8.

52] TRANSPER OP PROPERTY BY ACT OF PARTIES 187

decree or order which may be made therein, except under the authority of the
Court and on such terms as it
may impose.
Explanation.-For the purposes of this section, the pendency of a suit
or proceeding shall be deemed to commence from the date of the presentation
of the plaint or the institution of the proceeding in a court of competent jurisdic.
tion, 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.
COMMENTS: Amendment.-Section 52 has been amended by Section
14of the Transfer of Property (Amendment) Act 20 of 1929. The word
pendency has been substituted for the words 'active prosecution' which gave
rise to a great conflict of decisions, The words any suit or proceedings
which is not collusive' bave been substituted for the words 'a
suitor proceeding' which also led to conflicting decisions on the question as
contentious
to when a suit or proceeding became To remove this latter
contentious.
conflict, an explanation is also added fixing the time during which a suit is.
deemed to be pending for the purposes of the section.
Amendment whether retrospective had already come into force ?-The
question whether the amendment of the section is retrospective was discussed
by the Nagpur High Court and it was held that the amended Section 52
had no retrospective effect.50 Though Section 52 is not specified in Section 63
of Act 20 of 1929 as one of the section which shall not have retrospective
etfect, the court relied on the following clause in the section: "And nothing
in any other provision of this Act shall render invalid or in any way affect
anything already done before the Ist day of April, 1930, in any proceeding in
the court on the date."
In the Bombay High Court has held that Sec. 52 is
a case
in retrospective
operation.81 The Privy Council has, however, held that when the mortgage
came into existence before the amendment of 1929 the
doctrines of s
pendens applicable to the case is that enacted in Section 52 before the
amendment.
Lis pendens.-The section embodies thedoctrine of lis pendens as ex-
pressed in the maxim 'ut lite
pendente nihil innovetur meaning that nothing
new should be introduced in a
pending litigation. Section 52 of this Act
contains entire Indian law on lis pendens. The literary meaning of lis
is a suit under consideration of any court of law. pendens
It has been described in
terms of the authority or control that remains vested in courts in respect of
suit fled before them till they are finally and fully disposed of4
Whether notice is basis of lis pendens7
The doctrine of lis pendens is not founded upon any of the peculiar
tenets of the 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 section or suit could

80. Harlal v. Lala Prasad, AIR 1931 Nag 138.

81. Leela Chand v. Veshou Ganesb, AIR 1945 Bom 409.
82. Madbo Ram v. Kritya Nand AIR 1984 PC 96.
83. Shyam Lal v. Sohan Lal, AIR 1928 All. 3.
84. Jalram Mud aliyar v. Ayya Swami, (1972) SCR (Hindi) 146.
 188 TRANSFE OFPRO ACT

be brought to a successful ermination.

areva the plainti would be If
ted to prevail
lienating befo the
his proceedings de novo indgment
judg t or decree liable to be alienations pendente S. 2
ceedingss subject a0ain toto beand WOuld
again defeated
would beh bylitethewered Petmi
Where a litigation is defeated driVen permit
the right of a
pending between
by same ndant' ,
decision of theparticular course
ies hut also oncourt in a estate, the
suit shall necessitia
necessities plaintiff of
the Suit wbhether those who derive be of and a
such binling, mankindredefendant
If this were alienees had or under them only ind
title not fendant as to
on therequire
a
ever not so,
cometo an end. A there could not had hu on' that the
be no notice alienations made
litigatipenng
person who had
notice mortgage
no of
the
quence
suit
necessary, of the
and
sale
so
certainty
or
pending pending procee
made before that litigat
The indeteindeter
rmin able proceedings wouldthe final decree to
doctrine tends
consistent with the to prevent one itigation mightalwaysNays Tender a
Tmight require furtherrightsts which may party to a
a
be
the co
court' s decree. The party to be be
Suit cannot suit making an
be basis of established
impleaded in the
toallowed to shorten doctrine
the
suit assignment
by
the transfers
in
of order
status quo third party. Thethe arms oflis pendens isto make and which
a

unaffected the court that the effectual the

determination.
proof or The by the
or applicability of
actbroad in
of purpose of this dealing with parties to a
strength
proceedings. any the suit
weakness of the the sectionpartydoesto the section is to maintain
case litigation
not
HussainDoctrine in depend pending
on one
side its
approval Khan
the
v. India.-The leading
Prag Narain,1 case on
or the otheron
matters of
inbona fide
case, and observations in whichthis doctrine
pendens havemanybeenother casesof Turner,
in this LJ.,
the
and Privy in India
Council quotedis
Faiyaz
obvious, is decided on the country Lord Cranworth
necessity for final on the doctrine ofsame involving ihe in Bellamy'withs
not based

