RIGHT OF PRE-EMPTION Dr. Shahista Inamdar, Assistant Professor, - - PowerPoint PPT Presentation

RIGHT OF PRE-EMPTION

• Dr. Shahista Inamdar,

Assistant Professor, Navjeevan Law College

Educational Qualifications of the author:

Educational Qualifications of the Author:

• BSL.LL.B (Five Years Law Course) From N.B.T Law College in April 2006 with First Class under University of Pune
• LL.M( Master of Law)from University of Pune in April 2008 with First Class, stood 3rd in the Order of Merit.
• NET in Law 28th June 2009.
• SET in Law 13th September 2009.
• Certificate Course in Forensic Science & Medical Jurisprudence from University of Pune in 2005 with First Class,

Stood 1st in the Order of Merit.

• Diploma Course in Intellectual Property Rights Law from University of Pune in April 2009 with first class, stood 3rd in

the Order of merit.

• Diploma Course in Alternative Dispute Resolution System from NBT Law College in April 2010 , first class with

distinction.

• Diploma in Business Law from Asian schools of Cyber Law in 2010 with first class.
• Diploma in Cyber Law from Asian Schools Of Cyber Law in 2009 ,First Class with distinction.
• Certificate Course in Human Rights from YCMOU Nashik in Feb.2009 with first class.
• Awarded Doctorate(Ph.D) in Aug 2016 from Rashtra Sant Tukadoji Maharaj Nagpur University, Nagpur

(Notification dated 27 sept 2016) on the topic “Status of Muslim Women in India – A Critical Study of Constitution & Statutory provisions in the light of judicial Approach” under the guidance of Dr. (Mrs.) Asmita A.Vaidya, Principal NBT Law College Nasik.

Books Authored

Books Authored:

1. Constitutional And Judicial Paradigms Of Indian Muslim Women – A Move Towards Equality, First edition 2017, ISBN 978-93-83334-97-1,Published by A. K. Publications and Printed at Thomson Press, Delhi, India. 2. Domestic Violence And Gender Justice In India - A Quest For Human Rights Protection, First Edition, 2019, ISBN 978-93-88465-13-7.

Website : www. shahistainamdar.com

Pre-emption definition

Pre-emption defined

• Merriam Webster Dictionary defines Pre-Emption as “1a : the right of purchasing before
• thers especially : one given by the government to the actual settler upon a tract of public
• land. b : the purchase of something under this right. 2 : a prior seizure or appropriation : a

taking possession before others”.

• Oxford dictionary defines the Pre-emption as” the opportunity given to one person or group

to buy goods, shares, etc.”

• Microsoft Encarta thesaurus defines Pre emptive action as “Preventive action, preventive

measures, prevention, anticipation”.

• Collins Dictionary defines it as “ 1.

the act or right of buying land, etc. before, or in preference to, others; esp., such a right granted to a settler on public land 2. action taken to check other action beforehand”.

• Wikipedia quotes”A pre-emption right, right of pre-emption, or first option to buy is a

contractual right to acquire certain property newly coming into existence before it can be

• ffered to any other person or entity.It comes from the Latin verb emo, emere, emi,

emptum, to buy or purchase, plus the inseparable preposition pre, before.

History of Pre-emption

History of Pre-Emption

• The history of pre - emption has been given by Sir Jon Edge in Digambar Singh v Ahamad

Sayed Khan ,25 Nov 1914,Equivalent Citations(1915)17 BOMLR 393

• Mughal rulers introduced the concept of Pre-Emption in India. It was used by the local

communities and ultimately became a custom.

• The judges at that time used the Mohammedan law of pre-emption.
• Each village community suitably modified the Mohammedan pre-emption and had its own

customs without affecting the core principle of Islamic pre- emption.

• Rights of Pre emption in some provinces were granted by Indian legislation.
• Rights of pre-emption have also been created by contract between sharers of the village.
• It was adopted by Islam in general to prevent the introduction of stranger among co-

sharers and neighbors likely to cause inconvenience and vexation.

