“Necessary formalities for seeking pre-emption under Muslim law, and how far these are mandatory”

- Md. Mukhlasur Rahman

1540294124598

Published On - October 23, 2018 [Vol. 09, Jul - Dec, 2018]

Background for writing this article: In Bangladesh, the most commonly and abundantly exercised statutory laws on pre-emption are sec. 96 of SAT Act and sec. 24 of NAT Act. Earlier, u/s. 96 of SAT Act, three categories of persons, i.e, i) co-sharer by inheritance, ii) co-sharer by purchase, and iii) contiguous land holders were allowed to pre-empt. But after amendment of the section in 2006, only the co-sharers by inheritance have right to pre-empt. Again, u/s. 24 of NAT Act co-sharers in the tenancy, both by inheritance and by purchase, are permitted to pre-empt. Now, under any of the statutory laws, there is no chance to pre-empt by the contiguous land holder or those who have easement right to the case lands. But right of ‘shufa’a as under Muslim law is remained untouched by any of statutory law of the land. Right of pre-emption under Muslim law is more and sufficient wide. Because, all the persons who are sharers in the property, persons who have right of easement in the property and persons who are contiguous land holder have right of pre-emption. This right is available both in agricultural and non-agricultural lands. As such, importance of pre-emption laws under Muslim law has been significantly increased now. Another privilege of shufa’ is that in case of an application u/s. 96 SAT Act, prior to filing the application, the applicant must have to deposit the value of the case land along with 25% compensation and 8% interest and in case of an application u/s. 24 NAT, prior to filing the application, the applicant must have to deposit the value of the case land along with 5% compensation; but in a suit under Muslim law, no money shall have to deposit before filing the suit. Even he will not give any compensation or interest. He is to give only the face value of the case land as stated in the transfer deed and development cost, if any ascertained by the court, after disposal of the suit.

Besides, in an application under the statutory laws, whether u/s. 96 of SAT Act or u/s. 24 of NAT Act, the applicant must have to implead all other co-sharers in the case to succeed. But in case of a suit under Muslim law, the litigant shall implead only the vendor(s) and vendee(s). He does not need to implead other co-sharers of the suit khatian/lands. Thereby, the litigant can get proper relief without big expenses.

Under the above facilities, and as under the statutory laws of the land, right of pre-emption has been reduced significantly; significance pre-emption under Muslim law has been increased greatly. Therefore, the time needs that some matters of Muslim pre-emption laws and the observance of necessary formalities for seeking this right is the utmost significant to be explained and simplified.

Necessary formalities for seeking pre-emption under Muslim law: According to Hedaya ‘the right of shufa’a is but a feeble right, as it is the disseizing another of his property merely in order to prevent apprehended inconveniences.’ It has been observed in GobindDayal’s case, at p. 811, that right of pre-emption is “feeble and defective” right, which means that it is transitory in the sense of requiring immediate assertion. However, Mohammedan law considers certain formalities as imperative. If the formalities are in any way incomplete or erroneous, the right of shufa’a does not take form, but remains unsubstantial.

Three demands (talabds):

For the reason that the law of shufa’a is a feeble right, the law considers certain formalities as imperative. Tyabji s. 591, Mulla, sec. 236, Hedaya. Accordingly, no person is entitled to pre-empt unless he takes the proper steps at the proper time, and conforms strictly to the necessary formalities. These formalities or ceremonies are known as ‘Three Demands’. Unless the talabs (necessary demands) were made in prescribed manner, right of pre-emption, could not be legitimately claimed, where talab-i-ishhad and talab-i-mowasibat were not properly made, in spite of opportunity for producing evidence was repeatedly provided, suit for pre-emption would not be maintained, PLD 1987 Quet 209.

(i) First Demand (talab-e muwathabat or immediate demand):

A person who intends to advance a claim based on the right of pre-emption, must immediately on receiving information of the sale express in explicit terms his intention to claim the property. The intention must be formulated in the shape of a demand. This is called talab-e muwathabat or immediate demand. The pre-emptor must assert his claim immediately on hearing of the sale, but not before. Witnesses are not necessary, nor any particular form essential. ‘I have demanded or do demand pre-emption’ is enough. Any unreasonable delay will be construed as an election not to pre-empt. A delay of 12 hours, in a case, was considered too long.Tyabji s. 581, Mulla.

