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Pre-Emption Presentation

Pre-emption is the right of the owner of immovable property to purchase that property if it is sold to another person, for the same price. This right originated under Mohammedan law and was adopted by some village communities in British India. The right of pre-emption aims to preserve village integrity, avoid land fragmentation, implement inheritance rules, reduce litigation, and ensure public decency. Those entitled to exercise pre-emption rights include co-owners, those with easement rights on the property, and adjoining landowners. For the right to be exercised, the pre-emptor must immediately demand purchase after the sale (talab-i-mowasibat), confirm the demand before witnesses (talab

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150 views2 pages

Pre-Emption Presentation

Pre-emption is the right of the owner of immovable property to purchase that property if it is sold to another person, for the same price. This right originated under Mohammedan law and was adopted by some village communities in British India. The right of pre-emption aims to preserve village integrity, avoid land fragmentation, implement inheritance rules, reduce litigation, and ensure public decency. Those entitled to exercise pre-emption rights include co-owners, those with easement rights on the property, and adjoining landowners. For the right to be exercised, the pre-emptor must immediately demand purchase after the sale (talab-i-mowasibat), confirm the demand before witnesses (talab

Uploaded by

Kalim Shaikh
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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MEANING OF PRE-EMPTION

According to the various decisions given by High Courts and


Supreme Court of India, Pre-emption is the right possessed by the owner
of the immovable property for price for which it has been sold to another
person.
HISTORICAL BACKGRAOUND OF PRE-EMPTION
Pre-emption in village communities in British India had its origin in
the Mohammedan law as to pre-emption, and was apparently unknown in
India before the time of the Moghul rulers. In the course of time customs
of pre-emption grew up or were adopted among village communities,
Supreme Court in Avad Behari v/s Gajadhar Jaipuria, AIR 1954, Sc417 ,has
held that the Law of Pre-emption was introduced in this country by the
Mohammedans.
RIGHTS OF PRE-EMPTION
Punjab High Court in Uttam Singh V. Kartar Singh, AIR 1954, Punjab
55 held that the right of pre-emption is based on -
• To preserve integrity of village and village community,
• To avoid fragmentation of holding,
• To implement agnatic theory of succession,
• To reduce choices of litigation, and
• To produce private and public decency.
PERSON ENTITLED TO EXERCISE RIGHT OF PRE-EMPTION,
I.E., WHO ARE PRE-EMPTORS
Under the Sunni Law the following three classes of persons are entitled
to claim and exercise right of pre-emption
1. Shafi-i-Sharik : Pre-emption based upon co-partnership in the
property
2. Shafi-i-Khalit : Who are enjoying right of easement by way of right
to water, way, etc. They are sharing common rights.
3. Shafi-i-jar : Owner of an adjoining property. Its right based on
neighbourhood.
RIGHT OF PRE-EMPTION IS EXERCISE
There are certain formalities, which are complied by a person who is
entitled to exercise the right of Pre-emption on hearing of the transfer.
1. Talab-i-mowasibat or immediate demand : This literally means
that the pre-emptor should immediately on hearing of the sale of the
property, jump and shout out that he has a claim of pre-emption.
2. Talab-i-ishad or Istishhad : It is known as talab-i-taqrir or
confirmatory demand. It is a demand of Pre-emptor in presence of
Two Witnesses and Vender/Buyer.
3. Talab-i-tamlik or Demand of possession : After making two
demands, when parties files a suit to enforce his right, then is called
third demand. It will arise only when first two demands not fulfilled.
LOSS OF THE RIGHT OF PRE-EMPTION
The right of pre-emption is lost under the following circumstances :
By acquiescence /waiver
By death of pre-emptor
By misjoinder
By release
CONCLUSION
Pre-emption rights only apply when immovable property is
transferred by sale; they do not apply if it is transferred through a gift,
bequest, lease (even if it is perpetual), mortgage, or conditional sale with
possession. The pre-emption right may be defeated, or the pre-desire
emptor's to use it may be lessened by the parties to a sale transaction using
legal means that are neither dishonest nor illegal.

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