INTRODUCTION
The technical Arabic term for its Anglo-Mohammedan equivalent “pre-emption is SHUFAA which literally means “adding” or “preference”. The persons entitled to claim or exercise the right of pre-emption are mentioned under the Punjab Preemption Act 1991. However, every person has no right to pre-emption. This right arises only on a complete sale.
RELEVANT PROVISIONS
Section 6 Punjab Pre-emption Act, 1991.
Cross-reference: Order XX of It CPC, 1908
DEFINITION OF PRE-EMPTION
According to Section 2(c) of the Punjab Pre-emption Act, 1991:
Right of pre-emption means a right to acquire by purchase an immovable property preference to other persons by reason of such right”.
PURPOSES OF PRE-EMPTION
Following are the main objects/purposes of the pre-emption.
Preservative of values:
The object/purpose of the pre-emption is the maintenance and the uplift of the existing values in a particular area.
Maintenance of society:
Another object of pre-emption is the maintenance of the decorum of society.
Protection of privacy:
Another important purpose of the night of pre-emption is the protection of the privacy of the area the strangers may harm the privacy of society.
The integrity of villages:
For the integrity of the village, it is necessary that outsiders should not be allowed to enter the village permanently Hence for the preservation of the villages, the village communities exercise the right of pre-emption.
Discouragement to Strangers:
The other main object/purpose of the night of pre-emption is to discourage strangers to purchase the property as it is likely to create disturbance in the area
Respect for the neighborhood:
The right of pre-emption aims at respect for the neighborhood
PERSONS ENTITLED TO CLAIM RIGHT OF PRE-EMPTION
Following are three classes of categories of persons who are entitled to claim/exercise the right of pre-emption.
(a) Shafi-Shank
(b) Shafi-Khalit
(c) Shafi-Jar
1. SHAFI-SHARIK
Shafi Shark means a person who is a co-owner in the corpus of the undivided moveable property sold. Shafi Sharik is a pre-emptor by right of coparcenary (Joint share Holder).
Example: Akbar and Babar are co-owners of certain properties. Akbar without notice to Babar sells the property to Ali. Babar can file a suit of pre-emption for the said land under the law of pre-emption.
Example: Zahid and Nadeem are co-owners of a certain plaza. Zahid sells the upper floor of the plaza to Khalid without notice to Nadeem. Nadeem can file a suit of pre-emption for the said floor under the law of pre-emption.
2. SHAFI-KHALIT
Shafi Khalit means a participator in a special right attached to the immovable property sold such as the right of passage, right of passage of water, or right of irrigation.
Conditions:
There should be no Shafi Sharik.
If Shafi Shark has waived his right.
Example: Munir and Nadir are co-owners of certain properties having a common source of water. Munir transfers the property to Asghar without notice to Nadir. Nadir can file a suit of pre-emption to get the property on payment of the sale price through a court of law.
Example: Aftab and Barkat are co-owners of a property having a common passage. Aftab transfers the property to Mumtaz without notice to Barkat. Barkat can file a suit of pre-emption to get the property on payment of the sale price.
3. SHAFI-JAR
Shafi Jar means a person who has a night of pre-emption because of owing an immoveable property adjacent to the immoveable property sold
When Shafi Jar can claim the right of Pre-emption?
Where there are no Shafi Sharik and Shafi Khalit.
If they are present, they have waived their right.
Example: Amir and Bashir have common boundaries in a certain property and sell the same to an outsider Kashif without notice to Bashir, Bashir can file a suit of pre-emption to get the said land on payment of the sale price.
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.
EXERCISE OF RIGHT OF PRE-EMPTION
The right of pre-emption can only be exercised in the case of Zaroorat or to avoid Zarar.
WHEN MORE PERSONS ARE EQUALLY ENTITLED
Where more than one person is entitled to the right of pre-emption, the property shall be distributed among them in equal shares.
Explanation: A has a one-half share in a house, B has one-third and C has a one-sixth share in such a house. If A sells his one-half share, the other two co-shares, namely B and C shall have equal right of pre-emption in one-half of the house and his one-half shall be distributed between B and C in equal shares and not according to their respective shares in the house.
DEATH OF PRE-EMPTOR
In case of the death of the pre-emptor after he had made any of the demands, the right of pre-emption would stand transferred to his heir.
LIMITATION ON THE RIGHT OF PRE-EMTION
Section 13 of the Punjab Pre-emption Act, 1991 clearly says that the right of pre-emption is extinguished if no demand is made.
CONCLUSION
It is concluded that under Punjab Pre-emption Act, 1991 Shafi Shari, Shafi Khalit, and Shafi Jar can claim the right of pre-emption. It can only be acquired if the requirements of section 13 are fulfilled. This right can also be lost if no demand is made by Pre-emptor described under section 13.
FAQs
Discuss the persons who are entitled to claim the right of pre-emption under the provisions of the Punjab Pre-emption Act, 1991. Also, discuss the provision which requires the plaintiff to deposit the sale price of the property.
(2015-S)
Discuss the properties in respect of which the right of pre-emption can and cannot be exercised.
(2014-A)
Discuss the procedure prescribed for exercising the right of Pre-emption.
(2013-S)
Define the term right of pre-emption. Discuss the persons who are entitled to exercise such right.
(2013-A, 2012-S)
What is the object of the right of pre-emption? Discuss the persons who are entitled to exercise the right of Pre-emption.
(2011-A)
