It
was narrated that Jabir ® said: “The
Messenger of Allah (ﷺ) said: 'Whoever has a date-palm tree or land, should not
sell it until he has offered it to his partner.' ”
It
was narrated from Ibn Abbas ® that
the Prophet (ﷺ) said: “Whoever has land and wants to sell it, let him offer it
to his neighbor.”
It
was narrated from Jabir ® that the
Messenger of Allah (ﷺ) said: “The neighbor has more right to preemption of his
neighbor, so let him wait for him even if he is absent, if they share a path.”
Ahadis/Traditions
of Prophet of (SM) including the preceding ones are said to be the origin of
pre-emption law. Though, the pre-emption is originated from the Hadith of Prophet (SM), the rules of
pre-emption have later been included in different laws of Bangladesh. These
include the State Acquisition and Tenancy Act, 1950, the Non Agricultural
Tenancy Act, 1949 and the Land Reform ordinance, 1984. Pre-emption under Muslim
Law along with relevant provisions of above laws are going to elaborated in
this write-up.
Meaning
of Pre-emption: The
word pre-emption is interchangeable with Arabic term Sufa which means
conjunction or which is adjacent. In other words, pre-emption means the prior
right to purchase the property of others to whom he is either co-heirs or
neighbor. Thus, right to pre-emption is the right to receive any transferred
property on priority basis. In such
cases, if the seller sells the land to an outsider without giving the news or
notice of the sale to, firstly the co-sharers of the land, secondly the
co-sharers of a right to way or water and thirdly, neighbor, the land can be
re-purchased by the above pre-emptor through filing a pre-emption case in the
court. Right to pre-emption is only arises when the sale is complete. Thus, the
owner of an immovable property has the right to repurchase a neighbouring property
sold to another party. Justice Mahmood
describes in the case of Govind Dayal v.
Inaytullah (1885)-
“pre-emption
as, 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.”
Again,
Black’s Law Dictionary defines-
“it
as right to set up a prior claim, or the right to gain an advantage before
anybody else.”
Example-
“A and B are jointly owners of their houses which are adjacent to each other. B
sells his house to C, who may be a stranger for A. Under this pre-emption
right, A who is a pre-emptor can legally repurchase that house from C at the
same price at which B sold it to C.”
When pre-emption rights
arise: Right
of pre-emption is a right relating to immovable property. The co-partner's
right of pre-emption arises when the immovable property is sold or transferred
to a person who is not a co-sharer, including depositing the property. In this
case, the right of the pre-emption claimant arises on the day the property is
registered and the title is transferred. However, no right of pre-emption
arises from donation, Chadaka, waqf,
mirash, bequest or lease in perpetuity.
Pre-emption under
Muslim Law:
Who can claim
pre-emption? Following
three categories of persons can claim pre-emption under Muslim Law-
1. Co-sharer
(Shafi Sharik): The
co-sharers or joint-owners of a property can claim pre-emption.
2. Participator in Immunities (Shafi Khalit): Joint
owner of easement right e.g., a common way attached to a property can also claim
the right to pre-emption.
3. Neighbour
(Shafi Jar): Again,
neighbors or persons who are the owners of adjacent lands or buildings can
claim this right to pre-emption.
The
above claimants can demand pre-emption and will have priority over other on the
chronological basis.
Procedure for claiming
pre-emption: Following
three demands are recognized as the procedure to claim pre-emption-
1. First
Demand/Immediate Demand (Talab-i-Mousibat):
In
this stage, intention to purchase the property should be notified by the
pre-emptor immediately after having knowledge of it.
2. Second Demand/Demand before witness
(Talab-i-Mowasid): As
the next step, the pre-emptor should make the demand to purchase the property
in presence of witnesses.
3. Third
Claim/Legal Claim of Ownership (Talab-i-Tamlik):
As
the final stage, the pre-emptor has to make the third demand by instituting a
suit in a court of law in order to establish his claim legally.
Other Conditions include
1.
In Muslim law it is not necessary
to deposit money before filing a pre-emption case. In such cases, the money has
to be deposited after the judgment of the case.
2.
A suit of pre-emption under Muslim
Law has to be filed in a civil court having pecuniary jurisdiction.
3.
It has to be filed within 1 (one)
year of the sale.
Pre-emption in
Statutory Laws of Bangladesh: Beside the rules of
pre-emption laid down by Muslim
personal law, different statutory laws contain provisions relating to pre-emption
which are going to be discussed below:
Pre-emption under the State
Acquisition and Tenancy Act, 1950: A case has to be filed
under section 96 of the State Acquisition and Tenancy Act, 1950 in case of
pre-emption of agricultural land. A
co-sharer tenant in the holding by inheritance can only bring the claim. Under present section, in order to file a
case, four types of money have to be deposited in the court otherwise the case
will be dismissed by the court. The
payment includes,
1. The value of the
land as mentioned in the Sub Kabla Deed/Sale Deed
2. Compensation at the
rate of 25% per annum on the said value
3. 8% annual simple
interest on the said value
4. The first purchaser
shall direct the deposit of such other money as the Court may deem fit.
Other
conditions include-
1. 25% compensation and 8% interests have to be calculated from the date of
registry of deeds to the time of filing the case.
2. In
the case of sale of a residential house, there will be no pre-emption case.
3. The
suit has to be filed within
4. According
to section 89 of the State Acquisition and Tenancy Act, 1950, after 3 years
from the date of land registry, no suit can be filed claiming pre-emption.
5. The
suit should be filed in a court having pecuniary jurisdiction according to the
value mentioned in the sub-payment deed of the land sold.
Pre-emption suit does not run, if
1. Sold land becomes
homestead,
2. The land sold is
handed over to the seller before the suit for foreclosure is filed,
3. The sale is
considered collusive or fraudulent,
4. Property is
transferred in terms of exchange or partition,
5. Husband transfers
property to wife or wife to husband by will or donation,
6. If heba-bil-ewaz is transferred to the
root,
7. Any gift or bequest
of three men related by blood conveys the original,
8. Waqf in Muslim law and transfers dedicated to religious or
charitable purposes.
Pre-emption
under the Non Agricultural Tenancy Act, 1949: Section 24 of the Non-Agricultural Tenancy Act, 1949
deals with right to pre-emption of non-agricultural land. The provisions of
this section attract in case of land in a municipal area. Pre-emption in respect
of non-agricultural land is only possible under section 24 of the
Non-Agricultural Tenancy Act. Section 24 provides that a non-agricultural
tenant is transferred, one or more co-sharer
tenants of such land may, within four months of the service of notice
issued and, in case no notice had been issued or served, then within four
months from the date of knowledge of such transfer, apply to the court for such
portion or share to be transferred to himself or to themselves, as the case may
be. If the plaintiff in such cases does not deposit the sale price (deed value)
along with 5 percent of the sale price (deed value) has to be paid as
compensation to the court. Additionally, 6.25% interest also has to be calculated
and submitted to the court while filing the suit of pre-emption in respect of
non-agricultural land.
Pre-emption
under the Land Reform Ordinance,
1984: Section 13 of the
Land Reform Ordinance, 1984 gives the bargadar
the right to Pre-emption in the barga
property, which has been sold.
Appeal
and Revision: There is scope of appeal against this order under
law. Under section 96(12) of the State Acquisition and Tenancy Act, 1950, an
appeal can be made against the order of the court in pre-emption cases. But no
second appeal can be made against the judgment of that appeal. However, a
revision can be filed under section 115 of the Code of Civil Procedure, 1908
against the decision of the first appeal.
