Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at

07:05:45 PM

Course Contents:

1.Islamic Preemption Laws (Punjab Preemption Act IX of 1991) as amended upto date (Sections 1 to 37).

Book Recommended:

1.The Punjab Preemption Act, 1991 by Haider Zaman Khan.

Rights of preemption (q Y): It is a right, which arises out from the sale of immovable property which
belong to areas other than urban and cantonments, i.e., only in village.

Like other rights, the right of preemption, has to be regarded in a two fold aspects, such as:

(1)As a primary or inherent right.

(2)As a secondary or remedial right.

Primary right: The right to have an offer of an intended sale is inherent to the preemptive property and
continuously attached with it and passes alongwith it to transferees, assignees, legal representatives, and heirs.
In other words, it is a right attached to the preemptive property and is inseparable from it. This right is capable
of transfer by the transfer of the preemptive property.

Secondary right: It does not vest in the property at the date of sale.

Priority right: For the purpose of right of preemption claim, the claimant has to show his preferential right to
acquire the property, as it is the first important condition of preemption.

Possession of priority right: Preemptor has to posses his priority right to acquire the property at the three
crucial dates:

1.At sale: Preemptor is required to posses his priority right at the time of sale of the relevant property. If his
right of superiority is created after the sale has been conducted and possession has been transferred, he
loses his right.

2. At institution of lawsuit: Where the lawsuit is instituted in or against his favour, he must posses priority
right. He loses his right where his right is created after the institution of suit.

3.At decree: Right of preemption should be of his superior right when decree is passed in his favour being
preferential right. Where the plaintiff does not posses a preferential right, he does not posses prior right to
purchase suit property.

Equal right: Where both preemptor and vendee have right at par, there will be no priority of any right. Both
are required to share their rights equally, as it is most equitable.

Priority in the right of preemption: Where there are more than one participators in a special interest, the
person having special interest shall have first right over the person having general right.

Example: Where two persons claim preemption, nearer shall have precedence over the preemptor having
such property not so near to the immovable property sold.

Persons having priority right of preemotion: Following is the preferential right of preemption:
1. Coowner (jqBq): Coowner of undivided property has a first right for preemption. This property
should be sold property. Where the property has been divided or is moveable or is unsold and belong to
urban or cantonment area, the right of preemption shall not be created as first right.

2. Participator in special rights (OaBq): Where the special rights attached to the immovable property
exist, the concerned person shall have second right of preemption. These special rights include right of
passage, passage of water, or right of irrigation.

3.Neighbour (iBUBq): Where sold property is adjacent to immovable property belonging to other who is
neither coowner nor possesses special interest in the property sold, but on the grounds of neighborhood,
the right of preemption is created. This is third priority right and establishable in the absence of former
two priority rights.

Conditions of preemption: Preemption is subject to two conditions. Mere preferential right of preemption is
insufficient if it lacks one of two conditions, i.e., real need or avoidance of injury.

1. Real Need: Right of preemption, even preferential right of preemption is not maintainable where pre
emptor does not have real need to exercise the right of preemption. If he is not in need of subject property,
he cannot claim right of preemption. It requires real need of the person who alleges right of preemption.

2. Avoidance of injury: Where there is not cause of injury to the interest of preemptor or not reasonable
apprehension to cause injury to the interest of alleged preemptor, right of preemption shall not be
exercisable. It is another essential requirement of the right of preemption. This right is exercisable where
interest of property may put in injury, and there is need to avoid it from injury.

Repugnancy: It is held in case that the preferential right of preemption on the ground of special interest in
property such as, right of passage, right of passage of water, or right of irrigation is contravene (clash, oppose,
defy, contradict) to the Islamic injunctions.

Demand of preemption right u/s 13: The right of preemption extinguishes where demand of preemption is
not exercised in the manner prescribed and within the stipulated time period provided. This demand should
follow some rules and order. The rules and order are as follows:

1. Immediate demand: Where sale proceed is not conducted in the presence of its preferential right holder
and he comes to know in a meeting that the subject immovable property has been sold, he should
immediately declare his intention to acquire such property. Any reasonable statement or words may show
his intention, such as, I was wanted to acquire that property or I was interested in that property and still
interested. Specific words are no more necessary. Mere indicative intention is sufficient.

Notice of demand: Where a person passes his indicative intention to acquire such property, he requires
bringing out this intention into the knowledge of vendee. This notice should be written and attested by two
truthful witnesses. This notice is to be sent to vendee by registered mail under Acknowledgement Due.
Where sufficient postage arrangements are not available, he should demand right of preemption in the
presence of two truthful witnesses.

2. Demand by evidence: Where alleged preemptor has sufficient evidence to establish his claim or
preferential right, he may demand his right of preemption by establishing evidence. In such demand he
has to send written and attested notice by two truthful witnesses to vendee. This notice is sent by post
under Acknowledge Due, confirming his intention to exercise the right of preemption. Where post
office facilities lack, he may demand such right in the presence of two truthful witnesses.

Cost incurred by vendee: It is notable that if vendee has incurred some cost for the improvement of
property before demand by establishing evidence, he may claim such cost if preemptor succeeds in his
right of preemption. Although this demand is in accordance to and conform Tradition, but this provision is
repugnant to the Injunctions of Islam.
3. Demand by litigation: Where preemptor has fulfilled the requirements of immediate demand and
demand by establishing evidence, may file lawsuit in the Court of competent jurisdiction to enforce his
right of preemption. Right of preemptor should stand till the issuance of decree from Court. If preemptor
alienates the property on the basis of which he claims the right, his right shall extinct.

Death of preemptor: Death of preemptor does not extinct his priority right who demands his right before
death by the any way prescribed under this Act. His demand is might be immediate demand or demand by
establishing evidence or demand by litigation. His right of preemption over the immovable property transfers
to his legal heirs.

Limitation of notice period: In case where right of preemption is exercisable through immediate demand or
demand by establishing evidence, notice must be served to vendee within two weeks from the date of such
knowledge or establishing right by evidence.

Limitation of suit: There are four provisions under which preemptor may file lawsuit for the enforcement of
his right of preemption within four months. Such provisions are as under:

1. Registration: Where sale deed has been got registered, date for suit commences from the date of such
registration.

2.Attestation of mutation: If the sale is made other than registered deed, limitation shall commence from the
date of attestation of mutation.

3.Physical possession: If sale is made other than registration deed or mutation, date of limitation shall take
effect from the date of taking such physical possession of vendee.

4. Knowledge of preemptor: Where sale is not conducted either by registered deed, mutation, or physical
possession, knowledge of preemptor shall be the determinant factor for the purpose of limitation.
Limitation shall commence from the date of such knowledge of preemptor.

Determination of price: Where there is dispute for the determination of price, there are two determinant
factors of price of property such as:

1.Payment in goodfaith: Where Court feels that the payment has been made or fixed in goodfaith and it is
most equitable, Court shall order for such price.

2.Market value: Where Court finds that payment remains unpaid or unfixed, the Court shall determine the
price according to market rate. Preemptor shall pay such market price determined by Court.

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