Explained: Doctrine of Lis Pendens under Property Law

Reading time : 8 minutes

Introduction: Origin

Lis pendens, translated from Latin is “a suit pending”, the term ‘Lis’ meaning ‘Litigation’ and ‘Pendens’ meaning ‘pending’. Lis Pendens comes from the Latin maxim “ut lite pendente nihil innovetur” which means nothing new to be introduced in a pending suit. The rule behind the maxim is to conclude settlements in a clearer way if any alienation is allowed during the proceedings of the suit.

The principle has been a statutory provision in Section 52 of the Transfer of Property Act, 1882. A defendant cannot, by alienating property during pendency of litigation, venture into depriving the successful plaintiff of the fruits of decree[1]

Legal Principle  

The doctrine of Lis Pendens as mentioned in Section 52 of the Transfer of Property Act states as follows:

“52. Transfer of property pending suit relating thereto.—During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, 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 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]

According to the Section, during the pendency of a suit or proceeding in any Court having jurisdiction within India or outside the limits of the central Government, involving the rights to a specifically mention immovable property, neither of the involved parties can either transfer nor deal with it in any other way which may affect the rights of the other party. Also, as per the explanation provided by the Section, it is mentioned that the applicability of this principle is from the day the suit has been brought on to the Court till the day of the judgment.

The main principle underlying Section 52 of the act is to maintain and preserve the status quo in a pending case and prevent any alteration that can be brought to the case by the involved parties. The principle specially mentions cases where an immovable property is directly or indirectly involved.

In the case of Bellamy v. Sabine (1857), Lord Turner explained the significance of this law as a doctrine common to both, Courts of law and equity. He explained, it laid upon the foundation that it would be impossible for any Court to bring a suit to a successful termination if alienation, during the pendency of a suit, prevails. In the same case, Cranworth L.C., observed that neither of the party to the suit can alienate property in question, affecting the opponent’s rights.

Essentials of Doctrine of Lis Pendens 

For application of the doctrine of lis pendens, there are certain essentials that need to be followed. In Dev Raj Dogra and others v. Gyan Chand Jain and others, the Supreme Court laid down the following conditions to be followed:

  • The pendency of suit should be in a Court of proper jurisdiction.
  • The subjected proceeding should not be a collusive kind but a bona fide one.
  • The suit must include issues of rights to an immovable property, either directly or indirectly.
  • The transfer of property in question, must be affecting the rights of the other party involved.
  • The period of pendency remains from the day the case is filed in the Court till the day of execution of decree.

Upon satisfying the above essentials, the transferee is bound to the Court’s decision. The rights of the transferred estate then depends on the Court’s judgment. If the decision of the Court is in favour of the transferor, the rights of the transferred estate will be with the transferee and if the decision is made against the transferor, the transferee would not be receiving any rights related to the questioned estate.

Exceptions

Not regarding what the doctrine states, the Court also has the power to permit any party involved in the suit to transfer the property in question. In Vinod Seth v. Devinder Bajaj, the Court observed that the underlying principle of Section 52 of Transfer of Property Act, is based on equity and justice. This means that the Court has the power to transfer the property subjected to the suit by imposing terms that deems fit. The leading case Bellamy v. Sabine also implies that the doctrine is common to the Courts of both law and equity.

Non applicability of the Doctrine

There are also certain cases where the application of this doctrine is not valid. Such as:

  • Cases of private selling by mortgagee in exercise of power conferred by the mortgage deed.
  • Cases where only the rights of the transferor is affected.
  • Cases where the suit is of collusive nature.
  • Cases where the property involved is not described properly or in of movable category.
  • In matters of review.
  • Cases involving annul leases or other actions.
  • To the time in between two suits involving the same property.
  • Cases where the alienated property does not create inconsistency with what may be decided by the Courts.

Status of transfer

Section 52 states that property cannot be alienated or dealt in any other way that affects the other party’s rights. It is also valid to transfer a property during the pendency of a suit and is only subjected to the decision of the suit. Thus, the transfer is voidable at the instance of the affected party until it conflicts against the rights given by the court’s decision. The principle only prohibits the alienation during a pending litigation when it affects the rights of a party. Hence, Section 52 can be considered as prohibitive in nature.

Landmark Case Laws

  • Hardev Singh vs. Gurmail Singh

In this case, the question was about a property given by the defendant to the appellant in lieu of maintenance, followed to a compromise between the parties. The Court stated that Section 52 merely prohibits a property transfer, it does not indicate that a pendente lite transfer would be illegal. Only the purchaser during such case would be bound by the pending decision.

  • T.G. Ashok Kumar v. Govindammal & Anr.

In T.G. Ashok Kumar v. Govindammal & Anr., the Supreme Court observed that if the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee’s title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee’s title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is entirely allotted to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property[3].

  • Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors.

In Gouri Dutt Maharaj v. Sheikh Sukur Mohammed and Ors., the Court discarded the defendant’s argument based on Section 52 of the act and favored the appellant on the principle ground that, the main purpose of the Section is to maintain the status quo, unaffected by the parties. The applicability of this Section cannot depend on subject of proof.

  • Ramjidas v. Laxmi Kumar and Ors.

In Ramjidas v. Laxmi Kumar and Ors., the Madhya Pradesh Court observed that the purpose of Section 52 was only to put forward the property in question to the authority of Court and not to defeat any just and equitable claim.

  • Rajender Singh and Ors. v. Santa Singh and Ors.

In Rajender Singh and Ors. v. Santa Singh and Ors. , the Court observed that the doctrine of lis pendens could be used to provide exclusion of the parties during the pendency of the suit. The intention was to strike out any attempts by the parties of interfering the pending litigation which would affect rights of either of the party regarding the immovable property. With the doctrine, the Court the power and authority to prevent the object from being defeated in a pending suit.

  • Lov Raj Kumar v. Dr. Major Daya Shanker and Ors.

In Lov Raj Kumar v. Dr. Major Daya Shanker and Ors., held that the principle under Section 52 of TPA are based on the principles of equity, justice and good conscience, and it will be impossible to bring an action to a successful termination if alienation is prevailing. Allowing alienation would defeat the ends of justice and throw away principles of equity. Hence Section 52 of the TPA was made applicable.

Conclusion

The Doctrine of Lis Pendens, mentioned in Section 52 of Transfer of Property Act, prevents a party to a suit from being deprived of its right regarding a certain property. It prevents from changes being made, introduction of rights in between a pending litigation. Depending on factors such as the affecting party, the alienated property, the privileges, this doctrine can be both a boon as well as a bane. Even though the principle is specifically mentioned in the Act, having a foundation based on the principles of equity and justice, the Courts have full power to go against the principle if deemed fit. This principle is prohibitive in nature and prohibits one to exploit the rights of other.


[1] Shivani Rani, Pendente lite nihil innovetur – Law Times Journal

[2] S.52, Transfer of Property Act, 1882

[3] ALBA LAW OFFICES, Doctrine of Lis Pendens – Experts & Views – Legally India

Authors: Srijeeta

Editor: Kanishka Vaish, Editor, LexLife India.

EXPLAINED: DOCTRINE OF ELECTION UNDER PROPERTY LAW

Reading time : 10 minutes

Introduction Vis-à-Vis Origin Of Doctrine Of Election

In general connotation, the term election refers to the act of picking up or choosing. However, in the context of Transfer of Property Act (TOPA)1882, the Doctrine of Election is envisaged under Section 35 of the Act & also under Sections 180 to 190 of the Indian Succession Act, 1925, referring to making a choice between two alternative or erratic rights. If by the dint of any instrument two rights are bestowed on an individual in a manner that the person has to only pick one of the conferred rights, in such a scenario the Doctrine of Election is beseeched. In C. Beepathumma & Ors. v. V.S. Kadambolithaya & Ors., the court stated that a person can’t take under & against the same instrument. This dogma is considered to be one of the imperative portions of TOPA, 1882 aiming to settle the dispute amid people. This proposition was procured from the principle of equity. According to this principle, the person can’t hold fast to all the transactional benefits & therefore, he can’t hold on to the property & still draw the benefits. The person has to choose or elect either for or against such an instrument. This dogma works on the general legal norm that needs the receiver to choose if the beneficiary desires to own someone else’s property & choose whether to preserve the property or receive his intents.

Legal Principle Validating The Doctrine Of Election

The legal principle fundamental to the instant doctrine is Allegans contraria non-est audiendus which means he is not to be heard who claims things antithetical to each-other. This principle was determined in Codrington v. Lindsay that a person may not approbate & reprobate a species of estoppel has risen which appears to be transitional between estoppel by a matter of record & estoppel in pais. The two premises expressed by the principle that a person may not approbate & reprobate are:

  1. The person in question, having a choice between two lines of conduct, is to be treated as having made an election from which he can’t shirk, &
  2. In general, the person will not be regarded to be elected unless he has derived an advantage under or arising out of the line of conduct which he has been primarily followed by him & with which his following conduct is varying.

Further, it was deliberated & elucidated in one of the momentous case of Cooper  v. Cooper, stated that the equity principle based Doctrine of Election is applicable to every class of instrument whether deed or will & to every type of movable or immovable property. It was further stated that it is the duty of the beneficiary under the will or other instrument to proffer complete effect to the instrument under which the person draws the benefit & if it is found that the instrument professes to deal with something which was beyond the benefactor’s or settlor’s power to relinquish, but to which effect can be provided by the concordance of the beneficiary under the same instrument, the law will impose the responsibility on the beneficiary of carrying the instrument into full & complete force & effect.

