Right To Alienate Property Unaffected By Pending Litigation: Kerala HC [Read Judgment]

The Kerala High Court, in the case of Lakshmi vs State of Kerala and Ors, has held that mere pendency of litigation does not ispo facto affect the person’s right to alienate the property. The court relied on Section 52 of the Transfer of Property Act to hold that a sale which takes place in the face of a pending litigation would at its best amount to a lis pendens sale.

Justice Dama Sheshadri Naidu noted that in such a case, the sale would give the purchaser a title which the seller has at that point of time and the purchaser’s right to property would be subject to the outcome of the litigation.

The court further noted that in such transactions, the maxim caveat emptor holds the field and Section 52 of the Transfer of Property Act protects the interests of the buyer in such situations.

The court also reiterated the principle that the right to alienate the property is a vital right attached to the enjoyment of the property.

Further, a holistic interpretation of Article 300-A of the Constitution of India would indicate that the right to property, in addition to being a constitutional right, is also a human right.

In this case, Lakshmi contented that she had a valid title over the disputed property and applied to the district collector to sell the property in accordance with the provisions of Section 4 of the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999. However, the permission to sell the land was not granted by the collector since her siblings had filed a criminal case against her, alleging that she had forged the sale deed.

Read the Judgment here.