PRE-EMPTION ACT 1991
Section 1 to section 35 deals with the right of pre-emption.
Section 2: Definitions:
“Immovable property”: Property located in any area other than urban area or
cantonment limits as declared by law for local bodies or cantonments, for the time being
in force.
“Pre-emptor”
The person who holds the right of pre-emption.
“Right of pre-emption”
means a right to acquire, by purchase, an immovable property in preference to other
persons, by reason of such right.
“Sale”
A permanent transfer of ownership of immovable property in exchange for valuable
consideration.
It includes transfers by:
‘Hiba bil-iwaz’ (“gift with consideration”)
‘Hiba ba-shart-ul-iwaz’ (“gift subject to consideration”)
It does not include transfers by:
i. Inheritance, will, or gift (except ‘hiba bil-iwaz’ or ‘hiba ba-shart-ul-iwaz’)
ii. sale in execution of a decree for money or of any order of a civil, criminal,
revenue or any other Court or a Revenue Officer or any local authority
iii. Exchange of 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 case
3. Interpretation: In the interpretation and the application of the provisions of this Act,
the Court shall seek guidance from the Holy Qur’an and Sunnah.
4. Act to override other laws: The provisions of this Act shall have effect
notwithstanding anything in any other law for the time being in force.
5. Right of pre-emption: The right of pre-emption shall arise in case of sale of
immovable property.
WHAT IS PRE-EMPTION
The right which the owner of immovable property possesses to acquire by purchase
another immovable property which has been sold to another person.
2006 CLC 1790:
If the right of pre-emption exists and suit is filed, then it is not enough to establish the
right. Whether the right can be exercised or not will be decided by the court of law.
6. Who Holds the Right of Pre-emption
The right of pre-emption vests, in this order, in:
1. Shafi Sharik: A co-owner of the undivided immovable property being sold.
2. Shafi Khalit: A holder of a special right over the property (for example, right of
passage, right of water passage, or right of irrigation).
3. Shafi Jar: An owner of land adjacent to the property being sold; adjacency gives the
pre-emption right.
(2)Notwithstanding anything in sub-section (1), Even if Sharik, Khalit or Jar exists, they
may exercise pre-emption only to meet a real Zaroorat (need) or to avoid a real Zarar
(loss).
7. Priority When Multiple Special-Rights Holders Exist
If several people hold special rights over the sold property, the one with the
stronger or closer right goes first.
1. Irrigation Rights
o Garden fed by a small branch off a canal → the branch-user has first claim.
o Garden fed directly from the canal → both branch-user and canal-user share
equal claim.
2. Passage vs. Water-Passage
o One person holds right of general passage; another holds right of water-
passage → the general passage-holder goes first.
3. Proximity Rule
o Between two special-rights holders, the one whose property is nearest to
the sold property has priority.
8. Exercising a Joint Right of Pre-emption
When a class or group of persons share the pre-emption right, they may exercise it as
follows:
1. All together
2. Any two or more together
3. Individually (if they cannot or do not act jointly)
9. Equal Entitlement: How to Share
When the Court finds two or more persons equally entitled to pre-emption,
Then it divides the property into equal shares among them.
Illustration:
A owns ½ of a house. B owns 1/3, C owns 1/6.
If A sells their ½ share, B and C each get half of that ½—not according to 1/3 vs. 1/6,
but equally.
10. Withdrawal of claim:
When Multiple pre-emptors sue together or separately and one withdraws his claim
before the decision of the Court then, the remaining pre-emptors get the whole property,
provided their original claim was for the whole property.
11. Sale of appurtenances of land
Only trees or only a building (without land) → No pre-emption right.
Land sold with trees or buildings → Trees and buildings count as part of the land for pre-
emption.
12. Vendor’s Right to Revoke
If the sale contract lets the vendor revoke the sale, by him, within a period, not
exceeding sixty days,
Then pre-emption cannot be exercised until that period ends.
Note: The buyer’s own right to revoke, inspect defects, or inspect the property does not
block pre-emption.
13. How to Make the Pre-emption Demand
1. A pre-emptor must make demands in this order or lose their right:
a. Talb-i-Muwathibat (immediate verbal demand in the same gathering where sale
became known)
b. Talb-i-Ishhad (formal demand by establishing evidence)
c. Talb-i-Khusumat (demand by filing a suit)
2. As soon as a pre-emptor learns of the sale, he must make Talb-i-Muwathibat.
3. After that, but within 2 weeks, they must make Talb-i-Ishhad by sending a registered
written notice (with two honest witnesses) to the vendee, confirming his intention to
exercise the right of pre-emption
o Exception: If no post office is available, Talb-i-Ishhad may be made orally
before two honest witnesses.
4. Once both Talb-i-Muwathibat and Talb-i-Ishhad are made, the pre-emptor must shall
make talb-i-khusumat in the Court of competent jurisdiction to enforce his right of
pre-emption.
