October 2, 2022

The Procedure of Pre-emption with case example

The procedure to claim ‘right of pre-emption’ is of highly technical nature and full of formalities. There are some conditions required to be compiled to claim the rightful right.

Therefore, it is better to take a case law to understand the right in procedure.

Ajijur Rahman Barbhuiya vs Haji Moshaid Ali Laskar, 1989

A case came to guhavti high court in appeal. The question of law involved in these appeals relates to the right of pre-emption under the Mahomedan Law.

Facts of the case

  • The plaintiff filed a suit for pre-emption against the defendants. His case was the suit land belonged jointly to Musstt. Lalbi Bibi, Md. Mantaz Ali and the plaintiff and the same was also jointly possessed by them.
  • All of them belong to Mahomedan community and under the Mahomedan Law, they have right of pre-emption.
  • On 3-6-1972, the lalbi and mantaz, without the knowledge of the plaintiff, sold the suit land for Rs. 2,000/-to six persons (defendants Nos. 1 to 6).
  • On 14-4-73 at about 10 a.m., while the plaintiff was sitting at his outhouse with other four persons and having gossips with them, one Abdul Latif alias Chandu Mia came and reported him that one Hazi Moshaid Ali Laskar and others had purchased the suit land for Rs. 2,000/-.
  • Hearing this, the plaintiff immediately shouted pronouncing ‘Shafi’ and expressed that he would purchase the suit land at the same price at which it has been sold by his co-owners to the said purchasers.
  • Thus, according to the plaintiff, he performed the Talabi-Mowasibat’ and then he went to the suit land along with the four persons sitting with him and in presence of the said persons as witnesses standing on the suit land he declared and asserted that he was “Shafi” and further declared his intention to purchase the suit land which had been sold by his co-owners to the purchasers.
  • The purchasers did not convey the suit land to the plaintiff accepting from him the price they paid to the vendors.
  • Hence, the plaintiff filed the suit for pre-emption. The purchasers were made the defendants 1 to 6 in the plaint. The co-owners were defendants Nos. 7 and and 8.

Statement on behalf of co-owners

All the defendants including the two co-owners of the plaintiff, contested the suit by filing a joint written statement. They denied the allegations made in the plaint contending that the co-owners of the plaintiff being in dire necessity of money and proposed to sell their share to the plaintiff but on his refusal to purchase sold the same to the defendants Nos. 1 to 6.

According to them, the plaintiff never declared or asserted the right of pre-emption in respect of the suit land. In course of trial, it was also brought on record that the plaintiff after asserting his right of pre-emption, during the pendency of the suit, purchased 1/6th share of the suit land from one of the six purchasers, namely, the defendant No. 2, Alauddin Laskar.

The court’s observation on the pre-emption law

The court observed that law relating to exercise of right of pre-emption is of a highly technical nature.

  • Talab-i-mowasibat and talab-i-ishhad are conditions predecent for exercise of the right of pre-emption.
  • The rules relating to aforesaid two talabs must be strictly complied with.
  • Presence of the witnesses at the time of talab-i-ishhad is also important.
  • It is for the pre-emptor to prove the fulfilment of all the requirements to sustain his claim for pre-emption.

However, the court stated that, once, the pre-emptor succeeds in adducing satisfactory evidence in regard to fulfilment of the aforesaid requirements, his claim cannot be rejected on hyper technical interpretation of the formalities or on miscroscopic examination of the evidence to find some fault here or there.

The court further said that, in any event, the Court should examine the evidence and materials on record in regard to the observance of the formalities in a judicial manner keeping in view the practical and real state of affairs and also the fact that when the Mahomedan Law has given such a right to a person, it should not be whitted away by insisting hyper-technical and unrealistically strict compliance of the formalities accompanied with its exercise.

It must be remembered that “formalities” after all are only formalities intended to serve some ostensible purpose and once that purpose is served, these should not be allowed to be used to take away the legal right of a claimant. “Formalities” in no case should be allowed to operate beyond the field allotted to them by law.

Law application on the present case

The court noticed that in the instant case, the plaintiff (co-owner) went to the suit land and made the formal demand i.e., talab-i-ishhad on the premises which were subject of sale. It is, therefore, not of much relevance for the validity of the same to decide whether one of the purchasers or all the purchasers were present at that time. That is relevant only when the demand is made at some place other than the premises which was subject of sale.

In the instant case, it is clear from the evidence that the plaintiff asserted his right of preemption immediately after receipt of the report of the sale by exercising talab-i-mowasibat. Immediately on getting the report of the sale of land he shouted pronouncing “Safi” and expressed that he would purchase the suit land at the same, price at which his co-owners had sold it to other persons (defendants Nos. 1 to 6).

He also went to the suit land and in presence of witnesses standing on the suit land declared and asserted that he was “shafi” and that he would purchase the suit land which the defendants Nos. 7 and 8 had sold to the defendants Nos. 1 to 6.

Thus, he completed the formality of talab-i-ishhad.

The court said that whether the formalities of pre-emption under the Mahomedan Law were complied with or not has to be decided by the Courts on the basis of evidence on record. Once it is established that the formalities were complied with, the Court should hold that there was a valid exercise of right of pre-emption and give effect to it.

Therefore, the court allowed the plaintiff to exercise the right of pre-emption against the purchasers.

Reference

Ajijur Rahman Barbhuiya vs Haji Moshaid Ali Laskar, 1989