Module V: RecentTrends in Dispositions

• Waqf
Meaning, Kinds of Waqf, Objects and purpose, Requistes, Rights and Characteristics,
Advantages and disadvantages , Methods of creation of waqf ;

• Pre-emption –
Origin, Definition, Classification, Subject matter,
formalities, effects, constitutional validity

Waqf
Introduction and meaning
The concept of waqf in Muslim law serves as a key mechanism for the permanent dedication of
property for religious, charitable or pious purposes. The term waqf originates from the Arabic
word “Habs,” meaning “to stop” or “to hold,” and it denotes the act of withholding property
from any ownership transfer while dedicating its benefits to the community. Rooted in Islamic
principles, waqf has evolved to become a vital institution that supports social justice, economic
development and religious obligations within Muslim communities

Origins and Development of Waqf in Muslim Law

The concept of waqf is deeply embedded in Islamic tradition, with its origins traceable to the
early days of Islam. Although there is no direct mention of waqf in the Quran, various Quranic
injunctions related to charity form the basis for the development of this institution. The Prophet
Muhammad’s teachings and practices further reinforced the importance of waqf as a means of
achieving social welfare and religious merit.

Historically, waqf emerged as a response to the need for sustainable charitable practices. In the
absence of formal state-sponsored welfare systems, waqf served as a tool for redistributing
wealth, supporting religious institutions and providing for the needy. Over time, the institution
of waqf expanded, encompassing various forms of property, including land, buildings and
movable assets

Definition under the Waqf Act, 1954

The Waqf Act of 1954 further elaborates on the concept, defining waqf as “the permanent
dedication by a person professing Islam, of any movable or immovable property for any
purpose recognised by Muslim Law as religious, pious or charitable.” This Act also outlines the
legal requirements for the creation and management of waqf properties, including the
appointment of mutawallis and the powers of the Waqf Board.
A ‘Waqf’ may be made in writing, or the dedication may be oral. There must, however, be
appropriate words to show an intention to dedicate the property. It is not necessary to use the
word waqf

Parties Involved in Waqf in Muslim Law

1. Waqif (Settlor/Donor):

• Role: The person who creates the waqf by dedicating property for religious, charitable, or
pious purposes.
• Duties: Specifies the purpose and terms in the waqf deed and may appoint a mutawalli.

2. Mutawalli (Manager/Trustee):

• Role: Administers and manages the waqf property according to the waqif's intentions.
• Duties: Maintains the property, manages finances, and ensures benefits are distributed.
Cannot sell or transfer property without approval.

3. Beneficiaries (Mustaḥiqūn):

• Role: Individuals or groups who receive the benefits of the waqf, such as the poor,
orphans, or students.

4. Waqf Board:

• Role: Government-appointed body overseeing waqf management.

• Duties: Ensures compliance with the law, supervises mutawallis, and handles disputes.

5. Court:

• Role: Resolves disputes, interprets the waqf deed, and can remove mutawallis if
necessary.

6. Executor (in case of no mutawalli appointment):

• Role: Manages the waqf until a mutawalli is appointed if the waqif did not name one.
• Duties: Ensures the waqf’s purposes are upheld.
Objects of Waqf
The objects of waqf in Muslim law can include both movable and immovable properties.
Movable properties may consist of items like money, shares, load-bearing animals, and
agricultural instruments. Immovable properties include land, buildings, mosques, schools,
hospitals, and other structures dedicated for public use. The key requirement is that the property
must be non-perishable by use, meaning it can generate income or benefits over time without
being consumed.

Purpose of Waqf
The primary purpose of waqf is to dedicate property for religious, pious, or charitable purposes.
This includes supporting educational institutions, religious sites, healthcare facilities, and other
community services. The purpose must align with Islamic principles and be recognized under
Muslim law as beneficial to society. Waqf serves as a means to provide ongoing benefits to the
community, fostering social welfare and fulfilling the donor's religious obligations.

Waqf Purposes are:

• Religious Purposes: Supporting mosques, madrasas, and other religious institutions.

• Pious Purposes: Encouraging acts of piety, such as the maintenance of graveyards or
religious shrines.
• Charitable Purposes: Establishing hospitals, orphanages, and other facilities that benefit
the community.