Facts.-In ajdudication.88 noticeprinciple. question

but on The rule, it willof lis
gage but Faiyaz
The priorbefore service ofHusain's case expediency, i. e., thebe
a
without mortgage continued the mortgagee sued
making the puisnesummons, his suit mortgagor effectedto enforce his mort-
and a
The Privy
redeem the Council held mortgagee puisne mortgage.
party. brought the property
a
that the sale to
agree to theprior mortgage the
sale
and nature view which was
extinguished. puisne
Summons
was not prevailed
is served contentious
in India Their mortgagee's
that a suitLordships were right to
Such a view within contentious unable to
upon the
in
opposite-party.
Transfer of Property meaning
Sec. 52 of the of in its
Inconvenient results The Court Act origin
Word contentious in India where Act and observed found no untila
Conduct of the referred to the evasion of service that it will authority
1or
lead to very
origin and nature of is quite frequent.
plaintiff with reference
application of the the suit and not The
doctrine, as stated toby its prosecution. The to the
85.
Bollami v. Sabine, (1857) 1 De Story in his effect
of the
Equity Jurisprudence
86 Gangubai, v. G &J 566.
87. Pangubai,
Faiyaz Hussain AlR 1939 Bom 493.
8. Khan v. Prag
Setappa Goundan v. Muthia
224,
Narain, 29 All 39.
Goundan, 31 Mad 268; Achut v
Shivjirao, 39 Bom LR
S. 521 IRANSFER OF PROPERTY BY ACr Or PARTIRS 189
(3rd Eng. Ed., p. 166), is that it does not annul the
renders it sub.servient to the
conveyance, but only
rights of the parties to the litigation.
Application of Doctrine- Conditions
The conditions for the
application of the doctrine are
(1) pendency of (a) a suit; or (b) proceeding;
(2) in competent court;
(3) suit or proceed ing is not collusive;
(4) a
right to immovable property must be (a) directly; and (5)
specifically in question;
(5) the property in dispute must be (a) transferred; or (b) otherwise
dealt with by any of parties ; and
(6) the alienation must affect the rights of the other party.
The abovermentioned conditions, necessary for the application of the
doctrine of lis pendens, may now be discussed one by one.
(1) Pendency-The irst of the conditions is that a suit or proceeding
must be pending. The meaning of the expression 'pendency of a suit or procee
ding' is now given in the explanation added to the section by the Amending
Act 20 of 1929. Briefy speaking, the pendency of a suit starts with the pre-
sentation of a plaint in a competent court. If the plaint is presented in a
wrong court, and a transfer of an immovable property to which the plaint rela-
tes is made during the pendency of the suit in such court, the doctrine of lis
would not apply. If the plaint is returned for being presentcd
to
pendens of the suit does not
another court with competent jurisdiction, the pendency
the proper court. Similarly, if a plaint
begin until the plaint is presented to
returned by the court, and the plaintiff
presented with insuficient court-fee is and then the plaint is registered as
represents it after paying tlhe proper
fee,
admitted on the later date, it is the later date which must be taken as the date
A transfer of property made between the date
of the institution of the suit. by lis pendens as
the later _date is not afected
of original presentation and time.89 the
at that In a pauper suit, pendency commen-
no suit was pending the application for leave to sue in
ces from the time
of the presentation of It is not
is admitted,o but not if it is rejected.1
forma pauperis when itin only after the application is
correct to say that lis such a case commences
admitted and the plaint
is registered as. a suit.93
words 'contentious'3 and active prose
Prior to the amendment, led the decisions that it was
old sec ion to so many conflicting
cution used in the these two words
the section and accordingly
considered expedient to amend Act 20 of 1929. The expla
from the section by the Amending
were omitted

