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PRE-EMPTION LAW
1. RIGHT OF PRE-EMPTION:
The technical Arabic term for its Anglo-Mohammedan equivalent “pre-emption” is “SHUFAA”, which literally means “adding” or “preference”
According to Section (2)(c) of the Punjab Pre-emption Act, 1991, the right of pre-emption means a right to acquire by purchase of immovable property in preference to other persons by reason of such right.
According to Justice Mehmood, the right of pre-emption is not a right of purchase either from the vendor or vendee involving any new contract of sale but is simply a right of substitution entitling the pre-emptor by reason of a legal incident, to which the sale itself was subject to stand in the shows of vendee, embracing all rights and obligations for sale in question.
DEFINITION: the right of pre-emption is a preferential right of a person already present in a locality in either manner like:
a. Shafi Shareek
b. Shafi Khaleet
c. Shafi Jar
It is substitution of an owner to another by paying the market price of the property t the previous owner. Hence, it is said that it is not a sale but substitution of ownership.
INGREDIENTS: The following are the ingredients:
a. It is primary or antecedent and secondary or remedial right
b. It is a right of substitution and not of re-purchase
c. It is a very weak right
d. It is a personal right
e. the Pre-emption must take the whole bargain
f. It is preferential right
For Example: Anwar and Babar are co-wner of a certain property. Anwar without notice to Babar sells property to Khurshid. Babar can file a suit of pre-emption for the said land under law of pre-emption.
Saeed and Jamil have common boundaries in certain property. Sajid sells the property to an outsider Kalim without notice to Jamil. Jamil can file a suit of pre-emption to get the said land on payment of price.
OBJECT:
a. PROTECT PRIVACY: the primary object of right of pre-emption is to protect the privacy of a specified area or locality.
b. DISCOURAGE THE STRANGERS: The discourage the strangers to enter into a specified area.
CASE:
In case titled “Saeeduddin Ahmad Vs. Yusaf Wali” , the could held that the object of pre-emption law is to prevent possible vexation arising from a disagreeable neighbour.
c. PREVENT THE INTRODUCTION OF STRANGER: Pre-emption aims to prevent the introduction of a stranger among the c0-sharers and neighbours likely to cause inconvenience or vexation.
d. MAINTENANCE OF SANCTITY: The object is to maintain the sanctity and piousness in a specified area.
CASE:
In case titled “Allah Bux Vs. Jano”, the court held that where no law of pre-emption is applicable to an area, Muslim law of pre-emption would apply to Muslim inhabitants of the area for maintenance of their sanctity.
e. RESPECT NATIVE FEELING: It aims is to preserve respect to native feelings as regards caste exclusiveness, the seclusion of family life and so forth.
f. PRESERVING PREVAILING VALUES AND ATMOSPHERE: It aims to maintain and uplift the prevailing values and atmosphere of a specified area.
CASE:
In case titled “Hussain Ilahi Vs. Ch. Hanif” the court held that the law of pre-emption does not aim to spoil the atmosphere of a particular area.
g. PRESERVING INTEGRITY OF VILLAGES: the paramount object of pre-emption in village communities is the preservation of integrity of a village.
h. ADVANTAGEOUS POSITION TO PRE-EMPTORS: It aims to give an advantageous position to the person already present in a specified area to uplift their financial status.
i. PRESERVATION OF COMPACTNESS: the right of pre-emption aims to protect the compactness of village communities and through its agency the total disintegration of community checked.
CONCLUSION: the right of pre-emption is a right to acquire agricultural land or village or urban immovable property in preference to other persons. It is a statutory right and cannot be claimed unless a distinct right is given by act.
2. WHO HAVE RIGHT OF PRE-EMPTION:
Persons entitled to Right of Pre-emption: According to Section 6 of the Punjab Pre-emption Act, 1991, following are the persons in whom the right of pre-emption vests:
a. Firstly, in Shafi Sharik
b. Secondly, in Shafi Khalit
c. thirdly, in Shafi Jar
a. SHAFI SHARIK: Shafi Sharik means a person who is a co-owner in the corpus of the undivided immovable property sold, i.e, a co-sharer in property.