As no particular formula is necessary, so long as the claim is unequivocally asserted. Nor is it material in what words the claim is preferred; so long as they imply a claim they are sufficient. Thus, says the Hedya, “if a person were to say, ‘I have claimed my shufa’a’ or ‘I shall claim my shufa’ or ‘I do claim my shufa’a’, and Ameer Ali says in his book that if he said ‘I have demanded’, or ‘I take the mansion by pre-emption’ or ‘do demand pre-emption’ all of these are good and would be lawful.

(ii) Second Demand (talab-e ishhad or demand by invocation of witnesses):

The second condition is that the pre-emptor must, with the least practicable delay, make a second demand. The formalities of this second demand are that – he must (i) refer to his first demand, 19 DLR 759, 21 DLR 211, (ii) do so in the presence of two witnesses, and (iii) do so in the presence of either the vendor (if he is in possession), or the purchaser, or on the premises of case land. This formality is talab-e ishhad or demand by invocation of witnesses. This is also known as talab-e taqrir, i.e. the demand of confirmation.

If the pre-emptor is at distance and cannot be personally present, the second demand may be made by an agent, or even by a letter. Mulla sec. 236, Wilson s. 377.

Sometimes, these first two demands may be combined. If, at the time of the first demand, the pre-emptor has an opportunity of invoking witness in the presence of the vendor or purchaser, or on the premises.Mulla sec. 236.

(iii) Third Demand (talab-e tamlik or talab-e khusumat):

This is not really a demand, but taking legal action, and may not always necessary; it is only when his claim is not conceded then the pre-emptor enforces his right by bringing a suit. Such an action is called talab-e tamlik or talab-e khusumat.

Some judicial pronouncements regarding necessary formalities:

In a case from the deposition of PW 1 it is clear that he did not assert that immediately after he came to know about the sale in question demanded pre-emption of the land transferred by the kabala in question by jumping and thus talab-e-mowasibat was observed. ..There was no reference of talab-e-mowasibat when he allegedly performed the formalities of talab-e-ishad. As such the required legal formalities were not observed. 13 BLC 606. Contrary view is that under the circumstances a talab-i-ishad is made subsequently, and there is no express reference of talab-i-mousibat, the right of pre-emption of the plaintiff is not defeated as subsequent demand is superfluous. Furhter, Hedaya observed at page 551 that no particular form is necessary: what the law requires is that the demand must be to that effect and no more. 11 BLC 329.

At the time of making second demand, non-reference to the first demand was fatal to the case of claimant of right of pre-emption, PLD 1987 Kar 515. A person who intends to advance a claim based on the right of pre-emption in respect of property, which has been sold, to another, must immediately on receiving information of the sale express in explicit terms of his intention to claim the land. In making the demand there must be node lay on the part of the pre-emptor. The other condition is the pre-emptor should, with little delay as is possible, repeat before witnesses his demand. Failure to perform the demands in accordance with the requirements of the law would defeat the claim, 11 BLT 70. The formality of talab-i-mowasibat to be carried out on the execution of deed of sale.Deferment till registration not necessary, 31 DLR 249. No person is entitled to the right of pre-emption unless he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called Talab-i-mowasibat, i.e. the immediate demand by jumping, 31 DLD 249. Demand formalities must be followed. Second demand called ‘talab-i-ishad’ without reference to the first demand, i.e. ‘talab-i-mowasibat’ is fatal irregularity to a claim of pre-emption, 19 DLR 759, 21 DLR 211.

It appears for the evidence that the witnesses who accompanied the plaintiff to the suit land while he disclosed his talab-i-mowsibat accompanied him and went to the Bank while he tendered money and demanded the suit land but in clear language they did not tell anything about talab-i-mowsibat at the time of second demand. From the aforesaid evidence it seems that although the witnesses did not state in unequivocal language that the plaintiff disclosed his talab-imowsibat previous to his second demand but they have proved his first demand as well as his second demand and I am in respectful agreement with the decisions of Indian jurisdiction as referred above in holding that if under these circumstances a talab-i-ishad is made subsequently, and there is no express reference of talab-i-mowsibat, the right of pre-emption of the plaintiff is not defended, as subsequent demand is superfluous, further, Hedaya observed in his book Mohammadan Law at page 551 that no particular form is necessary ; what the law requires is that the demand must be to that effect and no more, 14 BLT 76.