The Doctrine of Election in the words of Maitland, He who receives a benefit under a deed/will or another instrument is obligated to; (a.) espouse the complete contents of that instruments; (b.) comply to all the provisions of such instrument; & (c.) relinquish all rights that are incompatible with the instrument.

Applicability Of Doctrine Of Election

This doctrine is applicable to both the Hindu & Muslim law & also to both the movable & immovable property. It is known that this dogma is ground on the equity principle that where a person coaxes another to act in a way to his preconception & draws any kind of benefit from such an action then the person can’t reverse & allege that he wasn’t accountable to perform his part as it was found to be void. This doctrine is also applicable to the cases where a vendor/transferor of property attempts to take benefit of his own misdeed & also to the cases of gift/will. However, the doctrine isn’t usually applicable to the cases pleading legal remedy. In Shanmugam Pillai & Ors. v. K. Shanmugam Pillai & Ors. it was noted that, this equitable principle of election doesn’t necessitate any ratification. Basically, the doctrine is applicable to the transfer property which the person has no right to transfer. 

Therefore, the instant doctrine according to Section 35 of the TOPA, 1882 becomes necessary & applicable when the person acknowledges to transfer the property he isn’t entitled to hold on to. In the similar transaction, the person is ought to elect either to receive such transfer or not, in case he doesn’t take the benefits conferred, the bestowed benefits must be abandoned & reverted back to the transferor as if not given.

Nevertheless, when the conferred benefit is transferred back to the transferor, he must make certain good to the transferee, at best what can be done is, where the transfer is voluntarily done & the transferor had died or had become incompetent of carrying out a new transfer & where such a transfer is for consideration.

Prerequisites To The Application Of Doctrine Of Election

The imperative requisites that are to be fulfilled prior to beseeching the Doctrine of Election has been identified in Mst. Dhanpatti v. Devi Prasad & Ors.

  • Ownership Interest On The Property

Unquestionably, the property owner ought to have proprietary interest in the property. The transferor should have acknowledged to transfer property not his own.The person can’t be asked to make an election unless he holds on to a proprietary interest which are relinquished in disparagement of rights of the person. The transfer mustn’t be made by the property owner of the property which he intends to transfer. Certainly, the transferor is ought to transfer the other owner’s property to a third person. Thusly, it is to be noted that the election can’t be made in case of the two transfers, (i) transfer of owner’s property is made by the transferor to the transferee, basically to whom an interest is being provided via the transfer; (ii) transferor fails to bestow any benefit on the property owner through the similar transaction to the original property owner.

  • Part Of The Similar Transaction

This is another fundamental condition for invoking the Doctrine of Election. The bestowment of benefit on the property owner should be made by the similar transaction by which he transfers the property over which he has no entitlement to transfer. Notably, both the benefit conferred & the transfer are the part of the similar transaction. They are regarded to be part of the similar transaction if they are intertwined & inexplicable, that is to say that, there is no election if the transfer claimed & benefit bestowed on both are discrete transactions. Nonetheless, it isn’t obligatory that both of them must be stated in the similar instrument since it is conceivable that both are executed with less than two distinct instruments.

In Ramayya & Anr. v. Mahalakshmi, the court stated that a person can’t be omitted from the Doctrine of Election under the will for contesting the previous gift if isn’t the issue of the will whatsoever. Moreover, it is instated in Ammalu Achi v. Ponnammal Achi & Ors., it is to be taken note of that diverse nature of two properties isn’t an obstruction to election by the owner.

  • Intention Of The Transferor

For the purpose of beseeching the Doctrine of Election, it is imperative to ensure the clear & certain intention of the transferor regarding parting with the property which isn’t owned by him. Since, antecedent negotiations aren’t admissible & therefore the transferor’s intention should be apparently clear. 

  • Deriving Indirect Benefit

The property owner shouldn’t be the beneficiary directly under a transaction, but directly diverting a benefit under it, needn’t elect. In case, when benefit is provided to a person in a different capacity then the question of election doesn’t arise. The term owner should be taken cognizance of as it has quite a broad scope for construal & includes a person having both a contingent & a vested interest. Even the person having a far-flung interest falls within the purview of the interpretation of the term owner regarding section 35 of TOPA, 1882. Note that, it is always the property owner who has to be put to an election & hence he is given certain benefit as recompence instead of his property ownership. Moreover, the direct benefit should be deliberated upon the property owner & not indirectly. Taking heed of, election envisaged under the Indian Succession Act (Sec 180 to 190), in Valliammai Achi v. Nagappa Chettiar & Ors., the court ruled that the coparcener can’t be said to draw any benefit under the will & wasn’t put to an election.

