Report on Preemption
Preemption refers the right of purchase a landed property by a person period than other. This is described in section 96 of state Acquisition and Tenancy Act. The pre-emption is also described in the Muslim law. There it is called shufa. The shufa is applicable on people on the basis of religion and local customs. Peoples belonging to Muslims religion may apply right of pre-emption under the state Acquisition and tenancy Act. The right of pre-emption must be exercised upon immovable property.
¨ General concept of Pre-emption under state Acquisition and Tenancy Act and Muslim Law :
Pre-emption under state Acquisition And Tenancy Act:
Pre-emption is legal right of every. Person in Bangladesh. Pre-emption hold to get civil litigation. Generally right of pre-emption arises between sister to sister, brother to brother, sister to brother etc. The Pre-emption means when the right of purchasing the land arise before the other person, This rights is called pre-emption. It is the right of the owner of adjacent land. So the pre-emption is the right of a person to purchase a property in preference to other and the right of a person who has option of first refusal<href=”#_ftn1″ name=”_ftnref1″ title=””> The law of preemption imposes a limitation or disability upon the ownership of a property and he benefit as well as the burden of the right of pre-emption runs with the land.<href=”#_ftn2″ name=”_ftnref2″ title=””>
Pre-emption under Muslim Law :
In Muslim law pre-emption is called ‘Shufa’ Shufa is a Arabic term. Shufa means conjunction, here it denotes the right of the owner of a property which is in conjunction that is adjacent to another property.
Definitions of Mulla – “The right of shufa or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable Property which has been sold to another person. <href=”#_ftn3″ name=”_ftnref3″ title=””>
Definition of Mahmood, J – “A right which the owner of certain immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as those on which such latter immovable property is sold to another person<href=”#_ftn4″ name=”_ftnref4″ title=””>”
¨ Classes of Pre-emption under state Acquisition And Tenancy Act and Muslim Law:
Classes of Pre-emption under state Acquisition And Tenancy Act :
The classes of pre-emptions describe in section – 96 (1) under the SAT Act. Before the last amendment the pre-emption classified in three types. These were –
a) Owner by inheritance.
b) Owner by purchase.
c) Owner of adjacent land.
After last amendment the Pre-emption is classify into two types. The last amendment held in 2006. The two types of pre-emptions are
a) A co-sharer tenant in the holding by inherence.
b) A co-sharer by purchase.
These are the classification of pre-emption under SAT Act.
Classes of Pre-emptions (Shufa) under Muslim Law :
Hanafi law recognizes three categories of shufa :
i) a co-sharer in the property sold,
ii) a participator in the immunities and appendages of the property, and
iii) a neighbor owning an adjoining immovable property<href=”#_ftn5″ name=”_ftnref5″ title=””>.
Shia law restricts pre-emption to co-owners in the undivided property and that too when their number is two. Shafi law recognizes pre-emption only among co-sharers<href=”#_ftn6″ name=”_ftnref6″ title=””>.
Both shia and shafi law do not recognize pre-emption on the ground to vicinage or on the ground of participation in appendages<href=”#_ftn7″ name=”_ftnref7″ title=””>.
¨ Pre-conditions for filling Pre-emption application :
Pre-conditions for filling pre-emption application under the state Acquisition and Tenancy Act :
(1) The parties of pre-emption :
All other co-sharer tenants by inheritance of the holding and the purchaser shall be made parties.<href=”#_ftn8″ name=”_ftnref8″ title=””>
(2) Amounts to lic deposit :
At the time of making application for pro-emption, the applicants must deposited in the court
(a) The amount of the consideration money of the sold holding.
(b) Compensation at the rate of twenty five perverted of the amount of purchase value.
(c) An amount calculated at the rate of eight per centum simple annual interest upon the amount of purchase value for the period from the date of execution of the deed of sale to the date of filling of the application or preemption.
(3) Prior notice :
If a portion or share of a holding of a raiyat is sold to a person who is not a co-sharer tenant in the holding may, within two months of the service of the notice given under section 89 of SAT Act. within two months of the date of the know ledge of the sale.
(4) Time limitation :
From the date of registration of land within three years is a time to make pre-emption. After three years of registration no people will not make application for pre-emption. A person shall make pre-emption within two months of the date of knowledge of the sale.
Section 96 (2) of state Acquisition And Tenancy Act.
Pre-conditions for filling pre-emption application under Muslim Law :
(1) Parties of Pre-emption :
If all parties are Muslim, there is no problem and the law of pre-emption will be applicable. But it cannot be applied in following cases-
a) If all parties are Hindu.
b) If the vendor and the Vendee are Hindus, but the pre-emptior is Muslim.
c) If pre-emption is a Hindu, and Vendor and Vendee are Muslim.
d) If the Vendee is a Muslim, and the pre-emptor and the Vendor are Muslim.
e) If the Vendor is Muslim, and the pre-emptor and Vendee are Hindus<href=”#_ftn9″ name=”_ftnref9″ title=””>.
