What is progress, why, how?

What is progress, why, how?

Right of pre-emption is the right to receive a transferred property on a priority basis. In English it is known as Right of Preemption and in Muslim Law it is known as Haq Shufa. The practice of pre-emption has its origins in preventing the entry of a stranger as a partner in an estate. Right of pre-emption in the Indian subcontinent was first practiced under Muslim rule through Muslim law. Its practice continued even during the later British rule.

Nature and purpose of the advance

Preemption is a right by which an immovable property has been sold and transferred by its owner to another person in due course, but the right to compel the buyer to hand over the property to the person entitled to preemption on payment of a proper price. The pre-emptive right system is mainly for the purpose of selling the properties belonging to the same joint stock or heirs to the joint stock members or heirs and so that the properties are not divided into small parts or the arrival of a new person does not disturb the peaceful living of the co-sharers living before. origin

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-partner, including depositing the property. In this case, the right of the pre-emptive claimant arises on the day the property is registered and the title is transferred. However, no right of pre-emption arises from donation, chadka, waqf, mirash, bequest or lease in perpetuity.

Types of Advance Litigation

There is scope for litigation claiming right of pre-emption in both agricultural and non-agricultural properties. Currently, there are 4 types of foreclosure cases in our country. For example-

(1) In respect of agricultural land- advance suit under section 96 of the State Acquisition and Tenancy Act (Amendment 2006) 1950.

(2) In case of non-agricultural land - suit for advance purchase under Section 26 of the Non-Agricultural Tenancy Act, 1949.

(3) Advance suit under Muslim law.

(4) Suits for pre-emption in respect of house property divided under section 4 of the Partition Act.

In this section, we will discuss in detail the provisions related to agricultural land pre-purchase cases.

Advance purchase of agricultural land

In the case of agricultural land, there are two ways to claim pre-emption rights -

(1) By section 96 of the State Acquisition and Tenancy Act (Amendment 2006) 1950

(2) According to Muslim law

According to section 96 of the State Acquisition and Tenancy Act, in the case of agricultural land, if any parcel or part of the land of a raiyat is sold to any other person who is not a co-subject of that deposit, if one or more of the co-subjects of that deposit purchase the said land If he wishes, after the sale, within 2 months of giving notice to the co-partners of the deposit under section 89 of the said Act, and in case no notice is given, then within 2 months from the date of becoming aware of the said sale, any of the co-partners may claim pre-emption rights in the court. can do Provided that the period of 2 months after the notice of sale must not exceed 3 years from the date of registration of the deed.

On the other hand, according to Muslim law, upon receiving the news of the sale of the pre-claimed land, the pre-purchaser has to express his intention to purchase it Talabi Musibat and Talabi Issad i.e. before the buyer or seller of the said property or in the presence of at least two witnesses on the property sold. It must be announced immediately that it has caused major damage. In order to claim the right of pre-emption according to Muslim law it is necessary to prove that the above two conditions (talabi masibat and talabi issad) have been fulfilled in due time.

Who can claim pre-emption rights

According to section 96(1)a of the State Acquisition and Tenancy Act (Amendment 2006) 1950, only co-sharers can sue for advance purchase of agricultural land.

On the other hand, in Muslim law, in addition to co-sharers by inheritance, co-sharers by purchase and co-sharers of adjacent land can claim preemption. Among them, co-heirs will have first priority. After that, the co-sharers will have priority over the co-sharers of the adjacent land and finally the co-sharers of the adjacent land can file a lawsuit claiming the right of pre-emption. If someone files a case claiming the right of pre-emption, then any other co-partner belonging to the same class can apply to be included in the class of plaintiff in the said case.

It is important to include those who are parties to the case

3 classes of persons entitled to pre-emption in order within the class any class of claimant may file a suit in the civil court claiming pre-emption. The following persons must be included as defendants in the advance suit-

(1) Transferee of deed of property claimed in advance.

(2) All remaining co-heirs in respect of pre-emption claims.

(3) All heirs and co-sharers by purchase in respect of pre-emption claims.

(4) All inheritance, purchase and co-sharers of adjoining lands in respect of pre-emption claims by owners of adjoining lands.

Amount of money deposited in advance case

According to section 96(3) of the State Acquisition and Tenancy Act (Amendment 2006) 1950, the person claiming advance has to deposit three types of money in the court as under-

(1) The value of the land mentioned in the pre-emption deed.

(2) Compensation money at the rate of 25 percent on the said price.

(3) Interest at the rate of 8 per cent per annum on the said value from the date of registration of the deed till the time of filing of the suit.

The above amount shall be deposited in the court at the time of filing the case or at any later date subject to the permission of the court. Also, if it is proved that the first purchaser of the land has made any development of the purchased land, then the court may direct the advance payment claimant to submit to the court such amount as it thinks fit for the said development.

On the other hand, in the case of a pre-emption claim in Muslim law, the buyer shall pay to the pre-emption claimant the amount for which he purchased the property in exchange or such amount as may be ordered by the court.

Result of application granted by court

If the application for advance is granted after the evidence, the court will register the registered deed of the deed recipient in favor of the applicant. In this case the applicant does not have to pay any revenue or government fee for registration.

Right of preemption is extinguished

A person's right of pre-emption shall be extinguished in the following cases-

(1) When the co-partner status of the advance claimant has ended

(2) Failure to apply for advance within the specified period specified in the Tamadi Act

(3) If the sold land is re-transferred to the seller