Overall, the purpose of waqf is to create a perpetual source of benefit for society while fulfilling
the donor's religious [Link] of Waqf
Essentials for Creation/characteristics Waqf in Muslim Law
To create a valid waqf, the waqif must fulfil several essential requirements, including:

1. Intention (Niyyah)
The waqif must have a clear and specific intention to create a waqf. This intention, known
as niyyah, is a crucial element in the creation of a valid waqf. The waqif must demonstrate a
genuine desire to dedicate the property for a religious, pious or charitable purpose.

2. Irrevocability:

Once a waqf is created, it is irrevocable, meaning that the waqif cannot reclaim the property or
revoke the dedication. The property is permanently dedicated to the intended purpose and any
attempt to reverse the waqf is considered void.

3. Perpetuity:

A waqf is intended to be perpetual, meaning that it continues indefinitely, even after the death
of the waqif. The property remains dedicated to the religious, pious or charitable purpose for
which it was created and the benefits continue to be distributed according to
the waqif’s intentions.

4. Inalienability:

The property dedicated as waqf is inalienable, meaning that it cannot be sold, transferred or
inherited. The mutawalli is responsible for managing the property, but they do not have the
authority to dispose of it without the permission of the court or the Waqf Board.

5. Pious or Charitable Use of Usufruct:

The income or usufruct generated from the waqf property must be used exclusively for the
religious, pious or charitable purpose for which the waqf was created. The mutawalli must
ensure that the benefits are distributed to the designated beneficiaries and that the property is
maintained for the intended purpose.

6. Absoluteness:

A waqf is absolute, meaning that once the property is dedicated, the waqif relinquishes all rights
and control over it. The property is transferred to God and the mutawalli is responsible for
managing it according to the waqif’s instructions.
 7. Declaration of Waqf
The waqif must make a formal declaration of waqf, indicating their intention to dedicate the
property. This declaration may be made orally or in writing, depending on the circumstances. In
the case of an oral declaration, the words used must clearly express the waqif’s intention to
create a waqf.

8. Delivery of Possession
For a waqf involving movable property, the waqif must deliver possession of the property to the
beneficiaries or the mutawalli. In the case of immovable property, a formal declaration and
intention to create a waqf are sufficient and physical possession is not required.

What are the Essentials for Valid Waqf?

 Hanafi Law
There are five essentials of valid waqf Under Hanafi Law

1. Permanent Dedication of Property

The most crucial element of a valid waqf is the permanent dedication of property. The
dedication must be absolute and irrevocable, meaning that once the property is designated
as waqf, it cannot be transferred, sold or inherited. The property is essentially “frozen” for the
purpose for which it was dedicated and its benefits must be used exclusively for that purpose.

2. Capacity of the Waqif (Donor)

The person creating the waqf (known as the waqif) must have the legal capacity to do so. This
includes being of sound mind, having reached the age of majority and being a Muslim.
The waqif must also have the legal right to dispose of the property in question. In certain cases,
non-Muslims may create a waqf as long as the purpose of the waqf aligns with Islamic
principles.

3. Ownership of the Property:

The waqif must be the rightful owner of the property being dedicated as waqf.

4. Religious, Pious or Charitable Purpose

The purpose of the waqf must be recognised under Muslim law as religious, pious or charitable.
This includes, but is not limited to, the construction and maintenance of mosques, educational
institutions, orphanages, hospitals and other facilities that benefit the community. The purpose
of the waqf must be clear and specific and it must align with the teachings of Islam.
 5. Delivery of Possession
In the case of a waqf involving movable property, the delivery of possession to the beneficiaries
or the mutawalli is necessary for the waqf to be considered complete. For immovable property,
a declaration of waqf and the intention to dedicate the property are sufficient.

6. Unconditional Nature:

The waqf must be unconditional, meaning there are no restrictions or conditions placed on its
use that would contradict its intended purpose.

 Shia Law:

1. Perpetual:

The waqf must be permanent, meaning the property is dedicated for an indefinite period. It
cannot be revoked or reclaimed by the waqif, ensuring the property remains dedicated to its
religious, charitable, or pious purpose forever.

2. Absolute and Unconditional:

The waqf must be created without any conditions or restrictions that could alter its purpose or
function in the future. The property must be entirely dedicated for the specified purpose and
cannot be changed or limited by any future events.

3. Possession Must Be Given:

The waqf must involve the actual transfer of possession. The waqif must hand over control of
the property to the mutawalli (manager) or the designated beneficiaries, ensuring they can use
the property for its intended purpose.

