1

[Link] Kr. Singh

Dear Students

Now we are going to cover Unit IV. As you are aware that Unit IV are divided into
two sub-chapters. First are law of pre-emption and other law of Inheritance. Law of
pre-emption is one of the simplest chapters in compare to Law of inheritance. Now
let’s move to law of Pre-emption.

Law of Pre-emption

It is the right of an owner of immovable property to acquire by purchase another 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.

Definition of pre-emption is also given by Mohmood, J., in Gobind Dayal case in which he
observation 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.’1

We can understand pre-emption with this illustration: 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.

The law of pre-emption was not a part of the personal law of Muslim. Before the advent of
Moghul Rule in India, there was nothing akin to the law of pre-emption. 2 It was only during
the Moghul 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.3 With the result pre-emption was adopted by Hindus as a custom.

Object of the right of Pre-emption :

1
Govind Dayal v. Inayatullah, (1885) 7 All 779
2
Digambar Singh v. Ahmad, AIR 1914 PC 14
3
The Hedaya, II, 592
 2

The law is based on the principle of convenience. According to the Hedaya, ‘Besides,
according to our tenets the grand principle of Pre-emption is the conjunction of property, and
its object is...... to prevent the vexation arising from a disagreeable neighbour.......’4

The right of Pre-emption and Its Constitutional Validity :

As far as constitutional validity of right of pre-emption is concerned, it can look into the Pre-
emption after dividing two stages, (i) before 44th Constitutional Amendment, and (ii) after
44th Constitutional Amendment.

(i) Before 44th Constitutional Amendment, 1978 : Article 19(1) (f) of the Indian Constitution
provides all citizens had a fundamental right to acquire, hold and dispose off property. Article
19 (5) provided that reasonable restrictions may be imposed on this right of a person to
acquire, hold and dispose off a property yet it was protected under Clause (5) of Article 19.
With the help of power exercise under this Clause, this right on the ground of vicinage or on
ground of consanguinity or on ground of participation of some immunity was held
Constitutional. Further, the right held Constitutional whether it was exercised under some
enactment or under Muslim personal law. But in 1962, in the case of Bhau Ram v. Baij
Nath,5 the Supreme Court overruled this view and held that Pre-emption only on the ground
of vicinage was unconstitutional and cannot be enforced. The court held that unless the Pre-
emptor and the vendor are co-sharer or participators in some immunity, the right cannot be
protected. Accordingly, claim of Pre-emption on ground of being co-sharer or participator in
immunity was constitutional but Pre-emption only on ground of vicinity was unconstitutional.
The Supreme Court reaffirmed this view in Sant Ram v. Labh Singh.6

(ii) After 44th Constitutional Amendment : Article 19(1) (f) has now been repealed by the 44th
Amendment Act, 1978. The result is that now there is no fundamental right of acquiring,
holding and disposing off a property. Thus, right to acquire, hold and dispose off, is neither a
fundamental right nor a mere constitutional right. However, Pre-emption still continues to be
a legal right. It is therefore, submitted that the reasonableness of the right of pre-emption can
still be examined under Article 14 and 15 of the Constitution. In Atma Prakash v. State of
Haryana,7the Supreme Court held that claim of Pre-emption on ground of consanguinity is
ultra vires. The court observed that the reasons which justified Pre-emption in the past
namely, the preservation of the integrity of rural society, the unity of family life and the
agnatic theory of succession, are totally irrelevant. The court held that the claim for
possession by way of Pre-emption only on ground that claimant had superior rights being
father’s brother’s son of the owner, cannot be sustained. Accordingly, Section 15 of Punjab
Pre-emption Act, 1923 (which provided Pre-emption to co-sharer for kinsfolk of a vendor)
was held to be unconstitutional by the Supreme Court because there was no reasonable
classification of the co-sharer entitled to claim Pre-emption.

