Property Project

A Project On

Dalip Kaur And Others vs Jeewan Ram And Others

Submitted by

Arpit MittalRoll No. 32

Div. A

Symbiosis Law School, NOIDASymbiosis International University, PUNE

Under the guidance of

Prof Kiran kale Course in Charge,

Property Law

Symbiosis Law School,NOIDA 201301

ON 6th October, 2012

Dalip Kaur And Others vs Jeewan Ram And OthersPage 1

DECLARATION

I Arpit Mittal , student of BBA,LL.B(A) V Semester of Prestige Institute of Symbiosis Law

School, NOIDA hereby declare that the report titled “Dalip Kaur And Others vs Jeewan Ram

And Others” is submitted by us in the line of partial fulfillment of course objectives for the

BBA,LL.B

I assure that this synopsis is the result of my own efforts and that any other institute for the

award of any degree or diploma has not submitted it.

Date- 6th October, 2012

Place: Symbiosis Law School, NOIDA Arpit Mittal


CERTIFICATE

This is to certify that Arpit MIttal student of B.B.A.LL.B, B Semester of Symbiosis law School,

Noida has successfully completed his Project report. We have prepared this report “Dalip Kaur

And Others vs Jeewan Ram And Others” under my direct supervision and guidance.

Date- 6th October, 2012 Prof. Kiran Kale

Place- NOIDA (Faculty Guide)


ACKNOWLEDGEMENT

It is a great pleasure for me to put on records my appreciation and gratitude towards Dr. C.J.

Rawandale, Director for his immense support and encouragement all through the preparation of

this report. I would like to thank our faculty Prof. Kiran Kale (Project Guide) for his valuable

support and suggestions for the improvement and editing of this project report. Last but not the

least, I would like to thank all the friends and others who directly or indirectly helped us in

completing our project report.

Date- 6th October , 2012 Arpit Mittal

Place- NOIDA (B.B.A.LL.B, Fourth Semester)


Introduction

Transfer of property is the taking over of possession by one person from another.The Transfer of

Property Act 1882 contains specific provisions regarding what constitutes transfer and the

conditions attached to it. According to the Act, 'transfer of property means an act by which a

person conveys property to one or more persons, or himself and one or more other persons'. The

act of transfer may be done in the present or for the future. The person may include an

individual, company or association of individuals, and any kind of property may be transferred.

A transfer of property passes forthwith to the transferee all the interest which the transferor is

capable of passing in the property, unless a different intention is expressed or implied. Every

person, who is competent to contract, is competent to transfer property, which can be transferred

in whole or in part. He should be entitled to the transferable property, or authorized to dispose

off the transferable property which is not his own. The right may be either absolute or

conditional, and the property may be movable or immovable, present or future. Such a transfer

can be made orally, unless a transfer in writing is specifically required under any law.

In case a property is transferred subject to the condition that absolutely restrains the transferee

from parting with or disposing off his interest in the property, the condition is void. The only

exception is in the case of a lease where the condition is for the benefit of the lessor or those

claiming under him. Generally, only a person having interest in a property is authorized to

transfer his interest in the property and can pass on proper title to any other person. According to

the Act, property of any kind may be transferred. A person insisting on non-transferability must

prove the existence of some law or custom which restricts the right to transfer. Unless there is

some legal restriction preventing the transfer, the owner of a property may transfer it. Transfer of

property means transferring possession of a property from one person to another person.The

Transfer of Property Act 1882 contains specific provisions regarding what exactly constitutes

transfer and the conditions which are required to be satisfied for it to be valid. According to the

Act ‘transfer of property’ means an act by which a living person conveys property to one or more

other living persons, or to himself and one or more other living persons’. A transfer of property

passes to the transferee all the interest which the transferer is capable of passing in the property,

unless a different intention is expressed or implied.The act of transfer may be done immediately

or for the future. The transferer may be an individual, company or association, or a body of


individuals. As per the Act, property of any kind may be transferred. The owner of a property

may freely transfer it unless there is some legal restriction preventing the transfer. However, in

some cases, there may be transfer of property by unauthorised persons who subsequently acquire

interest in the property.

Every person who is competent to contract is competent to transfer property.The transfer may be

in whole or in part. He should be entitled to the transferable property, or authorised to dispose

transferable property which is not his own. The right may be either absolute or conditional. The

property may be movable or immovable, present or future. Such transfer can be made orally,

unless transfer in writing is specifically required under any law. In case the property is

transferred subject to a condition which absolutely restrains the transferee from parting with or

disposing of his interest in the property,the condition is void.The only exception is in the case of

a lease where the condition is for the benefit of the lessor or those claiming under him.

Generally,only a person having interest in the property is authorised to transfer his interest, and

can pass on proper title to any other person.