4. Property Taken Out of the Waqif’s Ownership:

Once the waqf is created, the waqif must relinquish all ownership and control over the property.
It is no longer part of their estate and must be entirely removed from their possession to ensure
the waqf remains dedicated to its purpose.
Types of Waqf
There are broadly two kinds of wakf:

1. Public Waqf
A Public Waqf is established for the benefit of the general public, with a focus on religious or
charitable purposes. Its primary objective is to serve the public welfare, and the benefits are
directed toward the larger community rather than any specific individual or family, including
the descendants or children of the waqif (the person who establishes the waqf).

Public waqfs are subject to stricter regulatory oversight due to their broader societal impact. The
management and administration of these waqfs are typically handled by state Waqf Boards or
similar statutory bodies, ensuring they align with their intended charitable or religious goals.

2. Public Waqf
A Private Waqf (also known as Waqf-ul-al-Aulad) is established primarily for the benefit of
the waqif's (founder's) family and descendants. It serves as a family settlement under Islamic
waqf law, where the property remains with the family as long as there are heirs. The ultimate
goal, according to Islamic tradition, is that once the family line becomes extinct, the remaining
property is directed toward charitable purposes, benefiting the poor.

This type of waqf aligns with the Islamic principle that maintaining one's family, including
wife, children, and other dependent relatives, is a duty. As the Prophet stated, "The most
excellent sadaqa a man can bestow upon his family is wakf-alal-aulad." While a private waqf
primarily benefits the waqif's family, it may also include provisions for charity after the
extinction of the family line.

Private waqfs are governed by specific legal provisions to ensure compliance with Islamic
principles and prevent perpetuities. However, the validity and continuity of these waqfs may be
restricted in certain jurisdictions, particularly where modern property laws conflict with
traditional practices.

The main difference between public waqf and private waqf is the recipients and purpose of
each. A public waqf is formed to benefit the whole community or a sizable portion of it. It
might pay for public services like hospitals, schools, mosques, etc.

In contrast, a private waqf is established for the heirs or relatives of the donor. Private waqfs
prioritize the welfare of the founder's family members; but, they may ultimately return to public
use if there are no more qualifying family beneficiaries. Public waqfs are intended to meet
larger social requirements.
Kinds of wakf from the view of their purpose

• Wakf Ahli
This wakf is basically created to cater to the needs of the wakf's founder's children and their
descendants. But the nominees do not have a right to sell or dispose of the property, which is
the subject matter of wakf.

• Wakf Khayri
This kind of wakf is established for charitable and philanthropic purposes. The beneficiaries in
such a kind of wakf may include people belonging to the upper economic sections of society. It
is used as an investment for building mosques, shelter homes, schools, madrasas, colleges, and
universities. All of this is built to help and uplift the economically challenged individuals.

• Wakf al-Sabil
The beneficiaries of such a wakf are the general public. Although similar to wakf Khyari, this
type of wakf is generally used for the establishment and construction of public utilities
(mosques, power plants, water supplies, graveyards, schools, etc).

• Wakf al-Awaridh
In such a kind of wakf, the yield is held in reserve so that it can be used in case of emergency or
any unexpected events that affect the livelihood and well-being of a particular community in a
negative manner.

For example, wakf may be assigned to cater to the specific needs of society, like providing
medication to sick people who cannot afford expensive medicines.

Kinds of wakfs from the view of its output nature

• Wakf-Istithmar
Such a kind of wakf is created for using the assets for investment purposes. The said assets are
managed in such a way that the income is applied for constructing and reconstructing wakf
properties.

• Wakf-Mubashar
The assets of such a wakf are used to generate services that would be of some benefit to some
charity recipients or other beneficiaries. Examples of such assets include schools, utilities, etc.
Modes of creation of waqf
Waqf can be created through various modes, depending on the nature of the property and the
intention of the waqif. The primary modes of creating waqf include:

1) Inter-vivos(During the Lifetime of the Waqif)

This type of wakf is created between living persons, constituted during the lifetime of the wakif,
and takes effect from that very moment. Hanafi law provides the creation of a wakf through
unilateral declaration.

Revocation: A waqf created inter-vivos cannot be revoked.

2) By will (Testamentary Waqf)

A waqf created by will is contradictory to a waqf created by an act inter-vivos. It takes effect
after the death of the wakif and is also known as 'testamentary waqf'. Such a waqf cannot
operate upon more than one-third of the net assets without the consent of the heirs. The
Allahabad High Court, in the case of Mohd. Yasin vs. Rahmat Ilahi (1947), held that a wakif
can create a testament himself and continue as a manager or trustee of that property.