Pre - emption in the Words of Jurists

Pre–emption in the words of jurists

• Mahmood J. observes:

“The law of Pre-emption is essentially a part of Mohammedan jurisprudence. It was introduced in India by Mohammedan judges who were bound to administer the Mohammedan law. Under their administration, it became and remained for centuries, the common law of the country and was applied universally to both the Mohammedans and Hindus because in this respect, the Mohammedan law makes no distinction between different races and creed. A Mohammedan and a Zimmee being equally affected by the principles on which Shuffa or right of pre-emption is established are equally concerned in its operation are therefore on an equal footing in all the cases regarding privileges of Shuffa(Hamilton’s Hedaya)” In the course of time, Pre-emption became adopted by Hindus as customs.

Right of Pre-emption defined by renowned jurists/scholars/texts

Right of Pre-emption defined by renowned jurists/scholars/texts

• “The right of shuffa or pre-emption 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…Sir Dinshaw Fardunji Mulla.

• Imam Shati'j held pre-emption to be repugnant to analogy (qiyas), as it involves taking

possession of another's property contrary to his inclination; whence it must be confined solely to those to whom it is particularly granted by law….Hamilton’s Hedaya.

• Preemption refers the right of purchase a landed property by a person period than other.

This is described in section 96 of state Acquisition and Tenancy Act. The pre-emption is also described in the Muslim law. There it is called shufa. The shufa is applicable on people on the basis of religion and local customs. Peoples belonging to Muslims religion may apply right of pre-emption under the state Acquisition and tenancy Act. The right of pre-emption must be exercised upon immovable property…..A.A.A.Fyzee

Pre emption defined by Mahmood J. in Gobind Dayal v Inayatullah

• In Gobind Dayal v Inayatullah(1885) ILR7ALL775, Mahmood J defines Pre-emption(Shuffa) as

…….. A right which the owner of certain 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 o which such latter immovable property is sold to some other person.

• Mahmood J then discusses the nature of right. The law of pre-emption ‘creates what I may

call a legal servitude running with the land', He translates a passage of the Hedaya and shows that high authority lays down hat sale is not the cause of pre- emption. The real cause is the situation of the properties in question. The right to enforce pre-emptor’s right comes into being after the sale which clearly shows the intention to dispose the property. The right exists independently of and antecedent to the sale.

Mahmood J. on right of Pre-Emption(Shuffa)

• Mahmood J. explains the traditions of the prophet that it is morally objectionable, although

not legally unlawful, to sell a property without offering it to a pre- emptor.

• The Right of Pre- emption is not a right to repurchase from the vendee, but it is a right of

substitution, entitling the pre-emptor to stand in the shoes of the purchaser.

• He quotes "The rights of pre- emption cannot be said to be merely a restriction on free

transfer of property and even in a country like Germany, a similar right(retractrecht) is enforceable”

• Bombay and Calcutta High courts have held that right of pre- emption is the right of

repurchase from the buyer.Mahmood J., however held that it is a right of substitution,likening it to be a servitude running with the land.

• Bombay High court and the Supreme Court agree with the views of Mahmood J.

Applicability of Right of Pre - emption

Applicability of Pre-emption

Applicability of Right to Pre-Emption(Shuffa)

• The doctrine of Pre-emption is based on Mohammedan law texts.
• 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 introduction of stranger into the property.

• The Muslim law of pre-emption(Shuffa) is to be looked at in the light of Muslim law of

succession.

• Hedaya states that ‘ a neighbor has a right superior to that of a stranger in lands adjacent to

his own. The right of Shuffa holds in a partner who has not divided off or taken separately his

• share. The neighbor of the house and the neighbor of the land has a superior right to those

lands and if he be absent, the seller must await his return’.

• According to Imam Shafi, Shuffa is repugnant to Qiyas.
• Thus the right of Shuffa is a feeble right and is granted in India only after looking at the

circumstances and after completion of formalities.

