Muslim law prescribes certain formalities for the claim of pre-emption. No person is entitled to the right of pre-emption unless he observes these formalities strictly and at proper time. The right of pre-emption is a weak right because its operation hits directly against the very concept of ownership and freedom of contract. In Mohd. Noor vs. Mohd. Ibrahim, the Supreme Court held that availability of this weak or archaic right has to be construed strictly.
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Muslim law of pre-emption is a law of technicalities and the availability of the right depends upon the full and complete observance of formalities. If the formalities are in any way incomplete or defective, the right of pre-emption is not available to the pre-emptor. The formalities for the claim of this right consist of three demands. The demand must be made by the pre-emptor step by step and, at proper time.
1. The First Demand (Talab-i-Muwasibat):
ADVERTISEMENTS:
First demand is the initial step for enforcing the right of pre-emption. The first demand is immediate declaration by which the pre-emptor expresses for the first time his intention to enforce his right. Significant feature, of the first demand are given below:
(i) This demand is made only after lawful completion of the sale (or exchange) of the property. The first demand cannot be made before the sale is completed.
Completion of sale or exchange is determined under the provisions of the Transfer of Property Act 1882. In Radhakishan Luxminarayan v. Sridhar, the Supreme Court held that the transfer of property is to be duly completed under the Transfer of Property Act; Muslim law of sale or any other personal law of transfers cannot be applied for validity of sate.
Under this Act, the sale or exchange of an immovable property worth rupees one hundred or more, is valid and complete only after the deed has been duly registered. The sale-deed is deemed to be duly registered neither or the date of its execution nor on the date on which the deed was presented before the Registering Officer.
ADVERTISEMENTS:
It is deemed to be completed on the date on which the deed had been certified to have been registered. If the first demand is made before the date of this certificate, the demand is not at appropriate time. Such demand is premature and the claim of pre-emption fails.
In Ram Sit ran Lall v. Mst. Domini Kuer, the sale-deed was executed (written) on 31 January, 1946. On the same date it was presented for registration in the Registration Office. On February, 1946, Ram Saran Lall, the pre-emptor came to know about the sale and he made his first demand (Talab-i-Muwasibat).
In the Registration Office the sale-deed was copied out in the records and the formality of registration was completed on February 9, 1946, it was held by the Supreme Court that the first demand was made before the completion, of the sale.
The court observed that the sale is deemed to have been completed not on the date when it was executed but on the date when it was copied out in the records of the Registration Office. Accordingly, the Supreme Court held that the first demand by the pre-emptor was pre-mature and as such his claim of pre-emption failed.
ADVERTISEMENTS:
(ii) The first demand is to be made immediately after getting the information that sale is completed. Promptness is an essential element in the claim of pre-emption. Law requires that a pre-emptor must assert his claim without any delay. Talab-i-Muwasibai literally means ‘demand by jumping’.
That is to say, on hearing that sale is complete; the pre-emptor should almost jump for expressing his desire that he is evidently anxious to assert his claim. Any delay in making the first demand makes it ineffective and the claim fails.
Whether there has been any unreasonable delay, is a question of fact. A delay of twelve hours in making the first demand was held to be unreasonable and pre-emptor lost the right.
Similarly, where the pre-emptor placed his first demand after twenty four hours from the time he got the information of sale, it was held the demand was delayed and there was no pre-emption.
In Irfan Khan v, Jabbar Meach, on getting the news of sale, the pre-emptor entered his house, opened his cash-box and took out some money (evidently to give the amount to purchaser), came out of his house and then made the first demand.
It was held by the Calcutta High Court that there was unreasonable and unnecessary delay in placing the first demand. The result was that pre-emptor lost his claim.
In Rajendra Kumar v. Ratneshwar Dass, the sale-deed was completed by registration on 27-12-1972. This date was known to the pre-emptor but be placed his first demand on 23-2-1973. He could not prove that he was prevented from making the demand for any reason whatsoever.
The Allahabad High Court held that after knowing the fact that sale was complete by registration, there was no justification in waiting; therefore, the first demand was not made within reasonable time.
The Court further observed that the basic rule of Muslim law has been that a demand for pre-emption, at any rate the Talab-i-Muwasibat or the jumping up demand, must be made immediately and without any loss of time.
(iii) It is not necessary that Talab-i-Muwasibat is made personally by the pre-emptor. It may be made by any person authorised by the pre-emptor. But, unless a person is specifically appointed by a pre-emptor for this purpose, he cannot place the demand lawfully even though he might be a close relative of the pre-emptor. Where the pre- emptor is a minor, this demand may be validly made by his (or her) guardian.
(iv) Talab-i-Muwasibat must be made in express words so that the intention of the pre-emptor is evidently clear. If it is not clear, the first demand is not valid and the claim fails.
For example, where the pre-emptor filed a petition before the Sub-Registrar for staying the sale of pre-empted property it was held by the Court that filing of the petition was not any assertion of the claim of pre-emption; therefore, it was not Talab-i- Muwasibat.
In Alimon Nessa v. Sudhir Chandra Dey, the owner of a property offered the sale of his property to the owner of adjacent property. The owner of the adjacent land accepted the offer but in turn offered to purchase it on installment basis. The owner of the property did not agree to it and sold it to another person.