CLASSIFICATION OF PRE-EMPTORS OR WHO MAY PRE-EMPT

4
The Hedaya, 591
5
AIR 1962 SC 1476
6
AIR 1965 SC 314
7
(1986) 2 SCC 249
 3

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 or 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. For example, brothers or two sisters are the co-sharers. If one of them sells
his/her house, the other is entitled to claim pre-emption. Co-sharers are given preference
against other categories of pre-emptors because they are common blood-relations

ii. The Participators in Immunities or 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,8 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. 9 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.10
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.11
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 or 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.

8
AIR 1962 SC 1476
9
Ladu Ram v. Kalyan Sahai, AIR 1963 Raj 195
10
Imam Baksh v. Mohd. Ali, AIR 1945 Ker 374
11
Aziz Ahmad v. Nazir Ahmed, AIR 1927 All 505
 4

However, as discussed earlier, after the Bhau Ram’s case n 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 :

i. 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.
ii. 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.12
iii. 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

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.

1. 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 :

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.

12
Abbas Ali v. Maya Ram, (1888) 12 All 229; Hussain Baksh v. Mahfuzul Haq, AIR 1925 All 559
 5

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’.

First and Second Demands may be Clubbed: The pre-emptor may combine both the
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 on13 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.14

Shia Law :

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.15

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:

i. 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.16
ii. 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.
iii. 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:

13
Rajjub Ali v. Chundi Chaman, (1990) 17 Cal 534; Abdul Gaffor Khan v. Abdul Jikar, AIR 1954 Nag 113
14
Abdul Majid v. Qamaruddin, AIR 1945 All 375
15
Ummulnisa v. Fatima Begum, AIR 1947 All 89
16
Indira Bai v. Nand Kishore, AIR 1991 SC 1055
 6

i. 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.17
ii. 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.18

2. By death of the pre-emptor : When the pre-emptor dies after making the two
demands but before the filing of the suit19 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.20

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.21

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.

17
Mohd. Uunus v. Mohd. Yusuf, (1897) 19 All 334
18
Askari v. Rahmat Ullah, AIR 1926 All 548
19
Tyabji, 596
20
Hedaya 561; Baillie I, 505
21
Dwarka Singh v. Sheo Shankar, AIR 1927 All 168
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AN ARTICLE ON RIGHT OF PREEMPTION

Abhishek Agrawal*

In this article I am dealing with the right of pre-emption. This right is available to
Muslims under their customary right and apart from this even a non-Muslim can claim
the same under Statues of state.

The right of Preemption also known as "Shufaa" is a right which the owner of an immovable
property possesses to acquire by purchase another immovable property which has been sold to
another person.

Basically this right is available to one so that a stranger is not introduced in neighbor or the family
which may cause a hindrance to ones privacy.

In this article i am dealing with what kind of this right of Preemption is? Whether it is a statutory
right or a customary right? Whether the law recognizes it? When did this right originate? What is
the nature of this right and what is its object? Whether such right is beneficial or not?

Apart from this who can claim this right? What are the formalities required and when this right
vanishes? The different opinions of Courts and controversy regarding it.

ORIGIN OF PRE-EMPTION

The history of preemption in India has been given by Sir John Edge in Digamhar Singh v. Ahmad
Said Khan.

Pre-emption in village communities in British India had its origin in the Mohammedan law as to
pre-emption,
course of time
and was
customs
apparently
of preemption
unknowngrew
in India
up orbefore
were the time among
adopted of the Mughal rulers. In the In
village communities.
some cases the sharers in a village adopted or followed the rules of the Mohammedan law of the
preemption, and in such cases the custom of the village follows the rules of the Mohammedan law
of pre-emption. In other cases, where customs of preemption exists, each village community has a
custom of preemption which varies from the Mohammedan law of preemption and is peculiar to the
village in its provisions and its incidents. A custom of preemption was doubtless in all cases the
result of agreement amongst the share-holders of the particular village, and may have been
adopted in modern times and in villages which were first constituted in modern times. Right of

preemption has in some provinces been given by Acts of the Indian Legislature. Right of pre-
emption has also been created by contract between the sharers in a village. But in all cases the
object is as far as possible to prevent strangers to a village from becoming sharers in the village.
Right of preemption when they exist are valuable rights, and they depend upon a custom or upon a

