Doctrine of lis pendens

Lis pendens

It’s a Latin term;

It means ‘suit pending.’ 

Lis means = litigation;

Pendens means = pending;

In common law practice, the doctrine of ‘lis pendens’ is construed as a constructive notice to the public that some litigation is pending in a court of law in respect of that property.

Lis pendens is a constructive notice that shows that there is a cloud in the title of the property until the same is resolved in that suit.

Lis pendens does not invalidate any transfer of the property.

It is always the duty of the purchaser to make proper enquiry regarding any lis pendens in the property, before the purchase.

Section 52 of the Transfer of Property Act has clearly prohibited the transfer of property which is subject matter of a pending suit. The purchase can only be done with the permission of the Court. If no such permission has been obtained, then this transfer in favour of the purchaser is certainly hit by the doctrine of lis pendens as provided under Section 52 of the Act.  An alienee pendente lite is bound­ by the final decree that may be passed in the suit. Such an alienee can be brought on record both under this rule as also under O 1 Rule 10. Since under the doctrine of lis pendens a decree passed in the suit during the pendency of which a transfer is made binds the transferee, his application to be brought on record should ordinarily be allowed.

The doctrine of lis pendens applies only where the lis is pending before a Court. Further pending the suit, the transferee is not entitled as of right to be made a party to the suit, though the Court has a discretion to make him a party. But the transferee pendente lite can be added as a proper party if his interest in the subject matter of the suit is substantial and not just peripheral.

In order to constitute a lis pendens, the following elements must be present:

1)      There must be a suit or proceeding pending in a Court of competent jurisdiction.

2)      The suit or proceeding must not be collusive.

3)      The litigation must be one in which right to immovable property is directly and specifically in question.

4)      There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation.

5)      Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.