Fmlyy Law 6th Sem

PREEMPTION: A STUDY OF EVOLUTION OF THIS RIGHT IN DIFFERENT SYSTEM
S. S. JAIN SUBODH LAW COLLEGE
PREEMPTION: A STUDY OF EVOLUTION OF THIS RIGHT IN

DIFFERENT SYSTEM
By
KANCHAN MANCHANDA
B.A.LL.B VI- SEMESTER
21ST FEBRUARY, 2017
S.S. Jain Subodh Law College

TABLE OF CONTENTS
1. Declaration…………………………………………………………
2. Certificate………………………………………………………….
3. Acknowledgement…………………………………………….…..
4. Statement of problem……………………………………………...
5. Research Methodology…………………………………………….
6. Introduction……………………………………………………….
7. What is Preemption……..……………………………………..……
8. What are The Source of Preemption……………………………….
9. What does the right of Preemption arise…………………………
10. Grounds under which the Law of Pre-Emption is applicable…………………
11. Conclusion………………………………………………………...
12. Bibliography………………………………………………………

DECLARATION
I Kanchan Manchanda, do hereby declare that this dissertation titled “PREEMPTION: A

STUDY OF EVOLUTION OF THIS RIGHT IN DIFFERENT SYSTEM” is an outcome of
the research conducted by me under the guidance of Pankaj Sir (asst. Prof. Of law) at S.S. Jain
Subodh law college in fulfillment for the award of the degree of B.A. LL.B at the university of
Rajasthan.
I also declare that, this work is original, except where assistance from other sources has been
taken and necessary acknowledgements for the same have been made at appropriate places. I
further declare that, the work has not been submitted either in whole or in part, for any degree
or equivalent in any other institution
DATE - 21 -02-2017
PLACE - JAIPUR
KANCHA MANCHANDA

CERTIFICATE
This is to certify that the dissertation titled “PREEMPTION: A STUDY OF EVOLUTION OF

THIS RIGHT IN DIFFERENT SYSTEM” submitted by Kanchan Manchanda in fulfillment
for the award of the degree of B.A.LL.B. At S.S. Jain Subodh Law College is the product of
research carried out under my guidance and supervision.
Mr. Pankaj Avasthi
(Asst. Prof. of Law)

ACKNOWLEDGEMENT
I acknowledge with profundity my obligation to Almighty God and my parents for giving me
the grace to accomplish my work, without which this project would not have been possible.
I express my heartfelt gratitude to my respected faculty, Mr. Pankaj Avasthi (Asst. Prof. of
Law) for providing me with valuable suggestions to complete this dissertation.
I am especially grateful to all my faculty members at S.S.Jain Subodh Law College who have
helped me imbibe the basic research and writing skills.
Lastly, I take upon myself, the drawbacks and limitations of this study, if any.
DATE - 21-02-2017
PLACE- JAIPUR
KANCHAN MANCHANDA

STATEMENT OF PROBLEMS
 What is preemption??
 What are the Source of Preemption??
 What are the Right of Preemption??

RESEARCH METHODOLOGY
Aims and Objectives:
The aim of the project is to present a detailed study of the topic “PREEMPTION: A STUDY
OF EVOLUTION OF THIS RIGHT IN DIFFERENT SYSTEM” forming a concrete
informative capsule of the same with an insight into its relevance in the today’s world.
1) To discuss about the Preemption.

2) To know the Right of Preemption.
Hypothesis
There are lots of changes in the whole process of preemption but the part which is widely focus
is the Right of preemption.
Research Plan
The researchers have followed Doctrinal method.
Sources of Data:
The following secondary sources of data have been used in the project-
 Websites
Method of Writing:
The method of writing followed in the course of this research project is primarily
analytical and based on secondary source of data. The researcher has followed Uniform method
of citation throughout the course of this research project.

INTRODUCTION
The right of Pre-emption 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 one’s privacy.
In this article i am dealing with what kind of this right of Pre-emption 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.

WHAT IS PREEMPTION
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.
Requisites of preemption:
(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.

SOURCES OF PREEMPTION
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:
1. 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.1
2.
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 pre-emption 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).
3. 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.2
4. Among some people it came into existence by contract. The right of pre-
emption was created by contract among the sharers in a village.3
1
Avadh Bihari v. Gajadar, AIR 1954 SC 417.
2
Jaganath v. Inderpal, AIR 1935 SC 417
3
Digamber Singh v. Ahmed, (1915) 37 ALL 129.

WHEN DOES THE RIGHT OF PRE-EMPTION ARISE
The right of pre-emption arises only in two types of transfer of property.

1. sale 2.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.4 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 arises,
while the Oudh Chief Courts has held that it is a hiba-bil-iwaz, and therefore, the right of pre-
emption does not exist. 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 Lease5. 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.
Muhammad6, 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 Koer, 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.
4
Najm-Un-Nissa v. Ajaib Ali, (1900)
5
. AIR 1968 SC 450
6
. (1894) 16 All 344.

