Pre-emption: Very old legal rights.

Pre-emption is one of the oldest legal rights. The history of pre-emption is long forgotten. In Roman law there was a pre-emption. It is also widely accepted by Muslim Law. Now, The whole world accepted the pre-emption for there civil rights. Today we can call it universal rights too. In this article, I am going to give the most important Case Laws on Pre-emption and some quick review of pre-emption too.

Different Kinds of Pre-emption.

In the Indian subcontinent and Muslim world generally there are four types of Pre-emption cann be seen. Those are

i) Under Muslim Law.

ii) Under State Acquisition and Tenancy Act.

iii)Under Non Agricultural Tenancy Act

iv) Under Partition Act.

Pre-emption Under Muslim Law:

Muslim Law is very wide for accepting legal rights for every human. This law accepted pre-emption from the begging of Islam. It is now a very mature system. If you have a right you can go to the court and ask for your right. If everything is fine then you will get it. Granting this under Muslim Law there are some important matters to remember.

Who can Claim Under Muslim Law?

The following three classes of persons and no others are entitled to claim pre-emption. That information was taken from The Principle of Mohamedan Law by D.F Mulla.

i) A co-sharer in the property (Shafi-i-sharik)

ii) A participator in immunities and appendages, such as a right of way or a right to discharge water. (Shafi-i-Khalit)

iii) Owner of adjoining immovable property (Shafi-i-jar), but not their tenants, nor persons in possession of such property without any lawful title.

Under State Acquisition and Tenancy Act.:

Section 96 is the section for the Pre-emption for this Act. Any co-sharer by inheritance can apply under this section within three years from the date of registration of the sale deed.

Under Non Agricultural Tenancy Act.:

In a nutshell, non-agricultural lands can be a subject matter of pre-emption under Sec-24 of this Act.

Under Partition Act.:

Where a share of a dwelling house belonging to an undivided family has been transferred to person who is not a member of such family and such transfer sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder and may all necessary and proper direction in that behalf.

Basically this is one kind of pre-emption. This system gives the power to take back the sold portion of a dwelling house to a stranger purchaser and prevent him to enter the dwelling house.

Some Important Case Law on Pre-Emption:

1. A deed of sale cannot be converted as a deed of nadabi and the same cannot be frustrated the right of pre-emption. | 6 XP(AD) 49, 6 XP(AD) 172
2. If the share of pre-emptor separated by mutation and sub-division of the tenancy and opening new khatian in respect of mutation from original joint khatian the pre-emptor co-sharership ceased from joint tenancy and holding. The pre-emptor had no legal character and locus standi to exercise the right of pre-emption against pre-emptee. | 4 XP(AD) 194
3. Mere knowledge or proposal for transfer is not sufficient to defect the right of the pre-emptor which accrues after the sale is effected. | 4 XP 18
4. Prior to the sale of the case land, the pre-emptor purchased the land from the case jote become a co-sharer and he has absolute right or pre-emption. | 2 XP(AD) 324
5. Petitioner not entitled to pre-emption as a co-sharer by purchase since he got his purchased land mutated as separate khatian. | 1 XP 1
6. Limitation: It is true that only co-sharers by inheritance are entitled to file an application for pre-emption under section 96 of S.A. & T. Act. but co-sharers must come within the time from the date of knowledge of the transfer. | 19 MLR(AD) 263
7. An Exchange Land in not Pre-eptable: The HCD observed that it is for the court to decide not only on the documents itself, but also on all materials on record to ascertain whether a certain transaction is an exchange or out and out a sale. Considering facts and circumstances of the case, it appears to the HCD that the transaction in question is not an out and out sale but a deed of exchange and therefore, the pre-emptors are not entitled to pre-empt the case land U/S 96. | 6 ALR 248, PLD 1968(Lah) 428, 30 IC 322, 15 MLR 41, 4 LM(AD) 6
8. Sec- 96(2): The requirement as to the making of parties is undoubtedly positive. It is the duty of the pre-emptor to implied the necessary parties as I have already observed above that this requirement of law should be enforced keeping in view the provisions of Order 1 rule 9 and 10 if the pre-emptor , after getting an opportunity, fails to amend his application by impleading the necessary parties as pointed out by the pre-emptee, and on evidence of it is found that the application suffers from the defect of parties, in that event the application cannot succeed and must be dismissed. | 33 DLR(AD) 13, 43 DLR(AD) 82, 2 BLC(AD) 134, 60 DLR 353
9. When it is proved by any evidence that pre-emptee opposite party spent an amount of taka 85,00/= for digging a pond, constructing several huts and also a boundary fencing in the case land in that case pre-emptee is entitled to get the improvement cost. | 19 MLR(AD) 203
10. A sale in pursuance of a decree for the specific performance of the contract is pre-emptable. | 32 DLR(AD) 183
11. Sec.-24 of N.A.T. Act. and Sec.-96 of S.A. & T. Act are different …….. . | 33 DLR(AD) 323
12. When the pre-emption case was filed, kabala was not registered- it was however registered when the case came up in the appeal, at the appellate stage. But at that stage the kabala was registered, the defect about the document not being registered was cured- case remand to the lower court. | 34 DLR(AD) 220, 34 DLR 264, 34 DLR 402
13. The question of benami transfer cannot be decided in proceeding U/S 96. | 35 DLR(AD) 334
14. A decree in a partition suit does not rebuild in splitting up the land which can be done U/S 117 of S.A. & T. Act. Therefore, the right of pre-emption not extinguished by partition decree. | 35 DLR(AD) 230
15. A decree in a collusive decree conveying the land back to the vendor – No automatic right of pre-emption. | 35 DLR(AD) 225, 35 DLR 222
16. With land being transferred to the vendor, there is no sale and no cause for pre-emption would arise. | 37 DLR 324
17. Separation of jama and separation of holding or sub-division of holding is not the same thing, holder of separation of jama can right to pre-emption. | 7 XP(AD) 66
18. Sec.-96(3): When admittedly the preemptor did not deposit in the value of exchange deed which they claim to be sail deed and the statutory compensation thereon, the pre-emption application was not at all maintainable and the case was liable to be dismissed in view of the provision of the section. | 6 LNJ(AD) 130
19. Sec.-115 of Evidence Act with sec.-96 of S.A. & T. Act: Right of Pre-emption which is a statutory right cannot be given up or taken away of waived be a mere allegation that the pre-emptor was present in the sub-register’s office at the time of execution and registration of the deed in question. | 44 DLR(AD) 62, 52 DLR 289
20. The pre-emption right does not exist before and so it is not enforceable before the sale. | 60 DLR(AD) 73, 4 CLR(AD) 449
21. Pre-emption cannot be refused on the ground on that a sub-tenancy has been recorded in S.A Khatian when the document mentions the land by C.S Khatian and C.S. plots. | 3 BLD(AD) 105, 2 BCR(AD) 431
22. The pre-emption not at all required to file a separate suit for the declaration that the deed in question was not an ewaj deed, but was an out and out sale deed, as the question could very well be raised and ……. . The suit was filed on the misconception of law by the Bar at the woe of pre-emption. | 23 BLC(AD) 123
23. The prayer for pre-emption of the original pre-emptor and the co-pre-emptor of the case land is allowed in equal share. The original pre-emptor shall be entitled to withdraw the money deposited by him in excess of his proportion. | 3 LM(AD) 266
24. Application U/S-96 of the Act. can be rejected on the ground of long lapse of time, if the statutory period of limitation, making the statutory deposit and impleading all the necessary parties and of course subject to the fulfillment of other requirements of the law as regards the right of pre-emption of the pre-emptor…… . | 3 LM(AD) 466
25. Sec.-96(1) with sec.-89(4): The language of sec.- 89(4)and sec.-96(1) of the Act. is explicit that notice is to be served on co-sharer(s) of the holding on the date of presentation of the deed for registration and only such co-sharer(s) is competent to seek the pre-emption. | 23 BLT(AD) 111
26. Sec.96(10)(c) with T.P. Act. sec.-54: Whether a kabala deed executed for the purpose of discharging the obligation of payment of dower-debt is pre-emptable. | 23 BLT(AD) 111
27. The year of the deed co-sharers as admitted by the pre-emptor, having not been made parties in that case, remand order cannot made from HCD for remand of the case to the appellate court below for scrutiny of the question of defect of parties. | 1 ADC 134
28. Sec.-96 with N.A.T. Act sec.-177(1)(c): The application so filed seeking pre-emption was quite maintainable since the same was filed within the time prescribed by law and there was a deposit of amount mentioned in the kabala as well as the statutory compensation or other words deposits that were made in seeking pre-emption was not short of the amount that was required to be deposited for the purpose of paintability of the petition and the same was not bad for defect of parties. | 1 ADC 247
29. Sec.-96 with C.P.C. order-7 rule-11: To defeat the pre-emption… when the nature of transaction becomes doubtful on the specific allegation for the interest of justice matter is required to be tested by adducing evidence…. . | 1 ADC 254
30. As a matter of fact, some of the S.A. recorder tenant as appeared from the khatian filed in this case have been omitted. In view of legal position, the application for the pre-emption was not legally maintainable for non-impleading necessary parties in the pre-emption preceding. | 2 ADC 558
31. Sec.-96 with Evidence Act. sec.-91 and 92: In this case, the contest is between the pre-emptor and the pre-emptee as to whether the kabala in question was a sale or an ewaz. The pre-emptor was not a party to the document. She is perfectly at liberty to question the nature of the transaction and the pre-emption cannot has full jurisdiction to entertain the pre-emptee’s challenge. | 2 ADC 838
32. Agricultural land along with non-agricultural land situated in rural area outside municipal area, pre-emption applicable U/S-96 of the S.A. & T. Act., as beside land situated within municipal area nature of agricultural land under Non-Agricultural Tenancy Act. principle sec.- 24 of NAT Act. non-maintainable in a rural areas outside the municipal area. | 4 XP(AD) 117, 16 MLR(AD) 1
33. The character of the land which are within the urban or municipal area is determined keeping in view the purpose for which such land is likely to be used. The homestead and the adjuncts thereto of an agricultural raiyat in the rural area can hereby be considered no-agricultural land in the absence of establishing that said land was taken settlement for non-agricultural purposes. | 26 BLD(AD) 53, 26 BLD(AD) 63
34. In a suit for pre-emption under Muslim law, the plaintiff to prove that he immediately demands of jumping the ceremony of talab-e-mowasibat and immediately on coming to know the sale and also talab-e-ishad in presence of witnesses. | 7 XP 58
35. In a pre-emption, the issue arises where the vendor is a Muslim and the purchaser is a Hindu, Law of pre-emption is not applicable under Mohammadan law. | 7 XP 198
36. Sec.-96 with Mullah Mohamedan Law Art.-236: Whether Mohamedan Law is applicable against non-Muslim particularly against Hindu for pre-emption. | 23 BLT(HCD) 173
37. At the time of selling land. if the land is admitted as Agricultural land then there is no bar U/S-6 of this ordinance to allowing the pre-emption U/S-96 of the S.A. & T. Act. | 5 XP(AD) 188

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