Saturday, 14 October 2017

Whether doctrine of lis pendens is applicable to muslim law?

A preliminary objection has been raised on behalf of the respondents as to
very applicability of doctrine of lis pendens to Mohammedan law based upon
provisions contained in section 2 of T.P. Act. Section 2 is extracted hereunder :
“2. Repeal of Acts.--Saving of certain enactments, incidents,
rights, liabilities, etc. --- In the territories to which this Act extends
for the time being the enactments specified in the Schedule hereto
annexed shall be repealed to the extent therein mentioned. But nothing
herein contained shall be deemed to affect---
(a) the provisions of any enactment not hereby expressly
(b) any terms or incidents of any contract or constitution of
property which are consistent with the provisions of this Act,
and are allowed by the law for the time being in force;
(c) any right or liability arising out of a legal relation
constituted before this Act comes into force, or any relief in
respect of any such right or liability; or
(d) save as provided by section 57 and Chapter IV of this Act,
any transfer by operation of law or by, or in execution of, a
decree or order of a Court of competent jurisdiction,
and nothing in the second Chapter of this Act shall be deemed to
affect any rule of Muhammadan law.”
No doubt about it that section 2 of T.P. Act protects rule of Mohammedan
law by excluding the provisions of Chapter II containing sections 5 to 53A thereof.
In our opinion, exclusion is conditional upon existence of rule of Mohammedan
law in that regard, that is to say if principle/rule of Mohammedan law provides as
to transfers lis pendens, the same would prevail and nothing in section 52 of T.P.
Act shall be deemed to affect any such rule. However, we have not been shown any
such rule of Mohammedan law containing provision as to lis pendens and thus, in
the absence whereof the provisions of section 52 T.P. Act would be attracted. The
submission as to non-applicability of section 52 of T.P. Act to Mohammedan law
is hereby rejected.  {Para 24 }
CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr.Vs. B. Chinna Narasimha & Ors. etc.

[Civil Appeal Nos.4733 of 2010, 4734-35 of 2010, 4736 of 2010,]
Citation:(2017) 7 SCC 342
Read full judgment here: Click here
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