Legal Question in Real Estate Law in India

24.03.2014

Dear Sir / Madam,

Doctrine of lis pendens : According to Section 52 of the Transfer of Property Act, 1882 it is an expression of the principal that pending litigation, nothing new should be introduced. It provides that pendente lite, neither party to the litigation, in which any right in immoveable property is in question, can alienate or otherwise deal with such property as as to affect his / her appointment. This section is based on equity and good conscience and is intended to protect the parties to litigation against the alienations by their opponent during the pendency of the suit. In order to constitute lis pendens, the following elements must be present : (Amit Kumar Shaw vs Farida Khatoon)

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 immoveable 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 and.

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

A suit is deemed to be pending from the date of presentation of the plaint or the institution of the proceedings in a Court of competent jurisdiction. A suit is considered to be pending till the time the suit of proceedings have been disposed of by a final decree or order. The decree or order should either be completely satisfied or discharged or the order should have become unobtainable by reason of the expiration of any period of limitation prescribed by law.

Inferring from the above doctrine, if the land is clearly titled, there is no question of lis pendens on such land.

Regards,