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contract, the custom or the contract, as the case may be, must, if disputed, be proved.1

NATURE OF PRE-EMPTION

Mahmood J. observes in Gobind Dayal's cases :

The law of pre-emption is essentially a part of Muhammadan in jurisprudence. It was

introduced into Indian by Muhammadan Judges who were bound to administer the
Muhammadan law. Under their administration it became, and remained for centuries, the
common law of the country, and was applied universally both to Muhammadans and Hindus,
because in this respect the Muhammadan law makes no distinction between persons of
different races or creeds. "A Musalman and a Zimmee being equally affected by principles
on which shafa or right of pre-emption is established, and equally concerned in its
operation, are therefore on an equal footing in all cases regarding the privilege of
shafa." (Hamilton's Hedaya, [Link], p.592.) What was the effect of this? In course of time,
preemption became adopted by the Hindus as a custom.2

The law of pre-emption is based clearly upon the texts of Islamic law, and while there seem to
foreign element in it,3 it is a well-established doctrine in India. It was adopted by Islam, in general,
to prevent the introduction of a stranger among co-sharers and neighbours likely to cause both
inconvenience and vexation.4 In Govind Dayal v. Inayatullah, Mahmood, j. defined pre-emption
(shufa) as :

A right which the owner of certain immovable property possess, 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 other person.5

Three things are, therefore, requisite: (i) the pre-emptor must be the owner of immovable
property; (ii) there must be sale of certain property not his own; (iii) the pre-emptor must stand in
a certain relationship to the vendor in respect of the property sold. If these conditions are satisfied,
he has the right to be substitute for the purchaser.

The free India found that the law of preemption prevailed in various parts of the country. In some
parts it existed as part of the Muslim personal law, in other parts it was based on custom, which
still in some other parts, it existed under statutes, and among some people it had come into
existence by contract. Thus, the law of preemption has the following four sources :

(i) In the greater part of the country it existed among the Muslims as part of their personal
law, i.e., where the law of pre-emption is neither territorial nor customary it is applicable as
between Muslims as part of their personal law.6

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(ii) It existed in certain parts of the country under statutes. Thus, in Punjab it existed under
the Punjab Pre-emption Act, 1915, in Agra under the Agra Pre-emption Act, 1922, and in
Oudh under the Oudh Laws Act, 1876. In these areas the statutory law of preemption
applies to both Muslims and non-Muslims, and the Muslims law of pre-emption does not
apply even to Muslims. (This should be read subject to the saving contained in the Agra Pre-
emption Act under which it is laid down that the Muslim law of pre-emption will apply where
the vendor and the pre-emptor are both Muslims).

(iii) In Bihar, Sylhet, and certain parts of Gujarat (such a Surat, Broach of Godhra), the
right of pre-emption is recognized by custom among Hindus who were either domiciled
there or were natives of these parts. In these areas it was the Muslim law of pre-emption
which applies to Hindus except in so far as it was modified by custom.7 Where pre-emption
is based on custom it is part of lex loci,8 and is enforceable irrespective of the religions of
the parties concerned.

(iv) Among some people it came into existence by contract. The right of pre-emption was
created by contract among the sharers in a village.9 For instance, a Hindu vendee and a
Muslim vendor may agree that the Muslim law of pre-emption which applies to the vendor
and his sharers would also apply the vendee.

The question whether the right of pre-emption is violative of Article 19(1) (b) of the Constitution of
India has come up before the Supreme court in two cases,10 in one the statutory right of pre-
emption and in another the customary right of pre-emption was challenged. Both cases related to
the right of pre-emption on the basis of vicinage. In both cases, the Supreme Court came to the
conclusion that the right of pre-emption on the basis of vicinage imposed unnecessary restrictions
on the vendor's right to sell the property to a purchaser of his choice, and, therefore, was
unconstitutional.

