Module 4: Right of Pre-emption
Contents
Meaning of Pre-emption............................................................................................................1
Nature of Right of Pre-emption..................................................................................................2
Pre-emption under Muslim law (Shufa).....................................................................................3
Essential conditions of Shufa under Muslim Law.....................................................................4
Who can claim the right.............................................................................................................4
Formalities For Pre-Emption & Legal Effect.............................................................................6
Right Of Pre-Emption When Lost:.............................................................................................7
Subject Matter of Shufa – Not available
Meaning of Pre-emption
Pre-emption is the right of an owner of immovable property to acquire by purchase another
adjacent immovable property which has been sold to another person. In other words, under
this right owner of an immovable property is entitled to repurchase an adjacent property
which has been sold to someone else. It basically means a ‘first opportunity to buy or
purchase.’
Definition of pre-emption was given in Gobind Dayal v. Inayatullah case as, ‘Pre-emption is
a right which the owner of immovable property possesses, as such, for the quiet enjoyment of
that immovable property, to obtain, in substitution for the buyer, proprietary possession of
certain other immovable property, not his own, on such terms as those on which such latter
immovable property is sold to another person.’
For example: A and B is owners of their houses which are adjacent to each other. B sells his
house to C, who may be a stranger for A. Under this pre-emption right, A who is a pre-emptor
can legally repurchase that house from C at the same price at which B sold it to C. In this
manner, the right of pre-emption would enable A to avoid C from being his permanent
neighbour. As a matter of fact, an apprehended inconvenience which may be caused by a
stranger has been the very basis of this right.
In the case of Bishan Singh v. Khazan Singh the SC summarised the right of pre-emption in
the following pointers:
i. The right of pre-emption can be exercised against the property which is offered to be
sold and not against the already sold property. Therefore, a primary right.
ii. The pre-emptor holds a remedial right to follow the thing sold.
iii. It is not a right of repurchase, but rather a right of substitution as the pre-emptor
himself bargains by stepping into the shoes of the original vendee.
iv. Through it, the whole immovable property which is to be sold is acquired, not merely
a part of it as the pre-emptor may choose the best part for himself.
v. The pre-emptor must have a superior right over the property than a vendee because
the right of pre-emption is based on preference.
vi. It is a weak right that can be defeated by lawful methods. Like, the vendee may allow
a person who is in superior or equal authority over the disputed property, to be
substituted in his place.
Nature of Right of Pre-emption
1. Preferential Right – It grants a specific person or group the first opportunity to
purchase a property before it is sold to others.
2. Not a Right to Compel Sale – The right does not force the owner to sell; it only
ensures that if the owner decides to sell, the pre-emptor gets the first chance to buy.
3. Proprietary or Personal in Nature – In some cases, it is attached to property
ownership (proprietary), while in others, it arises from agreements or relationships
(personal).
4. Triggered by Sale, Not Gift or Inheritance – The right of pre-emption is typically
applicable only when the owner intends to sell the property and does not apply to
gifts, inheritance, or transfers without consideration.
5. Based on Legal, Customary, or Contractual Grounds – It may arise under statutory
provisions, customary practices, or specific agreements between parties.
6. Time-Bound Enforcement – The right must be exercised within a specific period;
failure to act in time may result in the loss of the right.
7. Limited Scope – It is applicable only to specified persons, such as co-owners,
neighbors, or those having a legal interest in the property.
8. Prevents Fragmentation of Property – The right is often used to maintain property
integrity, especially in agricultural or community-based ownership structures.
9. Subject to Conditions – The right may not be absolute and is subject to legal,
procedural, and financial conditions, such as matching the offer made by a third party.
10. Judicially Enforceable – If denied the right, the pre-emptor can seek legal remedies
through a court to enforce their preferential purchase right.
Pre-emption under Muslim law (Shufa)
Shufa is an Arabic word that refers to conjunction. It is the right of the owner of the property
that is adjacent to or in conjunction with another immovable property. The word ‘right’
implies haq. The haq-Shufa connotes the right to acquire the neighbouring property at a later
stage from the fresh purchaser.
In the words of Mulla, the Shufa or right of pre-emption is a right obtained by the owner of
an immovable property by purchasing another immovable property that has been sold to
others. It gives the person priority over the property already being sold by the owner and can
be claimed by paying the same price as would have been paid by any other buyer.
The Muslim law of pre-emption should be seen in the light of the Muslim law of succession.
As per Muslim law of succession, after a person dies, his property is divided into fractions.
Now suppose that his property is offered for purchase to a stranger without asking the other
co-sharers, it would automatically create inconvenience. Therefore, the law of pre-emption
limits the right of transfer of ownership of property to any other person without asking the co-
heir or co-owner first.
The law of pre-emption was not a part of the personal law of Muslim. Before the advent of
Mughal Rule in India, there was nothing akin to the law of pre-emption. It was only during
the Mughal rule, that the law of pre-emption was introduced and made applicable as rule of
general law of the land for all communities. According to the Hedaya:
A Muslim and Zimmee (non-Muslim) being equally affected by principles on which Pre-
emption is established, and equally concerned in its operation, are, therefore, on an equal
footing in all cases regarding the principle of pre-emption. With the result pre-emption was
adopted by Hindus as a custom.
