Pre- Emption Balochistan

PAPER 6 (Pre- Emption)

Right Of Pre- Emption

Qno1. Define pre- emption. when does this right arise and do whom is this right available?

1. Introduction:

Pre- emption is purchase by one person before an opportunity is offered to others. This right arises only on a complete sale. the rights of pre- emption does not arise out of gift, sadagaha, waqf, inheritance bequest or a lease.

2. Definition:

According to pre- emption law "right of pre- emption means a right to acquire by purchase an immoveable property in preference to other persons by reason of such right."

3. When does right of per- emption arises of accrue:

Right of pre- emption arises only of a sale which is.

(i) Valid.

(ii) Complete.

(iii) Bonafide.

4. Objectives of pre- emption:

(i) Protection of the privacy of a specified area.

(ii) Discourage the stranger to enter in a special area.

(iii) Maintenance of sanctity.

(iv) Preservation of prevailing values and atmosphere.

PLD 1979 LHR 299

It was held the policy of the pre- emption was to keep out strangers and thus maintain the exclusiveness of the estate."

5. Who is pre- emption:

The person who has right of pre- emption is called pre- emptor. he is also called Shafi.

6. Qualification for acquiring right of pre- emption:

Following may acquire the right of pre- emption.

(i) Male or female.

(ii) Minor

(iii) Major

(iv) Owner of an immovable property.

7. Persons entitled to claim pre- emption:

According to the pre- emption law the following are the persons who are entitled to claim the right of pre- emption.

(i) Shafi Sharik.

(ii) Shafi Khalit

(iii) Shafi Jar.

8. When does right of pre- emption arise:

The right of pre- emption accrues on sale an immovable property.

(i) Definition of sale:

Sale means permanent transfer of the ownership of an immovable property in exchange for valuable consideration and includes transfer of an immovable property by ways of Hiba-Bil-Iwaz or hiba ba Shart-ul-Iaz.

(a) Exceptions:

(i) Transfer of an immovable property through inheritance or will or gift, other than hiba-bil-iwaz or hiba Shart-ul-Iaz.

(ii) A sale in exception of a decree for money or if any order of a civil, criminal, revenue, or any other court or a revenue officer or any local authority.

(iii) Exchange of the agricultural land.

(iv) Transfer of an immovable property for a consideration other than valuable consideration, such as the transfer of an immovable property by way of dower or composition in a murder or hurt cases.

9. On what kinds of property the right of pre- emption can be claimed:

Under the pre- emption law following are three kinds of property on which the right of pre- emption can be claimed.

(i) Agricultural land.

(ii) Village immoveable property.

(iii) Urban immovable property.

10. Conclusion:

To conclude I can say that the right of pre- emption is a preferential right of a person already present in the locality. the person who has such right is called Shafi. it can be acquire in connection with agricultural land, or village or urban immovable property. the right of pre- emption arises only in case of complete sale. Persons Entitled To Claim Pre- Emption.

Persons Entitled To Claim Pre- Emption

Qno2. What are three classes of person who are entitled to claim pre- emption.

Q. What do you understand of right of pre- emption? who are the class of persons entitled to exercise such rights in performance to others.

1. Introduction:

The rights of pre- emption is a right which the owner of an immoveable property possesses to acquire by purchase another immoveable property which has been sold to another under the pre- emption law every person has not right of pre- emption. it is available to only those person who are mentioned in this law.

2. Persons entitled to claim pre- emption:

Following are three classes of person who are entitled to claim pre- emption.

(i) Shafi Sharik.

(ii) Shafi Khalit.

(iii) Shafi Jar.

I. Shafi Sharik:

Shafi Sharik means a person who is a co- owner in the corpus of the undivided moveable property shafi sharik is pre- emptor by way right of coparcenary.

II. Shafi Khalit:

Shafi Khalit means a participator in a special rights attached to immoveable property sold such as right of passage, right of passage of water or right of irrigation.

(a) Conditions:

Shafi Khalit can claim the right of pre- emption on the fulfillment of the following conditions.

(i) There should be no Shafi Sharik.

(ii) If Shafi Sharik has waived his right.

III. Shafi jar:

Shafi Jar means a person who has a right of pre- emption because of owing an immoveable property adjacent to the immoveable property.

3.When Shafi Jar can claim right of pre- emption:

Shafi Jar can claim right of pre- emption in the following circumstances.

(i) Where there are no Shafi Sharik Ahafi Khalit.

(ii) If they are present, they waived their right.

4. Demand of pre- Emption:

There are certain requirement or conditions which are to be performed by the pre- emptor to enable him to claim the right of pre- emption. no person is entitled to claim unless such person makes demands of pre- emption.

5. Death of pre- emptor:

In case of death of pre- emptor after he had made any of the demands, right of pre- emption would stand transferred to his heir.

6. Conclusion:

To conclude I can say that under pre- emption law, Shafi, Shari, Shafi Khalit and Shafi Jar can claim the right of pre- emption. all these three persons are different kinds of pre- emptor.