(2) Characteristic of sale giving rise to pre-emption :
The right of pre-emption does not arise out of gift, charity, inheritance or bequest. It must be sale where-
i) There must be an exchange of immovable property for money or property. and
ii) There must be an actuah transfer of owner ship form the vendor to vendee.<href=”#_ftn10″ name=”_ftnref10″ title=””>
(3) Time Limitation :
There is no specific time limitation in shufa. But first demand must be made with extreme promptness. Any laxity on the part of the pre-emptor will result in loss of his right when the first two demands fail, such a suit must be filed within one year of the purchaser taking possession of the property, if is corporal or writhing one year of registration of the instrument of sale. if corporeal.
(4) Prior notice :
The Muslim Law does not give any idea about prior notice in shufa.
(5) Amounts to lic deposit :
The Muslim Law does not sys how much amounts shall lic deposit for make shufa.
¨ Court procedure in disposing pre-emption Application :
Court Procedure in disposing pre-emption application under state Acquisition And Tenancy Act :
(1) Service of notice :
After serving all documents to the court by the pre-emptor, the court will be en query the documents. When the court shall complete the enquiry then the court shall give notice to the purchaser and to other persons made parties. And the court shall fix a date to appear the parties within such period. This is called summons. Section 96 (4) of SAT At describe about service of notice.
(2) Opportunity to be heard :
The court shall, after giving all the parties an opportunity of being heard after holding an enquiry as to rent pie and the expenses incurred by the purchaser, direct the applicant a further sum, If necessary, within such period as the court thinks reasonable.<href=”#_ftn11″ name=”_ftnref11″ title=””>
(3) Application by remaining co-sharer :
When an application has been made and if any of the remaining co-sharer tenants interests to purchase the land, then the remaining co-sharer shall pay the compensation which listed in section 96 (3) without development cost. The application shall serve within two months to get knowledge of pre-emption. And the application shall give carries date summers. Section 96 (6) of SAT ACT describe about application by remaining co-sharer.
(4) Decision of court :
On the expiry of the period within which an application may be made under sub-section (6) the court shall determine. If court does not consciously heard the applications of the parties and give decree then the suit shall be revision by higher court. Section 96 (7) of SAT Act describe the above point.
(5) When the applicants more than one :
When court grant more than one applicant, court shall determine the amount to be paid by each of such applicants. Sector 96 (8) says about when the applicants more than one.
(6) To sale the land :
Court shall be order to purchaser to sale the land within 60 days. If the purchaser nothing done anything, after 60 days court sale the land with instrument. These describe in section 96 (9) in SAT Act.
Formalities to disposing pre-emption application under Muslim Law :
No person is entitled to pre-emption unless he takes the proper steps at the proper time, and conforms strictly to the necessary formalities.<href=”#_ftn12″ name=”_ftnref12″ title=””>
There are three necessary formalities known as the three demands. There are
a) Talab-e-muwathaba or Immediate demand.
b) Talab-e-ishhad or confirmatory demand.
c) Talab-e-tamleek or demand for possession.
a) Talab-e-muwathaba or immediate demand :
In Arabic it is know as talab-e-muwathaba which literally means a demand by jumping. The idea in giving this name is that the moment the news comes to a person that property has been sold, he should make an immediate demand at the very moment, whether there are witnesses or not.
This shows the right of pre-emption must be asserted with the utmost promptitude. Thus it is kind of announcement by one entitled to preempt of his insertion of making the claim. The first demand may be made by such words as “I do claim my shufa.<href=”#_ftn13″ name=”_ftnref13″ title=””> The first demand must be made with extreme promptness. Any laxity on the part of the preemptor will result in loss of his right. A delay of 12 hours was held in an Allahabad case to be too long. The case name Rajendra Kumar V. Remeshawar Dass.<href=”#_ftn14″ name=”_ftnref14″ title=””> The basic rule of muslim Law has been that a demand for pre-emption, at any rate the first demand, the talab-e-mowasibat or the jumping up demand must be made immediately and without any loss of time.
b) Talab-e-ishhad or Confirmatory demand :
In Arabic it is known as also talab-e-taqrir. The preemptor must, with the least practicable delay, make a second demand, either personally or through an agent. He must (i) refer to his first demand; (ii) do so in the presence of two witnesses; (iii) do so in the presence of either the vendor (if he is in possession), or the purchaser, or on the premises.<href=”#_ftn15″ name=”_ftnref15″ title=””>
There is no definite form for making this demand. The pre-emptor may very well say, “such a person has bought such a house of which I am the preemptor; I have already clamed my privilege of shufa and now again claim it; be you therefore witness thereof.”
It is permissible to combine the first two demands, provided the pre-emptor assembles two witnesses, and makes the demands in the presence of the vendor or vendee, or on the premises. Talab-e-ishhad may be made by letter also.
c)Talab-e-tamleek or demand for possession.
The third demand or speaking more precisely a legal action, is only necessary when the first two demands fail. Such a suit must be filed within one year of the purchaser taking possession of the property, if it is corporeal; or within one year of the registration of the instrument of sale, if incorporeal.<href=”#_ftn16″ name=”_ftnref16″ title=””>
The legal suit claiming pre-emption should be in regard to the whole of property; a claim to a port of the estate sold is not sufficient.