In the case of Mohd. Rashid vs. Abdul Rashid (1955), the Allahabad High Court defined pre-
emption under Muslim law as the right that gives preference to the pre-emptor who lives
adjacent to the property being sold. It can neither be inherited nor transferred.
In the case of Indira Bai vs. Nandkishore (1991), the Supreme Court defined the right of pre-
emption, which arose out of Muslim personal law, as a feeble and weak right that could be
defeated by the law of estoppel. Estoppel puts checks and balances on the conduct of the
person and prohibits the person from claiming an advantage of his own wrong. The earlier
statements made by him cannot be denied at a later stage and strike at the fairness of justice.
Essential conditions of Shufa under Muslim Law
These are basically the essential elements of Shufa:
i. The right of pre-emption is only available to the owner of immovable property. He
must have full ownership of that immovable property.
ii. There must be sale of the immovable property and it must not belong to the pre-
emptor.
iii. There should be a certain relationship between the seller and the pre-emptor.
iv. The buyer is subject to the same conditions as would have applied to any other buyer.
He is liable to pay an amount equal to the amount paid by any other buyer.
v. The right is given by law for the quiet enjoyment of the property.
Who can claim the right
Only three classes of persons may claim the exercise of the right under Muslim law. Under
Muslim law, pre-emptor are classified into three categories:
i. The Co-sharers or Shafi-i-Sharik
ii. The Participators in Immunities or Shafi-i-Khalit, and
iii. The Owners of Adjacent Properties or Shafi-i-Jar
i. The Co-sharers (Shafi-i-Sharik)
The persons who are entitled to inherit the properties of a common ancestor are called co-
sharers. The co-sharers have the preferential right of pre-emption against any other class of
pre-emptors. Co-sharers are given preference against other categories of pre-emptors because
they are common blood-relations
ii. The Participators in Immunities (Shafi-i-Khalit)
In the absence of a co-sharer, Shafi-i-Khalit is entitled to pre-empt in the following cases:
In Bhau Ram v. Baij Nath, the Supreme Court has held that pre-emption on the basis of
participation exists only in the easements of way and water on private land. It does not extend
to any other easement such as easements of air and light. It may be noted here that for
claiming the right of pre-emption on the basis of being a Shafi-i-Khalit, is that the right to
way and right to discharge water must be a private right. The right to use common
thoroughfare such as common village roads will not give rise to the right of pre-emption. A
person cannot said to be the Shafi-i-Khalit and would not be entitled to the right of pre-
emption in the following cases:
a) The right of pre-emption cannot be claimed on the basis of easement of light or air.
b) The mere fact that the owners of land have the right to draw water from a government
water course does not give them any right of pre-emption.
c) On the basis that the branches of his tree project over the land of a neighbour, the
owner of the tree cannot claim the right of pre-emption as Shafi-i-Khalit on the sale of
that land.
d) The right to use common thoroughfares, such as village roads, big canals, etc. does
not give rise to the right of pre-emption.
iii. Owners of Adjacent Properties (Shafi-i-Jar):
Shafi-i-Jar is the owner of an adjoining property or in other words it is mere neighbour who
can be a pre-emptor i.e., there is vicinage if two properties are adjacent to each other, but only
in the absence of Shafi-i-Sharik and Shafi-i-Khalit. The right on the basis of neighborhood
arises only in favour of the owner of the adjoining immovable property. So, the right does not
belong to a tenant or to a person who is in possession of property but does not have any
ownership in it.
However, as discussed earlier, after the Bhau Ram’s case in 1962, the claim of pre-emption
only on the ground of vicinage has now been declared to be unconstitutional.
There are some differences between Sunni and Shia law on pre-emption
These are of the following:
a) Shia law recognises co-sharers as the only class of pre-emptors. The other two
categories, namely, the Participators in Immunities and Owners of Adjacent Properties
cannot become pre-emptors.
b) Under Shia law, the co-sharers too are entitled to pre-empt only where their number
does not exceed two. If there are more than two co-sharers, the right is not available to
any one of them.
c) Under the Shia law, if there are two co-sharers, they are entitled to pre-empt only in
proportion of their respective shares. Their right of pre-emption is simultaneous but
not equal in magnitude. For example, A and B are the two Shia co-sharers having 2/3
and 1/3 shares respectively. Upon the sale of pre-empted property, A is entitled to
repurchase 2/3 of the property whereas B is entitled to re-purchase only 1/3 of it.
Formalities For Pre-Emption & Legal Effect
The formality for the claim of this right consists of three demands. The demand must be
made by pre-emptor step by step and at proper time.
The First Demand (Talab-i-Mowasibat): The Arabic expression ‘Talab-i-Mowasibat’
means ‘Demand of Jumping’ which shows that it must be made immediately. It is essential
that the first demand must be made immediately on the hearing of the completion of sale.
