INTRODUCTION

SECTION – 52 “DOCTRINE OF LIS-PENDENS”

‘Lis’ means an ac on or a suit and ‘Pendens’ means pending. Hence, Lis Pendens
means during the pendency of a suit. And the doctrine of Lis Pendens may be
defined as the jurisdic on or the control that courts have during the pendency
of ac on over the property involved therein. The doctrine is based upon the
ground that the decision of the court is not only pending upon the par es to the
suit but also on those who derive the tle during the pendency of the suit. The
term suit indicates a legal ac on or proceedings ini ated by a person invoking
the judicial mechanism set up by the state for a peaceful relief of his grievance.
This doctrine is based upon the English common law maxim Ut lite pendente
nihil innovator it means that during the li ga on no new rights should be
introduced. This maxim is a rule which is based upon the necessity for final
adjudica on and also on the just ground that it will be impossible to bring a suit
to a successful culmina on if the aliena on is allowed/permi ed during the
pendency of the suit.

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 The basic ingredients of the doctrine of Lis Pendens

1. Li ga on should be pending in a court of competent jurisdic on.

2. The suit must be rela ng to the right in a specific immovable property.
3. The suit should not be collusive.
4. Property should not be transferred or otherwise dealt with.
5. By any party to the suit.
6. So as to affect the right of any party thereto.
7. Till the final disposal of the case.

EXPLANATION

1. Li ga on should be pending in a court of competent

jurisdic on The suit commences on the date of filing of the plaint and it
is deemed to con nue un l a final decree or order has been passed
determining that ma er. That means the suit is considered to be pending
even if there is a chance of appeal against the decree determining that
suit or the execu on of the decree is pending.

2. The suit must be rela ng to the right in a specific immovable

property The doctrine applies in the case of immovable proper es only
and not where the subject ma er is movable property. The li ga on
must involve a specific right in immovable property, such as a dispute
with respect to tle, possession or a right of aliena on etc. The doctrine
applies to the sale, specific performance of a contract, mortgage
 easements, pre-emp on the charge created by Hindu widow on the
Hindu Joint Family Property etc. and is not applicable to the suits related
to debts, rents, accounts etc.

3. The suit should not be collusive The term collusive suit depicts ‘the
suit filed with conspiracy’ It is a sham suit. Here, the par es to the suit
enter into an agreement with the inten on to defeat the rights of the
transferee. The suit presented or pending must be genuine and not a
collusive one.

4. Property should not be transferred or otherwise dealt with The

term transfer includes absolute transfer as well as the par al transfer. The
doctrine applies to the sale, a grant under the lease, mortgage etc. the
transfer here means the transfer covered by Transfer of Property Act,
1882. otherwise dealt with includes the cases which are not covered by
the Transfer of Property Act 1882. It includes the cases of par on.

5. By any party to the suit The par es to the suit include the ones who file
the plaint or pe on i.e. the plain ffs and the ones against whom the
relief is prayed for i.e. the defendants or their representa ves on their
demise. The transfer made by a person before he is made a party to the
suit is not affected by the doctrine of Lis Pendens.

6. So as to affect the right of any party thereto A the landlord filed a plaint
against B (tenant) that he hasn’t paid the rent for two months.
Meanwhile A transfers the property which is the subject ma er of the
suit to C. It does not fall under Sec on 52 as it does not affect the rights
of another party. The test to determine the applicability of Sec on 52 is
the nature of the claim in the suit and not the property in dispute.

7. Till the final disposal of the case. It implies that there is no chance of any
appeal against the decree of the court in that par cular case nor is the
execu on of the decree pending. Once the case is finally disposed of the
transfer will not a ract Sec on 52 as the main ingredient of the doctrine
is the pendency of the suit and the pendency of suit ends as soon as the
case is finally disposed of.
 Status of the transfer

Sec on 52 is prohibi ve in nature. It uses the phrase the property cannot be

transferred or otherwise dealt with. At the same me the transfer during the
pendency of the suit is not void. It is only subject to the outcome of the li ga on.
Hence the transfer is voidable at the instance of the affected party except to the
extent that it may conflict with the rights conferred under the decree held to be
valid.

Law simply postulates a condi on that the aliena on will in no manner affect the
rights of the other party under any decree which may be passed in the suit unless
the property was alienated with the permission of the court. The transferee
cannot deprive the successful plain ff of the fruits of the decree if he purchased
the property during the pendency of the suit and he is bound by the decree as
much as the par es to the suit.

