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North-West Frontier Province Pre-emption Act, 1987

Sections

Contents

 

 

Preamble

 

1.

Short title, extent and commencement

 

2.

Definitions

 

3.

Interpretation

 

4.

Act to override other laws

 

5.

Right of pre-emption

 

6.

Persons to whom right of pre-emption vests

 

7.

Priorities in right of pre-emption

 

8.

Joint right of pre-emption how exercised

 

9.

Method of distribution of property where more than one person are equally entitled

 

10.

Withdrawal of claim

 

11

. Sale of appurtenance of land

 

12.

Notice of Intention to Sell

 

13.

Demand of pre-emption

 

14.

Demand by guardian or agent

 

15.

Waiver of right of pre-emption

 

16.

Death of pre-emptor

 

17.

Abatement of right of pre-emption

 

18.

Exercise of right pre-emption by a Muslim and non-Muslim against each other

 

19.

Right of pre-emption non-transferable and indivisible

 

20.

Where pre-emptor and vendee equally entitled

 

21.

Improvements made by vendee

 

22.

Improvement made in status of vendee defendant after institution of suit

 

23.

No right of pre-emption in respect of certain properties

 

24.

Plaintiff to deposit sale price of property

 

25.

Deposit or refund of excess price

 

26.

The sum deposited by pre-emptor not to be attached

 

27.

Fixing of price for purposes of suit in case of sale

 

28.

Market value how to be determined

 

29.

The Government may exclude areas from Pre-emption

 

30.

Appearance of Ullema in addition or instead of advocates

 

31.

Limitation

 

32.

Notice

 

33.

Matters ancillary or akin to Provisions of this Act

 

34.

Application of Civil Procedure Code and the law on evidence

 

35.

Repeal

 

36.

Rules

 

North-West Frontier Province Pre-emption

Act, 1987
[X OF 1987] 

28th April, 1987


An Act to bring in conformity with the

Injunctions of Islam the law relating to Pre-emption

No. PA/N.-W.F.P./Legis./87/6163, dated 28th April, 1987. The North-West Frontier Province Pre-emption Act, 1987, having been passed by the Provincial Assembly of the North-West Frontier Province on the 21st April, 1987, and assented to by the Governor of the North-West Frontier Province on the 26th April, 1987, is hereby published as an Act of the Provincial Legislature of North-West Frontier Province.


Whereas the Council of Islamic Ideology, in consultation with the Law Division, has recommended that it is necessary to modify the existing law relating to pre-emption, so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur’an and Sunnah.

It is hereby enacted as follows: –

 

1.         Short title, extent and commencement. (1) This Act may be called the North-West Frontier Province Pre-emption Act, 1987.

 

(2)        It extends to the whole of the North-West Frontier Province.

 

(3)        It shall come into force at once.

 

 

2.         Definitions. In this Act, unless there is anything repugnant in the subject or context-

(a)        ‘immovable property’ includes land, building, house, shop, water tank and well;

(b)        ‘pre-emptor’ means a person who has the right of pre-emption;

(c)        ‘right of pre-emption’ means a right to acquire by purchase an immovable property in preference to other persons by reasons of such rights; and

(d)        ‘sale’ means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hiba-bil-iwaz or hiba-bi-shart al-iwaz but does not include-

(i)         transfer of an immovable property through inheritance or will or gift, other than hiba-bil-iwaz or hiba-bi-shart al-iwaz;

(ii)        a 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)       the creation of any occupancy tenancy by a landlord whether for consideration or otherwise;

(iv)       exchange of agricultural lands for better management; and

(v)        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.

 

 

Court Decisions

 

Exchange of land –Exchange of land for better management-Phrase better management used in Cl. (iv) of S. 2 of North-West Frontier Province Pre-emption Act, 1987 was of somewhat wide connotation and amplitude-Exemption from pre-emption right in present from was conditional and was an exception to the rule regarding exchange of property-To claim valid exemption from the pre-emption on the basis of exchange of agricultural land, vendee was required to prove by evidence that exchange was necessary because of requirements of better management-No hard and fast rule could be laid of better management-No hard and fast rule could be laid down to define and interpret “better management”. 2004 C L C 359

 

3.         Interpretation. In the interpretation and the application of the provisions of this Act, the Court shall seek guidance from the Holy Qur’an, Sunnah and Fiqh.