60 IC 439.
Mohendra v.
Parmeshwar,
Patumadamwal v. Nanjappa, (1939)
89 Dwarka Prasad,
30 Al 95;
90. Ambika Prasad v.

Mad 275.
Radhaballabhaji,
AlIR 1938 Nag 30.
Sahandrabai v.
Sri Deo
91. (1956) SCR 451.
Nagubai v. Sham Rao,
92.
31 Cal 658,
745: Alid 339. 29 IC 610:
93. 12 Mad 180; v. Maruti. (1888) 12
Bom 217 and 139 seo Lis
Venkatesh English law,
HC cases in Bibi.28 Cal. and232; for
See Bombay
94 Calcutta Dinanath v. Shama Secs. 2 3.
HC in Cbarges Act, 1925,
1867 and Lana
Pendens Act,
 190 1RANSFER OF
PROPERTY ACT

nation added to the sCction states that the S. 52

ntil the final decree or order pendcncy
that, may be shall be
deemed to
completely satisfied or charged, or unless thepassed in the suit
has become time-barred. continueis
execution of suc) or proceeding
A suit is
proceedings are a
commenced by the ing ot
continuation of the suit." A a plaint. Appeals and
rder

application.miscellaneous
with the presentation of a
and is rejected and is then
petition or If the proceeding
comme
cution
between two dates of presentation is after
re-presented:
making
isplaint mences
insufficiently
not hit by lis good the
star
court and returned back for pendens.
Suit
deficiency, stamped
an
nationalienat
from first being presented
to a lower presented
in hig
presentation
because Section 15 of the court
Civil Procedure
is deemed
com
of form and at the worst it is case
of mere Code is onlva m commenced
is pendens, i.e., when suit irregularity
but the reverse matter
Would be a case of absencemeant of the
for
higher court is instituted would be heun
in lower
restored lis jurisdiction. If a suit is court Th
pendens
operates from the date
restoration relates to back. In view of the when suit was
dismissed for default and
it would appear that an limitations pointed outoriginally
in the
filed for
the suit in which the application
for review of
judgment is not the explanation
Suit
judgment was passed. continuation of
simply a proceeding-The
or
doctrine of lis
proceeding. For example,pendens
or is
judicial applies whether it is a suit
appointment of guardian, execution during pendency of
application for
However, a proceeding, maintenance pendente
Section 52 would apply.
attract the doctrine. But proceeding before a settlement officerlite, etc.
attract the
application proceeding before
of Section 52. It is aRegistrar of Co-operative Societies
cannot
As soon as the proceeding before a court. does
proceeding agets
petition to set aside the
er
parte order is
new lease of life and will be allowed, the
during the period between the ex deemed to have been
ex-parte order. %a parte order and the date of order pending even
Suit decided
setting aside the
pendens applies
ex
parte-In absence of fraud
parte proceedings and to collusion, for
or
to both ex the doctrine of lis
a suit. Ifthe suit is withdrawn
the lis pendens will not
and
compromise proceeding compromise in
affected otherwise after,
withdrawal,
apply. The principle, broadly speaking, is to maintain
quo unaffected by the act of stanus
any party to the litigation
pending
Competent Court.-The second condition is that the suit or its determination.
be pending in a court of
suit. The rule under thecompetent jurisdiction, i.e., proceeding must
having a
Civil Procedure Code is that a competency to try the
immovable property should be filed in the suit in regard to any
court within whose jurisdiction the
property is situated. But once the court has
under Section 15 of jurisdiction it does not matter
the C.P.C. every suit is directed that
the lowest to be instituted in the court or
grade competént to try it. Section 16 C.PC.
competency and lays down that suits provides for territorial
instituted where subject matter is concerning immovable property shail
situated. If
jurisdiction of different courts, suit can be immovable
filed
property is situated witni
at any place where
property is situated (S. 17) Rules regarding part or tne
provided by civil court manual, lower grade." pecuniary competency nave
w
(6) Not collusive-The third
requirement is that the suit or proceeding
must not be collusive. This
f the word
is added by the Amendment Act of 1929,
in piaco
'contentious'. A collusive suit is not a real suit at all,
"
95. Mohd. Hanif v. Khaiastali, 20 Pat 346
95a. Chanda Sub. v. Jamshed