Essentials Requirements To Demand Pre- Emption

Qno3. What are the essentials requirements to demand a right of Pre- emption.

1. Introduction:

Under the pre- emption law right of pre- emption can be acquired by demand from person who has right of pre- emption. if there is no demand by the person having this right of pre- emption is lost.

2. Demand of pre- emption:

There are certain requirement or conditions which are to be performed by the pre- emption to enable him to claim the right of pre- emption. no person is entitled to claim unless such person makes demands of pre- emption.

3. Essentials requirement to demand a right of pre- emption:

The right of pre- emption is extinguished if no demand is made namely.

(i) Talab-i-Muwathbat.

(ii) Talab-i-Ishhad.

(iii) Talab-i-Khusumat.

I. Talab-I-Muwathbat:

Talab-i-Muwathbat means immediate demand by a pre- emptior, in sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise a right of pre- emption.

(a) Number of witnesses:

There must be two witnesses for Talab-i-Muwathbat.

(b) Conditions:

(i) Talab-i-Muwathbat must be made on the completion of sale.

(ii) Talb-i-Muwatbat must be made on knowing of sale.

(iii) It should be made in the meeting in which slae is known.

II. Talab-I-Ishad:

Talab-i-Ishad means demand by establishing evidence. it is second demand.

1993 CLC 105

It was held that pre- emptor after amking Talb-i- Muwathbat is obliged in perform second demand known as Talib-i- Ishad, as soon therefore as possible.

(i) Procedure:

It should be made within 14 days of Talb-i-Muwathbat.it may be made to purchaser by giving a notice.

(a) Form of notice:

Notice must be in writing or oral.

III. Talab-I-Khusumat:

Talab-i-Khusumat means demand by filing a suit. it is third demand which consists of the institution of the suit of pre- emption.

(i) Conditions:

(i) Suit must be filed in the competent court.

(ii) It should be made within 120 days of Talb-i-Muwthibat.

5. Persons who can make demand:

Following are the persons who can make demand.

(i) Pre- emptor or.

(ii) His agent or.

(iii)His guardian.

6. Conclusion:

To conclude I can say that right of pre- emption is a personal right, it can been acquired only if requirement are fulfilled. this right can also be lost if no demand in made by the pre- emptior. the right of pre- emption is recognized in favor of person having interest connected with the property subject to sale. it is a week type of right.

Exemptions From The Applicability of Pre- Emption

Qno4. What kinds of property are exempted from the right of pre- Emption.

1. Introduction:

Pre- emption is purchase by one person before an opportunity is offered to others. this right arises only on a complete sale. the rights of pre- emption does not arise out of gift, sadagaha, waqf, inheritance bequest or a lease.

2. Definition:

According to pre- emption law "right of pre- emption means a right to acquire by purchase an immoveable property in preference to other persons by reason of such right."

3. On what kinds of property the right of pre- emption can be claimed:

Under the pre- emption law following are three kinds of property on which the right of pre- emption can be claimed.

(i) Agricultural land.

(ii) Village immoveable property.

(iii) Urban immovable property.

4. Property exempted from right of pre- emption:

According to pre-emption law no right pre- emption shall exist in respect of sale of.

1. (a) A waqf property or property used for charitable religious or public purpose and.

(b) Property owned by the federal or a provincial government, or a local authority and.

2. (a) Property acquired by the federal or a provincial government or a local authority in pursuance of any law shall not be pre- empitable.

(b) Waqf property used for chartable, religious or public purpose.

5. Conclusion:

To conclude I can say that under the pre- emption law there are some sale of properties which are exempted from the right of pre- emption.

Determination Of Market Value

Qno5. What are the guide lines prescribed by the law for the determination of market value of the property.

1. Introduction:

The Court is empowered to determine the market value of the property. Under the pre- emption law there are sound guidelines for the determination of market value of the property.

2. Definition of market value:

The worth of property at the time of sale is market value.

3. Evidence of market value:

The best evidence of market value is price paid.

Case law

PLD 1970 SC 299

It was held if a price is mentioned in the sale deed shown to have been paid by the vendee, the court need not to determine the market value of the property to fix the price.

4. When market value is determined:

"Where the parties do not agree to the price at which the pre- emptor shall exercise his right of pre- emption, the court shall determine whether the price at which the sale purports to have taken place was fixed in good faith or paid and if it finds that the price was not so fixed or paid, it shall fix the market value of the property as the price to be paid by the pre- emptor.

5. How the market value is determined:

The purpose of determining the market value of a property the court may consider the following among other matters, as evidence of such value.

(i) The price of value actually received or to be received by the vendor from the vendee.

(ii) The estimated amount of the average annual net profits for the property.

(iii) The value of similar property in the neighborhood and.

(iv) The value of the similar property as shown by previous sales made in the near past.

6. Conclusion:

To conclude I can say that, the competent court can determine the market value of the property keeping in view the matter prescribed in pre- emption law.