Revocation: A testamentary wakf can be revoked by the testator at any time before his death.

3) During death or illness (marz-ul-maut)

Similar to gifts made while the donor is on the deathbed, a wakf created under these
circumstances can apply to up to one-third of the property without the consent of the heirs.

Revocation: A waqf created during illness can be revoked only in the circumstance where the
wakif recovers from the illness.

4) By immemorial use
Limitation of time also applies to the creation of wakf property, but wakf property can be
established by way of immemorial use.
Process of Establishing a Waqf
Here’s a more concise version of the steps to establish a Waqf:

1. Identify Your Goals and Mission: Clearly define the cause or area of impact, such as
healthcare, education, or poverty alleviation. Set specific objectives that align with
sustainable development and the Waqf’s long-term success.

2. Get Expert Counsel: Establishing a Waqf requires knowledge of legal, financial, and
administrative factors. Consult professionals specializing in Waqf creation to guide you
through the process.

3. Assess the Structure and Assets: Identify the assets (money, land, etc.) to contribute to
the Waqf, ensuring they are appropriate for generating income for the cause. Decide if it
will be a single endowment or a joint venture with multiple stakeholders.

4. Write the Deed of Waqf: Collaborate with legal experts to create a detailed Waqf Deed
that specifies the objectives, terms, beneficiaries, and management structure of the Waqf.

5. Designate Management and Trustees: Appoint trustworthy, knowledgeable trustees

who will manage the assets, ensure the Waqf’s goals are met, and properly allocate funds
according to the deed.

6. Waqf Registration: Register the Waqf with the relevant authorities, ensuring its legal
recognition and compliance with local laws.

7. Expand and Advertise the Waqf: Promote the Waqf’s goals and mission to attract
support and funding from organizations and individuals aligned with your cause.

Administration of Waqf

Public endowments are established and safeguarded by the following norms:

• Act II of 1913, Official Trustees.

• Act VI of 1890, Charitable Endowments.
• Act XX of 1863 Concerning Religious Endowments, Section 14.
• Sections 92–93, Code of Civil Procedure, 1908.
• Act XIV of 1920, Charitable and Religious Trusts
Completion of waqf
A waqf can be completed by the following modes:

1. Where a third person is appointed as the first Mutawalli. In such a case, the waqf gets
completed only when the possession of the endowed property is delivered to the appointed
Mutawalli.

2. Where the founder appoints himself as the first Mutawalli. In this case, there is no need for
either the physical transfer of the property or the transfer of property from the name of the
owner to the name of the Mutawalli.

Mutawalli
Who is a Mutawalli?
A Mutawalli is the appointed manager or trustee responsible for administering and managing
waqf property. The role of the Mutawalli is integral to the functioning of the waqf system, as
they ensure that the property is used according to the intentions of the waqif (the creator of the
waqf). They act as custodians, safeguarding the waqf's assets and ensuring its proper
management for the benefit of the designated recipients.

Appointment of Mutawalli
The Mutawalli can be appointed in several ways:

• By the Waqif: The creator of the waqf usually appoints the Mutawalli at the time the
waqf is established.
• By the Executor: If the waqif dies without appointing a Mutawalli, the executor of their
estate may designate one.
• By the Court: If neither the waqif nor their executor has appointed a Mutawalli, the court
can step in and appoint one based on specific guidelines.

In some cases, a congregation or community can also appoint a Mutawalli for the management
of a waqf property.

Powers and Duties of the Mutawalli

The Mutawalli is entrusted with several key responsibilities, including:
 • Management of Waqf Property: Overseeing the waqf's property, ensuring it serves its
intended charitable or religious purposes.
• Maintenance and Repairs: Ensuring the waqf property is maintained and repaired,
keeping it in good condition for its intended use.
• Financial Management: Handling the waqf's income, including collecting rents, paying
necessary expenses, and ensuring funds are used appropriately.
• Distribution of Benefits: Ensuring that the benefits of the waqf reach the designated
beneficiaries as outlined in the waqf deed.
• Legal Actions: The Mutawalli has the authority to initiate legal proceedings to protect
the waqf's assets and interests.
• Reporting: The Mutawalli must maintain proper accounts and submit annual reports to
the Waqf Board or relevant authorities, in compliance with the Waqf Act.