96. Khan, AIR 1993 Kant 33 at p. 343.
Tangor Majhi v.
Jaladhari, 14 CWN 322.
IS. 52 S. 52] TRANSFER OF PROPBRTY BY ACT OF PARTIE 191
battle, but a sham fight.°7 Collusion in judicial proceeding is defined in
inue Wharton's Law Lexicon, 14th Edition at page 212: "Collusion in
g is judiciar
der proceeding is a secret
arrangement between two persons that one shoula
institute uit against the other in order to obtain the decision of judicial tri
bunal for some siníster
on purpose."
es Fraudulent.-The words "any suit or proceeding which is not collusive,"
d have been substituted for the words a contentious suit or
effect to the judgment of Privy Council on Faiyaz Hussain's proceeding' for 8iVing
case. A suit may
become collusive any of its stage. It may be collusive when
at
filed or a suit honestly filed may become collusive at advanced stage.instituted or
Suits are neither collusive nor fradulent, therefore application of Sec. 52Friendly
to such
suits is not barred.
Distinction between collusive and Fraudulent Suit.
In Nagubai v. B. Sham Rao., Venkatarama Ayyar, J., while
the distinction between a collusive and
fraudulent
explaining
(collusive) a proceeding a claim put forward isproceeding,
a
In such observed:
over it is fictitious,
unreal, and the decree passed therein is a mere mask
the contest
similitude of a judicial determination and worn by the parties with having the
the object
of confounding third parties. But when a
proceeding is alleged to be fraudu-
lent, what is meant that the claim made therein is untrue, but the claimant
has managed to obtain the
verdict of the court in his favour and against his
opponent by practising fraud on the court...... ...while in
proceeding the contest is a mere sham, in a fraudulent suit: it is collusive
...... .
a
real and
earnest.
Although the result in such a suit is hinding on the immediate parties, it
does not bind heir transferees. The
where the proceeding is tainted with doctrine of lis pendens does not apply
fraud. The doctrine of lis pendens
not apply to a collusive suit because a collusive suit is not
does
real suit but a mere
pretence.99 The mere fact of compromise subsequently arrived at between the
parties, however, is no warrant for presuming that the entire proceeding is
sham and collusive.1 The rule also applies to a
is passed when is not fraudulent or collusive. suit in which an ex parte decree
that the doctrine lis pendens applies irrespective ofInstrength
brief, it may be stated
or weakness of the
case on one side or other. There is one condition that
bona ide. proceeding must be
(4) Directly in issue.-The fourth essential is that
able property must be directly and substantially in issue inright immova to an
the suit or procee
dings. This will happen in a suit for specific performance of a contract to
transfer immovable property, a suit on mortgage, award
easement or a suit participation with the result that proceeding
or suit for
the purchaser of an
undivided share pending the suit takes only that property which is allotted to
his vendor on partition, or a suit for contribution to a
mortgage debt.
A mere right to sue, not connected with the ofownership is property. not

97. Ahmedbhoy Yulloybhoy, 6 Bom 107.

98. (1966) SCR 451 at p. 463,
99. Abmedbhoy, v. Yulleybboy 6 Bom 707.
1. Annamali v. Malayandi, 29 (Mad) 426 (FB).
2. Krishnappa v. Shivappa, 31 Bom 393; Ram Bharoso v. Ram Pai Singh, 42 Alld 319.
3. Kedarnath Lal v. Sheonarain and others, AIR 1970 SC 1717.
4. Ibid.
 TRANSFBR OF PROPERTy ACT
192 IS. 52
property and, therefore,
and. ther where a mere
TIgnt to Sue 1s in issue, the rule oe
section does not apply. iere no such
right is in issue lis
apply. Such
suits are suits for debt or damages when the aim pendens
is
does not
ev demand, or a suitfor the recovery of
pecific movables limited to a
cont suit for money-decree, rent, or anapplication for
or
a pers
a suit
for
under 0. 34, R. 6 of the C. P. C., when the net sale proceeds are ineueecree
satisfy the mortgage, decree, or a
heen made on a specific immovabiesut
IOr maintenance
unless a char
property mentioned in the
woman claiming maintenance. plaint by the
the
Specially in issue.-In
doctrine of lis pendens wouldadminis tration suits, the general rule is that
not apply
to them because in such suits,
L

