All the legal heirs claiming the share will be made parties
Applicability of the principal of Lispendens on Sale deeds
Is a property under litigation in 2 cases under Lispendens of section 52 of transfer of Land act automatically now or Lispendens suit would need to be filed on this property? Please advise .If some part of such a property is sold by one heir involved in above legal cases after start of above described cases then can such sale deeds be got cancelled through law by filing another case for cancellation of such sale deeds as these are affecting the right of another real heir also involved in legal cases?
Asked 6 years ago in Property Law
Religion: Hindu
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12 Answers
My Grand maternal father left a Will in 1990 which was in favour of 3 eldest sons of his 3 daughters. After his death some of the remaining siblings also started making their claim in this property and some people of the locality helped them in this effort and created an agreement under them in the family and refused to accept the `Will` document. As a result, after some years a quarrel arose about this property and 2 cases were filed by 2 heirs named in the Will-1.A partition case in UP revenue board in 2011 2. Will probate case in district civil court in 2019. After some months of Probate case-2 siblings have sold some land while their names not in Will doc. Please tell me whether these purchasers need to be made parties in these cases, particularly in the `Will probate` case as it will prolong this Probate process? Our desire is not to make them parties at all as they are criminals. Next question is-Who else in totality are necessary to be made parties other than 2 real heirs.
Asked 6 years ago
You can have the lis pendens of the suit registered with the office of Sub-Registrar under the Registration Act and gave public notice of lis pendens for the land in question.
2) you can in existing suit amend plaint and seek orders to set aside sale deed executed by one of the legal heirs
In testamentary petition for probate notice has to be issued to all legal heirs
2)you have to take legal proceedings to set aside the sale deed
yes lispendens operates automatically although an application for injunction should be filed.
Regards
During pendency of suit, if property sold, buyer is bound by the order of court which will pass against seller. No fresh suit require, such sale automatically be void.
No need to make them party, better file FIR agsint the seller, sale without ownerhsip. Until Will not declared invalid, all 3 have absolute ownerhsip.
If you have the will probate should be filed. The parties can challenge the will if they want to.
It will take a few months if there is no challenge.
- Since, their names are not mentioned in the WILL , hence selling some land by them , is amount to criminal offence.
- Firstly, you should lodge your complaint against them , and further move an application before the court to cancel the said transaction, as lispendens operates automatically also.
- If , the court cancels the said sale deed , then the purchaser will itself come forward to approach the court .
- As per law, all the legal hiers /sharer should be named as necessary parites of the suit.
Lis Pendens is captured under Section 52 of the Transfer of Property Act, 1882 (the “Act”). The Section essentially prohibits alienation of immovable property when a dispute relating to the same is pending in a competent court of law.
1. Lis pendence is a rule of law which is applicable in the pending suit only and for this no separate suit is to be filed.
2. On the basis of this rule any purchaser of the suit property even though not made a party to the pending suit is bond by the outcome of the suit.
3. This is applicable in all circumstances and for this no separate suit is to be filed or application is to be taken out.
The meaning of lis pendens is - ‘a pending legal action’, wherein Lis means the ‘suit’ and Pendens means ‘continuing or pending’.
The principle embodying the said doctrine is that the subject matter of a suit should not be transferred to a third party during the pendency of the suit. In case of transfer of such immovable property, the transferee becomes bound by the result of the suit.
The doctrine of Lis Pendens essentially aims at (i) avoiding endless litigation, (ii) protecting either party to the litigation against the act of the other, (iii) avoiding abuse of legal process.
Lis Pendens is captured under Section 52 of the Transfer of Property Act, 1882 (the “Act”). The Section essentially prohibits alienation of immovable property when a dispute relating to the same is pending in a competent court of law. It is based on the principle that the person purchasing an immovable property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree
If a part of the property is sold during the pendency of the suit then it is not binding on the parties to the suit who is seeking the legitimate share in the property.
The probate of Will is a different case to that of the property dispute.
If someone has sold the property during the pendency of the probate case, then the relief is to be sought by filing a separate suit seeking cancellation of the sale deed and for possession.
It depends on the injunction order from court.
But generally doctrine of lispendence will apply on the property which is under legal dispute.
Court can set aside the sale as null and void because of pendency of case.
