The Indian legal system is full of cases where the owner sold a disputed property to a naïve buyer without full disclosure. This is where Section 51 of the Transfer of Property Act, 1982, comes into the picture. The section aims to protect property buyers by restricting the sale of disputed properties.
See also: Section 41 of Transfer of Property Act
What is Section 52 of the Transfer of Property Act?
Based on the doctrine of lis pendens and the principle of Ut pendent nihil innovetur, Section 52 of the Transfer of Property Act prohibits transfer, alienation or disposition of immovable property, ‘pending litigation’, unless a court of competent jurisdiction decides so. Under this section, a suit is considered pending from the date of the presentation of the petition till a final verdict has been delivered by a court.
Section 52 in The Transfer of Property Act, 1882: Language
Transfer of property pending suit relating thereto.
During the 1 [pendency] in any Court having authority 2 [3 [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4 [the Central Government] 5 [* * *] of 6 [any] suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, 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 it may impose. 7 [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 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.]
Conditions for Section 52 Transfer of Property Act
Section 52 does not automatically apply in the case of a disputed property. The Supreme Court in the Dev Raj Dogra & Others versus Gyan Chand Jain & Others case enumerated conditions, following which Section 52 of the Transfer of Property Act comes into play. These include:
- There is an explicit involvement of property rights in the dispute
- The lawsuit is pursued devoid of collusion or malicious intent
- The lawsuit is filed in a competent court
- Any transfer related to the property must involve a party to the suit and the transfer must impact the rights of the other party involved in the litigation
Exception to Section 52
Courts are empowered to allow any party to dispose of the property during a pending case.
Is a property transfer void if conditions under Section 52 ToPA are met?
A transfer undertaken by a party during the pendency of a lawsuit does not automatically become void but is considered voidable. The party affected by such a transfer has the option to file a plea to get the transfer declared null and void.
How can I find out about disputed properties?
Sub-registrars maintain a file containing details of disputed properties, pending litigation. Buyers can approach the sub-registrar’s office to find property details. This facility is now available online in most states.
FAQs
When does Section 52 of the Transfer of Property Act apply?
Section 52 prevents parties involved in a lawsuit from depriving one another of mutual interest by prohibiting sale till the time court proceedings are pending.
What is the doctrine of lis pendens?
Lis pendens means pending litigation.
What is the purpose of lis pendens?
The doctrine of lis pendens provides courts power to prevent the transfer of a disputed property without its consent.
What is the meaning of the Latin maxim, Ut pendent nihil innovetur?
The maxim means that during a pending suit or litigation, nothing new should be introduced and nothing should be changed.
In what cases does Section 52 of the Transfer of Property Act apply?
The section applies to the suits related to title disputes over any immovable property.
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