AGRA
PRE-EMPTION ACT, 1922 THE AGRA PRE-EMPTION
ACT, 1922 [1] [Act No. 11 of 1922] [17th February, 1923] Amended
by the U.P. Act no VIII of 1923 [2] Amended
by the U.P. Act no. IX of 1929 [3] Adapted
and modified by the Government of India (Adaptation of Indian Laws) Order,
1937. Adapted
and modified by the Adaptation of Laws Order, 1950. An Act to consolidate
and amend the law relating to pre-emption in the Province of Agra. Whereas
it is expedient to consolidate and amend the law relating to Pre-emption in the
Province of Agra; And
whereas the necessary previous sanction to the passing of this Act has been
granted by the Governor General under sub section (3) of section 80A of the
Government of India Act; It is hereby enacted as follows: Chapter I - PRELIMINARY (1) This Act may be called the Agra Pre-emption Act,
1922. (2) It extends to the whole of Agra, except the
scheduled districts; Provided
that the (State Government)[4] may
by notification in the (Official Gazette)[5] extend
the provisions of the Act to the whole or any portion of any scheduled
district. (3) It does not apply to any area included within the
limits of a municipality, cantonment, notified area or town area. Except
as provided in sub-section (2) of section 25, nothing in this Act shall affect
any right, privilege, obligation or liability acquired, accrued or incurred in
respect of any transfer made before the commencement of this Act. No
right of pre-emption shall be enforced in respect of any transfer made after
the commencement of this Act of an interest in land in any area to which this
Act applies, except in accordance with the provisions of this Act: Provided
that where there is no right of pre-emption under section 5 the provisions of
the Muhammadan law of pre-emption shall not be affected in case the vendor and
the pre-emptor are both Muhammadans. In
this Act, unless there is something repugnant in the subject or context,-- (1) "co-sharer" means any person, other than
a petty proprietor, entitled as proprietor to any share or part in a mahal or
village whether his name is or is not recorded in the register of proprietors; (2) "foreclose" and "foreclosure"
refer to the passing of a final decree for foreclosure under rule 3 of Order
XXXIV of the Code of Civil Procedure, 1908 (Act V of 1908); (3) "land" includes things attached to the
earth or permanently fastened to anything attached to the earth, when, sold or
foreclosed along with the land to which they are attached, but not otherwise; (4) "mahal" means a mahal as defined in the
United Provinces Land Revenue Act, 1901 (U.P. Act III of 1901); (5) "mortgage by conditional sale" means such
a mortgage as defined in the Transfer of Property Act, 1882; (6) "notified area" means a local area in
regard to which a notification has been issued by the (State Government)1 under
sub-section (1) of section 337 of the United Provinces Municipalities Act, 1916
(U.P. Act II of 1916); (7) "petty proprietor" means the proprietor
of a specific plot of land in a mahal, who as such is not entitled to any
interest in the joint lands of the mahal, or to take part in the administration
of its affairs; (8) "purchaser" includes a person who has
acquired land under a final decree for foreclosure; (9) "right of pre-emption" means the right of
a person on a transfer of immovable property to be substituted in place of the
transferee by reason of such right; (10) "sale" means a sale as defined in the
Transfer of Property Act, 1882 (Act IV of 1882); (11) "town area" means any local area which
the (State Government)[6] has
declared or defined under section 3 of the United Provinces Town Are as Act,
1914 (U.P. Act II of 1914); to be a town area; (12)
"wajib-ul-arz"
includes any record or village rights or custom prepared, under any law or rule
for the time being in force, at or in connection with a settlement, revision or
records or partition. Chapter II - EXISTENCE AND EXTENT OF
THE RIGHT OF PRE-EMPTION (1) A right of pre-emption shall be deemed to exist
only in mahals or villages in respect of which (any)[7] wajib-ul-arz
prepared prior to the commencement of this Act records a custom, contract or
declaration? (a) recognizing, conferring or declaring a right of
pre-emption, expressly or by necessary implication, whatever its extent and in
whatever form it may be expressed, or (b) imposing on a co-sharer desiring to transfer his
interest in land an obligation to offer it in the first instance to another
co-sharer or to a relative, or (c) forbidding co-sharers to transfer their interest in
