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Report No. 157

3.20. Recommended amendment of section 52, Transfer of Property Act.-

We are of the view that the provision regarding "Notice of Lis pendens", introduced by the Bombay amendment is a salutary one and it should be incorporated on an all India basis by amending section 52 of the Transfer of Property Act, 1882. We would, however, also like to provide (in substance) that if the purchaser has notice of the actual pendency of litigation then he should not be protected (even where no notice of Lis pendens has been registered), because the very object of providing for registration of notice of a suit or proceeding is that if a person comes to know about the pendency of a suit or proceeding on account of registration, then the doctrine of Lis pendens contained in section 52 should have full effect against him.

The same analogy can be appropriately applied to a person who has knowledge or notice of the pendency of a suit or proceeding and the doctrine of Lis pendens can be logically applied to such person also even in the absence of registration of notice of a suit or proceeding under the Indian Registration Act. Since the provisions contained in sections 64, 74 and Order XXI, rule 102 of the Code of Civil Procedure are a distinct and self-contained code, the same need to be saved for the reasons discussed by us in Chapter IV. Our recommendation, therefore, is that section 52 of the Transfer of Property Act, 1882 should be revised as under:

"52. Transfer of immoveable property pending suit relating thereto.-(1) If, during the pendency, in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question and the notice of the pendency of such suit or proceeding, containing the particulars specified in sub-section
(2), is registered under section 18 of the Indian Registration Act, 1908, within a period of 90 days from the date of institution of the suit or proceeding in the case of plaintiff or petitioner or from the date of the knowledge of the pendency thereof in the case of any other party, as the case may be, then after the notice is so registered, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as the court may impose:

Provided that during the aforementioned period of 90 days, no party shall have any right to transfer or otherwise deal with the property so as to affect the rights of any other party to the suit or proceeding under any decree or order which may be made therein:

Provided further that nothing in sub-section (1) shall affect sections 64, 74 and Order XXI, rule 102 of the Code of Civil Procedure, 1908.

Explanation.-For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence on and from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.

(2) Every notice of pendency of a suit or proceeding, referred to in sub-section (1), shall contain the following particulars, namely:

(a) the name and address of the owner of the immoveable property or of other person whose right to the immoveable property is in question;

(b) the description of the immoveable property, the right to which is in question;

(c) the Court in which the suit or proceeding is pending;

(d) the nature and title of the suit or proceedings; and

(e) the date on which the suit or proceeding was instituted.

(3) The provisions of sub-section(1) shall also apply to any transfer or other dealing with the immoveable property, effected by a party to the suit or proceeding in favour of any person who has actual knowledge of the pendency of such suit or proceeding, even where no notice thereof has been registered."



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




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