The Section 52 lis pendens trap that binds every buyer from the moment suit is filed.

Two Wills, Three Sales, One Construction: Why the High Court Stopped the Builders

When Ahamad Khan bought a piece of land in Rewa, he thought he was getting a clean title. The seller before him had bought it from someone who had bought it from two women who claimed they inherited it through a Will. Khan paid his money, got his sale-deed registered, and started building. Then the original family came knocking. They said the property was ancestral Joint Hindu Family property, that the Wills were forged, and that every sale after 2012 was void. Khan had already sold portions to two other buyers, who were also building. The trial court stopped them with a temporary injunction. The appellate court agreed. Now the High Court had to decide: did these buyers have any right to build on land that was disputed in a suit filed years before they bought it?

The answer cost them their construction. And the legal principle that sealed their fate applies to every property transaction in India — whether or not there is an injunction order in place.

The property that started it all

Vindeshwari Prasad Pandey owned the land. After his death, his legal heirs fell into a familiar fight. Some said the property was ancestral Joint Hindu Family property, belonging to all coparceners equally. Others claimed Vindeshwari Prasad had made a Will in favour of his second wife. That second wife, they said, then made her own Will in favour of Vandana Pandey and Sudha Pandey. In 2012, Vandana and Sudha sold a part of the property to Mohd. Sahid Ansari.

That same year, the respondents — Bhaskar Ddatt Pandey and others — filed a suit in the Civil Court, Rewa. They wanted a declaration that the two Wills and the sale-deed to Ansari were null and void. They also sought partition and a permanent injunction restraining any further transfers. The suit was registered as C.S. No. 302A/2015.

While that suit was pending, the property changed hands again. Ansari sold to Jagat Pal Singh. Singh sold to Ahamad Khan. Khan then sold portions to petitioners No. 2 and 3. All these sales happened after the suit was filed.

By 2022, Khan and his co-purchasers had started raising construction on the land. The trial court — the 9th Civil Judge Junior Division, Rewa — passed a temporary injunction on 3 November 2022, restraining them from building further. The petitioners appealed to the 4th District Judge, Rewa, who dismissed their Miscellaneous Civil Appeal No. 200/2022 on 18 April 2023, affirming the injunction.

That left only one door: Article 227 of the Constitution. The petitioners walked through it to the High Court of Madhya Pradesh at Jabalpur.

What the buyers argued

The petitioners had a straightforward case on facts. They pointed out that the first temporary injunction in the suit was passed on 15 May 2014, restraining the original defendants from creating third party rights for one year. That order expired. A second temporary injunction was passed on 12 January 2016 for six months. That too expired. By the time Khan bought the property, there was no injunction in force. He was a bona fide purchaser for value without notice of any pending restraint. How could he be stopped from building on his own land?

The learned Counsel for the petitioners argued that the trial court and the appellate court had committed a jurisdictional error. Without a subsisting injunction, they said, the petitioners could not be treated as if they were parties to the original suit. They had purchased the property in good faith, and the courts below had no power to restrain them.

It was a clean argument. It just happened to be wrong on the law.

The doctrine the buyers forgot

Justice G.S. Ahluwalia, sitting singly, did not need to look far. The answer was in Section 52 of the Transfer of Property Act, 1882 — the doctrine of lis pendens.

The provision states: during the pendency of any suit 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 so as to affect the rights of any other party under any decree or order that may be made. The only exception is a transfer made under the authority of the court.

The key point: Section 52 does not require a temporary injunction to operate. It applies automatically from the moment a suit is filed. The purchaser is bound by the decree whether or not he was impleaded as a party, and whether or not there was an injunction order in place at the time of purchase.

The Court observed that a sale-deed executed during the pendency of a suit is not a void sale-deed. Its effect is only that the purchaser would be bound by the decree. The purchaser cannot claim bona fide purchase as a defence to circumvent lis pendens. The doctrine is designed to prevent the very situation that had occurred here: a chain of sales that could defeat the rights of the original plaintiffs if the suit succeeded.

THE PLAY: A purchaser who buys property during the pendency of a suit is bound by the outcome of that suit, regardless of whether a temporary injunction was in force. The doctrine of lis pendens under Section 52 of the Transfer of Property Act operates automatically from the date of filing of the suit.

The second problem: joint family property

Even if the lis pendens issue could somehow be sidestepped, the petitioners faced another obstacle. The respondents claimed the property was ancestral Joint Hindu Family property. The Court noted a well-settled principle: a coparcener or co-sharer in Joint Hindu Family property can alienate only to the extent of his undivided share. He cannot alienate any specific piece of land.

This meant that even if the Wills were valid and the second wife had a share, she could not have sold a specific parcel to Vandana and Sudha. And Vandana and Sudha could not have sold a specific parcel to Ansari. The chain of title was fundamentally flawed from the start. A purchaser from such a coparcener acquires at most an undivided share and is not entitled to any specific parcel. Therefore, the petitioners could not claim any right to construct on a specific portion of the disputed property.

The trial court and the appellate court had both applied this principle correctly. The High Court found no jurisdictional error in their orders.

Why Article 227 could not save them

The petitioners had approached the High Court under Article 227 of the Constitution, which gives the High Court superintendence over all subordinate courts. But the scope of Article 227 is limited. The High Court does not sit as a court of appeal. It can interfere only if the subordinate court has committed a jurisdictional error — that is, if it has acted without jurisdiction, exceeded its jurisdiction, or acted in flagrant disregard of law or procedure.

Justice Ahluwalia found that the courts below had not committed any such error. They had correctly applied Section 52 of the Transfer of Property Act and the law on coparcenary property. The temporary injunction was justified to protect the subject matter of the suit from being destroyed by construction during the pendency of litigation.

The petition was dismissed on 2 August 2024.

What this means for practitioners

This judgment is a reminder of two principles that every property lawyer should have at their fingertips.

First, lis pendens is not optional. It does not depend on a court order. It attaches the moment a suit is filed. A client who buys property while a suit is pending — even if there is no injunction — takes the property subject to the risk that the suit will succeed and the sale will be set aside. Due diligence must include checking not just for injunctions, but for the pendency of any suit affecting the property.

Second, joint family property cannot be sold in pieces. A coparcener can sell only his undivided share. A buyer who purchases a specific parcel from a coparcener gets nothing more than a right to sue for partition. He cannot build on it, fence it, or treat it as his exclusive property until the shares are separated by a decree or by mutual agreement.

For founders and CFOs acquiring land for business purposes, the lesson is even sharper. A title search that stops at the last registered sale-deed is not enough. You must trace the chain of title back to the original owner and verify whether the property was ever part of a joint family holding. If it was, every sale of a specific parcel is suspect unless it was made by all coparceners together or pursuant to a partition decree.

The buyers in this case paid for land they could not build on. They will now have to wait for the suit to be decided — possibly years — before they know whether they own anything at all.

The bottom line: A sale during a pending suit binds the buyer to the decree, and a coparcener cannot sell a specific piece of joint family property. Check both before you buy.