the immovable property, it, thonoh

any,
said to be specifically so. But it may be directly in question, it cannot
a particular portion ot estate ienot be
the doctrine wouldof
be affected in a particular the
the estate is Sought to
way,
by Privw
stated by Privy Council in Chutterput Singh v. apply. This rule wa
Maharaj Bahadur. was
"Attachment of property is only
is not intended to
create any
effective in preventing alienation but it
title to the
effective against the doctrine.7 property... . the attachment is in-
Transfer by
ticn of the doctrine is party
any to the
that the
property
litigation.The
must be
fifth element for the applica
with by any of the transferred
parties to the suit or proceeding. The or otherwise dealt
this section refers to term "transferred
otherwise dealt with' leases,
includes
exchanges, sales and mortgages. in
The expression
fully. Therefore, a transfer by such action like raising of
the parties to the suit or a person whoOse title 1s construction wrong-
whose title is not in any way paramount to that of
not affected by the doctrine.
Similarly, the connected with them is
transfer was made doctrine does not
suit at the time of pending the suit by
the transfer and
a
person who was not
apply where the
representative of the original defendant.3 who was party to the
a
subsequently made a party as a
In S. G. Filmos
lease executed in Exchange v. Br'j Nathsinghji,° the
purported
section 52. The Supreme Court satisfacti on of antecedent contention was that
did not ag1ee with claim was not hit by
that it purported to create this contention and held
hit by lis entirely new rights pendente lite.
pendens. Therefore, it was
In Bala
R in 1910. The Ramonadra v. Daulu,10 A made a gift of
his land to his
A died pending theplaintiff sued A in 1914 to
suit and R was recover possession
daughter
of the land.
tive. But before she was brought on record as legal
defendants The plaintiff brought on the record, she had his representa
O Tne land from them on tke thereupon sued the defendants tosold the land to the
recover possession
of lis pendens. ground that the sale was affected
t was held that R was not by the
party to the suit of 1914doctrine
Own right and the sale a
to defendants in
took place before she was brought on her
5.
u
Uchhah v. Brundaban, AIR
6 32 IA 1. 1949 Orissa 142.
7. Kedarnath Lal v. Sheonarain and
8. other, AIR 1970 SC 1717.
Mohd. Ismail v. Ashiq
9. AIR 1975 Husain, AIR 1980 All 648.
SC
10. 27 Bom LR 1810,
see also Jaya Ram v.
38. Ayyaswami, AIR 1973 SC 569.
 TRANSPPR OF PROPERTY BY ACT OF PARTIES 193
s. 52
and therefore, the doctrine did not apply. Even ifR had sold the
cort after she was brought on record, the result would have been the
prope

same because "he transfer was made in her own right as ner, while she
uas in record not on ner own acCJunt but as the representative of her
father.

Transfer must affect the other party -The last condition is that transfer
as affects the of the other party to the litigation. The
must be such rights
words 'any otier party mean any other party between whom and the party
alienating there is an issue for decision which might be prejudiced by the
alienation" The doctrine is intended to protect only the parties to the
litigation against alienations by their opponents pending in issue among the
so as to affect the
defendants inter se and one of them alienates the property
rights of other.14
doctrine of
all the abovementioned conditions are fulfilled, the
When will
lis pendens apply, and it will render the alienation subservient to the
ultimate result of the suit or proceeding In Shyam Lal v. Sohan Lal,5
a

Division Bench of the Allahabad High Court has very succinctly iudica ted
that a transferee pendente lite is bound by the decrce just as much as he were
in with the suit, and
privity
a party to the suit. Such transferee pats himself
must be treated, party to it and conse-
not as a stranger to the suit, but as
a
was also held that a
full. It
quently bound by the t>rms of the decree in
as much binding as a decree
founded
decree based upon compromise is just has been
merits. The abrve statement of legal proposition
upon a decision on
in Amarnath v. Dy Director of Consolidation, Kanpur.1
recently applied
The impact of Section 52 is that a transferee bound by the decree of
is
a suit or compromising it or would have
lis pendens whether he contesting
be
Tt is not necessary for the plaintiff to implead the
been an ex-parte sufferer.
lis pendens transferee.la