Parties to Pre-emption

VENDOR VENDEE PRE-EMPTOR

The seller of the property

The stranger to the property

The buyer of the property The neighbor

The owner of the property

The co-sharer

• r heir

Parties to Pre-emption

Nature of Pre- emption

Nature of Pre-emption

• The law of pre-emption imposes a limitation or disability upon the ownership of the property

to the extent that it restricts the owner’s unfettered right of transfer of property and compels him to sell it to his coheir or neighbor, as the case may be.

• The person who is the co sharer in the property, or owns property in the vicinity gets

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 a RIGHT OF SUBSTITUTION entitling the preemptor by reason of the legal incident to which

to sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and

• bligations arising from the sale under which he has derived his title.
• The law of pre-emption creates a right which attaches to the property and on that footing
• nly, it can be enforced against the purchaser. Thus, right of pre-emption in that sense is a

right in rem, its exercise from the time it arises, up to the time of decree is restricted as personal right.

Summary of Nature of Right to Pre-emption

• It is a PREFERENTIAL RIGHT.
• It is NOT A RIGHT TO REPURCHASE.
• It is A RIGHT OF SUBSTITUTION
• It is ATTACHED WITH THE LAND LIKE RIGHT TO EASEMENT.
• A LEGAL SERVITUDE RUNNING WITH THE LAND

Rights under Pre-emption and its essentials

Rights under Pre-emption and its essentials

• The rights of pre-emption are given to the owner of the immovable property to acquire another

immovable property hat has been sold to some other person. It is the purchase by one person with preference over others. Therefore, it is a right of substitution and not of repurchase. The objective behind this right is to maintain privacy and prevent the strangers to come in neighbor or in family and cause trouble or vexation.(Bishan Singh v Khazan Singh AIR 1958 SC 838).

• The pre-emption has also been defined by Justice Mahmood as a right given to the owners of the

immovable property for quiet enjoyment of that immovable property to obtain in substitution for the buyer, possession of certain other immovable property on such terms that on those on which such latter immovable property is sold to any other person.(Govind Dayal v Inayatullah ILR7 All 755).

• The right of possession is obtained on the same terms on which that other immovable property is sold to

the purchaser.

• The right is given by law for quiet enjoyment of the property.

Constitutional validity of Pre-emption

Constitutional validity of Pre-emption

• In the case of Pyare Mohan v Rameshwar AIR 1980 Raj 116, the court observed that the right
• f pre-emption is a very weak right and a bonafide purchaser cannot purchase land which

he is legally entitled to own. Before 198, Indian constitution also recognized the right to property as a fundamental right u/s 19(1)(f).Hence, Pre-emption is not favored by the law as it seizes the property merely on the apprehension of inconvenience.

• Though the right to pre-emption was a direct contravention of Right to property challenge to

the pre emption was justified on the basis of article 19(5).It was contended that reasonable restriction can be put on Fundamental right to property. Also holding it unconstitutional will go against one of the important principles of Islamic law as the practice of Pre emption is a part

• f Muslim personal law.
• In 1962, Supreme court decided the question of constitutionality in the case of Bhau Ram v

Baji Nath,1969(1) SCC 497 wherein Supreme Court held the statutory provisions of pre- emption on the basis of vicinage is unconstitutional. Later, in 1965, in case of Sant Ram v Labh Singh,1965 AIR 166,1964 SCR(7)745, the court with similar lines held the customary practice of pre-emption by vicinage is unconstitutional.

Contined…..

• In 1978, with the passage of 44th Amendment of constitution, things changed when right to

property was rendered merely a constitutional right and ceased to be a fundamental right.

• However, the legality of pre-emption continues to be under judicial scrutiny. Since the right

to property was there as a constitutional right, its reasonableness was checked under articles 14 and 15 of the Constitution.

• After the amendment, the validity of Punjab Pre emption act,1923 was challenged in two

important cases. Firstly, in case of Atam Prasad v State of Haryana,1986,AIR 859,1986 SCR(1) 399, the supreme has to deal with s15(1)(c) of Punjab Pre emption act which provided for the right of pre emption to the co-sharer or kinfolks of the vendor. In that case, Apex court held pre- emption on the basis of consanguinity is unconstitutional.