land to persons other than co-sharers or relatives, and in mahals or villages
in respect of which a right of pre-emption has been recognized by a final
decree of a competent court passed after contest prior to the commencement of
this Act. (2) Any such record or decree shall be conclusive
evidence of the existence of a right of pre-emption in such mahal or village. Explanation--Where
any such record is proved the existence of an inconsistent or contradictory
record in any other wajib-ul-arz is immaterial. (3) Where any right/or custom referred to in
sub-section (1) has been recorded in respect of any village or mahal, and such
village or mahal has seen partitioned, a right of pre-emption shall be deemed
to exist in all the portions into which such village or mahal has been divided. Nothing
in this Act shall affect the provisions of rule 88 of Order XXI of the Code of
Civil Procedure, 1908 (Act V of 1908), or section 182 of the United Provinces
Land Revenue Act, 1901, or section 24 of the Bundelkhand Encumbered Estates
Act. 1903 (UP Act I of 1903), nor, except as provided by those sections, shall
any right of pre-emption arise in respect of-- (a) any sale in execution of the decree of a civil or
revenue court, or (b) any sale in default of payment of land revenue or
of any sum legally recoverable as an arrear of land revenue, or (c) any sale under the provisions of the Bundelkhand
Encumbered Estates Act, 1903 (UP Act II of 1903). Nothing
in this Act shall confer a right of pre-emption on any person who is, under the
Bundelkhand Alienation of Land Act, 1903, not entitled to purchase the property
in dispute. No
right of pre-emption shall accrue on a sale-- (a) by or to the Government or by or to any local
authority, or trust constituted under the United Provinces Town Improvement
Act, 1919 (UP Act VIII of 1919), or (b) to any company under the provisions of Part VII of
the Land Acquisition Act, 1894 (Act I of 1894), or (c) for the purposes of a manufacturing industry,
provided that subject to the provisions of this Act a right of pre-emption
shall accrue on the expiry of one year from the date of registration of the
sale-deed or of taking of physical possession of the land sold in the case of a
sale made without registered sale-deed, if the land has not been used in good
faith for the purpose for which it was ostensibly purchased. No
right of pre-emption shall accrue on a sale to, or foreclosure by, an
ex-proprietary tenant, of any proprietary interest in land in the mahal in
which he holds such ex-proprietary tenancy. On
a sale or foreclosure by, any of the persons named in section 12, no right of
pre-emption shall accrue to any person who has an equal or inferior right of
preemption. Subject
to the foregoing provisions a right of 'pre-emption shall accrue to the persons
mentioned in section 12 whenever a co-sharer or petty proprietor sells any
proprietary interest in land forming part of any mahal or village in which a
right of pre-emption exists, or when any such interest is foreclosed. (1) Persons of the following classes shall be
successively entitled to exercise the right of pre-emption:-- Class
I--Where the interest is a petty proprietary interest, coparceners in that
interest. Class
II--Co-sharers in the sub-division of the mahal in which the property is
situated. Class
III--Where such sub-division is a part of a larger division of the mahal, co-sharers
in such larger division. Class
IV--Co-sharers in the mahal. Class
V--Co-sharers in the village. (2) Notwithstanding anything contained in sub-section
(1), where a mahal includes more villages than one no person having proprietary
rights in any such village shall be entitled by reason thereof to a right of
pre-emption in respect of any other such village. (3) Where there are more persons than one of the same
class claiming pre-emption, that person who is related to the vendor and is
descended from the common ancestor, (but is not removed from such common
ancestor)[8] by
more than four degrees including the common ancestor, shall be entitled to
pre-emption as against other persons of the same class and among persons so
related, those who are nearer * * * [9] to
the vendor shall be entitle to pre-empt as against those more remote. (Explanation--For
the purposes of this section a vendee shall be deemed to be person claiming
pre-emption).[10] Where
two or more persons claiming are equally entitled to pre-emption, the property,
shall be equally divided between them, each paying an equal share of the
consideration for the transfer. Chapter III - NOTICE TO PRE-EMPTION (1) When a co-sharer or petty proprietor proposes to
