Unit II — Election, Ostensible Owner, Lis Pendens, Part-Performance

“Pendente lite nihil innovetur — during litigation nothing new should be introduced; he who buys the subject of a suit buys it subject to the result.” — the maxim behind lis pendens

Election, Ostensible Owner & Fraudulent Transfer

The doctrine of election (s.35) rests on the principle that “he who takes a benefit under an instrument must also bear the burden” — a person cannot approbate and reprobate. Where a transferor purports to transfer property he does not own and, by the same instrument, confers a benefit on the true owner, the owner must elect: either confirm the transfer (and take the benefit) or reject it (and forgo the benefit, which is then used to compensate the disappointed transferee).

flowchart TD
    A["Owner is given a benefit under a deed that<br/>also transfers HIS property to another"]:::root
    A --> B["ELECT to take the benefit<br/>-> must confirm the transfer of his property"]:::yes
    A --> C["ELECT against (keep his property)<br/>-> must give up the benefit"]:::no

    classDef root fill:#FFF8DC,stroke:#333,color:#000;
    classDef yes fill:#E6FFE6,stroke:#1E7A1E,color:#000;
    classDef no fill:#FFE6E6,stroke:#8A1E1E,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Under the ostensible owner rule (s.41) — based on Ramcoomar Koondoo v. McQueen — where, with the consent (express or implied) of the real owner, a person is the ostensible owner and transfers the property for consideration, the transfer is not voidable on the ground that the transferor was not authorised, provided the transferee acted in good faith after reasonable care. Fraudulent transfer (s.53) makes a transfer of immovable property made with intent to defeat or delay creditors voidable at the option of the creditors so defeated.

Lis Pendens & Part-Performance

The doctrine of lis pendens (s.52) provides that during the pendency of a suit in which a right to immovable property is directly and specifically in question, the property cannot be transferred so as to affect the rights of any party under the eventual decree — the transferee takes subject to the decree (Bellamy v. Sabine). It binds the transferee regardless of good faith or notice, because it rests on necessity (otherwise no litigation could ever be brought to a conclusion). The doctrine of part-performance (s.53A) is a shield, not a sword: where a transferee has, under a written contract for transfer of immovable property, taken possession (or continued in possession) and done some act in furtherance of the contract, and is willing to perform his part, the transferor is estopped from enforcing any right against him inconsistent with the contract — even though the transfer was not completed by a registered deed (after the 2001 amendment, the contract must be registered to attract s.53A).

✏️ Sample Solved Problem (IRAC Method)

Problem: A sues B over a house in B’s possession; during the suit B sells the house to C, who buys for value without notice of the suit. The suit is decreed in A’s favour. Is C bound by the decree?

I — Issue

Whether a transferee who purchases property pendente lite, for value and without notice of the pending suit, is bound by the decree passed in that suit.

R — Rule

Section 52 — a transfer of immovable property made during the pendency of a suit in which a right to that property is directly and specifically in question is subject to the decree; the transferee takes exactly the position of his transferor (Bellamy v. Sabine, 1857).

A — Analysis

The seductive point is that C is a bona fide purchaser for value without notice — ordinarily a strongly protected position. But lis pendens is a deliberate exception to that protection: it binds the transferee irrespective of good faith or notice, because the doctrine rests not on notice but on the necessity of preserving the subject-matter of litigation. A’s suit concerning the house was pending, and the house was directly in question, when B sold to C. C’s title is derived from B during the suit, so when A obtained the decree, C’s title became subject to it exactly as B’s would have been. C cannot defeat A’s decreed rights by pointing to his want of notice.

C — Conclusion

C is bound by the decree in A’s favour. A’s decreed rights prevail over C’s purchase pendente lite; C takes the house subject to the result of the suit.

📄 The full bundle (₹199) has the complete Unit II — election, ostensible owner, fraudulent transfer, lis pendens and part-performance with their case law and the 2001 amendment — plus the Question Bank’s model answers to 8 solved problems (election by exhaustion, benami/ostensible owner, lis pendens, restrictive covenants). Get Notes + Question Bank — ₹199