Right of Pre-emption (Haq-e-Shufa) (Part 1)

Today's lecture is on a very important topic, and I've had to work hard to simplify it, because in the world of law, and especially in civil law, this law, and enforcing it, is among the most difficult, not just for lawyers but also for judges. I've repeatedly been asked to explain this law, and after great effort I've simplified it so you can understand it. This is the law of pre-emption (shufa), it's addressed by the Punjab Pre-emption Act 1991. Keep in mind that proving it in court is extremely difficult, and the reason, from my seventeen, eighteen years of legal practice, is that roughly 80 percent of pre-emption-related suits are filed purely to harass someone, and the 20 percent who file genuinely often fail to meet all the legal requirements, all the legal demands. First, keep in mind that the right of pre-emption applies to immovable property, immovable estate, it does not include movable property, it does not include movable property. Since I'll keep repeating terms, keep in mind that when I say 'the pre-emptor,' I mean the person exercising this right. Now I've told you one thing, that for pre-emption immovable property must be involved, and the second element is that the property sale must have been finally completed, the sale transaction must not still be incomplete, the sale transaction must be complete, only then does the right of pre-emption arise. Which transactions can form the basis for pre-emption? 1. A property sold for consideration, sale price. 2. A property that falls under gift, but that gift is for consideration, where the gift deed formally states that I am gifting this after receiving this amount. 3. Or a gift conditional on consideration, where there's a condition that I will receive some compensation. These are exactly the three kinds of transactions on which pre-emption can be exercised. Now for which is pre-emption not possible? 1. Property acquired under a will, under a will, no pre-emption. 2. Property acquired under a gift, becoming owner under gift, be it a simple gift, gift for consideration, or gift conditional on consideration, none of these are included. 3. Property received through inheritance, no pre-emption. 4. Property being sold under a court order and someone buying it, no pre-emption for that either. Now what property is being sold under a court order, and why, let me explain fully. A money decree has been passed, the person against whom the decree is passed owes something, has no money, his property is attached, then his property is auctioned, no pre-emption for that either. 5. Immovable property being given as dower (haq mehr), no pre-emption for that either. 6. Property given in exchange for a compromise over murder (sulh-e-qatl), no pre-emption for that either. Now keep one thing in mind, I'm first telling you which properties pre-emption can apply to. In this Act, the lawmaker has formally written that we are making this Act, we're giving bullet points, we're giving sections, we're giving procedure, but you must take your guidance from the Holy Quran. In pre-emption cases, lawyers are to assist the court in light of the Quran, and the court is to take its guidance from the Quran to decide the matter, this is formally written in this Act, the Pre-emption Act 1991. Now who has the right of pre-emption, and who has priority, who's next, and who's after that? 1. The first right belongs to the shafi-e-sharik (co-sharer pre-emptor). What is a shafi-e-sharik? A shafi-e-sharik is a person who, in the account in which the seller was a co-sharer, is himself an owner in that account through inheritance, through blood relation. Two brothers had five acres of land each, one brother sold to A, the other brother can exercise pre-emption as shafi-e-sharik, saying, this came through inheritance, I too am a co-sharer in this inheritance, he too is a co-sharer, if he wanted to sell, I had the first right, I am ready to buy it. The first right belongs to the co-sharer pre-emptor, whether a sister, a brother, a paternal uncle, whatever the relation, whether it's maternal or paternal, whether from the maternal grandmother's side or the paternal grandmother's side, the co-sharer pre-emptor. 2. The second right, if the co-sharer pre-emptor doesn't exercise pre-emption, then whose right is next? This means that if the co-sharer pre-emptor has exercised pre-emption, then the second and third tier of people cannot exercise pre-emption, their right comes after his, they cannot exercise pre-emption. If the co-sharer pre-emptor doesn't exercise pre-emption, whose right is next? That's the shafi-e-khaliyat (dominant tenement pre-emptor), some pronounce it shaafi, some shafi, forget the pronunciation, keep the terms sharik (co-sharer), khaliyat (dominant tenement), and jaar (neighbour). What is shafi-e-khaliyat? Shafi-e-khaliyat means that in the land being sold, there was a shared right, a fundamental right, what was that right? The right was that my land, alongside his land, has a right of passage, so it's my right that if this land isn't sold to me, whoever comes next might obstruct me, my right of passage has been going on for fifty years, a hundred years, two hundred years, generation after generation, and since this land is legally his property but I have a right of passage through it, if a new owner comes, he might block that path somewhere. Or a water passage, a passage for irrigation, third, an irrigation channel that I have a right to water through, for fifty years, a hundred years, generation after generation, since I have this right, this right belongs to me, then it's my right to buy this land. Now here a little understanding is needed: shafi-e-sharik is first, shafi-e-khaliyat is second, now shafi-e-khaliyat's right relates to water, passage, or irrigation, so if the shafi-e-sharik buys it, his right remains in place, because the account isn't changing, that chain stays intact. Now if neither shafi-e-sharik nor shafi-e-khaliyat exercises pre-emption, then 3. the third right belongs to shafi-e-jaar (neighbouring pre-emptor). Who is shafi-e-jaar? Shafi-e-jaar is someone whose land is adjacent to the land being sold, that's called shafi-e-jaar, that my land is adjacent to his land, so the first right is mine, if neither shafi-e-sharik nor shafi-e-khaliyat comes forward, then shafi-e-jaar will come. Now here's a point that's often forgotten. The right of pre-emption exists in two situations, for shafi-e-sharik, for shafi-e-khaliyat, and for shafi-e-jaar, if these two conditions aren't in your plaint, one of the two, or both, and if these two conditions don't exist and you don't mention them, then you have no case, whether you're shafi-e-sharik, shafi-e-khaliyat, or shafi-e-jaar. You need to first state that I need this property, and if I don't get it and I need it, there's a strong apprehension of harm to you, you will suffer damage, these are things you must keep in mind. One, you need it, you need it, and if you don't get it, you'll suffer harm, you'll suffer damage, keep this point firmly in mind. Now after this comes the classification, which property can pre-emption apply to and which not, who can exercise pre-emption, and at which stage does their right arise? I've told you about shafi-e-jaar, don't worry, I've made this quite difficult topic easy: shafi-e-jaar means that land is adjacent to land. Now this goes to the very last line in that mauza, shafi-e-jaar goes to the last line, this is my acre, this is my area, I sold it, shafi-e-sharik didn't come forward, shafi-e-khaliyat didn't come forward, shafi-e-jaar, the one with the neighbouring plot, didn't come forward, then the one adjacent to that adjacent plot can exercise it, right down to the border line. Now that covers the classification of who can exercise pre-emption on which land. How do you actually do it? How do you exercise the right of pre-emption? The law gives three demands, and such a chain, that if even one link in that chain falls out, you have no case, you'll lose your case, no court will give you any leeway at all.