In Avadh Behari v. Gujadhar,11 the Supreme Court gave effect to the right of pre-emption based
on co-ownership in joint property. However, in this case the constitutional validity of the law of
pre-emption was not challenged before the Supreme Court. In fact, the constitutional validity could
not have been challenged in this case, as it was a pre-constitutional case, where the leave to
appeal had already been granted by the Privy Council. After the coming into the force of the
Constitution of India, the appeal was has heard by the Supreme Court. Thus, from this case, no
inference can be drawn that the Supreme Court had upheld the Constitutional validity of the law of
pre-emption based on co-ownership.

In Bishan Singh v. Khazan Singh the court summarised rules of pre-emption in India :

(1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing

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about to be sold. This right is called the primary or inherent right.

(2) The pre-emptor has a secondary right or a remedial right to follow the thing sold.

(3) It is a right of substitution but not of re-purchase, i.e., the pre-emptor takes the entire
bargain and step into the shoes of the original vendee.

(4) It is a right to acquire the whole of the property sold and not a share of the property
sold.

(5) Preference being the essence of the right, the plaintiff must have a superior right to that
of the vendee or the person substituted in his place.

(6) The right being a very weak right, it can be defeated by all legitimate methods, such as
the vendee allowing the claimant of a superior or equal right being substituted in his
place.12

Classification Of Pre-Emptors Or Who Can Pre-Empt

The right of pre-emption may be classified on the basis of the persons who can claim the right.

(i) The Shafi Sharik or co-owner in the property. This is a right f pre-emption of a co-sharer
of the property. Obviously, no right of pre-emption arises on the sale of leasehold.13 The
right of pre-emption can be claimed only by a full owner.

(ii) The Shafi Sharik or a participator in the appendages. This is a right of pre-emption of a
participator in immunities and appendages, such as a right of way, or right to discharge
water.14 On the basis that that the branches of his tree project over the land of a neighbor
of the owner of the tree cannot claim the right of pre-emption as Shafii Khalit on the sale of
that land.15 Similarly, the mere fact that the owners of lands have the any right to draw
water from government water-course does not give them any right of pre-emption. The
right of pre-emption as Shafii Khalit cannot be claimed as Shafii Khalit cannot be claimed on
the basis of easement of light and air. The right of pre-emption as shafii khalit exists only in
respect of right of way and right to water and in respect of no other easement.16

(iii) The Shafi-i-jar or owner of an adjoining property. This is a right of pre-emption on the
basis of nighbourhood, or the right of the owner of the adjoining immoveable property. This
right does not belong to a tenant or to a person, who is in possession of property without
having ownership in it. Thus, a wakif of mutawali has no right of pre-emption on the basis
of shafi-i-jar, since the title of property does not vest in either of them but in God,17 and
God, too, has no right of pre-emption. Even before Supreme Court decision18 holding the
right of pre-emption on the basis of vicinage as unconstitutional, the right of pre-emption of

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a shafi-i-jar did not extend to larger estates, such as zamindars and jagirs, but was
restricted to houses, gardens and small parcels of land.

Under the Hanafi law, the pre-emptor of the same class has the right to pre-empt in equal
proportions, even though they own unequal sharers. But under the Shafii law, even the right of
pre-emption of the same class is in proportion to their share in the property. Among the pre-
emption of the same class, no distinction is made.

Nearness may be recognized by customs.19

The right of pre-emption arises from full ownership,20 and it is immaterial that a pre-emptor is not
in possession of his property. It is ownership and not possession which gives rise to the right of
pre-emption. There is no right of pre-emption on the sale of leasehold, whether of house or land.