In the Present case Lachhman respondent No. 24 filed a suit for possession by way of pre-

emption of the land measuring 9 kanals 9 Marias which had been sold to respondents I to 5

(original vendees). A part of this land had been sold by respondents 1 to 5 to respondents 6 to 21.

The suit for possession by pre-emption was decreed by the trial Court on August 22, 1983. In

pursuance to this decree, Lachhrnan took possession of the suit land on October 6,1983. The

appeal filed by respondents 1 to 5 was dismissed by the learned District Judge on March 18,

1985. The second appeal to this Court was dismissed on September 26, 1985. Thereafter,

respondents 1 to 5 filed a special leave petition under Article 136 of the Constitution of India.

Leave was granted. The appeal of respondents 1 to 5 was accepted vide order, dated October 5,

1989. Accordingly, the suit filed by Lachhman was dismissed. Thereafter, the original vendees

and respondents 6 to 21 filed an application under Section 144, Code of Civil Procedure, for

restitution of possession. The appellants along with respondents 22 and 23 filed objections

alleging that they had purchased the suit land from Lachhman. Being bona fide purchasers for

consideration, the petition under Section 144 of the Code was not competent. Respondents I to

21 filed reply to the objections and pleaded that the matter was governed by the principle of lis

pendens.


Issues

1) Whether the principal of Lis Pendence is applicable.

2) Restitution of property applicable or not.

Ruling

It is held that proceedings before the Supreme Court are a continuation of those in the original

suit and that the principle of lis pendens as well as restitution shall apply to the proceedings.

Accordingly, it is held that there is no merit in this appeal. It is dismissed. However, in the

circumstances of the case, no order as to costs were made. However, it was also observed that

"there is no doubt that the transferee during the pendency of a suit or other proceedings is bound

by the result thereof but that principle cannot be made applicable to the facts of this case in view

of the insertion of Clause (iv) in paragraph 10 of , the petition of compromise and then its

deletion, which were conscious acts and amounted to not disturbing the rights of Purshottam Das

Rattan." In the case Mewa Singh v. Jagir Singh 1 . It was, thus, clearly a case on its own facts.

However, the principle that the transferee during the pendency of the proceedings is bound by

the result was recognized.

Thus the appeal was dismissed.

1 AIR 1971 Punj & Har 244


Analysis

Arguments:

The appellants along with respondents 22 and 23 filed objections alleging that they had

purchased the suit land from Lachhman. Being bona fide purchasers for consideration, the

petition under Section 144 of the Code was not competent. Respondents I to 21 filed reply to the

objections and pleaded that the matter was governed by the principle of lis pendens.

The Supreme Court is at the head of the 'pyramid' of the judicial system in this country. It

exercises original and appellate jurisdiction. It has the poweer to "pass such decree or make such

order as is necessary for doing complete justice in any cause or matter -- and any decree so

passed or order so made shall be enforceable throughout the territory of India". The law declared

by the Supreme Court is binding on all Courts within the territory of India. Under Article 136 of

the Constitution of India, the Supreme Court has the discretion to "grant special leave to appeal

from any judgment, decree, determination, sentence or order in any cause or matter passed or

made by any Court or Tribunal" in the terrirotory of India. Their Lordships can even interfere

with an interlocutory order. The powers conferred on the Court under the Constitution are very

wide. This power has been invoked and exercised not only in case where substantial questions of

law are involved but even in those where the High Court has come to a wrong conclusion from

the evidence. The court has interfered with the orders passed by the High Court in Second

Appeals or Revision Petitions.

Doctrine of Lis Pendens and restitution of property was applied.

1) Doctrine of Lis Pendens:

The law incorporated in Section 52 is based on the doctrine of lis pendens. ‘Lis’ means

‘litigation’ and ‘Pendens’ means ‘pending’. So Lis Pendens would mean ‘pending

litigation’. The doctrine of Lis Pendens is expressed in the well-known maxim: pendente

lite nihil innovature, which means during pendency of litigation, nothing new should be

introduced. Under this doctrine, the principle is that during pendency of any suit

regarding title of a property, any new interest in respect of that property should not be

created. Creation of new title or interest is known as transfer of property. Therefore, in

essence, the doctrine of lis pendens prohibits the transfer of property pending litigation. It

is a very old doctrine and has been operating in the English Common Law. Under this


doctrine the judgements in the immovable properties were regarded as overriding any

alienation made by the parties during pendency of litigation.

Basis of Lis Pendens

The basis of lis pendens is ‘necessary’ rather than actual or constructive notice. It may be

said that this doctrine is based on notice because a pending suit is regarded as

constructive notice of the fact of disputed title of the property under litigation. Therefore,

any person dealing with that property, pending litigation, must be bound by the decision

of the Court. For administration of justice it is necessary that while any suit is still

pending in a Court of law regarding title of a property, the litigants should not be allowed

to take decision themselves and transfer the disputed property.

