What is Pre-emption?

Explain the essential conditions for preemption and who cannot claim the
right of pre emption?

Explain the meaning and nature of Right of Pre-emption. Discuss in Detail Subject Matter, Formalities
and legal effect of it including grounds of Loss of the Right of Pre-emption.

Discuss the rules relating to Right of Pre-emption under Muslim Law.

PREMPTION UNDER MUSLIM LAW

Pre-emption law has its origin in the saying of the prophet. Right of Shufaa is a right
which the owner of an immovable property possess to acquire by purchase another
immovable property which has been sold to another person.

- Necessity of right to shufaa – 1) the human desire to avoid inconvenience and

disturbance which is likely to be caused by the introduction of a stranger into the land.
2) under Muslim law, death of a person results in the division of this property in
fractions, if an heir is allowed to dispose of his share without offering to other heirs, then
it is introduce strangers in a part of estate. - hence law of shufaa imposes limitation /
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-heirs/
neighbor.

The right to claim pre-emption arises when the property is subjected to a valid sale.
Merely an intention to sell can’t be ground for claiming the right of pre-emption.

Illustration: A and B live adjacent to each other. X is the owner of land A and Y is the owner of land
B, when X decides to sell land A, it is the legal duty of X to first offer it to Y. Only when Y shows no
interest in buying the property then only X can sell land to any other person(z). And if X sells his land
to Z without offering to Y, then Y has a right of pre-emption against Z and can dispossess him after
paying the same price which Z paid to X. If the price appears inflated with a motive to defeat or
discourage Y, the pre-emption right holder, the court will interfere and rationalize the price. The
main motive behind this law is to dislodge a stranger from disturbing the tranquillity of the
neighbourhood.

Parties
From the above illustration, it is quite evident that there are 3 parties involved.

 Vendor: the person who owns the property and is willing to sell the property. From the
illustration X is the owner of the property and he decides to sell it.

 Vendee: the stranger to the property and who buys it. From the illustration, Z is the stranger
to the property. The third person involved.

 Pre-emptor: the neighbour, the co-sharer or heir, from the illustration Y has land adjacent to
X. therefore, neighbour - pre-emption right holder.
Further, in the case of Bishan Singh v. Khazan (1958), the Supreme Court summarized the
rules and nature of pre-emption:

 The right of pre-emption is the right to offer the property to be sold. It is the inherent right
or the primary right of the adjacent property’s owner.
 It is the remedial right of the pre-emptor to follow the thing sold.
 It is not the right to repurchase; it is the right of substitution.
 It is right to acquire the whole property, not the part of it.
 Preference is the essence of the right.
 The right provided is weak and can be defeated by appropriate methods.

CLASSIFICATION OF PRE-EMPTORS OR WHO MAY PRE-EMPT

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, the Supreme Court has held that pre-emption on the basis of participation
exists only in the easements of way and water on private land. It does not extend to any other
easement such as easements of air and light. It may be noted here that for claiming the right of pre-
emption on the basis of being a Shafi-i-Khalit, is that the right to way and right to discharge water
must be a private right. The right to use common thoroughfare such as common village roads will
not give rise to the right of pre-emption.

A person cannot said to be the Shafi-i-Khalit and would not be entitled to the right of preemption
in the following cases :
a. The right of pre-emption cannot be claimed on the basis of easement of light or air.

b. The mere fact that the owners of land have the right to draw water from a Government water
course does not give them any right of pre-emption.

c. On the basis that the branches of his tree project over the land of a neighbour, the owner of the
tree cannot claim the right of pre-emption as Shafi-i-Khalit on the sale of that land.

d. The right to use common thoroughfares, such as village roads, big canals, etc. does not give rise to
the right of pre-emption.

iii. Owners of Adjacent Properties 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. 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.

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 (Demand of Contiguity)

 This demand must be made immediately upon learning of the sale or proposed sale of the
property. It emphasizes promptness and demonstrates the pre-emptor's genuine interest.

2. The Second Demand - Talab-i-Ishad (Demand of Attestation)

 This demand involves making a formal declaration of the intention to pre-empt the sale in
the presence of two witnesses. It is a reaffirmation of the first demand but with legal
formality.

3. The Third Demand - Talab-i-Tamlik (Demand of Possession)

 This final step involves taking legal action to enforce the right of pre-emption. The pre-
emptor must file a lawsuit or initiate the necessary legal proceedings to claim the property.
 The court will then examine the validity of the pre-emption claim and the fulfillment of the
first two demands. If satisfied, the court will order the transfer of the property to the pre-
emptor.
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.

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

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 preemption is lost,
his legal representatives have no right to file the suit.
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.
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.

Hindu Law

Section 22 of the Hindu Succession Act governs the preferential right to acquire property in some
instances.

The "preferential right" remedy under Section 22 of the Hindu Succession Act may be used before
the selling transaction. According to the section, when one co-sharer intends to transfer his share,
the other co-sharer may apply to buy that portion. This situation may occur when a co-shareholder
gets into an oral or written agreement to sell with a third party.
The solution is to apply for the right of pre-emption once the sale is finalised. A few state laws,
customs, or prior cases acknowledge this right. The right may be a civil right if no statutory provision
exists.