Report No. 157
Doctrine of lis pendens-its General Meaning and Relevance
2.1. Rights depend upon remedies.1 This also holds good as regards the right to property. Since speedy and efficient remedies are of utmost importance, it has to be ensured that once a person has initiated legal process in any court to seek remedy against any invasion on his right or threat of invasion thereto, the legal process should not be defeated on account of private deals or any transaction, that is, transfer of property in dispute or on account of any other action of any party to such legal process, otherwise the very purpose of seeking relief against any grievance would be meaningless and ineffective.
In order to ensure that the legal remedy remains efficient throughout the legal process, jurists had evolved a general principle known as "lis pendens" basing it on the necessity that neither party to the litigation should alienate the property in dispute so as to affect his opponent.2
1. Administrative Law 7th Edn., by H.W.R. Wade and Forsyth, p. 579.
2. Govinda Pillai v. Aiyyapan Krishnan, AIR 1957 Ker 10, para. 7.
2.2. What we are concerned with in this Chapter is not so much the application of a specific statutory provision as of the general principle governing such matters. "Lis" means an action or a suit. "Pendens" is the present participle of "Pendo" meaning continuing or pending, and the doctrine of lis pendens may be defined as "the jurisdiction, power, or control that courts have, during the pendency of an action over the property involved therein". (34 American Jurisprudence 360).
2.3. The basis of the doctrine is given as follows in the aforesaid volume:
"Two different theories have been advanced as the basis of the doctrine of lis pendens. According to some authorities, a pending suit must be regarded as notice to all the world, and pursuant to this view it is argued that any person who deals with property involved therein, having presumably known what he was doing, must have acted in bad faith and is therefore, properly bound by the judgment rendered. Other authorities, however, take the position that the doctrine is not founded on any theory of notice at all, but is based upon the necessity, as a matter of public policy, or preventing litigants from disposing of the property in controversy in such manner as to interfere with execution of the court's decree.
Without such a principle, it has been judicially declared, all suits for specific property might be rendered abortive by successive alienations of the property in suit, so that at the end of the suit another would have to be commenced, and after that, another, making it almost impracticable for a man ever to make his rights available by a resort to the courts of justice." (34 American Jurisprudence 363);
"The doctrine of lis pendens is of ancient lineage. Originating, it is said, in the civil law, it seems to have been operative at an early date as the basis of the common law rule by virtue of which the judgment in a real action was regarded as overreaching any alienation made by the defendant during lis pendency. In the course of time the doctrine was adopted by equity, being embodied in one of the Lord Bacon's ordinances "for the better and more regular administration of justice in the court of chancery".
This ordinance, commonly known as Bacon's Twelfth Rule, provides "that no decree bindeth any that cometh in bone fide by conveyance from the defendant, before bill is exhibited, and is made no party neither by bill nor order; but where he comes in pendente lite, and while the suit is in full prosecution and without any color of allowance or privity of the court, there regularly the decree bindeth; but if there were any intermission of the suit, or the court made acquainted with, the court is to give order upon the special matter according to justice. The principle thus adopted at an early period in the history of chancery jurisprudence has been followed and acted on by various successive chancellors, and is admitted by writers on the subject to be the established doctrine." (34 American Jurisprudence 365).
2.4. Bennet in his Treatise on the Law of lis pendens was not inclined to accept 'notice' as the basis of the rule. He quoted Lord Chancellor Cranworth1:
"It is scarcely correct to speak of lis pendens as affecting the purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others pending the litigation rights to the property in dispute so as to prejudice the opposite party The necessities of mankind require that the decision of the court in the suit shall be binding not only on the litigant parties, but also on those who derive title under them by alienation made pending the suit, whether such alienus had or had not notice of the pending proceedings. If this were not so there could be no certainty that the litigation would ever come to an end" and said:
"The foundation for the doctrine of lis pendens does not rest upon notice, actual or constructive; it rests solely upon necessity-the necessity, that neither party to the litigation should alienate the property in dispute so as to affect his opponent".
1. Bellamy v. Sabine, (1857) 1 De G&J 566 (A).
2.5. The doctrine of lis pendens is an expression of the principle of the maxim "ut lite pendente nihil innovetur" (pending litigation nothing new should be introduced). In the Corpus Juris Secundum (LIV, p. 570) as quoted by the Supreme Court in Jayaram Mudaliar v. Ayyaswami, AIR 1973 SC 569, para. 47, and Rajendnr Singh v. Santa Singh, AIR 1973 SC 2537: (1974) 1 SLR 381, we find the following definition:-
"lis pendens literally 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."