sell any land in any case in which such sale would give rise to a right of
pre-emption, he may give notice by registered post to all persons having a
right of pre-emption in respect of such sale. (2) Such notice shall clearly describe the property to
be sold, and state the name of the vendee and the price settled. The
right of pre-emption of any person to whom a notice has been issued under section
14, shall be extinguished unless such person within the period of one month of
the receipt of the notice (and in case of pre-emptors being out of India three
months), communicates by registered post his intention to purchase the
property: Provided
that the right of pre-emption shall not be extinguished if the property is
actually sold for an amount smaller than' that mentioned in the notice, or to a
person not mentioned in the notice as vendee. A
suit for pre-emption shall lie only where a sale has been effected or a final
decree for foreclosure has been passed, but no suit shall lie for enforcing a
right of pre-emption in respect of a portion only of the property which the
plaintiff is entitled to pre-empt (under this Act).[11] (1) Where in any suit on the basis of a sale the court
(is of opinion)[12] that the plaintiff
has a right of preemption but that the ostensible price was not the actual
price, it shall * * *[13] ascertain
the actual price, and shall pass a decree for pre-emption on payment of such
price. (2) In such case the burden of proving the actual price
shall lie on the vendee, and in the absence of satisfactory proof the court
shall * * * [14] ascertain
the market value of the property and shall pass a decree for pre-emption on
payment of the value so found. (3) Where in any suit on the basis of a foreclosure
decree the court (is of opinion) [15] that
the plaintiff has a right of pre-emption but that the amount of the decree has
been inflated by fraud or collusion and exceeds the market value of the
property, it shall * * * [16] ascertain
such market value and shall pass a decree for pre-emption on payment of the
value so found. Where
more suits than one are pending for pre-emption in respect of the same
transfer, the plaintiff in each suit shall be made a defendant in each of the
other suits and the suit shall be consolidated and disposed of by a single
decree which shall determine the extent and the order in which, and the terms
and conditions under which, each plaintiff shall be entitled to pre-emption. It
shall not be necessary for any party aggrieved by such decree to file more than
one appeal or application for review. Chapter IV - MISCELLANEOUS PROVISIONS No
decree for pre-emption shall be passed in favour of any person unless he has a
subsisting right of pre-emption at the time of the decree, but where a decree
for pre-emption has been passed in favour of a plaintiff, whether by a court of
first instance or of appeal, the right of such plaintiff shall not be affected
by any transfer or loss of his interest occurring after the date of such
decree. (Provided
that no voluntary transfer made in favour of the vendee after the institution
of a suit for pre-emption shall defeat any right which the plaintiff had at the
date of such institution)[17]. No
suit for pre-emption shall lie where (prior to the institution of such suit)[18] the
purchaser has * * *[19] transferred
the property in dispute to a person, having a right of pre-emption equal or
superior to that of the plaintiff, or has acquired an indefeasible interest in
the mahal which, if existing at the date of the sale or foreclosure, would have
barred the suit.
Preamble - AGRA PRE-EMPTION ACT, 1922PREAMBLE
Section 21 - Associating in suit co-plaintiff with inferior right
Where
a person having a right of pre-emption sues jointly with a person not having
such right, he shall lose his right; and where a pre-emptor of a higher class
sues jointly with a pre-emptor of a lower class, he shall have no higher right
than the person with whom he so sues.
Section 22 - Joint purchase by persons one of whom is liable to pre-emption
Where
property is jointly purchased or foreclosed by two persons against one of whom
only there is a right of pre-emption, such right may be claimed as against
both.
Explanation--This
section does not apply where each purchaser acquires a defined interest.
Section 23 - Survival of right of suit on death of plaintiff
If
the plaintiff in a pre-emption suit dies at any time before the decree has
become final, the suit shall not abate if the cause of action is subsisting.