• Secondly, in case of Krishna v State of Haryana,1994,AIR 2536,1994, SCC(4)703, the

constitutional validity of Section 15(1)(b) was challenged and the court declared that the pre-emption on the basis of co-sharers is constitutionally valid.

When does the Right to Pre-emption arise?

• Right arises only in case of sale.—“The right of claiming pre-emption arises only when the property

which is the subject of pre-emption has been subjected to a valid sale. An intention to sell can never be a ground for claiming the right. Such sale must be bona fide, Sale also includes

• exchange. However, it does not include gift, Sadaqa waqf, inheritance, bequest of a lease in

perpetuity, i.e., in these cases a right cannot be claimed.”

• Right arises only when sale is complete.—The right of making a claim of pre-emption arises when

the sale is complete. Now the question arises as to when the sale is to be considered as complete. According to the Muslim Law, a sale is complete when the price is paid by the purchaser to the vendor and possession of the property is delivered by the vendor to the purchaser. The execution

• f an instrument of sale is not necessary According to the Transfer of Property Act, 1882, Section

54, a sale of property of the value of Rs. 100 and upwards is not complete unless made by a registered instrument. Formerly, there was controversy on the point when a sale would be regarded as complete. The view of the Allahabad High Court was that if a complete sale effected under Muslim Law as where the price is paid and possession is delivered, the right of pre-emption will arise, though the sale may not be complete under the Transfer of Property Act. On the other hand, the view of Calcutta and Patna High Courts was that the right of pre-emption does not arise until after registration as required by the Transfer of Property Act

Applicability of Pre-emption on Hindus

Applicability of Pre-emption on Hindus

• In Mohammedan Law, there is no discrimination in terms of Caste and Creed regarding

applicability of Pre-emption to non Muslims.

• “Though the textual Hindu law did not provide any rule of preemption, under section 22(1) of

the Hindu Succession Act 1956 when two or more heirs specified in class I under the Schedule inherit an immovable property together, and anyone of such heirs proposes to transfer his or her interest in the property, the other heirs shall have preferential right to acquire that interest. It seems the use of the expression 'transfer of his or her interest' may include transfers other than sales also. If more than one co-heir is willing to buy the interest transferred, it is provided that that heir who offers the highest consideration for the transfer shall be preferred.”2

• Thus, Hindus are entitled to exercise the right of pre emption under he following:
• BY LEGISLATION-PUNJAB AND AWADH
• BY CUSTOMS-BIHAR AND GUJRAT
• BY CONTRACT

Who can pre-empt?

Who can Pre-empt?

• The person who claims pre-emption is known as pre-emptor. A pre-emption may arise from

the following categories of persons. Following three persons may be pre-emptor;

• 1. Co-sharer by Inheritance: A co-sharer is one who is an owner of an undivided share in the

immovable property which was inherited previously from deceased person. In Arabic term this is known as Shafi-i-Sharik. A co-sharer by inheritance is entitled to claim for the right of pre-emption.

• 2. Participator in Immunities & Appendages: Participator in immunities & appendages means

a person who is entitled to have a right of way over the disputed land or property. In Arabic term this is known as Shafi-i-Khalit. A participator in immunities and appendages is entitled to claim for the right of pre-emption.

• 3. Owner of Adjoining Property: A person, who is neither co-sharer nor participator in

immunities & appendages, is also entitled to have a right of pre-emption by being a owner

• f adjoining property. An owner of adjoining property may be by the way of purchase

nearer to the disputed land or property. In Arabic term this is known as Shafi-i-Jar. An owner

• f adjoining property is also entitled to claim for the right of pre-emption

Rules of Pre - emption

Rules of Pre-emption

• SHAFI-I-KHALIT gets preference over SHAFI-I-IJAR.
• The right arises after the sale.
• The right does not arise hen the suit is brought by incompetent party.
• Pre - emptors of the same class are entitled under Hanafi law to pre-empt in equal

proportions notwithstanding that they are owners of unequal shares.