WHEN DOES THE RIGHT OF PRE-EMPTION ARISE

The right of pre-emption arises only in two types of transfer of property, viz., sale and exchange. It
does not arise in respect of transfer of any other type. When it arises in respect of sale, then sale
must be complete, bona fide and valid.21 the Allahabad High Court held that the transfer of
property by a husband to his wife in lieu of dower is sale and, therefore, the right of pre-emption
arises22, while the Oudh Chief Courts has held that it is a hiba-bil-iwaz, and therefore, the right of
pre-emption does not exist23. Similarly, the right of pre-emption arises in respect of exchange
when it is complete, bona fide and valid. Thus, the right of pre-emption will not arise in respect of
an exchange of property between two persons, if the exchange is subject to an option at any time
during their life time.

The right of pre-emption does not exist in respect of Gift, Sadaqah, Wakf, Inheritance, Bequest or
Lease24. It does not apply to a mortgage also, but if a mortgage is foreclosed, then the right of
pre-emption arises. The right of pre-emption does not arise in respect of a lease even when it in
perpetuity.

It is established rule that the right of pre-emption arises out of a valid and completed sale. The
question that has caused some controversy is:

Whether a sale should be treated as completed sale under Muslim law or under the Transfer of
Property Act?

In Begum v. Muhammad25, a full Bench of Allahabad High Court held that if the sale is complete in
the Muslim law sense, then the right of pre-emption will arise. In this case, Bannerji, J. expressed
the opinion that it arises only when the sale is complete in the Transfer of Property Act sense. In
Jadulal v. Janki Koer26, the Calcutta High Court pronounced the test of intention of parties. In other
words, the sale will be deemed to be complete when parties intended it to be completed. This test

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was adopted in Budhai v. Sanaullah27, Kheyali v. Mullick28, and Sitaram v. Sayed Sirajul29. The
decision in Sitaram's case was affirmed by the Privy Council30. The Supreme Court has resolved the
controversy by holding that in those cases, where the Transfer of Property Act applies, the sale will
complete in accordance with the provision of the Transfer of Property Act, and Muslim law or any
other personal law cannot override the provisions of Act31. It may be noted that the Muslim law of
sale has been superseded by the Transfer of Property Act.

It has been held in some cases that the court should look into the real nature of transaction. A
deed which is called gift (sankalp), if it is in fact a sale, then the right of pre-emption will arise.
Similarly, the right of pre-emption will be available in respect of an ostensible usufructuary
mortgage which is in fact a sale.

CONFLICTS OF LAW

Religion of Buyer, Seller And Pre-Emptor :

Where the parties to a transaction which gives rise to a case of pre-emption are governed by
different personal laws, it is necessary to lay down the principles upon which the court would act.
In India all religions are treated with equality and therefore in this branch of the law of principle of
reciprocity should be logically applied. Hence, on general principles it would be unfair to apply the
law of pre-emption and to create rights in favour of persons who would not be subject to
corresponding obligations.

The seller and the pre-emptor must necessarily be Muslim. The vendor should be a Muslim; for
there is no reason why the Muslim law of pre-emption should be applied to a vendor who is a non-
Muslim. The pre-emptor should also be a Muslim; the reason being that a Muslim if he
subsequently wishes to sell the property he will be obliged to offer it to his Muslim neighbour's or
co-owners. If, however the right of pre-emption is recognized in favour of non-Muslim, he may
take advantage of it as a pre-emptor; but would not be subject to a similar obligation.

As regards the purchaser, there is a conflict of opinion. According to Allahabad and Patna decisions
the purchaser need not be a Muslim; while according to Calcutta and Bombay view the purchaser
should also be a Muslim.

As between Sunnis and Shias, if a Shia sues a Sunni for pre-emption the Shia law which is the
narrower law will be applied; thus a neighbor being a Shia will have no right to pre-empt from a
Sunni vendor. A Hyderabad case illustrates the principles to be followed in determining suits where
one of the parties is a Sunni and the other a Shia.32 One Abdur Rahman (Hanafi) sold a house to
Pasha Begum (also Hanafi). There upon Syed Shabber Hasan (Twelver Shia) filed a suit for pre-
emption. The question arose whether the Hanafi or the Ithna Ashari law was to apply. The two
questions referred to the Full Bench were formulated as follows :

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(1) Whether all suits of pre-emption are to be decided according to the rules of Hanafi law
irrespective of the fact that the parties belong to different persuasions?