 

 

4.         Act to override other, laws. The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force.

 

 

5.         Right of pre-emption. (1) The right of pre-emption shall arise in case of sale.

 

(2)        Nothing contained in sub-section (1) shall prevent a Court from holding that an alienation purporting to be other than sale is in fact a sale.

 

6.         Persons in whom the right of pre-emption vests. The right of pre-emption shall vest-

 

(a)        firstly in Shafi-Sharik;

 

(b)        secondly in Shafi-Khalit; and

 

(c)        thirdly in Shafi-Jar.

 

Explanation I.Shafi-Sharik‘ means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons.

 

Explanation II.Shafi-Khalit‘ means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.

 

Explanation III. ‘Shafi-Jar’ means a person who has a right of pre-emption because of owing an immovable property adjacent to the immovable property sold.

 

Court Decisions

 

Exemption from pre-emption right-Exchange of land for better management-Phrase better management used in Cl. (iv) of S. 2 of North-West Frontier Province Pre-emption Act, 1987 was of somewhat wide connotation and amplitude-Exemption from pre-emption right in present from was conditional and was an exception to the rule regarding exchange of property-To claim valid exemption from the pre-emption on the basis of exchange of agricultural land, vendee was required to prove by evidence that exchange was necessary because of requirements of better management-No hard and fast rule could be laid of better management-No hard and fast rule could be laid down to define and interpret “better management”. 2004 C L C 359

 

            Plaintiff filed appeal against judgment and decree of Trail court through his attorney which was accepted-competency of appeal was challenged by defendant contending that attorney of plaintiff was not conferred with express powers to file appeal or revision vide deed of attorney-Contention of defendant was repelled for the reasons that all the acts performed right up to the High court by Attorney had been either expressly or impliedly confirmed and ratified by plaintiff/principal— Although deed of power of attorney was to be strictly construed and unless authority/power was conferred expressly, it could not be construed to be implied or inherent in the agent, but provisions of Ss. 196, 197 & 199 of Contract Act, 1872 were an exception to the general rule wherein principal had been given an option to ratify an act not expressly conferred on the agent-Such ratification could be either express or implied and once such acts of agent were ratified by principal, same would stand validated for all legal purposes and would bind principal himself-All acts performed and steps taken by attorney having been confirmed/ratified by plaintiff through his conduct both express and implied, same would be held to have been validly performed by attorney-Appeal filed through attorney was competent, in circumstances. 2004 C L C 359

 

Suit filed by pre-emptor was resisted by defendant on ground that time, place and names of witnesses of Talbs were neither given by plaintiff in plaint nor in notice of Talb-e-Ishhad which omission was fatal-Validity-Omission of time, place and names of witnesses from the plaint was not fatal to the  case of names fo witnesses from the plaint was not fatal to the case of plaintiff-Non-signing of notice of Talb-e-Ishhad by attesting witnesses was also not of much consequence because both witnesses appeared in the court and had confirmed that they had attested the original notice-Even in the written statement receiving of notice of Talb-e-Ishhad had not been denied by defendant-Omission to sign notice by attesting witnesses was a technical one. 2004 C L C 359

 

7.         Priorities in the right, of pre-emption. (1) Where all the classes of pre-emptors referred to in section 6 are the claimants, the first class shall exclude the second and the second shall exclude the third:

 

(2)        Where there are more than one participators in the special rights attached to the immovable property sold, the person having special right shall have precedence over a person having a general right.

 

 

Illustrations

A garden is irrigated by a watercourse which opens from a small canal. If this garden is sold, the person having right of irrigation from watercourse shall have precedence over a person having right of irrigation from the card. But if such garden is irrigated from the small canal. The person having right of irrigation from watercourse as well as the person having right of irrigation from the canal shall both have right of pre-emption.

 

(3)         Where there are more than on pre-emptors and one has right of passage and the other has right of passage of water attached to the immovable property sold, the person having right of passage shall have precedents over the person having right of passage of water.