Every class of pre-emptor must demand immediately, meaning thereby that pre-emptor
belonging to inferior class should not wait till a pre-emptor belonging to superior class
waives his right for exercise of his right.
The Second Demand (Talab-i-Ishhad): The expression, Talab-i-ishhad means a demand
with the invocation of witnesses. After making the first demand, it is the second demand. The
second demand is repetition of the first demand; therefore, it is also called as the
confirmatory demand. The pre-emptor must, as soon as he can, affirm the intention of
asserting his right by making the second demand in which he refers to the fact that he had
already made the first demand. It is must and indispensable. No particular forms are
prescribed. For the validity of the second demand, the following requirements must be
fulfilled:
a) The Second demand must be made in the presence of at least two witnesses expressly
called to bear witness to the second demand
b) The Second demand is effective only when the first demand was lawfully made at an
earlier date.
c) The pre-emptor must mention that he has already placed his first demand and now he
is asserting the claim for the second time.
The pre-emptor may combine both the First and Second Demands. If at the time of the first
demand, the pre-emptor invokes the witnesses in the presence of the Vendor or the Vendee or
on the property it will suffice for both the demands. If once both the demands have been
combined and made, there would be no need to make the second demand subsequently, and if
made it would be superfluous.
The Third Demand (Talab-i-Tamlik): If the pre-emptor fails to get the desire result after
making first two demands, he may take legal action. Therefore, if the purchaser sells the
property to him, then no further formality is required and the pre-emptor is substituted in
place of vendee. But, if after the first two demands, the pre-emptor fails to re-purchase the
property, then he has to take legal action. In other words, the third and the last step are to
maintain an action in a court of law. Filing of a suit for the claim of pre-emption is known as
the Third Demand. This is also termed as ‘demand of possession’.
As far as all the demands are concerned, the law is the same as Hanafi law. Under Shia law
while Talab-i-Ishhad (second demand) is made, reference to first demand is absolutely
necessary. If this reference is not made the second demand would become defective.
Effect of Shufa (Pre-emption): After the final decree for the suit of pre-emption is passed
by the authorised court, the pre-emptor stands in the same position as that of the vendee and
becomes liable to pay the same amount as paid by the vendee for the purchase of the property
in question. But the original vendee is entitled to some benefits. He has the right to get profits
such as rent or other profits for the period between the date of the first sale and the date when
the property was transferred to the pre-emptor. The property is considered to be transferred to
the pre-emptor when he pays the actual price to the vendor. The death of the vendee or any
disposition of property made by him does not affect the right of pre-emption of the pre-
emptor. But the pre-emptor cannot transfer the final decree executed in his name.
Right Of Pre-Emption When Lost:
The right of pre-emption may be lost in the following cases:
1. By acquiescence or estoppel or waiver or forfeiture: When the pre-emptor fails to
observe necessary formalities prescribes i.e., making three demand. There may be other
circumstances also from which acquiescence on the part of pre-emptor may be observed:
a) A pre-emptor may waive his right by acquiescence i.e., by not asserting his claim.
Upon the sale of the pre-empted property, a pre-emptor may either assert his right by
making demands or may willingly forego his claim by not making any demand.
(Indira Bai v. Nand Kishore, SC)
b) The right of pre-empt is lost when the pre-emptor enters into a compromise with the
vendee, not to claim the right of pre-emption.
c) The right is lost when the pre-emptor permits a sale to be made to another person.
However, in the following circumstances acquiescence or estoppel or waiver will not be
inferred:
a) When the pre-emptor had previous notice of the sale or of the fact that negotiations
for the sale were going on and did not offer to buy the property, then also no
acquiescence will be inferred. (Askari v. Rahmat Ullah)
b) A mere offer by a pre-emptor to purchase from the vendee the property at the sale
price with a view to avoiding litigation, does not amount to acquiescence. (Mohd.
Uunus v. Mohd. Yusuf)
2. By death of the pre-emptor: When the pre-emptor dies after making the two demands but
before the filing of the suit i.e., third demand then also the right of pre-emption is lost, his
legal representatives have no right to file the suit. However, under the Shia and Shafi law, if a
pre-emptor dies during pendency of the suit, the right is not lost.
3. By misjoinder of plaintifs: When the pre-emptor joins himself as a co-plaintiff with a
person who is not entitled to claim the right of pre-emption then also the right to pre-empt is
lost. But if he joins with himself as co-plaintiff a person who could have filed a suit for pre-
emption, but for the reason that he did not make the two demands the right to pre-empt will
not be lost. (Dwarka Singh v. Sheo Shankar)
4. By release: The pre-emptor would lose his right if there is a release for consideration to be
paid to the pre-emptor.
5. Loss of right before final decree: If the pre-emptor loses his right before the final decree
is passed, he would lose his right. Therefore, his right must exist till the date when final
decree is passed by trial court.
6. By statutory disability: The right of pre-emption may be forfeited if there is any statutory
disability on the part of pre-emptor to repurchase the pre-empted property. In such a
circumstance a pre-emptor who may otherwise be competent to enforce the right, is unable to
claim the right because of statutory disability.