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Report No. 157

Chapter V

Conclusions and Recommendations

5.1. Conclusions.-

The doctrine of lis pendens as enacted in section 52 of the Transfer of Property Act, which is an expression of the principle of the maxim "ut lite pendente nihil innovetur" (pending litigation nothing new should be introduced), aims at preventing multiplicity of proceedings by disallowing transfer or otherwise dealing with the property in dispute during the pendency of a suit or proceeding. In fact, this principle is a noble and salutory one which is based on public policy and convenience, that is, the necessity of final determination of the matter.

Since the principle as contained in section 52 plays a vital role in the administration of justice, it may be difficult to entirely dispense with the principle, because if sale of property in dispute is permitted during the pendency of suit or proceeding without any limitations, proper administration of justice will suffer.

Nevertheless, one has also to note one aspect, that is, since the present provision does not even protect the purchaser of the property acting under good faith during the pendency of a suit or proceeding, justice requires that a suitable amendment in the provision needs to be made to ensure equitable results in the matter of administration of justice by inserting therein the requirement of registration of the notice of a suit or proceeding under the Registration Act so that purchasers of the property in dispute during the pendency thereof are put on notice.

However, we feel that during the time allowed for registration of such notice, any party to the suit should not get any right to transfer or deal with the property so as to affect the other party. Having regard to the varying conditions in different parts of our country, a reasonable period which may be three months needs to be prescribed for the purpose. That apart, it may be stated that since certain Civil Procedure Code provisions, namely, sections 64, 74 and Order XXI, rule 102 of the Code of Civil Procedure also contain the principle of lis pendens, the same needs to be saved so that no party may be in a position to deprive the decree holder of the fruits of a decree. Further, the amendment of section 52 may need consequential amendments in the Registration Act, 1908.

5.2. The following benefits will mainly flow from the proposed amendment to section 52 of the Transfer of Property Act:-

(i) It would prevent unnecessary litigation because if persons know beforehand about the pendency of a suit or proceeding, they may not purchase the property in dispute.

(ii) The proposed amendment will enable the persons to know whether the property is involved in litigation and this would enable them to make a right decision in the matter.

(iii) The proposed amendment will be of a great assistance to persons in the matter of finalising property dealings without jeopardising their interests by avoiding transactions in disputed properties.

(iv) The proposed amendment will ultimately have the effect of preventing multiplicity of proceedings by putting persons on notice before indulging in dealings of disputed property.



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




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