 

(4)        A participator in the special rights having his property on the basis of which he claims to be the pre-emptor nearer to the immovable property sold shall have precedence over the pre-emptor having such property not so nearer to the immovable property sold.

 

 

8.         Joint right of pre-emption, how exercised. Where a right of pre-emption vests in any class or group of persons, the right may be exercised by all the members of such class or group jointly, and if not exercised by them all jointly, by any two or more of them jointly, and if not exercised by any two or more of them jointly, by them severally.

 

 

9. Method of distribution of the property. where more than one person equally entitled. Where more than one person are found by the Court to be equally entitled to the right of pre-emption the property shall be distributed amongst them in equal shares.

 

 

Illustration

A has one-half share in a house, B has one-third and C has one-sixth share in such house. If A sells his one-half share the other two partners, namely B and C shall have equal right of pre-emption in one-half of the house and this one-half shall be distributed between B and C in equal shares and not according to their respective shares in the house.

  

10.       Withdrawal of claim. Where there are more than one pre-emptors having sued jointly or severally and any of them withdraws his claim before the decision of the Court, the remaining pre-emptors shall be entitled to the whole property: –

Provided that the claim of the remaining pre-emptors was originally made for the whole property.

 

11.       Sale of appurtenances of land. Where only trees or a structure of a building is sold without land, no right of pre-emption shall exist in such trees or the structure of a building, but where land is sold with trees and buildings on it, the trees and building shall ‘be deemed to be included in the land for the purposes of the right of pre-emption.

 

12.       Notice of intention to sell. (1) Where any person proposes to sell any immovable property in respect of which a right of pre-emption exists, he may give notice to all such persons having such right of the price at which he is willing to sell the property.

 

(2)        The notice under sub-section (1) shall be given through any Court within the local limits of whose jurisdiction such immovable property is situated and shall be deemed sufficiently given if it be stuck upon the main entrance of mosque and on any other public place of the village, city or place where the property is situated].

 

13.       Demand of pre-emption. (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:-

(a)        Talb-i-Muwathibat;

(b)        Talb-i-Ishhad; and

(c)        Talb-i-Khusumat.

 

Explanations. I.Talb-i-Muwathibat‘ means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he had come to know of the sale declaring his intention to exercise the right of pre-emption.

 

Note. Any words indicative of intention not exercise the right of pre-emption are sufficient.

 

Explanations. II. ‘Talb-i-Ishhad‘ means demand by establishing evidence.

 

Explanations. III. Talb-i-Khusumat‘ means demand by filing a suit.

 

(2)        When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat.

 

(3)        [Subject to his ability to do so, where] a pre-emptor has made Talb-i-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section [32], or knowledge, whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption:

 

Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.

 

(4)        Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under sub-section (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.

 

 

Court Decisions

 

Making of Talbs-Plaintiff by producing evidence on record had fully proved that he had made Talb-i-muwathbat and Talb-i-Ishhad in time on receiving information with regard to transaction of suit-land-contention that Talb-e-Muwathibat as well as Talb-e-Ishhad were made much before the sale of suit property, was repelled. 2004 M L D 341

 

            Suit filed by pre-emptor was resisted by defendant on ground that time, place and names of witnesses of Talbs were neither given by plaintiff in plaint nor in notice of Talb-e-Ishhad which omission was fatal-Validity-Omission of time, place and names of witnesses from the plaint was not fatal to the  case of names fo witnesses from the plaint was not fatal to the case of plaintiff-Non-signing of notice of Talb-e-Ishhad by attesting witnesses was also not of much consequence because both witnesses appeared in the court and had confirmed that they had attested the original notice-Even in the written statement receiving of notice of Talb-e-Ishhad had not been denied by defendant-Omission to sign notice by attesting witnesses was a technical one. 2004 C L C 359

 

            ­Original notice of Talb‑i‑Ishhad‑‑Producing of such notice by vendee ‑‑­Effect‑‑‑Where such notice was tendered by vendee himself, its genuineness and contents mentioned therein were admitted to be true and correct for all intents and purposes ‑Vendee could not raise objection to such document as the same was primary document. 2002 S C M R 219