The Indian Courts have also taken the view that basis of Section 52 is not the doctrine of notice

but expediency i.e. the necessity for final adjudication and public policy. It has been held that

“foundation for the doctrine of lis pendens does not rest upon notice, actual or constructive; it

rests solely upon necessity—the necessity that either party to the litigation should alienate the

property in dispute so as to affect his opponents. In Rejendar Singh v. Santa Singh the

Supreme Court has said that the doctrine of Lis Pendens is intended to strike at attempts by

parties to a suit to curtail the jurisdiction of the Court by private dealings which may remove the

subject matter of litigation from the power of the Court to decide a pending dispute and frustrate

its decree.

Since the Courts in India regard ‘necessary’ as the basis of the doctrine of lis pendens, it is

immaterial whether the transferee had any notice of pendency of suit or not. The transferee is

bound by the decision of the Court even if he had no actual or constructive notice of the pending

suit.

The doctrine of lis pendens as laid down in Section 52 is as follows:

During the pendency of a suit or proceeding.

Property cannot be transferred or otherwise dealt with, and


If so transferred, the transferee is bound by the decision of the Court whether or not he

had notice of the suit or proceeding.

ESSENTIAL CONDITIONS FOR APPLICATION OF SECTION 52

Following conditions are necessary for the application of the doctrine of lis pendens as provided

in Section 52:

There is a pendency of a suit or proceeding.

The suit or proceeding must be pending in a Court of competent jurisdiction.

A right to immovable property is directly and specifically involved in the suit.

The suit or proceeding must not be collusive.

The property in dispute must be transferred or otherwise dealt with by any party to suit.

The transfer must affect the rights of the other party to litigation.

When the above mentioned conditions are fulfilled, the transferee is bound by the decision of the

Court. If the decision of the Court is in favour of the transferor, the transferee has rights in the

property transferred to him. If the decision goes against the transferor, the transferee cannot get

any interest in the property.

In N.C. Bhartia v. Gandevi Peoples Co-operative Bank Ltd., an order of attachment of

judgement-debtor’s property was passed during execution proceedings. Subsequently, the

relatives of the judgement-debtor objected the attachment and claimed a share in that property.

They also sold that property and this sale-deed was executed during pendency of the execution

proceedings. Gujarat High Court held that the sale-deed was hit by the doctrine of lis pendens.

Litigation in a mortgage suit continues after the decree and does not terminate till the security is

realised for the satisfaction of the decree. After a final decree, the defendant has a right to appeal

within the period of limitation. Where an appeal is preferred within limitation period, the appeal

would be a continuation of the suit and the lis shall be deemed to continue during appeal.

Transfer of property made during appeal shall be a transfer during pendency of suit and the

provisions of Section 52 shall apply on it.


Any transfer made outside the period of litigation will not be affected by lis pendens. In Suresh

Singh v. State of Bihar2, a registered sale-deed was executed in favour of the petitioner.

The other party filed an application for pre-exemption in terms of earlier sale-deed in respect of

the same property on the same date. The Court held that ‘Lis’ about the claim for pre-exemption

would be deemed to be pending before Collector on date of the execution of sale-deed.

Therefore, this sale-deed was hit by the doctrine of lis pendens. Accordingly, the Court allowed

the application for pre-exemption by the other party.

Following suits have been held to involve question of rights in immovable property and are

within the scope of this section:

A suit for partition.

A suit on mortgage.

A suit for pre-exemption.

Easement suit.

Suit for maintenance by a Hindu widow in which she claims to have her maintenance

made a charge on specific immovable property and a decree is passed creating a charge

on such property.

Where the suit or proceeding does not involve any question of right in immovable property, Lis

Pendens does not apply. Thus,

A suit for debt or damages where the claim is limited to money,

A suit for the recovery of movables, or

A suit for an account.

Transfers with permission of Court

When a transfer is made during pendency of suit with the permission of Court, the principle of lis

pendens is not applicable. The concluding part if this section exempts transfers pendente lite if

such transfer is made under the authority of the Court and on such terms as it any impose. Under

this clause, the parties to suit are entitled to apply to the Court in which the suit is pending to get

permission for the transfer. If the Court deems in fit, it may give permission for the transfer of

2 AIR 1994 Pat 34, 1993 (41) BLJR 1098


disputed property. In such a situation, Section 52 shall not apply on the transfer of disputed

property. In such a situation, Section 52 shall not apply on the transfer though it is made during

pendency of suit.

