Govinda Pillai Gopala Pillai v Aiyyappan Krishnan (1957)

Two things, and both are examined.

First, it is the fullest account on the syllabus of what lis pendens is and why it exists — the two competing theories of its basis, the rejection of notice as the foundation, and the classical statement of necessity. If a question asks you to state the basis of the doctrine rather than merely its content, this is where the answer comes from.

Second, it decides the practical question of when pendency begins where the plaint is presented in the wrong court and returned. The answer under the section as amended is: from the presentation of the plaint in a court of competent jurisdiction, and not before.

The appellant, in execution of a decree, sought delivery of one acre with a building. The respondent, the 102nd defendant, resisted: his father, the 35th defendant, had gifted the property to the respondent and his mother by Ext. I dated 3-6-1095 (Malayalam era), the mother had gifted her rights to him by Ext. II in 1101, and neither he nor his mother was a party to the decree.

The plaint in the suit had first been presented in a court which lacked pecuniary jurisdiction. It was returned, and was filed in the District Court of Kottayam only on 29-11-1095 — after the gift.

Whether the gift deed of 3-6-1095 is affected by the rule of lis pendens, given that the plaint reached a court of competent jurisdiction only on 29-11-1095.

| | Section 52 as originally enacted | Section 52 as amended by Act 20 of 1929 | |---|---|---| | Trigger | "During the active prosecution" of the suit | During the pendency of the suit | | Kind of suit | "a contentious suit or proceeding" | "any suit or proceeding which is not collusive" | | When pendency begins | Not defined | Explanation added: from the presentation of the plaint or institution of the proceeding in a Court of competent jurisdiction, continuing until final decree or order and complete satisfaction or discharge, or until execution becomes time-barred |

The judgment sets out both texts, and the Explanation is the half of s. 52 that students most often omit. It fixes both ends of the period, and the closing words are the ones examiners like: "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."

The judgment first defines the terms: lis means an action or suit, pendens is the present participle of pendo, and the doctrine may be defined as "the jurisdiction, power, or control that courts have, during the pendency of an action over the property involved therein".

It then sets out the two theories:

"According to some authorities, a pending suit must be regarded as notice to all the world, and pursuant to this view it is argued that any person who deals with property involved therein, having presumably known what he was doing, must have acted in bad faith and is therefore, properly bound by the judgment rendered. Other authorities, however, take the position that the doctrine is not founded on any theory of notice at all, but is based upon the necessity, as a matter of public policy, of preventing litigants from disposing of the property in controversy in such manner as to interefere with execution of the court's decree."

(read interfere) The consequence of having no such rule is stated in the same passage: "all suits for specific property might be rendered abortive by successive alienations of the property in suit, so that at the end of the suit another would have to be commenced, and after that, another, making it almost impracticable for a man ever to make his rights available by a resort to the courts of justice".

The necessity theory prevails. Bennet's Treatise, quoting Lord Cranworth LC in Bellamy v Sabine, is set out:

"It is scarcely correct to speak of lis pendens as affecting the purchaser through the doctrine of notice, though undoubtedly the language of the courts often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others pending the litigation rights to the property in dispute so as to prejudice the opposite party"

and, more shortly, "The foundation for the doctrine of lis pendens does not rest upon notice, actual or constructive; it rests solely upon necessity - the necessity, that neither party to the litigation should alienate the property in dispute so as to affect his opponent". The point is spelt out that the decree binds alienees "whether such alienees had or had not notice of the pending proceedings".

Its ancestry. The doctrine originated in the civil law, was received by equity, and was embodied in one of Lord Bacon's ordinances, commonly known as Bacon's Twelfth Rule, that a decree does not bind one who comes in bona fide by conveyance before bill exhibited, "but where he comes in pendente lite, and while the suit is in full prosecution and without any color of allowance or privity of the court, there regularly the decree bindeth".

Mulla's fourth edition had stated that "If the plaintiffs valuation is disputed and the plaint returned after inquiry for presentation to a Court of higher grade, an alienation effected in the interval is affected by the doctrine of lis pendens", resting on the Rangoon decision in Ma Than v Maung Bagyan. There the plaint was returned on 14 May 1920, the defendant conveyed on 20 May 1920, and the plaint was presented in the proper court on 21 May 1920; Heald J held the conveyance caught, and Cunliffe J thought that a plaintiff prosecuting in a court without jurisdiction was still actively prosecuting the suit within the original section.

Menon J held that whatever the position under the unamended section, that is not the law after 1929. He adopted Gouri Dutt v Shanker, where Rupchand AJC said that the legislature had amended s. 52 "to make it abundantly clear that the pendency of the suit or proceedings for the purpose of the doctrine of lis pendens shall be deemed to commence from the date of presentation of the plaint or the institution of the proceedings in the Court of competent jurisdiction. The Rangoon case in therefore no longer good law". The same court's supporting argument is worth noting: if a suit in a court without jurisdiction were a pending suit, s. 14 of the Limitation Act, which exists to exclude time spent prosecuting in the wrong court, would be redundant. Nathusingh v Anandrao is to the same effect.

Held: there was no suit pending in a court of competent jurisdiction before 29-11-1095, so the gift of 3-6-1095 was not vitiated. The appeal was dismissed with costs.

1. The doctrine of lis pendens rests on necessity and public policy, not on notice; it binds an alienee whether or not he knew of the suit. 2. Under s. 52 as amended in 1929, pendency commences from the presentation of the plaint in a court of competent jurisdiction. A transfer made while the plaint stands returned for want of jurisdiction, before re-presentation in the proper court, is not affected.