Section 24 - Date on which preemptor's right accrues
A
person who has obtained a decree for pre-emption in respect of any property
shall acquire no title to that property until he pays the purchase money into
court in accordance with the pre-emption decree, but upon such payment being
made any alienation of the property made by the original purchaser or by any person
claiming through him shall be voidable at the option of the decree-holder with
effect from the date of such payment.
Section 25 - Special provision for limitation
(1) Subject to the provisions of sub-section (c) of
section 8, in any case not provided for by article 10 of the first schedule of
the Indian Limitation Act, 1908, the period of limitation for a suit to enforce
a right of pre-emption under the provisions of this Act shall, Notwithstanding
anything contained in article 120 of the said schedule, be one year from the
date on which?
(a) in the case of a sale made without a registered
sale-deed, the vendee takes under the sale physical possession of any part of
the property sold;
(b) in a case of foreclosure the final decree for
foreclosure was made.
(2) The period of limitation for a suit to enforce a
right of pre-emption which has accrued before the commencement of this Act
shall, notwithstanding anything contained in the said Limitation Act, in no
case exceed one year from the commencement of this Act.
[1] For S.O.R., see Gaz, 1922, Pt. VIII, pp
245--249; for R.S. Com. see ibid, 1922. Pt. VIII, pp. 483--495; for discussion,
see L.C. Pro. d. Mar. 2, 1922, Oct. 30, 1922, Oct. 31, 1922, Nov. 1, 1922, Nov.
2, 1922, and Dec. 14, 1922, in Vol. VII, pp. 96--98, Vol. IX, pp. 387--400,
438--460, 492--528, 564--571 and Vol. XI, pp. 152--54, respectively. This Act
stands rep. by virtue of s. 339(a) of U.P. Act I of 1951, in all areas in
respect of which notes, under s. 4 of the aforesaid Act I of 1951 have already
been made.
This
Act stands rep. by s. 339. (a) of U.P. Act I of 1951, in all areas in respect
of which nots. under s. 4 of the aforesaid Act I of 1951, have already been
made.
[2] For S.O.R. see Gaz., 1923, Pt. VIII, p.
586; for discussion, see L.C. Pro. d. Oct. 26, 1923, Vol. XV, pp. 117-118; for
publication, see Gaz., 1924, Pt. VII, pp. 1-2. The Act took retrospective
effect from the date on which the Agra Pre-emption Act, 1922 (U.P. Act XI of
1922), came into force.
[3] For S.O.R., see Gaz., 1929, Pt. VII,
pp. 22-23; for R.S. Com., see ibid, 1929, Pt. VIII, p. 1218, for discussion,
see L.C. Pro. d. June 28, 1929, and Oct. 25, 1929 in Vol. XLIII pp. 448-449,
and Vol. XLIV, p. 462, respectively; for publication, see Gaz., 1830, Pt. VII,
p. 7.
[4] Substituted by the A.O. 1950 for
(Provl. Govt.) which had been Substituted by the A.O. 1937 for (L.G.).
[5] Substituted for (Gazette) ibid.
[6] Substituted by the A.O. 1950 for
(Provl. Govt.) which had been Substituted by the A.O. 1937 for (L.G.).
[7] Substituted for (the) by s. 2 of U.P.
Act VIII of 1923.
[8] Substituted for the words (but not
removed) by s. 2 of IX U.P. Act of 1929.
[9] The word (heirs) Omitted ibid.
[10] Inserted by ibid.
[11] Inserted by s. 3 of U.P. Act IX of
1929.
[12] Substituted for (finds) by s. 4 ibid.
[13] The words (proceed to) Omitted by s. 4
ibid.
[14] The words (proceed to) Omitted by s. 4
ibid.
[15] Substituted for (finds) by s. 4 ibid.
[16] The words (proceed to) Omitted by s. 4
ibid.
[17] Added by s. 5 of U.P. Act IX of 1929.
[18] Removed from the place marked "* *
* 3" and Inserted here by s. 6 ibid
[19] See note 2 above.