Removal of Mutawalli
A Mutawalli can be removed from their position under certain conditions:

• By the Court: A court can remove a Mutawalli if they mismanage the property, breach
trust, or engage in misconduct, such as failing to maintain the property or causing damage
to it.
• By the Waqf Board: The Waqf Board has the authority to remove a Mutawalli under
specific provisions outlined in the Waqf Act, 1995. This can include failure to perform
duties, negligence, or violating the waqf's conditions.
• By the Waqif: In some cases, the waqif retains the right to remove the Mutawalli,
provided this authority is reserved in the waqf deed. Opinions on this vary within Islamic
legal schools.
 Doctrine of Cypress in Muslim Law
The Doctrine of Cypress is a principle originally from English trust law, but it is also
applicable to waqf (Islamic charitable trusts) under Muslim law. The term "cypress" translates
to "as nearly as possible," meaning the doctrine ensures that the original purpose of a trust or
waqf is fulfilled as closely as possible, even if the exact purpose can no longer be [Link]
the context of waqf, the doctrine is applied when the original purpose of the waqf becomes
unfeasible or impossible to continue due to various circumstances.

These may include:

• Time passing or changing conditions

• Legal obstacles
• The specified object having already been completed

Under such situations, the income from the waqf property is redirected to purposes that are as
close as possible to the original intent of the waqif (the person who established the waqf).

Application of the Doctrine

The Doctrine of Cypress ensures that a waqf does not fail simply because the original purpose
cannot be fulfilled. If the specific purpose of the waqf becomes impossible to achieve—due to
the lapse of time, changes in circumstances, or other legal complexities—the waqf can continue
with a purpose that is as near as possible to what the waqif originally intended.

For example, if a waqf was established for building a school but the need for such a school no
longer exists in the area, the income from the waqf property may be redirected toward a similar
charitable cause, such as the construction of a hospital, that aligns with the waqif's original
charitable goals.

Legal Precedent

The Supreme Court of India, in the case of Ratilal Panachand Gandhi vs. State of Bombay
(1954), applied the Doctrine of Cypress in waqf law. The Court held that when a waqf's purpose
becomes impossible to achieve, courts can intervene and allow the waqf to be executed in a
manner that is as close as possible to the waqif’s original intent, ensuring that the waqf remains
relevant and continues to serve a charitable purpose.
Advantages of Waqf in Muslim Law

1. Perpetual Charity: Waqf allows for the creation of perpetual charitable institutions,
ensuring that the benefits of the dedicated property continue indefinitely for religious,
pious, or charitable purposes.
2. Social Welfare: Waqf assets can be used to address various social issues, providing
sustainable benefits to the community.
3. Family Support: Private waqfs (Waqf-alal-Aulad) allow Muslims to support their
families while ensuring that the ultimate benefit goes to charitable causes.
4. Economic Stability: Waqf properties can generate income, which is used for the
maintenance of the property and the fulfillment of its intended purpose, providing
economic stability to the beneficiaries.
5. Legal Protection: The Waqf Act of 1954 and other legislation provide legal protection to
waqf properties, ensuring they are managed according to Islamic principles and
preventing unauthorized disposal.

Disadvantages of Waqf in Muslim Law

1. Irrevocability and Inalienability: Once a property is dedicated as waqf, it cannot be

sold, transferred, or inherited, which can limit flexibility in managing family assets.
2. Complex Management: The management of waqf properties requires adherence to strict
legal and religious guidelines, which can be complex and challenging.
3. Potential for Mismanagement: Without proper oversight, waqf properties can be
mismanaged, leading to inefficiencies in achieving their intended purposes.
4. Legal Challenges: Waqf laws can be procedurally inadequate, leading to legal disputes
and challenges in enforcing the rights of beneficiaries.
5. Social Conflicts: Waqf can sometimes create social conflicts, particularly in secular
states where different legal systems coexis

Case Laws
• Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, (1982):

The Karnataka High Court held that the dedication of house by a Muslim for use of all
travelers irrespective of religion and status was held not to be a ‘Waqf’ on the ground that
under Muslim law a ‘Waqf’ should have a religious motive and it should be only for benefit
of Muslim community, and if it is secular in character, the charity should be to the poor alone.