For Example: Akbar and Babar are co-owners of certain property. Akbar without notice to Babar sells property to Kabi. Babar can file a suit of pre-emption for the said land under law of pre-emption.
Zahid and Nadeem are co-owners of a certain plaza. Zahid sells the upper floor of plaza to Kabir without notice to Nadeem. Nadeem can file a suit of pre-emption for the said floor under law of pre-emption.
CASE:
In case titled” Atif Ali Vs. Haji Yar Mohammad”, the court held that the defendant was liable to pay damages as he sold the property which was jointly owned by him and the plaintiff.
In another case titled “Allah Bux Vs. Jano”, the court held that the object underlying pre-emption law is a right which vests in pre-emption by reason of ownership of property and it exists prior to the date of sale although it can be enforced only after sale has taken place.
b. SHAFI KHALIT: Shafi Khalit means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.
FOR EXAMPLE: Munir and Nadir are co-owners of certain property having 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 sale price through court of law.
Aftab and Barkat are co-owners of property having 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 sale price.
CASE:
In the case titled “Ch. Akram Mehmood Vs. Saeed Ali” the court held that Saeed was entitled to the property after payment of sale price as they had a common source of irrigation.
In another case titled “ Sakina Bibi Vs. dilawar cheema”, the court held that the plaintiff succeeded in the suit of pre-emption as he had a common passage with that of defendant.
c. SHAFI JAR: Shafi Jar means a person who has a right of pre-emption because of owing an immovable property adjacent to the immovable property sold.
FOR 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 sale price.
CASE:
In case titled “Amin Daultana Vs Qayyum Haider”, the court held that as both plaintiff and defendant had common boundaries regarding the property hence defendant had no right to sell the property to a third party.
EXERCISE OF RIGHT OF PRE-EMPTION: The right of pre-emption can only be exercised in case of zaroorat or to avoid zarar.
According to Section 7, priorities in the right of pre-emption, where there are more than one participators in the special rights attached to immovable property sold, the person having a special right shall have a precedence over a person having a general right.
FOR EXAMPLE: A garden is irrigated by a water course which opens from a small canal. If this garden is sold, the person having right of irrigation from the water course shall have precedence over a person having right of irrigation from the canal.
CASE:
In case titled “Shahzad Bajwa Vs. Arif Cheema”. The court held where one pre-emptor has a right of passage and other has a right of passage of water regarding immovable property sold, the person having right of passage shall have precedence over person having right of passage of water.
EQUAL ENTITLEMENT: According to Section 9, where more than one persons are equally entitled to the right of pre-emption, the property shall be distributed among them in equal shares.
JOINT RIGHT OF PRE-EMPTION: According to Section 8, where a right of pre-emption vests in a group of persons, the right may be exercised by all members jointly.
CONCLUSION: Under the law of pre-emption, the right of pre-emption can only be exercised by a co-sharer/co-owner in immovable property, a person who has special rights attached to property sold and a person who has right of pre-emption because of owning property adjacent to immovable property sold.
3. ZAR-E-SU-AM:
DEFINITION: Zar-e-Su-Am is the one-third amount in cash of the total sale price under a suit of pre-emption, which the pre-emptor must deposit with the filing of suit in the court.
In case of winning the suit of pre-emption, the pre-emptor must also give a bank guarantee for the deposit of balance of three-fourth of the total price in the court in case of winning the suit of pre-emption.
LIMITATION FOR DEPOSITING ZAR-E-SU-AM: According to Section 24 of the Punjab Pre-emption Act, in every suit for pre-emption, the court shall require the plaintiff to deposit in such court, one-third of the sale price of property in cash within such period as the court may fix.
INGREDIENTS: The following are the ingredients of zar-e-su-am:
a. One-third amount in cash
b. One the total sale price
c. Under a suit of pre-emption
d. Which the pre-emptor must deposit
e. With the filing of suit in the court of law.
EXAMPLE: Anwar files a suit of pre-emption against Bashir, for certain property but does not deposit Zar-e-Su-am in the court. The suit is dismissed for want of Zare-e-Su-am.