There was nothing on record to show that talab-i-ishad was made by the pre-emptor which was essential pre-requisite for exercising right of pre-emption. Held: formalities are to be strictly observed and there should be clear proof of their observance. PLD 1984 Pesh 12. In a case the pre-emptor firstly, filed an application for pre-emption u/s. 26F of B.T. Act and lost upto Appellate Division. Thereafter, another suit was filed for shufa’ under Muslim law. Under Mohammedan Law the sale becomes complete only on payment of price by the vendee to the vendor and delivery of possession by the vendor. Right of pre-emption is not dependent on the completion of sale by registration of instrument of sale. One claiming pre-emption under Mohammedan law must make necessary demands on the completion of sale of the property as contemplated under Mohammedan law, 33 DLR (AD) 359 = 1BCR (AD) 258.

Our observations regarding compulsory-ness of the formalities for shufa’a:

The law of pre-emption is essentially a part of Mohammedan jurisprudence. To see first how far our prophet made the above said formalities mandatory, we may first bring some hadiths hadiths about right of shufa’a:-

The right of Shaffa in a partner, is founded on various precept/tradition of the Prophet (sm), who said, Shafa relates to a thing held in joint property, and which has not been divided off, when therefore, the property has undergone a division, and the boundary of each partner is particularly demarcated, and a separate road assigned to each, the right of Shaffa can no longer exist. Hedaya 548. Another tradition is that it is related by Jahir that the Prophet said: “Pre-emption exists in all joint properties, whether land, or house, or grove. It is not proper for him (the owner) to sell till he has offered it to his co-parcener, who may take it or reject it; and if the vendor fails to do this, his co-parcener has the preferential right to it until he is informed.” Muslim Jild 2 Suhfah 23.

Two Hadiths from collection of Imam Bukhari, the most authoritative collection of Ahadis, may be quoted here – Hadith No. 2102/ 1548:- “Jabir bin Abdullah is reported to have said that the Messenger of Allah (sm) ordained Shafa (pre-emption) in every property that has not been disturbed but no sooner it is demarcated and paths are changed there will be no Shafa.” Hadith No. 2103:- “Umr bin Sharir said that I was standing by Saad bin AbiWaqas that Miswar bin Mahazama came and placed his hands on one of my shoulders. At that Abu Rafa’ealso came. He then said Oh Sa’ad, purchase my two houses which are in your Mohallah. Thereupon Sa’ad said by God I am not going to purchase them. Then Miswar said by God you shall have to purchase them. Then Sa’ad said by God I shall not pay you more than four thousands of dirham and those, too, in installments. Abu Rafa’e said I was being paid five hundred dinars but had I not heard the Prophet (sm) saying that a neighbour has greater right on account of his proximity, I would not have given you these for four thousands dirhams while I was being paid five hundred dinars. He (Abu Rafa’e) therefore, granted both to him (Abu Sa’ad).”

From these hadiths we find that right of pre-emption is a strong substantive right of an owner of the undivided part of the land/property sold or neighbour to that. We, so far our hunt, find no hadith restricting this substantive right of shufa’a by any formalities, as we have found above from the books of Islamic jurists as well as the judicial pronouncements. We also know that though the opinion of the Islamic scholars, ijmah, is third source of Muslim law, but this source is only for that circumstance where there is no clarification by the Holy Quran or by the hadiths; but this source can never reserve/restrict by imposing any formality or condition any right given by hadiths. Moreover, it is universal principle of law that if a case is otherwise proved, relief should not be refused only for technical or formal defect; ref. 9 MLR (AD) 285, 1 BLD (AD) 280, 33 DLR 134; also that justice should not be denied on a technical ground, 26 DLR (SC) 68. Needless to mention that the general Muslims of the country are not presumed to be aware about the formalities as mentioned above.

Under the circumstance, we may conclude our study with suggestion that this substantive right of shufa’a should not easily be refused only for some defects in observing the above mentioned formalities; rather if it can be shown that the plaintiff was prompt in seeking his right of pre-emption in respect of the suit land as soon as his hearing about the sale and the suit has been filed within prescribed period of limitation, the relief should not be refused. N.B. For elaborate appreciation on the point of shufa’asee this author’s another book namely “Pre-emption Laws in Bangladesh”.

About The Writer

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Md. Mukhlasur Rahman

Joint District and Sessions Judge,

Judge Court, Satkhira.

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