LIS PENDENS
CHAPTER 1
INTRODUCTION
The doctrine of lis pendens1contained in Section 52 of the Transfer of Property Act, 1882 (hereinafter “TPA”) and expressed by the maxim ut lite pendente nihil innoveturem bodies the principle of law that “…pending a litigation nothing new should be introduced, and provides that pendente lite2, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his opponent.”3 The basis of this doctrine rests on the idea that “…the very purpose of seeking relief against any grievance [through a judicial proceeding] would be meaningless and ineffective”4 “…if alienations pendente lite were permitted to prevail”5 as despite having a decree of the Court in his favor, the plaintiff would have to commence proceedings de novo in order to reclaim his rights from the person to whom the property right was transferred by the defendant. The doctrine can be said to be an aspect of the principle of res judicata6and has its basis in “expediency and necessity of fine adjudication”7 and the need of having “finality in litigation”.8The doctrine is based on the notions of justice, equity and good conscience9 and has emerged out of public policy considerations.10
This paper deals with the doctrine of lis pendens as it is contained in the Transfer of Property Act 1882 and analyses the doctrine under the following heads: (A) Theoretical Basis (B) Essential Conditions and (C) Effect of a transfer pendente lite.
STATEMENT OF PROBLEM
Why this project? This is a project in the subject of Property Law for the completion of assessment and evaluation as it is part of the curriculum. The above project titled ‘Doctrine of Lis Pendens (Section 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 theme through which we will be able to find out and highlight the basis and their
INTRODUCTION
The doctrine of lis pendens1contained in Section 52 of the Transfer of Property Act, 1882 (hereinafter “TPA”) and expressed by the maxim ut lite pendente nihil innoveturem bodies the principle of law that “…pending a litigation nothing new should be introduced, and provides that pendente lite2, neither party to the litigation, in which any right to immovable property is in question, can alienate or otherwise deal with such property so as to affect his opponent.”3 The basis of this doctrine rests on the idea that “…the very purpose of seeking relief against any grievance [through a judicial proceeding] would be meaningless and ineffective”4 “…if alienations pendente lite were permitted to prevail”5 as despite having a decree of the Court in his favor, the plaintiff would have to commence proceedings de novo in order to reclaim his rights from the person to whom the property right was transferred by the defendant. The doctrine can be said to be an aspect of the principle of res judicata6and has its basis in “expediency and necessity of fine adjudication”7 and the need of having “finality in litigation”.8The doctrine is based on the notions of justice, equity and good conscience9 and has emerged out of public policy considerations.10
This paper deals with the doctrine of lis pendens as it is contained in the Transfer of Property Act 1882 and analyses the doctrine under the following heads: (A) Theoretical Basis (B) Essential Conditions and (C) Effect of a transfer pendente lite.
STATEMENT OF PROBLEM
Why this project? This is a project in the subject of Property Law for the completion of assessment and evaluation as it is part of the curriculum. The above project titled ‘Doctrine of Lis Pendens (Section 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 theme through which we will be able to find out and highlight the basis and their
Cited: f. Minakshi Saini v. Gurucharan Singh Sharma (2002) 2 Punj LR 439, 441 (HC). k. Sivaramakrishna v. K. Mammu (1957) 1 Mad LJ 14 (HC). l b. Bharuka G, Mulla: The Transfer of Property Act 1882 (10th Edn., Lexis Nexis 2006).