Indian Law on Lis Pendens

  • Muskan Sethi
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  • Muskan Sethi

    Student at O.P Jindal Global University, India

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Abstract

In 1882, the Transfer of Property Act came into existence. Many of the sections codified under this act were based on equitable principles. One of such section that this research paper is focusing upon is Section 52 which is titled as “Transfer of Property pending suit relating thereto.” As it is a well-known fact and an established right of any owner to transfer or dispose of the property. However under certain situations the law can restrict him to alienate the property. One such situation is incorporated under Section 52 where alienation of the immovable property is prohibited when a dispute with regards to rights of the same property is pending in a competent court of law. This section is not of a general binding nature, it only binds the specific parties involved. This notion is based on the classic old doctrine of Lis Pendens. The epistemology of this term refers to ‘pending litigation’ and it is based on a common law principle “utlite pendente nihil innovetur” which means “during pendency of litigation, nothing new interest should be introduced or created in respect of the property.” The logic behind this doctrine is that no change in the claim should be brought as creating a new interest would mean transfer of property during the pendente-lite which would further affect rights of the parties over the property and limits the court to make a proper administration of justice for the party who originally claimed. This doctrine has been adopted by many countries in the property laws due to its principle based upon the foundations of justice, equity and good conscience which aims at maintaining the status quo of parties and moreover to remain unaffected by act of parties to the pending litigation. However in light of different case laws and judicial prouncement made in India, the doctrine has been modified where limitations have been created and further with practical implementation of the said doctrine it cannot be said that no loopholes can be found and one of the major loopholes the paper focuses is upon the rights of innocent buyers during such pendency.

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Research Paper

Information

International Journal of Law Management and Humanities, Volume 4, Issue 2, Page 1967 - 1977

DOI: http://doi.one/10.1732/IJLMH.26448

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