  • Variance In Capacity

When the benefit is provided to a person in totally discrete capacity, the question of election doesn’t arise. An individual in one capacity can use a benefit whilst can disagree or repudiate that benefit in another capacity. It is likely to enable two roles of an individual where he can for instance, admit bequest for an estate whereas in his personal capacity, he could hold the property.

Exceptions To The Doctrine Of Election

This doctrine has certain exceptions to it. The exceptions are as follows:

  • Where a specific benefit is expressed to be bestowed on the property owner, possessed by the transferor to transfer & such benefit is instead of that property, if such owner professes the property, he isn’t entitled to abandon any other benefit that is accomplished by him via the similar transaction.
  • The acceptance of the benefit by the original property owner will be regarded to be an election by him to affirm the transfer, if he is aware of his responsibilities & obligations & of the conditions that may have an effect on a reasonable man making an election.
  • This knowledge of the conditions could be presumed if the beneficiary enjoys it for a period of more than 2 years without doing any act to express disagreement.
  • The transferor would ask him to elect his choice, if the original owner doesn’t elect his option within 1 year of the transfer of property. Even after the reasonable time, if he still doesn’t elect, the original owner shall be assumed to have elected the authentication of the property transfer as his choice.
  • In connection with some sought of disability or minor, the election period must be deferred till the individual becomes competent or reaches majority respectively, until the minor has to be represented by a guardian.

Modes Of Election

For election, there are two approaches to it. The election by the owner can either be direct or indirect. Direct election is merely via impartation about the elected choice or possibility. Nevertheless, indirect election is about receiving the benefit by the original owner. However, it is contingent upon two circumstances:

  1. He has to be mindful of his responsibility to elect, &
  2. There necessarily should be proof of knowledge of conditions which would have an impact on the decision of a prudent man in making an election.

Such an election would result in an implication that the owner has chosen in the support of the transaction. In the trailing situations, it is presupposed that the owner has agreed to the transaction,

  1. Where the property owner on whom such a benefit is conferred has sustained the enjoyment of such a benefit for a period no less than 2 years without any disagreement or repudiation to such transaction. It is supposed that since the beneficiary has enjoyed the benefit for 2 years then he has relinquished from the inquiry.
  2. Where the property owner or the transferee acts/uses the benefit bestowed on him or the property gifted to him in a way that it becomes inconceivable to position back the interested parties or reinstate it to the original owner in the similar condition as prior to the conferment of such property or benefit.

Momentous Case Laws Advocating The Doctrine Of Election

There are multiple cases in which Doctrine of Election is invoked & applied. As mentioned above the significant cases of C. Beepathumma & Ors. v. V.S. Kadambolithaya & Ors., Codrington v. Lindsay,  Cooper  v. Cooper, etc., some of the other cases that have beseeched the instant doctrine are;

In Dr. Aloys Wobben v. Shri Yogesh Mehra & Ors., the court stated that, the doctrine of election is a division of rule of estoppel,  assuming a person may be excluded by his acts/conduct/silence when it is his obligation to speak, from asserting a right which he otherwise would have had. The doctrine of election assumes that when two remedies are available for the same relief, the distressed party is vested with the option to elect either of them but can’t elect both. However, there are some exceptions to the instant doctrine.

In Baishakhu Ram Binjhavar vs South Eastern Coaldields Ltd., the court stated that, a person isn’t entitled to approbate & reprobate at the same time. By the virtue of doctrine of election, no person can receive & repudiate the similar instrument. This dogma isn’t restricted to instruments. At one time, the person can’t say that the transaction is licit & hence attain certain benefit, to which he can only be eligible because it’s lawful & then refuted the claim asserting that the transaction is illicit in order to derive certain benefit. Consequently, no approbating & reprobating the transaction at the same time. This shows that doctrine of election is based on another equitable principle of Estoppel.

Conclusion

One of the fundamental equitable principles, Doctrine of Election is envisaged under Section 35 of TOPA, 1882. The Article tries to approach & understand numerous gradations involved in the doctrine with the aid of several important case laws, the profound & special accentuation has been put on giving a lucid & certain clarity to the imperative conditions for the application of the doctrine. The underpinning of the doctrine of election is that the person deriving a benefit under an instrument is ought to bear the burden too. To put it simply, a person can’t take under & against one & the similar instrument. Several other facets like proprietary interest, deriving indirect benefit, transferor’s intention, etc. have been deliberated & elucidated for the augmented & better understanding over the notion of Doctrine of Election.

Author : Vaidehi Gupta, a third-year student at Tamil Nadu National Law University, Tiruchirappalli.

Editor: Kanishka Vaish, Editor, LexLife India.