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3.The transferee only takes the tle of the transferor subject to the result of the pending li ga on. Hence,
mere pendency of the suit does not prevent one of the par es from dealing with the property that is the
subject ma er of the suit.
 Excep on

The sec on provides that it is open to the court to permit any party to the suit
to transfer the property to on terms which it may think fit to impose.
In Amarnath v. Deputy Director of Consolida on, it was held that party is said
to be a party to the suit if the decision or judgement is likely to affect the share
of such a party and the decision would be binding on him too. Thus A,B,C, are
brother C is residing in a distant town while A and B are residing together. A files
a suit for par on and does not implead C or his father X.
Though X and C are not par es to the suit, yet the subject ma er of the suit is
the same and neither X nor C legally and validly transfers or alienate his share to
a third party. In such case the ul mate decree is likely to affect the shares of X
and C too. Thus, there may be a case where a party may not be locked in a civil
suit or proceeding yet such a party may be affected by the judgment/decree is
such a suit.
In Fayaz Husain Khan v. Prag Narain, a mortgage sued to enforce his mortgage
but before the summons was served the mortgagor affected a subsequent
mortgage. The prior mortgagee con nued his suit and obtained a sale order from
the court without making the subsequent mortgagee a party to the suit. It was
held that the sale ex nguished the subsequent mortgagee’s right to redeem the
prior mortgagee.

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 SECTION 53 - Fraudulent Transfer

Introduc on:-

The object of the fraudulent transfer is to protect the creditor and subsequent
transferee. Fraudulent transfer is voidable at the op on of creditor and
transferee.
Sec on 53 consists of two parts :-
The first part is in respect of transfer of immovable property made with intent
to defeat or delay the creditors of the transferor and the second part is in respect
of transfer with intent to defraud a subsequent transferee.
Thus, Sec on 53 deals with two types of fraudulent transfers. As far the first rule
is concerned when the considera on for transfer and good faith on the part of
transferee are present the inten on of the transferor to defeat or delay his
creditor is immaterial.
Thus, Sec on 53 has a limited scope restricted to immoveable property and not
to movable property. Moreover the benefit of this sec on is not restricted to
exis ng creditors alone but it extends to subsequent creditors also. This sec on
does not make the transla on void-ab-ini o but only voidable and that to only
at the op on of any person defeated delayed or defrauded.
Under the transfer of property Act a transfer of immovable property by a debtor
may be set aside by his creditor :-
A) if the transferee is not a transferee in good faith for the transferor's creditor.
B) if the transferee is not a transferee in good faith for considera on.

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 Excep on

A transferee from such debtor will be protected –

A. if he acquires property for value in good faith without the knowledge of

transferor's inten on.
B. if the himself is a creditor and the transfer is made in sa sfac on of his
pre- exis ng debt. If the creditor established that transfer was made with
the object of defea ng him, the shi s on the transferee to prove –

1) that he had paid a fair price.

2) that he was not a party to the fraud.

Every transfer of immovable property by way of sale made with an inten on to

defeat or delay the creditor of the transferor is voidable at the op on of the
creditor so defeated or delayed. This is what is stated in Sec on 53 of the Indian
law of Transfer of Property.
If the transferee purchased the property a er proper enquiries and in good
faith and belief, the transfer is valid and he will not be liable.
However, the creditor can ins tute a suit against the transferor. If the transfer
was made without sufficient considera on or with the inten on to defeat or
defraud the creditors the transfer is voidable at the op on of the transferee also.

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The following are some of the essen al elements of Fraudulent Transfer: -

1) A transfer must be made by a debtor to a third person for considera on.

2) The inten on behind the transfer was to defeat or defraud the creditors.

3) The transfer is voidable at the op on of the creditor.

4) The creditor can file suit on behalf of himself and all other creditors.

5) If the property was purchased by the transferee in good faith, he will not
be liable.

CASE LAW :- Kanchanbai v. Mo Chand

Transferor owed the Creditor Rs. 2600. The creditor asked for the money
back/recovery of money. When even a er being asked for the recovery of money
the transferor did not pay back the creditor threatened to file a suit. A er
receiving the no ce of the same, the transferor executed a gi deed in favour of
her daughter in law. Creditor filed a suit under Sec on 53 of TPA against the
transfer.
It was contended by the transferor that Sec on 53 of TPA was not a racted in
the present case as there was just a single creditor.
It was observed by the court that: the phrase creditors would also include a
single creditor. The sec on would be a racted even when a single creditor is
defrauded or there was inten on just to defraud a single creditor. Here the
transfer was done with the inten on to defeat and delay the creditor’s claim.
Hence, sec on 53 would be applicable.

7.Mere preference of one creditor over the others is not sufficient to a ract this sec on unless it’s shown that
it was done with the intent to defraud other creditor’s claims.
 DOCTRINE OF PART PERFORMANCE- Sec on -53 A

The Doctrine of Past Performance, based on principle of equity, developed in

England and was subsequently added to the Transfer of Property Act, 1882 via
the Amendment Act of 1929. In law of contracts (for e.g., a contract for sale) no
rights pass to another ll the sale is complete but if a person a er entering a
contract performs his part or does any act in furtherance of the contract he is
en tled to reimbursement or performance in case the other party drags its feet.