• Baqa Ullah Khan v. Ghulam Siddique Khan, (1955):There was no express mention of
any ultimate gift to charity, but the Allahabad High Court held that the waqf was
valid because an ultimate gift to charity was implied in the very word ‘Waqf’.
 (Pre-emption) in Muslim Law
Introduction
The Mughal rule introduced the law of Shufa (pre-emption) in India, initially applicable to
Muslims, later extending to Hindus. When the British arrived in the 1600s, the right of pre-
emption was already part of Muslim law and customs.

Pre-emption allows a co-owner or adjacent property owner the first right to purchase a property
before it is sold to an outsider. This right is based on joint ownership or blood relations. In the
1914 case Kunwar Digamber Singh vs. Kunwar Ahmad Sayeed Khan, Sir John Edge
highlighted the development of this right in British India, originally rooted in Mohammedan
Law, to prevent outsiders from acquiring property.

Meaning of Shufa (Pre-emption) in Muslim Law

Shufa, from Arabic "haq-Shufa," gives a neighboring property owner the right to buy land
before it is sold to an outsider. For example, if A wishes to sell land, B, the adjacent owner, has
the first opportunity to buy it at the same price. The law prevents inconvenience among co-
owners when property is sold to strangers. Unlike Roman law, which only allowed pre-emption
before a sale, Indian law permits it after the sale, subject to court approval.

Historical Background
The right of pre-emption dates back to the 6th century AD in pre-Islamic Arab society, where
no property norms existed. Prophet Mohammad introduced this law to prevent conflicts and
ensure peace among co-owners, especially preventing the sale of property without consent from
other co-owners. Initially a Muslim law, it later became a customary law applicable to all
communities, and was formalized by the British on the basis of justice and equity.

Objective of Shufa (pre- emption)

The objective behind the right of Shufa is to prevent annoyance or disturbance that may be
created by giving rights over property to a stranger. It gives preference to a person who already
shares a certain relationship with the owner of the immovable property who wishes to sell it. He
is given priority over property as compared to third parties. The practice of Shufa basically
dislodges the stranger from entering his neighbourhood.

In the case of Bhoop vs. Matadin Bhardwaj (1990), the Supreme Court held that the right of
pre-emption is purely a personal right. According to the Apex Court, this right may be founded
in a statute, custom, or personal law but in every case, the sole object of this right is to keep
away an objectionable stranger from the neighbourhood.
Parties involved : Shufa which means the right of party adjacent, involves three parties:
• The Vendor: The owner of the immovable property who wishes to sell it.
• The Vendee: The third party or the stranger who wishes to buy it.
• The Pre-emptor: The party living adjacent to or neighbour, co-owner, or co-heir of the
property.

So generally, if A (vendor) is selling land that is adjacent to B’s house, he must first ask B (pre-
emptor) whether he wishes to purchase it or not. Only if B denies, he must sell it to any person
C (vendee).

Essential elements of Shufa (pre-emption) under Muslim Law

1) The right of pre-emption is only available to the owner of immovable property. He must
have full ownership of that immovable property.
2) There must be sale of the immovable property and it must not belong to the pre- emptor.
3) There should be a certain relationship between the seller and the pre-emptor.
4) 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.
5) The right is given by law for the quiet enjoyment of the property.

Nature of the right of pre- emption

In the case of Bishan Singh vs. Khazan Singh (1958), Justice Subba Rao of the Supreme Court
of India summarised the right of pre- emption in the following pointers:

1. 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.

2. The pre-emptor holds a remedial right to follow the thing sold.

3. 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.

4. 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.

5. The pre-emptor must have a superior right over the property than a vendee because the right
of pre-emption is based on preference.

6. 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.
Who can claim the right of Shufa (pre-emption) under Muslim Law
The pre-emptors have been classified into various kinds based on the person who can pre-empt.
They are as follows:

1) Shafi-i-Sharik – Co-owners of the Property

Co-owners (Shafi-i-Sharik) have the preferential right of pre-emption over others. For example,
if one co-owner sells their share, the other co-owner has the right to claim it before any outsider.
This right is available only for undivided properties and cannot be exercised on leased or
mortgaged properties. The seller must be the full owner of the property. Under Shia law, the
right of pre-emption is applicable when there are only two co-owners.

2) The Shafi-i-Khailat – The participator in immunities and appendages.

This category includes individuals who have easement rights (such as a right of way or right to
discharge water) over the disputed property. A Shafi-i-Khalit may claim pre-emption if they
hold a private easement over the land in question. However, the right cannot be claimed based
on easements like light or air, or public rights like drawing water from a government
watercourse. The right is restricted to private easements. In the case of Ladu Ram vs. Kalyan
Sahai (1963), it was held that Shafi-i-Khalit can claim pre-emption only in relation to rights of
way and water, not for other easements.

