‘Lis’ means ‘litigation’, and ‘pendens’ means ‘pending’. Thus, ‘lis pendence’ means ‘pending litigation’. The doctrine of lis pendens is expressed in maxim ‘pendente lite nihil innovature’, which means, ‘during the pendency of litigation, nothing new should be introduced. In other words, the doctrine signifies that during the pendency of any suit regarding the right to the property, any new interest in respect of that property should not be created, i.e. the property during the pendency of the proceeding need not be transferred so as to create third-party interest.

The object of the doctrine of lis pendency lies in ‘necessity’. The necessity is that if parties to the suit are allowed to transfer the property to a third party during the pendency of the suit, the suit will not meet its legal end. This object of the doctrine of lis pendense is well described in the leading Indian case by Privy Council in Faiyaz Husain Khan v. Prag Narain[2] The court observed that “when the jurisdiction of the Court had once attached, it could not be ousted by the transfer of defendant’s interest. There would be no end to litigation, and justice would be defeated if such transfers were allowed.

II. Transfer of property pending suit relating thereto (S. 52):-

(i) During the pendency in any Court within the limits of India.

(ii) of any suit or proceeding which is not collusive, and

(iii) in which any right of immovable property is directly and specifically in question,

(iv) the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding,

(v) so as to affect the rights of any other party thereto under any decree or order which may be made therein,

(vi) except under the authority of the court and on such terms as it may impose.

Explanation:- For the purpose of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being if force.

III. Essentials to the doctrine of lis pendense:-

Following are the essentials of the doctrine of lis pendense under S. 52, viz.

1) Pendency of suit or proceeding:-

In fact, the pendency of a suit begins from the date of presentation of a plaint and terminates on the date of passing the final decree. The explanation to S. 52 provides that the pendency of a suit or proceeding is deemed to begin from the date of presentation of the plaint or institution of the proceeding in a Court and continues until the suit has been disposed of by a final decree or order.

In Supreme General Films Exchange Ltd v. Sri Nath Singhji Deo[3]

Facts:- Plaza Theater was attached by the Court in the execution of a decree absent its owner. However, the owner leased the theatre to the appellant, i.e. Supreme Films.

Supreme Court held:- that the lease is hit by the doctrine of lis pendense.

Proceeding:- “Proceeding’ means a judicial activity, whether civil or criminal’. Thus, the proceedings before revenue officers, before the Registrar of Co-Operative Societies, etc., are held to be proceeding under S. 52, and therefore, the doctrine of lis pendency applies when such proceedings are pending.

2) Pendency before a court of Competent jurisdiction:-

The suit or proceeding during which the property is transferred must be pending before a court of competent jurisdiction. In other words, when a suit is pending before the Court having no jurisdiction, the doctrine does not apply. For example, a suit relating to immovable property is to be filed in the Court within whose jurisdiction the property is situated or one of the properties is situated. If the suit is filed in any court other than the court in the jurisdiction of which the property is situated, the doctrine of lis pendency does not apply.

3) Right to immovable property is involved:-

It is also a very important condition in the pending suit that the right to immovable property must directly and specifically be involved. In other words, the litigation should be regarding title or interest in an immovable property. There must be a suit involving the question as to the title or interest of immovable property. If the suit pending before the court does not involve any dispute regarding right or interest in the immovable property, the bar of lis pendense does not apply. Thus, the suit for payment of rent pending between landlord and tenant, suit for maintenance, etc., are not suits relating to the title or interest in immovable property.

Moreover, it must be noted that the doctrine of lis pendense does not apply where the suit involves rights relating to movable property.

4) The suit must not be collusive[4]:-

A suit is collusive if it is instituted with a mala fide intention, i.e., with an evil design to defraud the third party by obtaining the court’s decision.

5) Property cannot be transferred or otherwise dealt with:-

The doctrine of lis-pendense applies against transfer or otherwise dealing with immovable property pending suit or proceeding. Thus, the doctrine acts as a bar against the transfer of property or otherwise detaching from the property. If the property is transferred or otherwise dealt with, the transfer would be subject to the decision of the court. Sale, exchange, lease, and mortgage are the modes of transfer.

The expression ‘otherwise dealt with’ suggests that there must not be release, partition or surrender of the property. In other words, handing over of the property in a suit during pendency comes under the expression ‘otherwise dealing with’ and is prohibited by the doctrine of lis pendense.

6) Except with the permission of the court:-

The doctrine of lis pendense does not apply if the transfer or otherwise dealing with the property is made with the permission of the court. However, the court may grant such permission with some conditions. Thus, transfer with permission of the court is an exception to the rule of lis pendense.

Similarly, as per S. 52, the doctrine of lis pendense applies within the limits of India.

IV. Effect of transfer against the principle of lis pendense:-

If any transfer is made during the pendency of a suit or proceeding, the transfer ipso facto does not become void but is subject to the decision of the Court. Thus, if there is a suit between A and B as to the title of the house and if A sells it to C during the pendency of the suit, C’s title to the house is subject to the Court’s decision. If the Court decides the matter in favour of A, C gets the property. However, if the Court decides in favour of B, C would not get the right to the property.

Thus, the doctrine of lis pendense is an exception to the general rule of law that ‘the decree of a court binds parties to the suit’. In other words, the decree binds the third party who gets property in his favour during a pending suit.

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[1] लंबित मुकदमा/ अपूर्ण मुकुदामा-‘लिस’ का अर्थ है ‘मुकदमा’, और पेंडन्स का अर्थ है ‘लंबित’। इस प्रकार, ‘लिस पेंडेंस’ का अर्थ है ‘लंबित मुकदमा.

[2] (1907) 29 All 339

[3] AIR 1975 SC 1810

[4] दावा संगनमताने केलेला, [मुकदामा मिलीभगतसे नहीं होना चाहिए|]