Grounds under which the Law of Pre-Emption is applicable to any Person in India
Any person, on whom the law of pre-emption is applicable, can claim this right. In India, the
right of pre-emption may exist or, be applicable to a person on any of the following grounds:
(A) Equity and Justice:

On the ground of equity and justice, the law of pre-emption is applicable to all the Muslims in
India except in the State of Tamil Nadu. Pre-emption is essentially a part of Muslim personal law
therefore, equity and justice requires that this right must be available to every Muslim.
However, the law of pre-emption is not applicable to Muslims of Tamil Nadu on the ground of
equity. Pre-emption is being claimed in this State on the basis of local customs. Such customs are
prevalent among the Muslims of Malabar.
(B) Customary Law:

.Under customary law, pre-emption is applicable to Hindus of Bihar, Sylhet and certain
parts of Gujarat (e.g. Surat, Bharuch, and Godhara). As discussed earlier, the law of pre-
emption was adapted by the Hindus because it was favourable to their community life
and the concept of joint-family. Pre-emption, which developed among the Hindus as
custom, was the Hanafi law on the point with certain modifications in some of the localities
It may be noted that Anglo-Indian Courts have recognised pre-emption among Hindus merely as
a custom. They never regarded the right as part of their personal law or any rule of general law of
the land.
The result is that application of the law of pre-emption to Hindus is only territorial. Thus, the pre-
emption on the basis of custom is available only to those Hindus who are either natives or
domiciled in Bihar, Sylhet or Gujarat etc. where such custom prevails.
If a Hindu, who is a native of Bihar, moves to a place where there is no such custom, he would
not get the right of pre-emption. Similarly, if a Hindu who is residing in Bihar and has also some
immovable property but, is not domiciled there, he cannot get the right under customary law.
In Parsashth Nath v. Dhanai a Hindu who was a co-sharer in an immovable property in Bihar,
claimed, the right of pre-emption in respect of the said property.

The Calcutta High Court held that a necessary condition for application of the law of pre-emption
to Hindus was that the claimant must be native or domiciled in a place where a custom to that
effect prevails; mere residence is not sufficient. However, where the existence of such a custom
has been judicially established the Hindu claimant is not required to prove it.
(C) Special Enactments:

Under special enactments, the law of pre-emption is applicable to Muslims as well as to non-
Muslims of the areas where such enactments are in force. Special Acts which regulate the law of
pre-emption are:
(a) Punjab Pre-emption Act 1913 (as amended in 1960 and applicable to Haryana and part of
Delhi).
(b) Agra Pre-emption Act 1922, and the Oudh Laws Act 1876, enforceable in Uttar Pradesh.’
(c) Bhopal Pre-emption Act 1934, and the Rewa State Pre-emption Act 1948, in Madhya Pradesh,
and
The statutory law of; pre-emption, as given in these enactments may be different from the pre-
emption under Muslim law. The result is that Muslim law of pre-emption may not be applicable
even to Muslims of these territories except under a custom. In other words, unless there is any
local custom under which Muslim law of pre-emption is being applied to the Muslims of these
areas, they too are subject to statutory law and they cannot claim the right under personal law.
(D) Contract:
In the absence of any, customary or statutory law, the, right of pre- emption may also be created
by contract. Any two persons may bind themselves under a contract that the law of pre-emption
would be made applicable to them. The contract may provide terms and conditions for the
applicability of this contractual pre-emption.
In such a case, the law of pre-emption is made applicable in the absence of any customary and
statutory law to that, effect but, where pre-emption is applicable on the basis of a contract, the right
exists strictly according to the terms and conditions agreed upon between the parties. Further, pre-
emption based on contract (or custom) need not be in accordance with the Muslim personal law;
it is an independent right.


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 the right does 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.

BIBLIOGRAPHY
WEBSITES REFFERED:
 http://www.shareyouressays.com/117463/grounds-under-which-the-law-of-pre-emption-
is-applicable-to-any-person-in-india
 https://www.law.cornell.edu/wex/preemption
 www.lawyersclubindia.com/experts/what-is-pre-emption-law
 https://www.merriam-webster.com/dictionary/preemption

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PREEMPTION: A STUDY OF EVOLUTION OF THIS RIGHT IN DIFFERENT SYSTEM

S. S. JAIN SUBODH LAW COLLEGE

PREEMPTION: A STUDY OF EVOLUTION OF THIS RIGHT IN

B.A.LL.B VI- SEMESTER

21ST FEBRUARY, 2017

S.S. Jain Subodh Law College

S.S. Jain Subodh Law College

I Kanchan Manchanda, do hereby declare that this dissertation titled “PREEMPTION: A

S.S. Jain Subodh Law College

This is to certify that the dissertation titled “PREEMPTION: A STUDY OF EVOLUTION OF

Mr. Pankaj Avasthi

(Asst. Prof. of Law)

S.S. Jain Subodh Law College

S.S. Jain Subodh Law College

S.S. Jain Subodh Law College

S.S. Jain Subodh Law College

Aims and Objectives:

1) To discuss about the Preemption.

The researchers have followed Doctrinal method.

S.S. Jain Subodh Law College

S.S. Jain Subodh Law College

S.S. Jain Subodh Law College

S.S. Jain Subodh Law College

WHEN DOES THE RIGHT OF PRE-EMPTION ARISE

The right of pre-emption arises only in two types of transfer of property.

S.S. Jain Subodh Law College

(A) Equity and Justice:

(B) Customary Law:

S.S. Jain Subodh Law College

(C) Special Enactments:

S.S. Jain Subodh Law College

S.S. Jain Subodh Law College

S.S. Jain Subodh Law College

S.S. Jain Subodh Law College

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