Lis Pendens is a well-established principle of transfer of property foundation of which does not vest upon notice.....Explain the statement with the help of leading case,

Question: Lis Pendens is a well-established principle of transfer of property foundation of which does not vest upon notice, actual or constructive. It rests solely upon the necessity. Explain the statement with the help of leading case of Beliami v. Sabine and other relevant case law. [HPJS 2019]

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Answer

Section 52 of the Transfer of Property Act, 1882 finds its roots in the age-old doctrine of 'Lis Pendens' which literally translates to 'pending litigation'. This doctrine is based on the common law principle of 'ut lite pendente nihil innovetur" which means 'during the pendency of litigation, nothing new interest should be introduced or created in respect of the property

The emergence of this doctrine can be traced back to the matter of Rajendra Singh and Ors. v. Santa Singh and Ors., 1973 AIR 2537:

'Lis- pendens means a pending suit and the doctrine of lis-pendens has been defined as the jurisdiction, power, or control which a Court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein.'

This reasoning was further reiterated by the apex court in Jayaram Mudaliar v. Ayyaswami and Ors., AIR 1973 SC 569, Furthermore, through judicial pronouncements, two theories have emerged. First is the 'Theory of Notice' and the 'Theory of Necessity'; these theories have been formulated by jurists in order to construe the basis of this doctrine.

The former theory words that pending litigation will serve as a constructive notice of dispute being pending on the said immovable property to everyone. Thus, it could be considered as a warning to third parties against buying the said property. Alternatively, the latter theory suggests that for fair adjudication, it is imperative to bind the litigants from alienating the property during the pending suit in order to ensure that there is no interference with the execution of the court's decree.

This clarification has been properly proffered in the case of Bellamy v. Sabine, (1857) 1 Dec. & 566, where it was proffered as

"If parties to a dispute aren't prevented from transferring any of the property, then it would be impossible for any action/suit to be successfully terminated. Thus, the foundation for this doctrine doesn't rest upon constructive notice; it rests entirely upon necessity, where the party to litigation shouldn't alienate the property so as to affect the opponent."

Based on expediency and the necessity for final adjudication, this view has been consolidated in the case of Faiyaz Husain Khan v. Munshi Prag Narain, (1907) 9 BOMLR 656.

The acceptance and recognition of the notion of notice and the 'Theory of Necessity' are deeply rooted in considerations of public policy, specifically to safeguard the rights of plaintiffs. Without these principles, plaintiffs would be vulnerable to defendants who could repeatedly transfer the title of immovable property before a judgment is reached. If the plaintiff succeeds in court, they would find themselves trapped in a cycle of filing multiple suits to obtain possession of the property. This situation would not only be impractical but also undermine the principle of res judicata, as Lis Pendens is often viewed as an extension of this legal doctrine.