In Sri Pal Singh v. Naresh, the owner of the property who was a party to the suit sold the

property to a second purchaser. This sale was affected after the first vendee had filled a suit for

specific performance of the sale to him. The Court said that the principle of lis pendens was to

apply notwithstanding the fact that the right of the subsequent purchaser could be protected

under Section 19(b) of the Specific Relief Act, 1963.

SUIT MUST NOT BE COLLUSIVE

Lis pendens is inapplicable if the suit is collusive in nature. A suit is collusive if it is instituted

with a mala fide intention.

Mala fide intention behind instituting a suit is inferred from the fact that parties to the suit know

their respective rights in the property and there is no actual dispute. Such suit is, therefore,

fictitious and the very purpose of filing the suit is to get judicial decision for some evil design.


Conclusion

When the condition necessary for the applicability of this section are fulfilled the result is that

transferee is bound by the decision of the Court. For example, in a suit between A and B

respecting title of a house if B transfers the house to C during pendency and the judgement is

subsequently in favour of B, then C would be entitled to the house. But if the decree is passed

against B, then it is binding not only on B but also on C with the result that C cannot get the

house. Under this section C cannot take the plea that he had no notice of pending litigation. It

may be noted that normally decree of a Court binds only the parties to the suit. It may be noted

that normally decree of a Court binds only the parties to the suit. But, under the principle of lis

pendens, a person who purchases during pendency of the suit is also bound by the decree made

against that party from whom he had purchased.

The effect of lis pendens is, therefore, that it does not prevent the vesting of title in the transferee

but only makes it subject to the rights of the parties as decided in the suit.

Section 52, therefore, does not invalidate the transfer but renders if subservient or subject to the

rights of the parties to litigation. The words “so as to affect the rights of any other party thereto

under any decree or order which may be made therein” suggest that the transfer pendente lite is

valid and good to the extent that it might conflict with rights established under the decree.

Where the assignee of a decree was neither impleaded in the first appeal, nor in the second

appeal, it was held that he was nevertheless bound by the result of the second appeal and could

reap the benefit of the decree for possession in the second appeal.

Purchase of property during continuance of a prohibitory order of the Court has been held to

confer no right or title on the purchaser.


Bibliography:

A) Websites:

1) http://www.lawyersclubindia.com/judiciary/Section-52-of-Transfer-of-Property-Act-1882--

2360.asp#.UG8nPJiR8jI

2) http://www.legalserviceindia.com/issues/topic693-sec-52-transfer-of-property-pending-

suit-relating-thereto.html

3) http://www.vakilno1.com/bareacts/TransferofPropertyAct1882/S52.html

4) http://legaldevelopments.blogspot.in/2010/10/supreme-court-on-lis-pendens-and.html

5) http://advocatemmmohan.wordpress.com/2011/11/15/transfer-of-property-act-1882-s-52-

transfer-of-property-by-a-defendant-pending-a-partition-suit-partition-suit-found-to-be-

not-collusive-decree-in-partition-suit-in-terms-of-decree-the-pend/

6) http://lawmirror.com/search.php?

passed=&searchterm=transfer+of+property+act+section+52&sel=headnote&court=0

B) Books

1) Dr. R.k. Sinha “The transfer Of Property Act” 13 Edition

C) Cases

1) Mewa Singh v. Jagir Singh

2) Rejendar Singh v. Santa Singh

3) Sri Pal Singh v. Naresh

4) Suresh Singh v. State of Bihar

5) N.C. Bhartia v. Gandevi Peoples Co-operative Bank Ltd


http://lawmirror.com/search.php?passed=&searchterm=transfer+of+property+act+section+52&sel=headnote&court=0

http://lawmirror.com/search.php?passed=&searchterm=transfer+of+property+act+section+52&sel=headnote&court=0

http://advocatemmmohan.wordpress.com/2011/11/15/transfer-of-property-act-1882-s-52-transfer-of-property-by-a-defendant-pending-a-partition-suit-partition-suit-found-to-be-not-collusive-decree-in-partition-suit-in-terms-of-decree-the-pend/



http://legaldevelopments.blogspot.in/2010/10/supreme-court-on-lis-pendens-and.html

http://www.vakilno1.com/bareacts/TransferofPropertyAct1882/S52.html

http://www.legalserviceindia.com/issues/topic693-sec-52-transfer-of-property-pending-suit-relating-thereto.html

http://www.legalserviceindia.com/issues/topic693-sec-52-transfer-of-property-pending-suit-relating-thereto.html

http://www.lawyersclubindia.com/judiciary/Section-52-of-Transfer-of-Property-Act-1882--2360.asp#.UG8nPJiR8jI

http://www.lawyersclubindia.com/judiciary/Section-52-of-Transfer-of-Property-Act-1882--2360.asp#.UG8nPJiR8jI

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