A Comparision of pre-emption state Acquisition and Tenancy Act and Muslim Law :
The law of pre-emption under state Acquisition And Tenancy Act may apply all religions people. On the other hand the law of shufa shall apply on the basis of local customs and Muslim religions people.
The classes of pre-emptor under SAT Act are two types. These are a) A co-sharer by inheritance; b) A co-sharer by purchase. Besides the classes of shufa under Muslim law three classes. In sunni law these are a) co-sharer : any hos; b) Participator in immunities and appendages; c) Owner of adjoining property (vicinage, neighbor). In shia law a co-sharer; and only if they are tow in number not if more.
Under SAT Act a person shall apply for pre-emption within two months from the come to knowledge of sale. And the power of preemption will stay for three years.
Wheres under Muslim law a person have to apply for shufa must be immediately and without loss of time. In third demand also says, when first two demand fail a suit must be filed within one year.
The Muslim Law give general concept on shufa, and the law of pre-emption deleted by the state Acquisition and tenancy Act.
Under SAT Act pre-emptor shall be claim against purchases, all co-sharer and also the seller.
But in shufa, where there are two or more buyers the name of all the purchasers need not be mentioned in making the demand.
Under SAT Act the pre-emptor must be deposit compensation with application. These are a) The purchase money; b) 25% purchase value; c) 8% per centum simple annual interest.
On the other hand under muslim law tendering the price is not essential. It is sufficient that he should then declare his readiness to pay the price.
The pre-emptor must be write an application to court with all formalities under state Acquisition and Tenancy Act.
Wherever, in muslim Law no formula for making the demand is necessary but the claim must be unequivocally asserted. Such as “do claim my shufa”
In muslim law the pre-emption is based clearly upon the texts of islamic law. Besides under SAT Act pre-emption is based on civil law.
Under SAT Act the pre-emptor has a opportunity to give prior notice to the co-sharcrs. Wheather, in shufa under Muslim Law does not describe the term prior of notice. These are all basic comparison of pre-emption between SAT Act and Muslim law. The meaning of pre-emption is same in both law. But classes of pre-emptor, Rules, court procedure are deference from each other. Thats why there have not so many differences.
In conclusion we can say that the object of pre-emption is to prevent the introduction of a stranger among co-shares. So the word pre-emption is well understood term of law. It is a right of substitution conferred on some one either by statute, custom or contract. The right is to step into shoes of the vendee preferentially on the terms of sale already settled between the vendor and the vendee.<href=”#_ftn17″ name=”_ftnref17″ title=””>
Book Reference :
(1) K J Aiyar’s Judicial Dictionary.
(2) Land Law of Bangladesh – Dr. L. Kabir.
(3) Outlines of Muhammadan Law – As af A. A Fyzee
(4) Muslim Law – syed Khalid Rashid
(5) Muslim Law – Aqil.
(6) Class lectures.
<href=”#_ftnref1″ name=”_ftn1″ title=””>. K. J Aiyar’s Judicial Dictionary – Page : 760
<href=”#_ftnref2″ name=”_ftn2″ title=””>. K. J. Aiyar’s Judical Dictionary – Page : 760
<href=”#_ftnref3″ name=”_ftn3″ title=””>. Mulla, 255.
4. Per Mahmood. J. in Gobind Dayal V. Irayatullah,
<href=”#_ftnref4″ name=”_ftn4″ title=””>
<href=”#_ftnref5″ name=”_ftn5″ title=””> Muslim law syed khalid Rashids – 4th edition Estern book co. – Page no 283
<href=”#_ftnref6″ name=”_ftn6″ title=””> . Muslim law syed khaild rashids 4th edition Estern book co – Page no 283 & 284.
<href=”#_ftnref7″ name=”_ftn7″ title=””> Muslim law syed khalid rashids 4th edition Estern book co. Page no 284
<href=”#_ftnref8″ name=”_ftn8″ title=””> Section 96 (2) of state Acquisition and Tenancy Act.
<href=”#_ftnref9″ name=”_ftn9″ title=””> Muslim Law – syed khalid Rashids 4th edition Estern Book Co. Page. 295
<href=”#_ftnref10″ name=”_ftn10″ title=””> Muslim Law- Syed Khalid Rashids – 4th edition Estern Book co – Page 293
<href=”#_ftnref11″ name=”_ftn11″ title=””> See Section 96 (5 of SAT Act.
<href=”#_ftnref12″ name=”_ftn12″ title=””> Outlines of Mahammadan Law – Fyzee page no – 348 – Fourt edition – Shams Publications
<href=”#_ftnref13″ name=”_ftn13″ title=””> Hedaya, 551
<href=”#_ftnref14″ name=”_ftn14″ title=””> AIR 1981 All 391
<href=”#_ftnref15″ name=”_ftn15″ title=””> Outlines of Mahammadan Law – Fyzee – Page no. 349 – fourth edition – Shams publications
<href=”#_ftnref16″ name=”_ftn16″ title=””> Limitation Act, Articlw 10
<href=”#_ftnref17″ name=”_ftn17″ title=””> [Vijayalakshmi V B H Dhetty (1996) 3 Sim LJ 1996 at 1974 (SC)]