3) The Shafi-i-jar – The owner of an adjoining property

Shafi-i-Jar refers to the owners of adjoining properties. These individuals can exercise the right
of pre-emption if their neighboring property is sold, but only in the absence of a co-owner
(Shafi-i-Sharik) or a participator in immunities (Shafi-i-Khalit). The right does not extend to
tenants or individuals who merely possess the property without ownership. The claim can only
be made if the properties are adjacent to each other. However, after the Bhau Ram case (1962),
the claim of pre-emption solely based on proximity was ruled unconstitutional.

Exclusions from Shufa Claims

Certain situations do not allow a claim of pre-emption:

• The right cannot be claimed based on easements of light or air.

• A right to use common thoroughfares (like village roads) does not grant pre-emption
rights.
• The right cannot be claimed by those holding land under a trust or in the name of God
(e.g., Wakif or Mutawalli).
There are some differences between Sunni and Shia law on pre-emption
These are of the following :

1) 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.

2) 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.

3) 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 claiming the right of Shufa (pre-emption)

The Mohammedan law of pre-emption is very technical and all the formalities must be observed
carefully and completely. If no demand is made for claiming it, the right of pre-emption does
not arise by itself.

1. First demand or talab-i-mowasibat

The Arabic expression ‘Talab-i-Mowasibat’ means ‘Demand of Jumping’ which shows that it
must be made immediately as soon as the pre-emptor hears about the sale of the property being
made. There is as such no prescribed form for making the demand. The Hedaya recommends
that it can be asserted by saying, “I do claim my Shufa”. The first demand made must be clear
and unequivocal and it must be made as soon as the fact of sale becomes known to the pre-
emptor.

It need not be made in the presence of witnesses. Moreover, it is not required to be made by the
pre-emptor in person. It can be made by his manager or any person who had been previously
authorised by him. The first demand is valid only after the completion of the sale. Otherwise,
there is no demand.
 2. Second demand or 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 :

i. The Second demand must be made in the presence of at least two witnesses expressly
called to bear witness to the second demand,
ii. The Second demand is effective only when the first demand was lawfully made at an
earlier date.
iii. The pre-emptor must mention that he has already placed his first demand and now he is
asserting the claim for the second time.

3. The third demand or talab-i-tamlik

The third demand is referred to as the ‘demand for possession’. If the pre-emptor fails to
achieve his right in the first two demands, he can make the third demand by filing the suit in the
court. It is the mode of enforcing the right of pre-emption and must be made within one year of
the vendee taking possession of the land. This period of limitation can’t be extended on the
basis of the minority of the pre-emptor. He may file a suit through his guardian or any other
person authorised by law. The whole of the land in question must be claimed. The pre-emptor is
not allowed to take a part of it because he may keep the best part of it for himself and leave the
rest.

When the right of Shufa (pre- emption) is lost

The right of Shufa is lost under the following cases:

1. By acquiescence or waiver – The right of Shufa is lost by acquiescence when the pre-
emptor fails to follow the formalities for claiming it. Like, he does not fulfil all the three
demands in time. If the pre- emptor, expressly or impliedly, waives of his right of pre-
emption, he loses it.
2. By the death of a pre-emptor – When the pre-emptor dies after making the first two
demands and before filing the suit for claiming it, the right of pre-emption is lost and his
legal heirs cannot file a suit on his behalf.
 3. By misjoinder – When the pre-emptor joins himself as a co-plaintiff in filing the suit
with any such person, who is not entitled to it, the right of preemption is lost. It is known
as a misjoinder of parties. But, if he joins himself as a co-plaintiff with a person who was
entitled to the right but that person did not make the first two demands, his right would
not be lost.
4. By release – The right of pre-emption is lost if the pre-emptor releases the property for
consideration to be paid to him. However, the right of pre-emption will not be lost if the
property was offered to the pre-emptor before its sale, but he refused to buy it because the
right of pre-emption accrues only after the completion of the sale.
5. By statutory disability – The pre-emptor must necessarily follow the provisions of the
law. Anything done contrary to it will result in losing his power of pre-emption.
6. By loss of right before final decree: The right of the pre-emptor must exist till the date
when the final decree is to be passed by the trial court. If he loses his right before the
final decree is passed, he would no longer be entitled to it. However, it is not necessary
that the right must persist till the date of judgement by the appellate court.

