Tpa Project-lis Pendens 4w6e4r

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 ed under section 18 of the Indian Registration Act, 1908, the property after the notice is so ed 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 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 ed 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 of private deals. Or any transaction, that is transfer of property in dispute or on 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 ed 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 ed owner thereof, shall have been filed and ed. 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

2.

to

recover

Action

3.

to

Action

4.

possession

to Action

of

real

property

quiet

title

thereto

remove

cloud

thereon

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

2.

Proceedings

3. 4.

for

Levies Proceedings

for

attachments

the

probates

o

f

on the

istration

wills execution

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

2.

The

3. 4.

statement

of

the

court

where

The A

reference

institution

the

number

an

the

date to

of

action same

of of

certificate

or

proceedings

is

pending

its of

institution title

of

the

5. An adequate description of the land affected and its ed owner PRINCIPLE OF PRIMUS TEMPORE, POTIOR JURE; EFFECT OF LIS PENDENS

land

> 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 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 ed. It may also be canceled by the 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 ed 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.