(PROVINCE COURT)

SALMAN AHMED MAHMOUD v. SIR EL KHATIM MAHMOUD

AND OTHERS

PC-REV-125.1958 Ed Damer

 Principles

·  Pre.emption—Time for pre-emption——Right to pre.empt. when arises—Notice of right to pre.empt, when must be given—Cognisance of sale, what amounts to.

The right to pre-empt, i.e..- to institute a pre-emption suit, does not arise until the completion (i.e., where the land is registered, the registration) of the sale on which the right depends, and until the person claiming the right to pre-empt has served the  pre-emption notice This notice may be served before or after the completion of the sale; but must be served within fifteen days of the person claiming pre-emption having cognisance of the sale or projected sale. Cognisance means knowledge of the sale or projected ‘sale acquired in any manner and through any person whatsoever.

Judgment

Osman El Tayeb P.J. December 2, 1958 :—This is a case of pre-emption which was dismissed by the learned District Judge on the ground, inter alia. that plaintiff failed to take steps under Pre-emption Ordinance 1928, s. ii after he had cognisance of the sale.

According to statement of plaintiff himself to me, the registered owner sold the land to one Hamza Abdel Gadir in about 1945 This sale was not registered and he, plaintiff, did not apply against it as he had no wish to exercise right of pre-emption. Then Hamza in 1951 resold the same plot to the present purchaser. He admitted that he had cognisance of this sale at the time it was made, and that he applied for right of pre-emption and was told that no right of pre-emption exists until the sale is registered. So he kept silent until the sale was recently registered in January 1958 and now he applies.

The right to pre-empt, i.e., to institute a suit for pre-emption does not arise unless the sale is completed. Completion of the sale is interpreted to mean registration of the sale by the completion of the formal deeds and entry in the register. See Ali Mohamed Ali v. Mohamed Salih and Beshir El Nifeidi (1954) Digest No. 20.

But in order to have the right to pre-empt after the registration of the sale, the plaintiff has to serve notice under Pre-emption Ordinance 1928, s. ii. Section ii (c) reads: “He shall serve notice of his claim on the vendor and purchaser.” He has to serve this notice, which is called “pre-emption notice” within fifteen days from the time when he had cognisance of the sale, and if he fails to do so, he loses his right to pre-empt under Pre-emption Ordinance 1928, S. 16 (C(

Cognisance may be through service on the plaintiff of notice to claim pre-emption under section 15 or it may be in any other manner, mere knowledge of the agreement of sale from any person is enough. The pre-emption notice can, of course, be served under section ii before completion of the sale by registration.

What happens if an agreement of sale took place, the claimant had knowledge of it and he in time served on vendor and purchaser pre-emption notices. He cannot institute his case before registration. he was waiting for it, but the sale was not registered, whether by agreement of vendor and purchaser or otherwise. But later, after years from the date of service of preemption notice, the sale came to be registered. Regard being had to section ii  (b) which necessitates that the suit shall be started within a month after the service of the pre-emption notice.

The point of this query does not arise in this case as plaintif here had failed to serve pre-emption notice. The sale took place in (1950) and it was registered on January 27, 1958. I agree that the case be dismissed under Pre-emption Ordinance 1928, S. 16 (C); that plaintiff has lost his right to pre-empt.