(2) In case it is held that the personal law of other sects has the force of law then by what
law suit would be governed if the person claiming is a Shiite and a Sunnite or vice versa.

The bench consisted of five judges. The majority held that the law of pre-emption in Hyderabad is
neither statutory nor customary, nor territorial, nor yet "the common law." The true principle was
that Hindu and Muslim laws were applied as personal laws to Hindus and Muslims, respectively. The
law of pre-emption has been declared to be a personal law by the Supreme Court, and if the
parties are Muslim no question arises and the Muslim law will apply.

As the personal law of each party would apply, what happens if the pre-emptor is of the Shia
school and the vendor of the Sunni faith? The following scheme was adopted :

(a) If both the parties belong to one and the same school, the rules of that particular school
will apply.

(b) If the vendor is a Shia and the pre-emptor a Sunni then as the Shia law does not
recognize the right of pre-emption on the ground of vicinage, applying the principle of
reciprocity, the pre-emptor does not succeed.

(c) emptor must fail

It will be recalled that this reasoning is the one put forward by Mahmood J. in the leading case of
Govind Dayal v. Inayatullah33, and the majority cited it with approval and adopted the principle of
reciprocity as being in consonance with justice and equity.

NECESSARY FORMALITIES

According to the Hedaya 'the right of shufa is but a feeble right as it is disseizing another of his
property merely in order to prevent apprehended inconveniences. For this reason the law considers
certain formalities as imperative.

Three demands

No person is entitled to pre-empt unless he takes the proper steps at the proper time and conforms
strictly to the necessary formalities. These formalities or ceremonies are known as the 'Three
Demands'.

The First Demand is taleb-e-muwasabat. The pre-emptor must assert his claim immediately on
hearing of the sale, but not before. Witnesses are not necessary, as in the second demand; nor in

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is any particular form essential. 'I have demanded or do demand pre-emption' is enough.34The
courts enforce this formality strictly; and any unreasonable delay will be constructed as an election
not to pre-empt. A delay of twelve hours was in one case considered too long; the principle is that
the law requires extreme promptness and any laxity will be fatal to the pre-emptor's claim.

The Second Demand is talab-e-ishhad. The pre-emptor must, with the least practicable delay,
make a second demand. He must (i) refer to his first demand;35 (ii) do so in the presence of two
witnesses; and (iii) do so in the presence of either the vendor (if he is in possession) or the
purchaser, or on the premises. This is also known as talab-e-taqrir, the demand of confirmation.

A common form of the demand is: the pre-emptor says, 'such a person has bought such a house of
which I am the pre-emptor (shafi). I have already claimed my privilege of pre-emption and now I
again claim it: be yet witness thereof. The property must be clearly specified by the pre-emptor. If
the pre-emptor is at a distance and cannot be personally present, the second demand may be
made by an agent, or even by a letter. An omission by the agent will bind the pre-emptor. Tendor
of the price is not necessary, provided that he offers to pay the agreed price and if that price
appears to be fictitious then such price as the court fixes. If there are several purchasers, the
demand must be made to all of them unless it is made on the premises or in the presence of the
vendor. If however, the demand is made to some only of the purchasers, the pre-emptor can claim
his rights as against these purchasers only and not as against the others.

Sometimes, the first two demands may be combined. If at the time of the First Demand the pre-
emptor has an opportunity of invoking witness in the presence of the vendor or purchaser or on the
premises to attest the First Demand and witness are actually present to testify to this formality,
the requirements of both demands are satisfied. This, however, is the only case where the first two
demands can be combined lawfully.