Sec on 53 A says that if a person makes an agreement with another and lets the
other person act on the behalf of the contract; such a person creates an equity
himself that can not be resisted on the mere grounds of absence of formality in
the evidence or contract of such a transfer. Thus if the contract has not been
registered or completed in the prescribed manner, the transferor can s ll not go
against the transferee or anyone claiming under him. However, the deed should
not be unsigned or unstamped. Nothing in this sec on affects the rights of a
transferee for considera on even if he had no no ce of contract of part
performance.

Illustra on: A contracts with B to sell his plot for X amount of money. A accepts
the advance from B towards the sale of the plot and hands over the possession
of the said plot to B. A er some me, B is ready to pay the remaining sale
amount but A refuses to accept the same. Further A asks B to hand over the plot
back to him.
Here B is ready to perform his part of the contract but A is not. In such a case, B
can bring a case requiring specific performance from A. It does not ma er that
the sale was not registered.

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As per law, a transfer of immovable property valued over Rs.100 must be
registered. But it was believed that strict compliance may lead to extreme
hardships especially where one party has already performed his part in the
confidence that the other party will honour the agreement. If such registra on
or other formali es have not taken place, the doctrine of part performance will
be applicable. If such a transferee takes possession of the property, he cannot
be evicted due to an unregistered contract.
The sec on is a defence as well as a right that helps protect the possession
against any challenge. It tries to prevent fraud on the mere basis of ineffec ve
evidence of the transfer. The sec on does not confer a tle upon the transferee
in possession but it imposes a statutory bar on the transferor.

Illustra on: A contract to transfer his immovable property to B by way of sale

and put B in possession of the property before a regular Sale-Deed is executed.
The contract is said to be partly performed and if later A refuses to execute
regular document of sale and files a suit for evic on against B trea ng B as
trespasser. Then B can resist A’s claim on the ground that the contract of transfer
in his favour has partly been performed and that A should not be allowed to go
back upon his own word.

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ESSENTIALS OF THE DOCTRINE OF PART PERFORMANCE

a) There must be a wri en contract for transfer of an immovable property

signed by or on behalf of the transferor. The doctrine cannot be applied if
there is a void agreement or no agreement.

b) There must be considera on.

c) The contracts should give out the terms of the transfer with reasonable
certainty.

d) The transferee must have taken possession because of this contract or

con nued in possession if he was already in possession of the property.

e) The transferee must have done some act in furtherance of the contract.
Acts done prior to the agreement or independent of it cannot be deemed
to be part performance of the contract.

f) The transferee should have performed his part of the deal or be willing to
perform it.
 Scope of Doctrine of Part Performance

The Doctrine of Part Performance is applicable to only wri en and valid contract.
It is not applicable to oral or void agreement. The contract must be in wri ng
and signed by the transferor. The transferee has taken possession of the property
as a part performance of a contract and transferee must be ready and willing to
perform his part of promise. This sec on is applicable not only to the contract of
sale but it is applicable to all such contracts of transfer for considera on. It has
been held in that the doctrine is intended to be used as a shield not a sword.

Related case law

In Vasanthi v. Venugopal the Supreme Court restated the essen al condi ons
necessary for applica on of this sec on.
A) A wri en contract for the transfer of an immovable property.
B) The most important limb of Sec on 53 A is the pre-existence of the contract.
In Ranchoddas v. Davaji lays down that there should be a contract and it must
be for considera on. It must be in wri ng and signed by the transferor. The terms
necessary to cons tute the transfer can be ascertained with reasonable
certainty.
The transferee takes possession of the property under this contract. The
transferee should have taken the possession of the property or the transferee in
possession already should con nue in possession and should have done some
act in furtherance of the contract.

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Excep on to Sec on 53A

The rule laid down in this sec on has no applica on/or affect the right of a
subsequent transferee for considera on who has no no ce of the contract or of
the part performance thereof.

Nature of transferee’s rights under sec on 53 A

1) No tle or interest in property

Sec on 53 A does not affect the ownership rights of the proposed
transferor who remains full owner of the lands ll they are legally conveyed
by sale-deed to the transferee.

2) Passive equity no right of ac on

Sec on 53 A merely provides a right of defence, it can be used only as a
shield not as a sword. The scope of this sec on is therefore limited because
no right of ac on is available to transferee.

Conclusion

Thus, the doctrine of part performance is an equitable doctrine. It is

incorporated to prevent fraud from taking advantage on account of non-
registra on of the document. It is based on the doctrine: Equity looks at the
inten on rather than form.