 

            Sending of photo copy of the original notice ‑‑Vendee under the provision of S.13(3), North‑West Frontier Province Pre‑emption Act, 1987 has, to be served with original notice of “Talb‑i‑Ishhad”‑‑‑Photo copy could. not be treated as original‑‑­Where the pre‑emptor retained the original notice with himself and sent photo copy of the same to the vendee, Lower Appellate Court dismissed the suit of the pre‑emptor ‑‑‑Suit was rightly dismissed for want of non‑compliance of S.13(3), North‑West Frontier Province  Pre­emption Act, 1987. 2000 C L C 336

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; PLD 1978 SC (AJ&K) 37 and E.A. Evans v. Muhammad Ashraf NLR 1979 (Civil) 178 ref.

 

14.       Demands by the 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. The right of pre-emption shall be deemed to have been waived if the pre-emptor has acquiesced in the sale or has done any other act of omission or commission which amounts to waiver of the right of pre-emption.

 

16.       Death of pre-emptor. Where a pre-emptor has died after making any of demands under section 13, his right of pre-emption shall stand transferred to his legal heirs.

 

17.       Abatement of right of pre-emption. (1) Where a pre-emptor before the decree of a Court has alienated his property on the basis of which he is entitled to the right of pre-emption, his right of pre-emption shall abate.

 

(2)        An alienee of the property under sub-section (1) shall also not be entitled to the right of pre-emption.

  

18. Exercise of the right of pre-emption by a Muslim and a non-Muslim against each other. A Muslim and a non-Muslim may exercise the right of pre-emption against each other.

 

19.       Right of pre-emption non-tranferable and indivisible. (1) Save as provided in section 16, the right of pre-emption shall be non-transferable and indivisible.

 

(2)        The claim for pre-emption shall be made on the whole property pre-emptible.

  

20.       Where the pre-emptor and vendee equally entitled. Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally.

  

21.       Improvements made by the vendee. Where a vendee has made any improvements in the immovable property before Talb-i-Ishhad is made by the pre-emptor under sub-section (3) of section 13, the vendee shall be entitled to the cost of such improvements.

 

22.       Improvement made in the status of the vendee-defendant after institution of the suit. Any improvement made in the status of a vendee-defendant after the institution of suit for preemption [otherwise than through inheritance] shall not affect the right of pre-emptor-plaintiff.

 

23.       No right of pre-emption in respect of certain properties. (1) No right of pre-emption shall exist in respect of sale or purchase of.

(a)        a waqf property or a property used for charitable, religious or public purpose; or

(b)        a property by the Federal or a Provincial Government or a local authority.

 

(2)        A property acquired by the Federal or a Provincial Government or a local authority in pursuance of any law shall not be pre-emptible.

  

[24.      Plaintiff to deposit sale price of the property. (1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one-third of the sale price of the property in cash within such period as the Court may fix:

 

Provided that if no sale price is mentioned in the sale-deed or in the mutation, the Court, shall require the deposit of one-third of the probable value of the property.

 

(2)        Where the plaintiff fails to deposit one-third of the same price of the probable value of the property within the period fixed by the Court, his suit shall be dismissed.

 

(3)        Where the plaintiff withdraws the sum deposited under sub-section (1), his suit shall be dismissed.]

 

(4)        Every sum deposited under sub-section (1) shall be available for the discharge of costs.

 

(5)        The probable value fixed under sub-section (1) shall be available for the discharge of costs.

 

 

25.       Deposit or refund of excess price. (1) Where a Court passes a decree in favour of a pre-emptor on payment of a price which is in excess of the amount already deposited by the pre-emptor, the Court shall require the pre-emptor to deposit the remaining amount within thirty days of the passing of the decree.

 

(2)        Where a decree is passed for a lesser amount than the amount already deposited by the pre-emptor, the Court shall refund the excess amount to such pre-emptor.

  

26.       The sum deposited by pre-emptor not to be attached. No sum deposited in or paid into Court by a pre-emptor under the provisions of this Act shall, while it is in custody of the Court, be liable to attachment by any Civil, Criminal, Revenue or any other Court or a Revenue Officer or a local authority.