The Third Demand is not really a demand but taking legal action and is not always necessary; it is
only when his claim is not conceded that the pre-emptor enforces his right y bringing a suit. Such a
action is called talab-e-khusumat (the demand of possession, or the demand where there is a
dispute). The suit must be brought within one year of the purchaser taking possession of the
property if it is corporal; or within one year of the registration of the instrument of sale if
incorporeal.36

RIGHT WHEN LOST

The right of pre-emption may be lost by acquiescence, death or release.

ACQUIESCENCE OR WAVIER

The most ordinary form of acquiescence is to omit to take the necessary formalities. S sells land to

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B. P, who has the right to pre-empt, on receiving information of the sale omits, without sufficient
cause, to claim his right immediately; or makes an offer of the house to B; or agrees to cultivate
the land with B. in each of these cases P will be deemed to have acquiesced in the sale and to have
lost his right to pre-empt.

DEATH

The right to pre-empt is extinguished if the pre-emptor dies after the first two demands but before
filling a suit. The right is extinguished if death occurs during the pendency of a suit, and the action
cannot be continued by his legal representatives.37 Under Ithna Ashari and the Shafei laws the
right descends to the heirs proportionately.

RELEASE

The right may be destroyed if there is a release for consideration to be paid to the pre-emptor; the
right, however, is not lost if there has been a refusal on the part of the pre-emptor to buy before
the actual sale, nor by an unwillingness to make an offer to purchase the property after notice that
the property was for sale.

OBJECT OF PRE-EMPTION

In the words of Mulla," The right of shufaa or pre-emption is a right which the owner of an
immoveable property possesses to acquire by purchase another immoveable property which has
been sold to another person". The foundation of the right of pre-emption is the human desire to
avoid the inconvenience and disturbance which is likely to be caused by the introduction of a
stranger into the land. The Muslim law of pre-emption is to be looked at the light of the Muslim law
of succession. Under Muslim law, death of a person results in the division of his property into
fractions. If any heir is allowed to dispose of his share without offering it to other co-heirs, then it
is likely to lead to the introduction of strangers into a part of the estate with resultant difficulties
and inconveniences. In view of this, the law of pre-emption imposes a limitation or disability upon
the ownership of property to the extent that it restricts the owner's unfettered right of transfer of
property and compels him to sell it to his co-heir or neighbor, as the case may be. The person, who
is a co-sharer in the property, or owes property in the vicinity, gets an advantage corresponding to
the burden with which the owner of the property is saddled, even though it does not amount to an
actual interest in the property sold. It is now an established view that the right of pre-emption is
not a mere right to re-purchase; it is akin to legal servitude running with the land. The right exists
in the owner of the pre-emption tenement for the time being which entitled him to have an offer of
sale made to him whenever the owner of pre-emptional property desires to sell it. It is a right of
substitution entitling the pre-emptor, by reason of a legal incident to which the sale itself was
subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from

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the sale under which he has derived his title. It is, in effect, as if in a sale-deed the vendee's name
was rubbed out and the pre-emptor's name substituted.38 Or, in the words of Mahmood J."....... a
right, which the owner of certain immoveable property possesses, as such, for the quiet enjoyment
of that immoveable property, to obtain, in substitution for the buyer, proprietary possession of
certain other immoveable property, not his own, on such terms as those on which such latter
immoveable property, is sold to another person". Mukerjee, J. very aptly says that the crux of the
whole thing is that the benefit as well as the burden of the right of pre-emption runs with the land
and can be enforced by or against the owner of the land for the time being although the right of
pre-emption does not amount to an interest in the land itself. The law of pre-emption creates a
right which attaches to the property and on that footing only it can be enforced against the
purchaser.39 Thus, the right of pre-emption in that sense is right in rem, its exercise, from the time
it arise up to the time of the decree, is restricted as a personal right.