As was observed by the Supreme Court in Jayaram's case, supra, "Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject-matter of litigation so that parties litigating before it may not remove any part of the subject-matter outside the power of the Court to deal with it and thus make the proceedings infructuous."
2.6. The principle on which the doctrine of lis pendens rests is explained in the leading case of Bellamy v. Sabine, (1857) 1 De G&j 566 (A), where Turner, L.J. observed-
"It is as I think, a doctrine common to the courts both of Law and Equity, and rests, as I apprehend, upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente litewere permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding."
In the same case, Lord Cranworth explained that the doctrine did not rest on the ground of notice. His Lordship said:
"It is scarcely correct to speak of lis pendens as affecting purchaser through the doctrine of notice, though undoubtedly the language of the Courts often so describes its operation. It affects him not because it amounts to notice but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party."
2.7. The above judgment was quoted and followed by the Privy Council in Faiyaz Husain Khan v. Munsiff Prag Narain, 34 Law Reports (Indian Appeal), 102. which is a leading case on the doctrine of Lis pendens in India. It would be pertinent to briefly mention the relevant facts of that case in order to understand the ratio laid down by the Judicial Committee of the Privy Council. On June 14, 1889, Hamid Husain, the owner of Mauza Bangawan, mortgaged it to Newal Kishore. On July 13, 1891, Newal Kishore brought a suit on his mortgage. On August 23, 1892, he obtained a decree for sale, which was made absolute on November 21, 1895.
On February 21, 1901 the property was sold in execution of Newal Kishore's decree and purchased by the respondent Prag Narain, who was the son and the representative of the decree holder. On July 2, 1901, Prag Narain obtained a sale certificate and attempted to recover possession of the property. He was however, obstructed in every possible way by the appellant Faiyaz Husain, who was in possession under a decree for sale obtained on a subsequent mortgage. Prag Narain was, therefore, compelled to bring the suit. There was no encumbrance upon the property either at the date of the mortgage of June 14, 1889, to Newal Kishore or at the date of the institution of Newal Kishore's suit on July 13, 1891.
But on July 15, 1891, before any summons in Newal Kishore's suit was served, a second mortgage was granted by the mortgagor to Mirza Muzaffar Beg. Mirza Muzaffar Beg put his mortgage in suit on March 20, 1894, without making the first mortgagee a party, and in the absence of the first mortgagee obtained a decree for sale. In execution of this decree the property mortgaged to Mirza Muzaffar Beg was put up for sale on December 20, 1900, and bought by the appellant Faiyaz Husain, who was the son of Hamid Husain, and who had obtained his majority in 1894. Faiyaz Husain managed to get possession and resisted all attempts on the part of the respondent Prag Narain to dispossess him. Their Lordships observed as follows:-
"The mortgage to Mirza Muzaffar Beg was made during the pendency of Newal Kishore's suit, which was in its origin and nature a contentious suit, and was at the time being actively prosecuted. Therefore, under section 52 of the Transfer of Property Act (No. IV of 1882), it did not affect the rights of Newal Kishore under the decree made in his suit. Their Lordships are unable to agree in the view which seems to have obtained in India that a suit contentious in its origin and nature is not contentious within the meaning of section 52 of the Act of 1882 until a summon is served on the opposite party. There seems to be no warrant for that view in the Act, and it certainly would lead to very inconvenient results in a country where evasion of service is probably not unknown or a matter of any great difficulty.
The doctrine of lis pendens, with which section 52 of the Act of 1882 is concerned, is not as Turner, L.J. observed in Bellamy v. Sabine "founded upon any of the peculiar tenets of a Court of Equity as to implied or constructive notice. It is a doctrine common to the Courts both of law and of equity, and rests upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente litewere permitted to prevail." The correct mode of stating the doctrine, as Cranworth, L.C. observed in the same case, is that "pendente liteneither party to the litigation can alienate the property in dispute so as to affect his opponent.
Apart, however, from the doctrine of lis pendens, which seems to their Lordships to apply to the present case, it is plain that at the date of his purchase Faiyaz Husain knew all about the mortgage to Newal Kishore and the decree made on the basis of that mortgage, and he knew that the sale proceedings were actually in progress, for in July 1898, he brought a suit against Prag Narain asking for a declaration that Newal Kishore's mortgage, and the decree passed upon it, were invalid, and that the property was not liable for attachment and sale."