Talabs In A Pre-Emption Case Through Agent

TALABS IN A PRE﷓EMPTION CASE THROUGH AGENT TALABS IN A PRE‑EMPTION CASE THROUGH AGENT By Taki Ahmad Khan, Barrister‑at‑Law, Lahore The Lahore High Court has held in Mst. Aisha v. Raheem Bakhsh and others PLD 1997 Lah. 649 that a husband of the pre‑emptor cannot perform Talabs on behalf of his wife as her agent. The Hon'ble Judge has held: "My view is that in a case of instant nature where a right of pre‑emption has to be acquired in future even the power of attorney cannot be executed by the wife in favour of the husband about the fulfilment of Talab‑i‑Muwathibat". 2. In the case of Mst. Saleema and another v. Manzoor Hussain and others reported in 1996 CLC 623, the same Hon'ble Judge held: "There is no provision in the Punjab Pre‑emption Act, 1991 that a husband or a 'Behnoi' on behalf of the female pre‑emptor is entitled to Talab‑i‑Muwathibat. In the eye of law the person includes male and a female ... ... .. ,Women in the country are demanding the equal rights on merits and no exception can be granted/allowed towards the enforcement of any statutory legal right". 3. Punjab Pre‑emption Act, 1991 does not provide for the situation where the pre‑emptor has authorised an agent to perform the Talabs as a prelude to the filing of the suit for pre‑emption. Section 32 of the Punjab Pre‑emption Act, 1991 however provides that matters ancillary or akin to the provisions of this Act which have not been specifically covered in any provision thereof shall be decided according to Sharia. 4. In Ghulam Hamadani's case reported in 1993 SCMR 1083 it was held that in a state of vacuum like the one in question the Injunction of Islam as contained in the Qur'an and Sunnah shall be deemed to be the law on the subject. 5. The situations do arise where the pre‑emptor has no option but to assert his right through the agency of some other person. Pre‑emptor may be an infant or may be abroad or may be incapacitated through disease or may be a lady who does not appear in public. Islam allows all transactions like sale, contracts, suits, Hajj, Nikah, even Talaq to be performed through agents. w 6. The Jurists like Al Kasani in his voluminous work ( ) Volume V published by Diyal Singh Trust Library, Nisba2 Road, Lahore, has quoted the jurists to propound that agents can perform Talabs in a case of pre -emption. In Chapter on Wakalat the author of ( ) writes that if the pre‑emptor can find an agent to perform Talab‑e‑Ishhad he should do so. Article 1035 of the Mejelle (1967 Edition, published by PLD Naba Road, Lahore) makes provision for making Talabs for persons under disability through agent with a rider "and if the guardian of an infant does not claim his right of pre‑emption, he has no right to claim pre‑emption after he has come of age". 7. Mulla in his Muhammadan Law (Published by Civil and Criminal Law Publications Publishers and Booksellers, 1‑Turner Road, Lahore) adds an explanation to section 236 which is to the effect: "It is not necessary that the Talab‑i‑Muwathibat or Talab‑e‑Ishhad should be made by the pre‑emptor in person. It is sufficient if it is made by a manager or a person previously authorised by the pre‑emptor to make the demand. When the pre‑emptor is a minor, his de fecto guardian may make a demand on his behalf. A demand made by the father or brother of the pre‑emptor is not sufficient even if he has a right to pre‑empt unless he has been previously authorised to make a demand. When the pre‑emptor is at a distance the demand may be made by means of a letter". 8. Punjab Pre‑emption Act, 1991 makes the provision for making Talab‑e- Ishhad through a letter but it was not always so. A Division Bench of Allahabad High Court in the case of Muhammad Khalil v. Muhammad Ibrahim reported in 38 Allahabad 201 dismissed the suit of the pre‑emptor who had made Talab‑e -Ishhad directly on the vendee through a letter. The pre‑emptor was residing at Bareli and heard of the sale at Badayoon of a house on 14‑10‑1910. Sale‑deed was dated 7‑9‑1910. He immediately performed Talab‑i‑Muwathibat in the presence of the witnesses. He duly sent a letter in which demand of Talab‑e -Ishhad was made. The letter was received by the buyer. The Division Bench of Allahabad High Court relied on Fatawa‑i‑Alamgiri which stipulates: "If a pre-emptor comes to know of the sale while he is on his way to Mecca and makes Talab‑i‑Muwathibat but is unable to perform Talab‑e‑Ishhad personally he ought to appoint a Wakeel and make a claim of pre‑emption for him. If he cannot find any one whom he may appoint his Wakeel but finds a messenger he ought to write a letter and in his letter he ought to appoint a Wakeel. If he fails to do so, his right of pre‑emption will be lost. But if he can neither find a Wakeel nor a messenger, his right of pre‑emption will not be lost until he finds the one. The plaintiff proved neither that he was unable to perform Talab‑e‑Ishhad himself nor that he was unable to find any one whom he could appoint his Wakeel, his procedure was therefore defective. He could stay where he was for appointing a Wakeel and send on the Wakeel or he could have written a letter appointing a Wakeel and he would have been excused the delay caused by the time he spent in finding a Wakeel or messenger for sending his letter of appointment".