co-defendants.-The rule of lis pendens like

that of
Lis pendens between There is no issue for
between co-defendants.
res judicata does not apply be otherwise if the
But the position would
decision betwcen these persons.
between them.
relief claimed involves a decision
case where the court held
that Sec 52
Krishnaya v. Mallya,1" is a leading there was no issue between them. In
co-defendants as
did not apply between that he was not sound by his sale to
this case the plaintiff sued for declaration the plaintif and
to B. A and B fought together against
A nor by A's mortgage had seller's iien for
The Court held that the plaintiff
sale to A was affirmed. B's mortgage.
unpaid price and it had priority over
suit and B, the concerned
by plaintiff againstA
During pendeney of the in satisfaction of a money-
attached and sold by A's creditor
property was purchaser ot that property on the
filed another suit against
decree. B thereafier The court dismised the suit on
hit by lis pendens.
plea ihat the saie was was no issue betwecn A and
B.
did not apply as there
ground that is pendens
Pulavarthi v. Bommiredi, AlIR 1949 Mad 904.
13. Krishnaya v.Mallya, 41 Mad 658;
LR 301
Natha Ramchand, 43 Bom
4. v.

15. AIR 1928 Alld. 3.

16 AIR 1985 Alld. i63.
10a. Jagganath Mahaprabhu v. Parvat Chand Chaiterjee, AlR 1992 Ori 47.

17. 41 Mad 658; see also 22 IC 407.

TP 13
S. 53] TRANSPER OF PROPERTY BY ACT OF PARTIES
195
that they would be bound by decree against the vendors. The plea that they
were bona-fide purchasers without notice would be of no
consequence.2
S 53. Fraudulent
ade with intent to defeattransfer.-(1) Every transfer of immovable property
or delay the creditors of
able at the option of any creditor so the transferor shall be void-
defeated or delayed.
Nothing in this section shall
impair the rights of a transferee in good
faith and for consideration.
Nothing in this sub-section shall affect any law for the time being in force
relating to inselevncy.
A suit instituted
ther he has or has not
by a creditor (which term includes a decree-holder whe.
the ground that it has
applied for execution of his decree) to avoid a transfer on
been made with iutent to defeat or
of the transferor, shall be delay the creditors
instituted on behalf of, or for the benefit of all the
Creditors.
(2) Every transfer of immovable property made without
consideration
with intent to defraud
such transferee.
a subsequent transferee shall be voidable at the option of
For the purposes of this sub-section, no transfer Prade
without considera
tion shalB be deemed to have been made with intent to defraud
that a subsequent transfer for the conisdera tion was made. by reason only

COMMENTS: Amendment.-Before the Amending Act of 1929, the

section ran thus:
"Every transfer of immovable property made with intent to defraud
prior or subsequent transferees thereof for consideration or co-owners or other
persons having an interest in such property or to defeat or delay the creditors
of the transferor, is avoidable at the option of any person so defrauded or
delayed.
Where the efficct of any transfer of immovable property is to defraud,
defeat or delay any such person, and such transfer is made gratuitously or for
a grossly inadequate consideration, the transfer may be presumed to have been
made with such intent as aforesaid.
Fothing contained in this section shall impair the rights of any transferee
n good faith and for consideration.
In 1929 the old section was re-modelled in the present form. In old
section paragraph I dealt with two things-Cases of fraud on creditors and of
other transferees. This has now been provided in different paragraphs of the
new section. Para 1 deals with former. Para 2 deals with the latter. Para 2.
of the old section relating to presumption of statutory frauds has been subs-
tituted by last paragraph of the new section which refers only to competition
between transfers with and transfers without consideration. Section 173 (2)
of the English law of Property Act, 1925, lays down sim-lar law. (Third and
fourth paragraphs of the present section are new).

History of section 53.-Paragraph (1) has its basis in a statute of Eliza

beth dealing with transfers in fraud of ereditors. This statute was enacted in
1571. Indian Transfer of Property Act repealed it in 1882. Paragraph (2) has

25. Balwinderjit Kaur v Financial ComTmissioner Punjab, AlR 1987 P and H 189.