MEANING OF PRE-EMPTION

According to the various decisions given by High Courts and

Supreme Court of India, Pre-emption is the right possessed by the owner
of the immovable property for price for which it has been sold to another
person.
HISTORICAL BACKGRAOUND OF PRE-EMPTION
Pre-emption in village communities in British India had its origin in
the Mohammedan law as to pre-emption, and was apparently unknown in
India before the time of the Moghul rulers. In the course of time customs
of pre-emption grew up or were adopted among village communities,
Supreme Court in Avad Behari v/s Gajadhar Jaipuria, AIR 1954, Sc417 ,has
held that the Law of Pre-emption was introduced in this country by the
Mohammedans.
RIGHTS OF PRE-EMPTION
Punjab High Court in Uttam Singh V. Kartar Singh, AIR 1954, Punjab
55 held that the right of pre-emption is based on -
• To preserve integrity of village and village community,
• To avoid fragmentation of holding,
• To implement agnatic theory of succession,
• To reduce choices of litigation, and
• To produce private and public decency.
PERSON ENTITLED TO EXERCISE RIGHT OF PRE-EMPTION,
I.E., WHO ARE PRE-EMPTORS
Under the Sunni Law the following three classes of persons are entitled
to claim and exercise right of pre-emption
1. Shafi-i-Sharik : Pre-emption based upon co-partnership in the
property
2. Shafi-i-Khalit : Who are enjoying right of easement by way of right
to water, way, etc. They are sharing common rights.
 3. Shafi-i-jar : Owner of an adjoining property. Its right based on
neighbourhood.
RIGHT OF PRE-EMPTION IS EXERCISE
There are certain formalities, which are complied by a person who is
entitled to exercise the right of Pre-emption on hearing of the transfer.
1. Talab-i-mowasibat or immediate demand : This literally means
that the pre-emptor should immediately on hearing of the sale of the
property, jump and shout out that he has a claim of pre-emption.
2. Talab-i-ishad or Istishhad : It is known as talab-i-taqrir or
confirmatory demand. It is a demand of Pre-emptor in presence of
Two Witnesses and Vender/Buyer.
3. Talab-i-tamlik or Demand of possession : After making two
demands, when parties files a suit to enforce his right, then is called
third demand. It will arise only when first two demands not fulfilled.
LOSS OF THE RIGHT OF PRE-EMPTION
The right of pre-emption is lost under the following circumstances :
By acquiescence /waiver
By death of pre-emptor
By misjoinder
By release
CONCLUSION
Pre-emption rights only apply when immovable property is
transferred by sale; they do not apply if it is transferred through a gift,
bequest, lease (even if it is perpetual), mortgage, or conditional sale with
possession. The pre-emption right may be defeated, or the pre-desire
emptor's to use it may be lessened by the parties to a sale transaction using
legal means that are neither dishonest nor illegal.