Lakshmi V.p v. State Of Kerala

Dama Seshadri Naidu, J.Lakshmi, V. P., the petitioner, a Schedule Tribe woman, asserts that she owns Ac.1-46 cents in Pudur Village, Attappadi, Mannarkad Taluk. To sell the property, she applied to the District Collector, Palakkad, for leave under Section 4 of the Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 (" the"). The District Collector through Ext.P6 refused permission for the following reasons:

There is a criminal case CMP No.3732 of 2012-filed by Lakshmis siblings, respondents 5 to 9, before the Judicial First Class Magistrate, Mannarkad; Lakshmi herself filed O.S. No. 30 of 2011 against the same siblings before the Munsiff Court, Mannarkkad, for a permanent injunction. Aggrieved, the petitioner has filed this writ petition.

2. Heard Sri U.Balagangadharan, the learned counsel for the petitioner, Sri Sreehari, the learned counsel for the contesting respondents 5 to 9, and Smt. A. C. Vidhya the learned Government Pleader.

3. Indeed, there are disputes about the property involving the members of the same family: Lakshmi on one hand and her siblings - brothers and sisters-on the other. A criminal case by the siblings and a suit for injunction by Lakshmi are pending. The allegation in the criminal case is that Lakshmi forged the sale deed. On the other hand, Lakshmi claimed a perpetual prohibitory injunction against her brothers and sisters in O.S.No.30 of 2011. She has obtained an ad interim injunction, too.

4. Neither of these cases directly impinges on Lakshmis title to the property. True, a crime is pending against Lakshmi that she had forged the sale deed. But the learned Judicial First Class Magistrate could not be deciding on the title in CMP No.3732 of 2012, which, at best, concerns an alleged criminal act of forgery. Without prejudice to the claims of either party to the dispute, If I were to assume that the forensic findings would adversely affect Lakshmi, what would follow Still, the rival claimants, need positive declaration from a competent civil court. The forensic findings could be a spring board, though. The other case, the suit, is at the behest of Lakshmi herself.

5. This Court in Ajith Kumar v. State of Kerala, Judgment, dated 06.11.2015, in WP(C) No. 29422 of 2015 per me, observed thus: It is axiomatic that the sale of immovable property is governed by the relevant statutes, such as the Transfer of Property Act. The encumbrance is an ascertainable aspect of title verification by the prospective purchaser, say, under the Registration Act. Ajith Kumar has also held that the enjoyment of property signifies a bundle of rights, of which vital is the right to alienate. The courts have repeatedly declared that the right to property is not only a constitutional right, but also a human right, the interdiction of which requires statutory sanction as is manifest in Article 300-A of the Constitution of India.

6. True, a person could, either temporarily or on permanent basis, be restrained from alienating property under a valid judicial directive. Mere pendency of any litigation of whatever nature does not ipso facto affect a perons right to alienate. As mandated under section 52 of the Transfer of Property Act, a sale, pending any litigation, at best amounts to a lis pendence sale. A sale pendente lite cannot give to the purchaser a cleaner, better title than what the seller has. And the purchasers right to the property is always subject to the outcome in the pending litigation. Nor can he take the plea of a bona fide purchaser even when he did not know of the pending litigation. Caveat emptor-buyer beware-holds the field. As the contesting respondents interest having already been taken care of by Section 52 of the Transfer of Property Act, I see no hurdle for Lakshmi to sell the property, of course, the sale being subject to the outcome of the pending litigation.

7. In these circumstances, the District Collectors refusal to permit Lakshmi under Section 4 of theto sell the property cannot be countenanced.

8. I, therefore, set aside Ext.P6. Further, I clarify that it is open for the petitioner to alienate the property, but it will not affect the contesting respondents rights over their property, if any. And the sale, needless to observe, shall be subject to the pending litigation.