Thereupon, the owner of the adjacent land claimed pre-emption and said that his offer to purchase the land on installment was his first demand. The Guwahati High Court held that owner of the adjacent land has no right of pre-emption because offer made by him to purchase the property in installments cannot be regarded as evidence of placing his first demand.
(v) The first demand may be made orally or, in writing. It may also be made through a letter.
(vi) For placing the first demand, presence of witnesses is not necessary under Muslim law. First demand without witnesses is valid and lawful. However there must be some evidence of the fact that this demand was made properly and in time.
2. The Second Demand (Talab-i-Ishhad):
After making the first demand the next step in the formality is to place the second demand. The second demand is repetition of the first demand; therefore, it is also called as the confirmatory demand or, Talab-i-Taqrir. The second demand is in the form of making the second declaration.
This too may be made orally or in writing. It may also be made through a letter. Like first demand, the Talab-i-Ishhad may also be made by any other person authorised by the pre-emptor. The second demand too can be placed by guardian of the minor pre-emptor. Essential features of the second demand are given below:
(i) The second demand is effective only when the first demand was lawfully made at an earlier date.
(ii) There should be least practical delay in making the second demand. Although it is not necessary that second demand is made immediately after the first, yet, there should not be any unreasonable interval of time between the two demands.
(iii) In Talab-i-Ishhad, the pre-emptor must mention that he has already placed his first demand and now he is asserting the claim for the second time.
(iv) The second demand should be addressed either to the seller or, to the purchaser. If both of them are not available, the second demand should be addressed to the property sold.
Where the second demand is addressed to the purchaser, it should be addressed to all the purchasers, if there is more than one. If a pre-emptor addresses his demand only to some of the purchasers and not to all then, he can claim pre-emption only against those purchasers to whom he had addressed the demand.
However, where the pre-emptor addresses the demand to seller of the property, all the purchasers are bound by the demand. It may be noted that where the demand is addressed to the property sold, it is not necessary that pre-emptor should enter into it. It is sufficient that pre-emptor makes the second demand’ near the premises, say house, and touches the walls of that house.
(v) The second demand must be made in presence of two competent witnesses. Without testimony of the witnesses, the second demand is not valid and the claim fails. According to Allahabad High Court it is not necessary that witnesses have been specially called to testify the demand.
But the Patna and Calcutta High Courts have held that inviting the witnesses to bear testimony to this demand is necessary for its validity.
(vi) While making the second demand, payment of the price is not necessary. The pre-emptor need not tender the price to the purchaser then and there. It is sufficient that the pre-emptor has expressed his readiness and willingness to pay the price.
Note:
In certain cases, the first two demands may be combined together. If, per chance, the pre-emptor gets the opportunity of having two witnesses and also the purchaser or seller (or the premises itself) he may make the declaration satisfying the requirements of both the demands.
3. The Third Demand (Talab-i-Tamlik):
After the first two demands, if the purchaser sells the property to him, the claim of pre-emption is materialised. No further formality is required and the pre-emptor is substituted in place of vendee. In such a case, there is no need of any further formality. But, if after the first two demands, the pre-emptor fails to re-purchase the property, then he has to take legal action.
In other words, the third and the last step are to maintain an action in a court of law. Filing of a suit for the claim of pre-emption is known as the third demand. This is also termed as Talab-i-Khusumat or ‘demand of possession’. The third demand is, therefore, not always necessary.
The suit must be filed within one year of the completion of sale. Where pre-emptor is a minor, the suit may be filed by his or her guardian. But, the guardian too should file the suit within the period of limitation referred above.
The pre-emptor claims re-purchase from the vendee, therefore, vendee is a necessary party in the suit for pre-emption. But, if the vendor (seller) is still in possession of the property sold, the suit must be filed against both.
In a suit for pre-emption, the pre-emptor must claim the whole of his interest. He cannot claim pre-emption only for a part of the property sold. For example, where some part of the pre-empted property is beneficial and the rest is useless, the pre-emptor cannot claim pre-emption only in respect of beneficial part. His claim must be for the whole property; there cannot be a partial claim.
The suit must include the entire property. If the suit does not ask for the right of pre-emption in respect of entire property, the suit cannot be entertained by the court and, claim of the pre-emptor is defeated. Mulla explains the rule against partial pre-emption in the following words:
“The principle Of denying the right of pre-emption except as to the whole of the property sold is that if the pre-emptor were allowed to split up the bargain, he would be at liberty to take the best portion of the property and leave the worst part of it with the vendee”.
However, if under one sale-deed two or more properties have been sold, some of which are not subject to pre-emption, and the pre-emptor is entitled to exclude these properties from his suit. Similarly, where the sale-deed is one but it contains two separate transactions of sale, the pre-emptor can pre-empt in respect of one property and exclude the other from his claim.
Another significant point to be noted in this respect is that the pre-emptor must have a right to pre-empt not only at the time of the sale of the adjacent land but also at the time of filing of the suit for pre-emption and this right must continue till the decree in that suit is passed by the trial court.
