Procedure for pre-emption or Necessary formalities of pre-emption or Demands for pre-emption :
Existence of right of pre-emption depends upon full and complete observance of formalities, because it is a feeble right and as such full steps at the proper time, and conforms strictly to the necessary formalities. of technicalities. No person is entitled to pre-empt unless he takes the proper These formalities or ceremonies are known as the Three Demands. These demands are indispensable. These demands are called ‘Talabs’.
First Demand (Talab-e-Muwathabat i.e. Immediate Demand) :
Arabic language, it carries the meaning ‘demand by jumping’. The pre-emptor must assert his claim immediately on hearing of the sale, but not before. There must not be any loss of time between the receiving of news and making the demand. Wherever the pre-emptor or his agent is, it is immaterial whether anybody is present at the time of demand or not.
Witnesses are not necessary; nor is any particular form essential. “i’ve demanded or do demand pre-emption” is sufficient. The handiest situation is promptness after receiving the news of completed sale. The right of pre-emption would be lost if there is any delay in making the first demand.
The principle is that the law requires extreme promptness and any laxity will be total to the pre-emptor’s claim.
Courts are very strict in observing any delay in making immediate, first demand. A delay of twelve hours was, in one case, [i.e. Ali Muhammad v. Taj Muhammad, 1876 (1) All. 283], considered too long; and in another, [i.e. Jarfan Khan v. Jabbar Mia, ILR (10) Cal. 383 (1884)], it was held, where the plaintiff on receiving the news of sale from his wife, entered his house and took money from his chest, took out Rs. 47.25p. (evidently to tender the amount to the buyer) called the witnesses, and went to the premises that was sold and demanded pre-emption; the plaintiff did not make the demand immediately hence he was not entitled to exercise his right of pre-emption. In Rajendra Kumar v. Rameshwar Das Mittal, [AIR 1981 All. 291], it was held that the demand should be made within reasonable time. Any unreasonable or unnecessary put off could be construed as an election now not to pre-empt.
It is not necessary to the validity of talab-e-mowasibat that it should be performed in the presence of witnesses. It is sufficient if the pre-emptor makes recognised his intention in some manner.
It is not necessary that the talab-e-mowasibat should be made by the pre-emptor in person. It is sufficient if it is made by a manager or a person previously authorised by the pre-emptor to make the demand. Whilst the pre-emptor is a minor, his de facto dad or mum might also make a call for on his behalf. A demand made by the father or brother of the pre-emptor is not sufficient, even if he has a right to pre-empt, unless he has been previously authorised to make the demand. Whilst the pre-emptor is at a distance the call for can be made with the aid of a letter.
If there are more than one pre-emptors, one can make a demand on behalf of the others if he has been authorised to do so.
If there are more than one buyers, the demand must be made to all the buyers.If it is made only to some of them, the stocks of those customers only may be pre-empted.
Soft of price in cash isn’t always critical.
The right of pre-emption is misplaced by way of estoppel and acquiescence.
The ignorance of pre-emptor in regard to his right in the ownership of property, which may give him a right of pre-emption, his failure to demand pre-emption would be fatal.
It is for the pre-emptor to prove the fulfillment of all the requirements to sustain his claim for pre-emption.
Second demand (Talab-e-Ishhad) i.e. Demand which is witnessed :
Ishhad or Istishhad means a demand which is witnessed. This demand is likewise referred to as talab-e-taqrir which means that demand of confirmation.
The formality of talab-e-ishhad is that the pre-emptor has with the least conceivable postpone affirmed the goal, referring expressly to the fact that the talab-e-mowasibat had already been made, and has made a proper call for –
a) both in the presence of the buyer, or the seller, or on the premises which are the subject of sale; and
b) in the presence at least two witnesses.
If the talab-i-ishhad is made inside the presence of the client, it is not vital that the buyer need to then be truely in possession of the belongings in recognize of which pre-emption is claimed.
The following are the essential conditions of second demand i.e. talabe-ishhad:
1) The pre-emptor should refer to his first demand at the time of making second demand. The only exception to this condition is if the first demand was made in the presence of vendor or the vendee or on the property which is subject of pre-emption, then a reference to the first demand at the time of making second demand would be dispensed with.
2) The second demand must be made by the pre-emptor or his agent in presence of two witnesses. It would be sufficient to inform the witnesses and witnesses are taken to the purchaser for attesting the talab.
