INTRODUCTION
Under the Punjab Pre-emption Act 1991, the right of pre-emption can be acquired by demand from a person who has the right of pre-emption. Section 13 of this Act clearly says that the night of pre-emption is extinguished if no demand out of the three demands is made.
RELEVANT PROVISIONS
Section 13 Punjab Pre-emption Act, 1991.
DEFINITION OF PRE-EMPTION
According to Section 2(3) of the Punjab Pre-emption Act, 1991:
“Right of pre-emption means a right to acquire by purchase an immovable property in preference to other persons by reason of such right.”
DEMAND OF PRE-EMPTION
There are certain requirements or conditions which are to be performed by the pre-emptor to enable him to claim the right of pre-emption. No person is entitled to claim unless such person makes demands of pre-emption.
FORMS OF DEMAND
As far as the form of demand is concerned there is no particular form of demand for claiming the right of pre-emption. Only a clear intention to pre-empt either by way of words or from surrounding circumstances must be gathered.
PERSON ENTITLED TO MAKE DEMANDS
Following are persons who are entitled to make a demand
(1) Pre-emptor himself
(2) Pre-emptor can make a demand through his authorized agent
(3) The manager of a court of wards
(4) Legal or defector guardian in case of a minor
REQUIREMENTS TO DEMAND A RIGHT OF PRE-EMPTION
Section 13 of the Punjab Pre-emption Act, 1991 clearly says that the right of pre-emption is extinguished if no demand is made namely;
(a) Talab-i-Muwathbat
(b) Talab-i-Ishhad
(c) Talab-i-Khusumat
(a) TALAB-I-MUWATHBAT
MEANING:
Talab-i-Muwathbat means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise a right of pre-emption.
CONDITIONS:
- It must be made on the completion of the sale.
- It must be made on knowing of the sale.
- It should be made in the same meeting in which the sale is known
NUMBER OF WITNESSES:
There must be two witnesses for Talab-i-Muwathbat
ESSENTIALS:
Time for asserting claim: The pre-emptor must assert his claim immediately on hearing of the sale but not before the sale.
Whether witnesses are required or not: Witnesses are not necessary as in the second demand not in any particular form essential. It is enough if one says. “I have demanded or do demand pre-emption”
Enforcement of formality: The courts enforce this formality strictly and any unreasonable delay will be construed as an election not to pre-empt. A delay of twelve hours was in one case considered too long The right of pre-emption can be denied to a man who, on hearing of a sale, entered his house, opened his wallet, showed a sum of money, and demanded.
The principle: The principle is that the law requires extreme promptness and any laxity will be fatal to the pre-emptor’s claim.
Necessity of performance of certain ceremony: According to Mohammedan Law the right of pre-emption should be made in the performance of certain ceremonies prescribed by that law. This demand should be made immediately after the hearing of the sale and any laxity will be fatal to the pre-emptor’s claim
(b) TALAB-I-ISHHAD
MEANING:
Talab-i-Ishhad means demand by establishing evidence. It is the second demand.
TIME FOR MAKING:
The pre-emptor must with the least practicable delay, make a second demand.
REFERENCE TO FIRST DEMAND:
The pre-emptor must refer to his first demand.
PRESENCE OF WITNESSES:
A condition of talab-i-Ishhad is that such demand should be made in the presence of two witnesses.
PRESENCE OF VENDER:
Such demand may be made in the presence of either the vendor or the purchaser, or on the premises.
FORM OF DEMAND:
A common form of the demand is, the pre-emptor may say, “Such a person has bought such a house of which I am the pre-emptor I have already claimed the privilege of pre-emption. And now I again claim it.”
PRICE:
Offer of the price is not essential, provided that the offers to pay the agreed price, and it that price appears to be fictitious then such price as the court fixes.
COMBINATION OF TWO DEMANDS:
Sometimes the first two demands may be combined. If, at the time of the making of the first demand the pre-emptor has the possibility of getting the witnesses in the presence of the vendor or purchaser to refer to the first demand, the requirement of both demands is satisfied. This is possible only when the first two demands can be combined lawfully.
NOTICE:
Where a pre-emptor has made tala-i-muwathibat under sub-section (II), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talab-i- ishhad by sending a notice.
INGREDIENTS OF NOTICE:
The following are the ingredients of the notice.
1. Presence of witnesses: The notice must be attested by the two truthful witnesses who should be present at the time of the demand.
2. Reference to first demand: The first demand should be reiterated.
3. Time limitation: Such demand shall be as soon thereafter as possible but not later than two weeks (14 days) from the date of knowledge
4. Address where notice is to be sent: Such demand should be addressed at the accurate address under registered cover acknowledgment due.
(c) TALAB-I-KHUSUMAT:
MEANING:
Talab-i-Khusumat means demand by filing a suit. It is the third demand which consists of the institution of the suit of pre-emption.
CONDITIONS:
- A suit must be filed in the competent Court.
- It should be made within 120 days of Talb-i-Muwathibat.
NATURE OF THIRD DEMAND:
The demand is not really a demand but taking legal action. This demand is not always necessary.
TIME FOR EXERCISING THIRD DEMAND:
This demand is exercised when the claim of the pre-emptor is not conceded. In such a situation, the pre-emptor brings a suit for the enforcement of his right
TIME LIMIT FOR SUIT:
If the suit is corporeal, it must be brought within 120 days of the purchaser taking possession of the property. However, if the suit is incorporeal, it must be brought within 120 days of the registration of the instrument of sale.
In a suit or claim for pre-emption, the whole of interests must be claimed a claim to a part of the estate sold is not sufficient a transfer of property after the proper demands does not affect the right of the pre-emptor.
THE RIGHT OF PRE-EMPTION SHOULD NOT BE DEMANDED
In the following cases, the right of pre-emption should not be demanded.
- Where necessary demands have not been made
- Where pre-emption has joined in the suit as plaintiff a person who has no right of pre-emption
- Where the pre-emption though entitled to pre-empt the whole, sue only for the share in the property
- Where the transfer is not a complete sale
- Where the vendee has the superior right of pre-emption
CONCLUSION
It is concluded that a pre-emptor has to claim three demands. The first demand should be made immediately and after that, there is a second demand which should be made within two weeks from the date of the knowledge. The third demand is legal action.
Section 13 of the Punjab Preemption Act 1991 clearly says that the right of pre-emption is extinguished if no demand is made.
FAQs
Time is considered to be the essence of the right of pre-emption. Discuss this statement in the light of various Talabs (Demands) to be made by the pre-emptor.
(2019-A, 2018-A, 2014-S)
Highlight the importance and procedure of demands in a suit for pre-emption. In what sequence demands are to be made and what is the importance of time within which such demands are to be made.
(2017-S)
Discuss the law relating to demands (Talbs) under the provisions of the Punjab Pre-emption Act, 1991.
(2016-A)
Elaborate on the law relating to the making of ‘Talbs’ (Demands) for exercising the right of pre-emption. What procedure shall adopted in case a person is unable to make the ‘Talbs’ (demands)?
(2015-A)
What is the right of Pre-emption? Discuss the procedure of making ‘demands’ for exercising the right of Pre-emption.
(2011-S)
Write a comprehensive note on the various ‘Talabs’, (Demands), their importance, and timings for establishing the right of Pre-emption.
(2011-A)
