite(during litigation)
Where an original purchaser i.e. the person who enters into ‘Agreement to Sell’ with Defendant and files an petition for specific performance of Agreement and sells such property to third party. Such third party would be able to assist itself as party in suit and would take place of Defendant.
It was held in Raghunath Fulaje Jadhav vs Rajendra Dinkarrao Patel (2007)[15], that if Court decrees for specific performance of such an Agreement to Sell, then new transferee would be bound by no matter how huge amount of money that he had spent for purchase it. Here, transferee knew about previous Agreement and pendency of suit. Even then transferee will be replaced as successor of transferor as party to suit, due to Order I Rule 10(2) of Code.
Analysis and Conclusion:
The problems arises regarding to Property Law in India are of various kind. Most of these disputes go on for years, crossing lifetimes of parties and inherited by their successors. A during litigation ( Pendent Lite ) proceeding protects rights of an innocent party, but in case of third-party transfers during pendency of original suit, this Doctrine also lengthen already prolong process which leads to wastes a lot of time, money and sanity of all parties.
Therefore, mechanisms need to be set in place to make sure that suit property is not transferred at least by Respondents during hanging of such original suits. Government should take steps like creating computer database or keep registry that can be directly linked to Aadhar cards of parties.
