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Report No. 157

3.13. Conclusion.-

As already stated as between the transferor and the transferee, the transfer of the title by way of sale or otherwise may be valid, but the fact remains that such a transfer cannot affect the rights of any other party which may be decreed by the court under a decree or order. Consequently, the interest of transferee in such transactions are definitely affected. As already stated, even the bona fide purchaser or the purchaser acting in good faith is not saved by the existing provisions of section 52 of the Act.

It is a common perception that if such persons are put on a sort of notice about the pendency of the suit or proceeding between the parties, most, of the persons may not buy property. So there is definitely a need to strike a proper balance between the public convenience which seeks to bar the transfer of title during the pendency of suit or proceeding and the interests of persons who buy the property in dispute in good faith and acting bona fide.

It is evident that the doctrine as stated in section 52 applies not merely to actual transfers of right which are subject-matter of litigation but to other dealings with it "by any party to the suit or proceedings, so as to effect the right of any other party thereto". Hence, it could be urged that where it is not a party to the litigation but an outside agency, such as Tax Collection Authorities of the Government, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by section 52.

Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealing with property in such a way that they cannot resile from or disown the transaction impugned before the court dealing with the litigation, the court may bind them to their own acts. All these are matters which need to be properly considered. The doctrine of lis pendens enshrined in section 52 of the Transfer of Property Act is presently attracted even where the transferee has no prior knowledge of the suit or proceeding.

In other words, at present it is immaterial for the applicability of the doctrine of lis pendens under section 52 of the Transfer of Property Act whether the alienee pendente litehad, or had not, notice of the pending proceeding. No question of good faith or bona fides is relevant. [Mohd. Ali Abdul Chanimomin v. Bisahemi Kom Abdulla, 1973 Mys 131 (A)]. This is of course, no longer the case in Gujarat and Maharashtra where, in view of the Bombay Amendment Act, doctrine of Lis pendens only affects transactions pendente liteif the lis has been duly registered.



Section 52 of the Transfer of Property Act, 1882 and its Amendment Back




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