LIS PENDENS AND THE BONA FIDE PURCHASER: RECONCILING SECTION 52 OF THE TRANSFER OF PROPERTY ACT 1882 WITH TRANSACTIONAL CERTAINTY

Author

Aditya Nigam, Harsh Chawla

Abstract

 Section 52 of the Transfer of Property Act 1882 makes a transfer of immovable property by a party to pending litigation subject to the outcome of that litigation, whether or not the transferee acted in good faith or knew of the proceedings. The Supreme Court’s recent decisions, from Chander Bhan and Shingara Singh (2024) to Alka Shrirang Chavan (2026), confirm that the rule rests on public policy and admits no good-faith exception. This article asks whether that strictness can be reconciled with the certainty on which a functioning market in immovable property depends. It advances three arguments. First, a transfer pendente lite is valid but defeasible, and the vocabulary of illegality used in some decisions obscures the purchaser’s real position. Secondly, Section 41 of the Act and Section 52 are not rival rules but different allocations of risk: the first protects reliance on an appearance of ownership which the true owner created, the second protects the finality of a claim already placed before a court. Thirdly, the uncertainty that Section 52 produces is mainly a problem of discoverability and duration and not of substantive rule. The article traces that problem through the Law Commission’s 157th Report, the Bombay model of registered notice of pendency, and Celir LLP v Somati Prasad Bafna, which qualifies the protection that registration was meant to supply. It concludes that the doctrine should be retained without a good-faith exception, and proposes a framework consisting of uniform and court-assisted notice of pendency, a burden-bearing protection for purchasers who have searched and found nothing, and greater transferor accountability.

Keywords

Lis Pendens; Section 52; Transfer of Property Act 1882; Bona Fide Purchaser; Pendente Lite Transfer; Transactional Certainty; Notice of Pendency; Section 41

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The doctrine of lis pendens is necessary because litigation about land cannot end if the land may be alienated freely while it proceeds. The Supreme Court’s recent decisions, which treat the rule as one of public policy, are right to refuse a good-faith or no-notice exception, since such an exception would turn every case into an inquiry into the purchaser’s state of mind and would reward collusion between a transferor and a purchaser willing to profess ignorance. A transfer pendente lite is valid but defeasible, binding on the transferee in the result of the suit, and the language of illegality or voidness that sometimes appears in the decisions should be set aside.

Section 41 and Section 52 are not inconsistent. Section 41 protects reliance on an appearance which the true owner created, and Section 52 protects the finality of a claim which a litigant has already put before a court, so that the owner’s contribution on which the first depends is missing from the second. The difficulty lies at the margin where the second rule operates against a purchaser who could not have discovered the claim.

That difficulty is, for the most part, not a defect of Section 52. The uncertainty it produces comes from the latency of pending suits, the indeterminate duration of pendency, and the spread of the taint through the chain of title and to lenders. These are failures of information and procedure, and they have been identified in the Law Commission’s 157th Report, in the Supreme Court’s observations in T G Ashok Kumar, and in the scholarship, for more than a quarter of a century without legislative response. The Bombay model is a necessary starting point, but Celir LLP shows that registration alone does not yield certainty unless the law also states what follows from non-registration.

The reforms which are justified are therefore those which increase what a purchaser can discover, and which allocate the residual risk to the transferor, without altering what happens when a transfer and a decree conflict: a uniform and court-assisted system of registered notice, searchable by property, with a burden-bearing protection for the purchaser who has searched and found nothing; a statutory duty on the transferor to disclose; and attention to the length of pendency. Transactional certainty and the integrity of litigation are not opposed in principle. The rule which makes the purchaser bear the risk of a pending suit is defensible only so long as the purchaser has a fair chance of finding out, and the task for reform is to supply that chance without surrendering the rule.

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