According to Hedaya, a common condition for second demand is that the shafi (pre-emptor) says, “Such a person has bought such a house of which I am the shafi (pre-emptor). I have already claimed my privilege of pre-emption (shufaa) and now I again claim it; be ye witnesses thereof.”
3) The second demand must be made within a reasonable time and as early as possible, with as little delay as possible according to the circumstances. It was held that two months delay was fatal.
4) The second demand by the pre-emptor may be made to the vendee, vendor or on the premises which is subject to pre-emption. In case there are two or more purchasers, the demand must be made to all the purchasers. Where more than one person claims to preempt each of the pre-emptors should make demands. One or more pre-emptors may authorise one or more persons to make the demand on their behalf. Demand may be made by the pre-emptor on the premises which is the subject matter of pre-emption.
It isn’t always important for the pre-emptor to go into the residence and make a demand. It’s far enough if he goes near the residence, and touching the walls, makes the call for.This would be a sufficient compliance with the legal requirements of the second demand.
5) The property for which right of pre-emption is claimed must be sufficiently specified so that it may be identified.
6) Where the pre-emptor is disabled due to valid circumstances he may make the demand through a letter or by a messenger.
7) Property in respect of which the demand (talab-e-Ishad) is made should be specified as to make the property identified. However, it is not contemplated that in talab-e-Ishad full details of the property should be given.
In Mohammad Umar v. Amir Mohammad, [AIR 1958 M.P. 423], it was observed that according to the custom any Muhammadan law, for a pre-emptor to succeed, he has to make two demands as required by the law, and the two demands be made immediately after one another so as to combine them in a single demand, if all the requirements for both the talabs are fulfilled. The presence of witnesses isn’t always necessary if the call for be made to the vendor or the vendee or on the premises. The witnesses would be essential for the second one demand handiest.
Third Demand [Talab-e-Khusumat or talab-e-tamlik] (Demand where there is a dispute or demand of possession) :
In case the pre-emptor fails to get the desired result after making first two needs, he may also take criminal movement. If the claim is conceded after first and second demand, there would be no need to enforce the claim through a suit.
As taking legal action is not always necessary, the third demand is not really a demand.
The legal action through suit must be brought within one year of the purchaser taking possession of the property, if it is corporeal; or within one year if the registration of the instrument of sale, if incorporeal, as provided in Article 97 of the Schedule to the Indian Limitation Act, 1963.
In a suit claim for pre-emption, the whole of the interest must be claimed; a claim to a part of the estate sold is not sufficient. This condition has been imposed on the reason that if the pre-emptor is allowed to claim only one portion of the property to be pre-empted, he would claim for the best portion of the property and leave the worst part of it. But where two transactions of sale have been embodied in one sale deed, the preemptor is free to claim the property of one transaction and leave the other, or where other properties are included in the sale deed which could not be subject to pre-emption, he may exclude the rest of the properties. In case the purchaser sells a portion of property to another person, the preemptor may claim the portion which remains with purchaser. A transfer of property, after the proper demand, does not affect the right of the preemptor.
Right of pre-emption when lost :
The right of pre-emption shall be lost in the following instances:
1) Waiver or acquiescence: The most ordinary form of acquiescence is to omit to take the necessary formalities at proper time, such as on receiving the information of sale, elects to keep quiet or omits without any reasonable cause to do the needful.
2) Death: The proper to pre-empt is extinguished if the pre-emptor dies after the primary demands, however before submitting a match.The proper is extinguished if dying happens all through the pendency of a suit, and the action can not be endured by his prison representatives. Under Ithna Ashari and Shafii law, the right descends to the heirs proportionately.
3) Release: The pre-emptor would lose his right if there is a release for consideration to be paid to the pre-emptor, the right, however, is not lost if there has been a refusal at the part of the pre-emptor to buy before the actual sale, nor by an unwillingness to make an offer to buy the assets after be aware that the belongings turned into on the market.
4) Misjoinder of plaintiffs: The person who is claiming pre-emption, if joins himself with a person, who is not entitled to pre-emption in the property, as co-plaintiff he would lose his right of pre-emption.
5) Lack of right earlier than final decree: If the pre-emptor loses his right before the final decree is surpassed, he might lose his proper.
6) The right is lost on the following grounds:
i) If he, of his own accord, has surrendered his right of pre-emption in favour of the vendee.