TALB-E-MUASIBAT
Immediate demand (literally means demands by jumping) by which he should declare his
intention to declare the right immediately on receiving the information of sale. Therefore,
the right of pre-emption must be asserted with the utmost promptitude. This demand is
also called jumping or immediate demand in which a person abruptly no matter where
just ask to purchase the land.
For this demand it starts from the point that when it comes to the knowledge of pre-
emptor.
TALB-E-ISHAD
It’s also called talb-e-takrar or where you give offer in the presence of two witnesses that
you have right of pre-emption on that immovable property and you wants to purchase that
land.
These both demands can be offered at same point as well
TALB-E-KHASUMAT
This demand is also called demand through court.
After the completion of previous two demands, the pre-emptor can avail third demand
now that is talb-e-khasumat.
In which the person who wants to avail his rights of pre-emption can go to court for his
right over the immovable property
Basharat Ali Khan vs. Muhammad Akbar
The pre-emptor must serve “Talb-i-Ishhad” by written notice, attested by two truthful
witnesses, sent under registered cover, with acknowledgment due.
Simply sending notice without proof of receipt makes “acknowledgment due” redundant.
The law requires actual service on the vendee.
Courts have uniformly held this mode of service to be mandatory.
In Allah Ditta (2013 SCMR 866), the Court stressed the plaintiff’s affirmative burden to
prove all four elements of Talb-i-Ishhad if the vendee disputes them.
If the vendee admits receiving the notice, the registered-cover requirement may be
relaxed.
Absent such admission, failure to prove any one of the four statutory requirements dooms
the pre-emption suit.
Who makes demands:
Demands may be made by the pre-emptor himself or through his authorized agent or
legal or guardian in case of minor
14. Demand by guardian or agent: Where a person is unable to make demands under
section 13, his guardian or agent may make the required demands on his behalf.
15. Waiver of the right of pre-emption:
If the pre-emptor acquiesces in the sale, the right is waived.
Any act or omission by the pre-emptor that shows they gave up the right also counts as a
waiver.
16. DEATH OF PRE-EMPTOR
If a person dies before applying or demanding right of pre-emption then no pre-emption.
If a pre-emptor dies after making any demand under Section 13, the right of pre-emption
passes to their legal heirs.
17. Abatement (Loss) of the Right of Pre-emption
1. Before a court’s decree, if a pre-emptor alienates (sells or transfers) the property
they relied on, their pre-emption right abates (ends).
2. The person who takes that property (the alienee) does not gain any right of pre-
emption.
SECTION 18
A Muslim and a non-Muslim can each exercise the right of pre-emption against the
other.
19. Right of pre-emption non-transferable and indivisible
1. Save as provided in section 16, the right of pre-emption is non-transferable and
indivisible.
2. A pre-emption claim must cover the whole pre-emptible property, not just part of
it.
DEPOSIT OR ZAR-E-SAUM
Definition
Zar-e-Suam is the 1/3 amount in cash of the total sale price under a suit of pre-emption,
which the pre-emptor must deposit with the filing of the suit in the court.
In order to prevent fraud, the pre-emptor has to submit one third amount of immovable
property in the court .It is also called Zarr-e-soum.
In order to succeed in a suit of pre-emption, the pre-emptor must deposit the one-third
amount of total sale price in cash, otherwise, the suit would be dismissed by the court
OBJECT
The object of depositing money as zar- e-suam, is to prevent and defeat the relaxation and
speculative litigation.
CASE LAW:
In case titled, Khawar Janjua vs. Yasir Ahmad, the court held that as the plaintiff did not
pay the one-third amount of total sale price, hence the suit of pre-emption is dismissed.
In another case titled 'Yaqoob Khilji vs. Farooq Ali, the court held that in order to
succeed in a suit of pre-emption, the amount of zar-e-suam must be paid by the applicant.
VALUATION OF PROPERTY
Every property has deputy commissioner value and market value.
The DC value of Revenue land would be half of the market value price and DC value of
general immovable property would be 5 percent less of market value of property.
THE LEGAL EFFECTS OF PRE-EMPTION.
Legal effect of Pre-emption are,
When the claim of pre-emption is complete, the pre-emptor steps in the shoes of buyer.
If the sale has been completed when the claim to the right of pre-emption is enforced, the
original buyer becomes the new seller, and the pre-emptor as the new buyer.
The buyer is entitled to receive or retain the rents and profits of the land during the
interval between the date of its sale to himself, and its transfer to the pre-emptor.
As the pre-emptor takes the property from the buyer, and not the seller, the buyer must
always be a party to the suit.
NO RIGHT OF PRE-EMPTION
No right of pre-emption will be demanded on the following properties
Waqf property
Hiba property
Exchange property
Government purchase lands.
Government exempted lands.
Section.23 and 29 of Law of pre-emption explained it
LIMITATION
The period of limitation for suit of pre-emption will be four months from the date of
registration of sale deed. Mutation or attestation, Possession of property