Constitutional validity of Shufa

• Before the 44th Constitutional Amendment Act, 1978

The right of pre-emption infringed upon the fundamental rights guaranteed by our Constitution
under Article 19(1)(f) and Article 31. It was a fundamental right to hold, acquire, and dispose of
property and no person could be deprived of his property except according to the law. He was
bound by the Muslim law of pre-emption or Shufa which was in conflict with the Constitution.

But under Article 19(5) of the Constitution, reasonable restrictions can be imposed upon these
fundamental rights, and the law of pre- emption which was in violation of these rights, as the
owner of the property was not given a free will to dispose of his property, was protected under
Article 19(5).

In the case of Bhau Ram vs. Bhaji Nath Singh (1961), the honourable Supreme Court held
that the right of pre-emption was illegal as it imposed unnecessary restrictions on the right to
dispose of property and was opposed to the public interest. In another case Sant Ram vs. Labh
Singh (1965), the right of pre- emption was held to be void by the Supreme Court as it restricted
the rights of both the vendor and the vendee to dispose of their property according to their own
choice. Moreover, it created discrimination among people based on caste and religion which is
violative of Article 15 of the Constitution.
 • After the 44th Constitutional Amendment Act, 1978
The 44th Constitutional Amendment Act came in 1976 and it changed the landscape of property
rights in India to a greater extent.

Article 19(1)(f) and Article 31 of the Constitution were repealed and the right to property was
recognized as a constitutional right under Article 300A. There was no fundamental right to
acquire, hold, or dispose of property. Though it did not remain a fundamental right, the law of
pre-emption was still a legal right and therefore, was bound by restrictions imposed by Article
14 and Article 15 of the Constitution.

In the case of Atam Prakash vs. State of Haryana & Ors. (1986), it was held by the Supreme
Court that the right of pre-emption claimed on the basis of consanguinity i.e. blood relationship
is unconstitutional. Earlier, this right was exercised so as to maintain family integrity and unity
in the rural society which are totally irrelevant today. Section 15 of Punjab Pre-emption Act,
1923 was held to be unconstitutional as there were no relevant and justifiable classifications of
co-sharers who are entitled to claim pre-emption.

In the case of Raghunath(D) by Lrs. vs. Radha Mohan(D) by Lrs. (2020), it was held by the
Supreme Court that the right of pre- emption could only be used for the first time when the need
arose. After that, it lapses and can’t be claimed at a later stage.

Applicability of Shufa (pre- emption) in India

• By Muslim Personal Law

Shufa existed as part of Muslim Personal Law in India as earlier there were no such statutes and
customs related to it. It was applicable only to Muslims. In the case of Avadh Behari vs.
Gajadhar (1954), it was held by the Supreme Court that Shufa was neither a customary right nor
a territorial right, but applicable as part of Muslim personal law. In another case Mohamed Bed
Amin Beg vs. Narayan Patil (1915), the Bombay High Court opined that the right of Shufa
restricted the freedom of sale of property as per the choice of the owner and it was abrogated as
per provisions of Transfer of Property Act, 1882 and Indian Contract Act,1872.

• By Contract
The right of Shufa could also become applicable to anyone by entering into a valid contract. For
example, a contract may be entered into by a Hindu vendee and a Muslim vendor, and the
Muslim law of Shufa, as applicable to the vendor, may also be applicable to the vendee in the
same manner.
 • By Statutes
In some areas of India, the right of pre- emption existed by way of statutes. People were given
statutory rights and could go to court in case of their violation. A few examples of it are:

 Punjab Pre-emption Act, 1915

 Agra Pre-emption Act, 1922
 Oudh Laws Act, 1876
 C.P. Land Revenue Act, 1917 Berar Land Revenue Code, 1928 Zabta Shikmidaran in
Hyderabad
 Rights under these Acts were given to both Muslims and Non-Muslims.

• By Customs
In a few areas, where there was no statutory law, it was recognized as part of customs. Customs
are those common practices that have been followed since time immemorial and are reasonable,
certain, moral, and not opposed to public policy. They have been followed by a large number of
people consistently and therefore, enjoy the force of law. The burden of proving the custom lies
on the person who asserts it. It was applicable to Hindus who either had their domicile there or
were the permanent natives of these areas for a long time.

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.