• Under Shafei law, however, the right of pre-emptor is proportionate to his share in the

property.

• The Wakf has no right to pre - empt on behalf of the property, nor can god as the ultimate

sovereign and owner of the property claim pre-emption on behalf of the foundation.

• The Shiite system restricts the right of pre-emption to cases where there are only two co-

sharers and women are not precluded from the right due to her sex but if sher is entitled to maintenance, she cannot claim right of pre-emption.

Application of Pre - emption

Application of Pre-emption

• WHEN THERE IS DIFFERENCE OF RELIGION

1. The vendor must be a Muslim, no right can be claimed against Hindus. 2. The Pre-emptor should be a Muslim. 3. The Vendee should be a Muslim as per the Calcutta and Bombay High Court. Allahabad and Patna High Courts do not hold this view.

• WHEN THERE IS DIFFERENCE OF SECT

1. If Vendor and Pre-emptors are Sunnis, Sunni law will apply, if they are Shia, Shiite law applies. 2. The sect of Vendee is immaterial. 3. If one of the vendor or pre-emptor is Shia, Shia law will apply-According to Shia law, no Sunni can claim pre-emption against a Shia. With the right of pre-emption, comes Obligations and reciprocity. If a Sunni cannot pre-emp Shia, vise versa will also not happen. 4. According to Shia Law, no pre-emption if co-sharers exceed two.

Pre emption enforcement requisites

Pre-emption enforcement requisites

• Party competent to pre-empt.
• Subject of Pre-emption must be Immovable property and must be pre-empted as a whole.
• Claim should be unequivocally asserted.
• Three formalities to pre-empt:

i. Talab – i – Mowasibat (Immediate demand). ii. Talab – i - Ishhad (Demand with invocation of witnesses). iii. Talab – I – Tamleek (Demand for possession)

• The Shia law does not recognize any distinction between Talab I Mowasibat and Talab I Ishhad and

therefore, only one demand need to be made.

• The Talab I Mowasibat(or first demand ) has to bemade as soon as the fact of sale is known to the

claimant.Delay will be construed as election not to pre-empt.(Mohd. Rafiq v Kahlilur Rehman,AIR1972 SC 2162)

Right of Pre-emption, When lost

Right of Pre-emption, when lost

• Death of the Pre –emptor(Sunni Law).
• Waiver of right by pre – emptor.
• If the Pre-emptor fails to perform formalities.
• When Pre – emptor joins co-plaintiff who has no right to Pre-emption

(Dwarka Singh v Sheo Shankar AIR 1927 ALL 168).

• When Pre-emptor fails to perform demand.
• When Pre emptor releases the right for consideration.
• When Pre-emptor transfers his land to stranger.
• When the pre-emptor acquiesces in the sale.eg. If he enters in a compromise with the buyer.

Difference between Sunni and Shia law of pre-emption

Difference between Sunni and Shia law of pre-emption

Sunni Law

• A

co-sharer, a participator in appendages and owners of adjoining lands can claim the pre-emptive right.

• If

pre-emptor dies before

• btaining

decree in suit of pre-emption, right to sue is extinguished.

• Benefit of abatement of price can be

claimed.

• Two demand have to be made for

invocation.

Shia Law

• A co-sharer alone has the right to pre-

emption provided number of co sharer do not exceed two.

• Suit

may be continued by the pre emptor’s heirs after death of pre emptor.

• Benefit of abatement of price cannot be

claimed.

• No difference between immediate and

confirmatory demand and one demand will serve the purpose.

References:

• Principles of Muhammadan law, Mulla, Dinshaw F.
• Outlines of Muhammadan Law, Fyzee, Asaf Asghar Ali.
• Principles of Muhammadan Law, Tyabji, Faiz Badruddin.
• Principles of Muhammadan law, Macnaghten, William H.
• https://www.slideshare.net/mobile/shivi2022/pre-emption
• Asian law and Public Policy review, Volume4 , 2019,Wadhwani Palash