• Time limit to file a pre-emption suit

I have purchased a property (revenue site) in Bangalore and registered the site in my name on 7 th April 2005. I have done all legal checks and got the Bank loan prior to buying the site. I have made the Sale agreement with seller on 22nd -March-2005. The seller got the site through a registered gift deed from his mother and gift deed was registered in September 2004.The seller along with his wife made a partition agreement of all his properties including the site he sold me between his two daughters on 31-March-2005 and himself (1 week prior to registration of my site). But he made sure that the site sold to me comes to his share in the partition deed of 31-March-2005. He included a pre-emption clause in partition deed mentioning that the first preference will be given among his family members if any family members intend to sell their share of properties. I was not aware of this partition deed as it was done one week prior to my registration. 
I got a court summons (under Order VII rule 1) in December 2016 (After 11 years 8 months) from one of his daughters stating the site I purchased is invalid due to pre-emption clause in partition deed. His daughter mentions that she is not aware of the sale happened between her parents(Father and mother signed the sale deed) and the sale dded is valid and should be cancelled. 
Can you please let me know if there is any time limit to file pre-emption suit as it is filed after 11 years 8 months. I have paid property tax for 11 years and the site is a vacant site.
Please advise how to proceed
Asked 7 years ago in Property Law
Religion: Hindu

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6 Answers

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.

So the suit filed agaisnt you by the daughter is barred by the law of limitations and hence the suit is not maintainable.

So file a petition under Order 7 Rule 11 so the plaint of the suit is rejected.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

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

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

limitation period for exercising the right of pre-emption is three years in respect of a non-notified co-sharer.

2) suit appears to be barred by limitation

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

A pre-emption right, or right of pre-emption, is a contractual right to acquire certain property newly coming into existence before it can be offered to any other person or entity.[1] Also called a "first option to buy."A right to acquire existing property in preference to any other person is usually referred to as a right of first refusal.

Article 137: (Art. 178 of the Act of 1908):

The period of limitation for any other application for which no period of limitation is provided elsewhere in this Division is three years and the limitation commences from the date when the right to apply accrues.

Article 137 of the Limitation Act, 1963 is applicable to applications both under the Civil Procedure Code and under the Special Acts. Article 137 constitutes the residuary Article in regard to applications.

She might have taken innocence of this sale deed as an excuse to file this suit.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

1) if sale deed was executed fraudulently suit can be filed within period of 3 years of discovery of fraud by the daughter

Ajay Sethi
Advocate, Mumbai
95205 Answers
7607 Consultations

5.0 on 5.0

If she has taken the plea that she was not aware of this so far, then you may raise a strong objection to this in your counter as well as in the written statement and also challenge her to prove her claim of innocence on this.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

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