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Report No. 157

3.17. Reforms elsewhere.-

It appears that the rigour of the strict common law doctrine of lis pendens (which is the doctrine incorporated in section 52) has been sought to be softened in many jurisdictions by statutory modifications which provide for notice. It is understood that such a reform has been effected in England 1 as well as in certain American jurisdictions.2 The previous U.K. Land Charges Act, 1925 contained the following provision:-

"Register of pending actions

2(1) A pending action, that is to say, any action, information or proceeding pending in court relating to land or any interest in or charge on land, and a petition in bankruptcy filed after the commencement of this Act, may be registered in the registered of pending actions.

(2) Subject to general rules, every application to register a pending action shall contain particulars of-

(a) the name, address, and description of the estate owner or other person whose estate or interest is intended to be affected thereby; and

(b) the court in which the action, information or proceeding was commenced or filed; and

(c) the title, of the action, information or proceeding; and

(d) the day when the action, information or proceeding was commenced or filed.

(3) The Registrar shall forthwith enter the particulars in the register, in the name of the estate owner or other person whose estate or interest is intended to be affected.

(4) In the case of a petition in bankruptcy filed against a firm, the application to register the pending action shall state the names and addresses of the partners, and the registration shall be effected against each partner as well as against the firm.

(5) No fee shall be charged for the registration of a petition in bankruptcy as a pending action if the application therefor is made by the registrar of the court in which the petition is filed.

(6) The court, if it thinks fit, may, upon the determination of the proceedings, or during the pendency thereof if satisfied that the proceedings are not prosecuted in good faith, make an order vacating the registration of the pending action, and direct the party on whose behalf the registration was made to pay all or any of the costs and expenses occasioned by the registration and vacating thereof.

(7) When an office copy of an order of discharge or an acknowledgment of satisfaction in the prescribed form is lodged with the registrar, he may enter discharge or satisfaction of the registered pending action to which it refers, and may issue a certificate in the prescribed form of such discharge or satisfaction.

(8) The registration of a pending action shall cease to have effect at the expiration of five years form the date of registration, but may be renewed from time to time, and, if renewed, shall have effect for five years from the date of renewal.

Protection of purchasers against unregistered pending actions-

3(1) A pending action shall not bind a purchaser without express notice thereof unless it is for the time being registered pursuant to this Part of this Act:

Provided that as respects a petition in bankruptcy, this sub-section only applies in favour of a purchaser of a legal estate in good faith, for money or money's worth, without notice of an available act of bankruptcy.

(2) As respects any transfer or creation of a legal estates, a petition in bankruptcy filed after the commencement of this Act, which is not for the time being registered as a pending action, shall not be notice or evidence of any act of bankruptcy therein alleged.

(3) The title of a trustee in bankruptcy acquired after the commencement of this Act shall be void as against a purchaser of a legal estate in good faith for money or money's worth without notice of an available act of bankruptcy claiming under a conveyance made after the date of registration of the petition in bankruptcy as a pending action, unless, at the date of the conveyance, either the registration of the pending action is in force, or the receiving order is registered pursuant to Part III of this Act. "

1. Section 5(7), Land Charges Act, 1972 (U.K.).

2. Black Law Dictionary, (1990), p. 932, left hand column.

3.18. The relevant section 5 of the present U.K. Land Charges Act, 1972 which provides for the registration of pending actions is as follows:-

"The register of pending actions

5 (1) There may be registered in the register of pending actions-

(a) a pending land action;

(b) a petition in bankruptcy filed on or after 1st January 1926.

(2) Subject to general rules under section 16 of this Act, every application for registration under this section shall contain particulars of the title of the proceedings and the name, address and description of the estate owner or other person whose estate or interest is intended to be affected.

(3) An application for registration shall also state-

(a) if it relates to a pending land action, the court in which and the day on which the action was commenced; and

(b) if it relates to a petition in bankruptcy, the court in which and the day on which the petition was filed.

(4) The registrar shall forthwith enter the particulars in the register, in the name of the estate owner or other person whose estate or interest is intended to be affected.

(5) An application to register a petition in bankruptcy against a firm shall state the names and addresses of the partners, and the registration shall be effected against each partner as well as against the firm.

(6) No fee shall be charged for the registration of a petition in bankruptcy if the application for registration is made.by the registrar of the court in which the petition is filed.

(7) A pending land action shall not bind a purchaser without express notice of it unless it is for the time being registered under this section.

(8) A petition in bankruptcy shall not bind a purchaser of a legal estate in good faith, for money or money's worth, without notice of an available act of bankruptcy, unless it is for the time being registered under this section.

(9) As respects any transfer or creation of a legal estate, a petition in bankruptcy which is not for the time being registered under this section shall not be notice or evidence of any act of bankruptcy alleged in the petition.

(10) The court, if it thinks fit, may, upon the determination of the proceedings, or during the pendency of the proceedings if satisfied that they are not prosecuted in good faith, make an order vacating a registration under this section and direct the party on whose behalf it was made to pay all or any of the costs and expenses occasioned by the registration and by its vacation."



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




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