INTRODUCTION
The technical Arabic term for its Anglo-Mohammedan equivalent “pre-emption” is “SHUFAA”, which literally means “adding” or “preference”. Pre-emption is village communities in British India and its origin in the Mohammedan Law as to pre-emption and was apparently unknown in India before the time of the Mughal rulers.
In the course of time, customs of pre-emption grew up or were adopted among village communities. The right of pre-emption arises on the purchase of property by one person before an opportunity is offered to others. This right arises only on a complete sale. The rights of pre-emption do not arise out of gift sadaqah, waqf, inheritance bequest, or a lease.
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 immoveable property in preference to other persons by reason of such right”
FEATURES OF RIGHT OF PRE-EMPTION
Following are the features of the right of pre-emption.
A Weak Right:
As well as property is concerned the right of pre-emption is a weak right comparing it with other rights.
Personal Right:
The right of pre-emption is a personal right and it cannot be transferred to other persons The night of pre-emption can not be claimed on behalf of another person if the property is sold by one.
Substantive Right:
If there is a property of which there are two joint owners owner without the consent of the other, then in such a situation the other owner has both the substantive and remedial rights He has the remedial right because he was the joint owner He also has the substantive right because there is apprehension of harm to be caused by the new owner to him. Such a new owner may also cause obstacles in the enjoyment of his rights.
Substitutive Right:
The pre-emption is not a right of a re-purchase rather it is a night of substitution.
Pre-emptor to take whole Bargain:
A pre-emptor is not entitled to claim a part of the property where the whole property is being sold He will have to purchase the whole of the property.
Preferential Right:
A person whose property is attached to the property to be sold has the preference of the stranger purchaser of the property.
WHEN DOES THE RIGHT OF PRE-EMPTION ARISE?
Right of pre-emption arises only out of a sale which is:
- Complete
- Bonafide
- Valid
According to Section 5 of the Punjab Pre-Emption Act 1991:
The right of pre-emption accrues on the sale of immovable property only.
Definition of Sale
According to Section 2(d) of the Punjab Pre-emption Act, 1991.
The sale means the permanent transfer of the ownership of immovable property in exchange for valuable consideration and includes the transfer of immovable property by way of Hiba-bil-iwz or Hiba ba Shart-ul-iwaz, but does not include;
- Transfer of immovable property through inheritance or will or gift, other than Hiba-bil-iwaz or Hiba ba Shart-ul-lwaz.
- A sale with the exception of a decree for money or if any order of a civil, criminal revenue or any other Court or a revenue officer or any local authority.
- Exchange of the agricultural land
- Transfer of immovable property for a consideration other than valuable consideration, such as the transfer of immovable property by way of dower of composition in a murder or hurt case.
Exchange:
The right of pre-emption arises only on sale or barter that is exchange of property for property, it does not arise either on a transfer without consideration or on a transfer by operation of law.
KINDS OF PROPERTY
Under the Punjab Pre-emption Act, 1991 following are three kinds of property on which the right of pre-emption can be claimed:
- Agricultural land
- Village immovable property
- Urban immovable property
RESTRICTION ON THE RIGHT OF PRE-EMPTION
If a pre-emptor enters into a compromise with the vendee then in such a situation he can not pre-empt. If a person claiming joins hands with a person who does not have any right then he can not exercise the right of pre-emption.
WHEN THE RIGHT OF PRE-EMPTION IS LOST
By Death:
The right of pre-emption comes to an end if the pre-emptor dies after the first two demands, But before filling a suit. The night comes to an end if death occurs during the pendency of a suit and the action can not be continued by his legal representatives
By Release:
The right may be lost if there is a release for consideration to be paid to the pre-emptor The night however, is not lost if there has been a refusal on the part of the pre-emptor to buy before the actual sale, not by an unwillingness to make an offer to purchase the property after notice that the property was for sale
By Acquiescence:
if a person sells land to another person, then the person who has a right of pre-emption, on receiving the information of the sale omits, without sufficient cause, to claim his right immediately or makes an offer of the house to the person to whom the land is sold or agrees to cultivate the land with him. In each above case, the pre-emptor will be considered, to have acquiesced in the sale and to have lost his right of pre-emption.
PROCEDURE FOR FILING SUIT FOR PRE-EMPTION
1. Talab-i-Muwathbat
Made by pre-emptor place, specific date, and time in the presence of 2 truthful witnesses
- On absolute sale
- Jumping demand/same meeting
- Deceleration about his pre-emption
2. Talab-I-Ishhad
- Written notice in the presence of two truthful witnesses
- Within two weeks after the first demand was made Place, the date, and the time
- Registered cover acknowledgment due
- To Vendee confirming the intention about his right Privso where no post office facilities in the presence two truthful witnesses be delivered
3. Talab-I-Khusumat
Institution of the suit in the court of competent jurisdiction
- Both Talb (Muwathbat. Ishhad) mutest be satisfied
- Institute suit within the limitation prescribed under section 30 of the Act within 4 months after the sale is complete.
CONCLUSION
It is concluded that the right of pre-emption is not a right to the thing sold but a night to the offer of a thing about to be sold. This right is called the primary right. The pre-emptor has a secondary right to follow the thing sold. It is a right of substitution and not of re-purchase.
The right of pre-emption is a preferential right of a person already present in the locality. The person who has such a right is called Shafi. The right of pre-emption arises only in case of the complete sale of immovable property.
FAQs
Discuss the properties in respect of which the right of Pre-Emption can and cannot be exercised.
(2019-S, 2018-8)
Who are the persons entitled to file a suit for pre-emption? What formalities are to be fulfilled by a pre-emptor for filing a suit for pre-emption?
(2017-A
Discuss in detail the procedure for filing suit for pre-emption.
(2016-S)
Write a note on persons in whom the right of pre-emption vests.