OBJECT: The object of depositing money as Zar-e-Su-am, is to prevent and defeat the relaxation and speculative litigation.
MODE OF PAYMENT: It must be deposited in cash with the court or with any person appointed by the court for this purpose.
CASE: In case titled “Khawar Janjua vs. Yasir Ahmad”, the court held that as the plaintiff did not pay the one-third amount of total sale price, hence the suit of pre-emption is dismissed.
In another case titled “Yaqoob Khilji vs. Farooq Ali, the court held that in order to succeed in a suit of pre-emption, the amount of Zar-e-Su-am must be paid by the application.
CONDITIONS FOR DEPOSITING ZAR-E-US-AM: the following are the conditions to depositing zar-e-su-am;-
1. The time period fixed by the court for depositing zar-e-su-am shall not extend beyond 30 days of the filing of suit.
2. If no sale price is mentioned in the sale deed or in mutation or the price so mentioned appears to be inflated, the court shall require deposit of probable value of the property.
3. Where the plaintiff fails to make a deposit under sub-section (1), within period fixed by the court or withdraws the sum so deposited by him, his suit shall be dismissed.
4. Every sum deposited under said sub-section shall be available for discharge of costs.
5. the probable value fixed under said sub-section shall not affect the final determination of price payable by the pre-emptor.
DEPOSIT OF BALANCE PRICE: According to Section 25, where a court passes a decree in favour of pre-emptor on payment of excess price, the could shall require the pre-emptor to deposit remaining amount within thirty days of passing of decree.
EFFECT OF NON-DEPOSIT OF ZAR-E-SU-AM: If the pre-emptor does not deposit the one-third amount of total price in cash, in a suit of pre-emption in the court on the date fixed by the court or with the filing of suit, the suit of pre-emption shall be dismissed. Hence, in order to succeed in a suit of pre-emption in a court of law, the pre-emptor must deposit the zar-e-su-am on the date fixed by court or with the filing of suit.
FOR EXAMPLE: Zaheer files a suit against Kamal for certain property. The court orders to deposit the zar-e-su-am on a certain date. Zaheer does not deposit the said amount in the court on the date fixed. The suit will be dismissed.
THE PROVISIONS OF ISLAM: the law of pre-emption was made under the decision of Federal Shariat court of Pakistan in 1990 under the cannons of injunctions of Islam.
CONCLUSION: In order to succeed in a suit of pre-emption, the pre-emptor must deposit the one-third amount of total sale price in cash, otherwise, the suit would be dismissed by the court.
4. TIME LIMITATION FOR FILING SUIT OF PRE-EMPTION:
LIMITATION: According to Section 30 of the Punjab Pre-emption Act, the time period for filing a suit of pre-emption is four months, i.e., 120 days from the date:
1. Of the registration of the sale deed
2. Of the attestation of the mutation if the sale is made otherwise than through a registered sale deed
3. On which the wendee takes physical possession of the property if the sale is made otherwise than though a registered sale deed or a mutation
4. Of knowledge by the pre-emptor, if the sale is made otherwise than through a registered sale deed or a mutation or when the possession was delivered.
EXAMPLES:
1. Zubair and Munir are co-owners of certain property having common source of irrigation. Zubair transfers the property without notice. Munir can file a suit of per-emption within four months and not afterwards.
2. Sajid and Javed are coowners of certain property. Sajid without notice to Javed, sells property to Nadeem. Javed can file a suit of pre-emption for said land within four months, i.e, 120 days, otherwise suit should be dismissed.
CASE:
In case titled “Noor Khan vs. Jehanzeb Khan”, the court held that the plaintiff could not exercise his suit of pre-emption as he filed the suit after expiry of stipulated time period, i,e, 120 days.
In Mst. Fatima Bibi’s case, the court held that the suit of pre-emption by plaintiff was dismissed as he filed the suit after five moths.
CONCLUSION: Hence, in order to succeed in a suit of pre-emption the pre-emptor must file the suit within four months, i.e, 120 days, otherwise his suit would be dismissed by court of law.
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