Upgrad LLM

pre-emption suit


How long after the Registration of a sale deed can a Pre-emption suit be filed? Does any limitation apply? When does such period start?

 

 
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Dear querist,

You can file suit within 3 year from the date of sale deed. Period of limitation will start from the date of registration of sale deed.

Regards,

 

 
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Advocate

As per Article 137 to the Schedule of the Limitations Act prescribes the time limit to fil suit for pre emption is 3 years. And this 3 years starts from the date of transfer. ..

The limitation to enforce a right of pre-emption, whether founded on law or general usage or on special contract, is one year.

 
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Advocate

In a decision by Calcutta high court it was held that :

no uniform view has been expressed by different Benches of this Hon'ble Court with regard to the starting point of limitation which is applicable to an application for pre-emption under Section 8 of the said Act filed by non- notified co-sharer. In some of the judgements, it was held that Article 137 of the Schedule of the Limitation Act, 1963 will apply. Thus, according to those decisions, the period of limitation for applying pre-emption by non-notified co- sharer will be three years from the date when the right to apply accrues.

 
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Advocate

In the same suit i.e., 

Nurul Islam vs Esratun Bibi on 26 July, 2017 of Calcutta high court it was also held that:
 

Keeping in mind that the pre-emption proceeding is a suit, let us now ascertain as to which provision of the Limitation act relating to suits will apply to the pre-emption proceeding to be initiated by the non-notified co-sharer.

We have already mentioned above that in view of the provision contained in Section 29(2) of the Limitation Act, the provision of the Limitation Act will not apply to the application for pre-emption filed by the bargadar, notified co-sharer and the contiguous owner as the special statue i.e. the West Bengal Land Reforms Act of 1955 provides special provision relating to limitation for filing application for pre-emption for those group of pre-emptors. However, since no provision relating to limitation has been prescribed for the non-notified co- sharers in the said Act of 1955, we have no hesitation to hold that the provisions of the Limitation Act applicable to suits, will apply to the application for preemption filed by the non-notified co-sharers.

 

The non-notified co-sharer's right to enforce pre-emption is founded on law i.e West Bengal Land Reforms Act, 1955. Since the pre-emption proceeding is regarded as a suit, in our view Article 97 is the appropriate provision which will govern the period of limitation and the starting point thereof so far as the application for pre-emption filed by the non-notified co-sharers are concerned. As such, the period of limitation for filing an application for pre-emption by the non- notified co-sharers will be one year and the starting point of limitation will be different depending upon circumstances as prescribed in the third column of the said schedule. As per the third column of the said schedule the time will begin to run from the date when the purchaser takes under the sale sought to be impeached, physical possession of the whole or part of the property sold. Again when the property is of such nature where the subject matter of sale does not admit of physical possession of the whole or part of the property then from the date when the instrument of sale is registered meaning thereby when the registration is complete as per Section 61 of the Registration Act.

 
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Advocate

The right to pre-emption is based on the provisions of the respective laws and regulations enacted by the State, As such, the facts posted are insufficient to offer any definite or meaninful suggestion.

 
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