It is a right which is neither heritable nor transferable.40 In this context, the following passage in
the Hedaya is also instructive: "The right of shufaa is but a feeble right, as it is the disseizing
another of his property merely in order to prevent apprehended inconvenience". The right of pre-
emption is a very weak right and can be defeated by a defendant by all lawful means.41

In Indira Bai v. Nandkishore,42 the Supreme Court observed that the right of pre-emption is a
weak right and it can be defeated by estoppels. Even in Muslim law, which is the genesis of this
right, as it was unknown to Hindu Law and was brought in the wake of Mohammedan Rule, it is
settled that the right of pre-emption is lost by estoppel and acquiescence. Estoppel is a rule of
equity flowing out of fairness striking on behavior efficient in good faith. It operates as a check on
spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already
accomplished. It is invoked and applied to aid the law in administration of justice. But for it great
many injustices may have been perpetrated.

CONCLUSION

From the submission given in the article it is clear what sort of a right of pre-emption is. It is of an
extreme importance which one has got from law and one's own culture. Thought there are many
controversies regarding who can opt for such right, if the sect of a person according to Muslim law
is different, and when the right is lost, still it plays an important role as one can use this right can
an enjoy sole possession of the entire property without any interference from any one.

In this project I have dealt in dept detail of right of pre-emption regarding when does the right
arises, who can claim this right, when the right is lost, what are the formalities. Though after the
decisions of Supreme Court the law is settled now and the religion or the sect is no barrier now.
The formalities related to this right are also very simple in nature whereby one can approach the
vendor alone or with a witness and if the first two demands are rejected than one may knock the

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doors of the Courts.

At last we can see that the object of his right is just that, one can enjoy his right over the entire
property without any disturbances but his intention should be a fair one in this regard.

_________________________

* Abhishek Agrawal II year Student, Hidayatullah national Law University, Raipur.

1. AIR (1914) 42 IA 10.

2. (1885) 7 All 775.

3. Ibrahim Saib v. Muni Mir, (1870) MHCR 26.

4. Sayeeduddin Ahmed v. Iunus Mia, PLD 1960 Dacca 416.

5. Supra Note.2

6. Avadh Behari v. Gajadar, AIR 1954 SC 417.

7. Jagannath v. Inderpal, AIR 1935 ALL 236.

8. Supra Note 6.

9. Digamber Singh v. Ahmed, (1915) 37 ALL 129.

10. Bhan Ram v. Baij Nath AIR 1962 SC1976; Sant Ram v. Labh Singh, AIR 1965 SC 314.

11. Supra Note 6.

12. AIR 1958 SC 838. (Dealing with the Punjab Pre-emption Act, 1913).

13. Bibi Saleha v. Hazi Amiruddin, AIR 1929 Patna 214.

14. Karim v. Priya Lal, AIR 1943 Bombay 83.

15. Aziz v. Nazir, AIR 1927 All 504.

16. AIR 1963 Raj 195.

17. Girraj Kumar v. Irafan Ali, AIR 1932 All 688.

18. Dhanraj v. Rameshwar, AIR 1924 All 227.

19. Ibid.

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20. Munilala v. Bishwanath, AIR 1968 SC 450.

21. Najm-Un-Nissa v. Ajaib Ali, (1900)

22. All 342. 22 (1916) 37 All 533.

23. AIR 1923 All 57.

24. AIR 1968 SC 450.

25. (1894) 16 All 344.

26. (1908) 35 Cal 575.

27. (1914) 41 Cal 943.

28. (1916) 34 IC 210.

29. (1917) 41 Bom 636.

30. (1921) 44 Bom 1056 (PC).

31. Radhakrishan v. Sridhar, AIR 1960 SC 1368.

32. Pasha Begum v. Syed Shabber Hasan, AIR 1956 Hyd 1.

33. Supra Note 2.

34. [Link] v. [Link] (1949) 28 Pat 861.

35. Ibid.

36. See Article 10, Limitation Act 1963.

37. Mohd. Ismail v. Abdul Rashid AIR 1956 All 1.

38. AIR 1980 Raj 116.

39. AIR 1954 SC 417 at pg 422.

40. Supra Note. 37

41. Supra Note.38

42. AIR 1991 SC 1055.

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