 

27.       Fixing of price for purposes of suit in case of sale. (1) Where in the case of a sale the parties are not agreed to the price at which the pre-emptor shall exercise his right of pre-emption the Court shall determine whether the price at which the sale purports to have taken place has been fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix the market value of the property as the price to be paid by the pre-emptor.

 

(2)        If the Court finds that the price was fixed in good faith or paid, it shall fix such price to be paid by the pre-emptor.

  

28.       Market value how to be determined. For the purpose of determining the market value of a property, the Court may consider the following, among other matters, as evidence of such value-

 

(a)        the price of value actually received or to be received by the vendor from the vendee;

 

(b)           (b)        the estimated amount of the average annual net profits of the property;

 

(c)        the value of similar property in the neighbourhood; and the value of similar property as shown by previous sales made in the near past.


29.       [Replead]

30.      Appearance of Ulema in addition to or instead of Advocates. Any party to a proceeding under this Act may, in addition to, or instead of, an advocate engage an Alim who is qualified as such from a Deeni Madrasah approved by the Provincial Government for this purpose.

 

31.       Limitation. The period of limitation for a suit to enforce a right of pre-emption under this Act shall be [one hundred, and twenty days] from the date-

 

(a)        of the registration of the sale-deed; or

(b)        of the attestation of the mutation, if the sale is made otherwise than through the registered sale-deed; or

(c)        on which the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale-deed or the mutation; or

(d)        of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph (b) or paragraph (c).

 

 

Court Decisions

 

Limitation :– Pre-emption suit arising from sale effected through mutation-Such suit has to be filed within 120 days from date of attestation of mutation-Issuance of public notice under S. 32 of North-West Frontier province pre-emption Act, 1987 has not nexus with period of limitation prescribed by S. 31 thereof-provision of S. 32 of the act is meant to provide an extra source of Knowledge for making Talb-i-Muwathibat and alternate time frame for making Talb-i-Ishhad in accordance with S. 13(3) thereof. 2004 C L C 284

 

32. Notice. (1) The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration or attestation, as the case may be, give public notice in respect of such registration or attestation.

 

(2)        The notice under sub-section (1) shall be deemed sufficiently given if it be stuck up on the main entrance of a mosque and on any other public place of the village, city or place where the property is situated:
Provided that if the property is situated in a city, the notice shall also be given through a newspaper having large circulation in such city.

 

(3)        The charges for the notice under sub-section (2) shall be recovered from the vendee by the Registrar or the Revenue Officer, as the case may be, at the time of registration or attestation of mutation.

Ss. 31 & 32-Pre-emption suit arising from sale effected through mutation-Limitation-Such suit has to be filed within 120 days from date of attestation of mutation-Issuance of public notice under S. 32 of North-West Frontier province pre-emption Act, 1987 has not nexus with period of limitation prescribed by S. 31 thereof-provision of S. 32 of the act is meant to provide an extra source of Knowledge for making Talb-i-Muwathibat and alternate time frame for making Talb-i-Ishhad in accordance with S. 13(3) thereof. 2004 C L C 284

  

33.       Matters ancillary or akin to the provisions of this Act. Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shari’ah.

 

34.       Application of the Civil Procedure Code and the law on evidence. The provisions of the Code of Civil Procedure, 1908 (Act V of 1908), and the law on evidence in vogue shall, mutatis mutandis, apply to the proceedings under this Act.

 

35.       Repeal. (1) The North-West Frontier Province Pre-emption Act, 1950 (N.W.F.P. Act XLV of 1950), is hereby repealed.

 

(2)        In the cases and appeals filed under the law referred to in sub-section (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such law be governed and continued in accordance with the provisions thereof.

 

(3)        All other cases and appeals not covered under sub-section (2) and instituted under the law, referred to in sub-section (1) and, which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the pre-emptors shall stand dismissed, except those in which right of pre-emption is claimed under the provisions of this Act.

  

36.       Rules. Government may, in consultation with the Council of Islamic Ideology, by notification in the official Gazette, make such rules as it may consider necessary to carry out the purposes of this Act.

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