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PRE-EMPTION(SHUFFA)

Concept

In the words of Mulla, “The right of Shuffa or Pre-emption is a right which the owner of the
immovable property possesses to acquire by purchase another immovable property which has
been sold to another person.” The Muslim law of pre-emption is to be looked at in the light of
the Muslim law of succession.

Under Muslim law, the death of a person results in the division of his property into fractions.
If an heir is allowed to dispose of his share without offering it to the 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 the property to the extent that it restricts the owner’s unfettered right to
transfer of property and compels him to sell it to his co-heir or neighbor, as the case may be.

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 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 only
it can be enforced against the purchaser. Thus, the right of pre-emption in that sense is right in
rem, its exercise, from the time it arises upto the time of the decree, is restricted as a personal
right.

It is a right which is neither heritable nor transferable. 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.

Who can Pre-empt or the Classification of Pre-emptors

1. The shafi-i-sharik or a co-owner in the property.


2. The shafi-i-khalit or a participator in appendages. This expression means a person who
is entitled to such easements as a right of way, or discharge of water.
3. The shafi-i-jar or owner of an adjoining property.
The right of pre-emption arises from full ownership, and it is immaterial that a pre-emptor is
not in possession of his property. It is the ownership and not possession which gives rise to the
right of pre-emption.

When does the Right of Pre-emption Arise

The right of pre-emption arises only in two types of transfer of property – sale, and exchange.
When it arises in respect of a sale, then the sale must be complete, bonafide and valid. [Najam-
un-nissa vs. Ajaib Ali, (1900) 22 All 342] Similarly, the right of pre-emption arises in respect
of exchange when it is complete, bonafide and valid.

The right of pre-emption does not exist in respect of a gift, sadaqah, wakf, inheritance or lease.
It does not apply to a mortgage also, but if a mortgage is foreclosed, then the right of pre-
emption arises.

It has been held in various cases that the court should look into the real nature of the transaction.
A deed which is called a gift, if it is, in fact, a sale, then the right of pre-emption will
arise. [Bhagwan Dutt vs. Brij, 1938 Oudh 27]

The right of Pre-emption when parties belong to different sects or schools and when some of the
parties are non-Muslims

Pre-emption involves three parties: the pre-emptor, the vendor, and the vendee. When all of
the parties belong to same sect or school no difficulty arises. But difficulties crop up when
parties belong to different schools or to different religions. It appears to be established that the
right of pre-emption can be claimed only if the law applicable to the vendor recognizes pre-
emption. [Pir Khan vs. Fyizaz Hussain, (1914) 36 All 488]

Under Shia law, the right of pre-emption cannot be claimed by a non-Muslim pre-emptor where
the vendor and vendee are Muslims. Also, where the law of pre-emption is lex loci, or arises
by custom, or is created by contract, then it is immaterial that some of the parties are non-
Muslims.

Formalities Necessary for the Exercise of the Right of Pre-emption

The Muhammedan law of pre-emption is a law of technicality, and the existence of the right
depends upon the full and complete observance of formalities. Non-observance of any of the
formalities will be fatal to the suit of pre-emption. The two essential formalities are called “two
demands”. Fyzee says that there are three demands, though admits that the “third demand” is
not really a demand.

First demand or talab-i-muwasibat

This requirement lays down that the pre-emptor asserts his claim immediately on hearing of
the sale, but not before. This is called talab-i-muwasibat or the first demand. No specific form
of asserting this demand has been laid down. It is imperative that the first demand must be
made as soon as the fact of sale becomes known to the pre-emptor. Any improper or
unreasonable delay will imply an election not to exercise the right of pre-emption. [Baijnath
vs. Ramdhari, (1908) 35 Cal 402]

The first demand need not be made in the presence of witnesses. The first demand to be valid
must be made when the sale has been completed. If a demand is made before the completion
of the sale, it is totally ineffective.

Second demand or talab-i-ishhad

The pre-emptor should, as soon as practicable, affirm the intention of asserting his right by
making the second demand wherein he refers to the fact that he had already made the right
demand. This is called the second demand. No specific form of asserting this demand has been
laid down.

It is imperative that the second demand should be made in the presence of two witnesses and
in the presence of the vendor (if he is still in possession of the property), or in the presence of
the buyer.

Third demand or talab-i-tamlik

The occasion of talab-i-tamlik will arise only if the claim is not conceded, and, therefore, the
pre-emptor files a suit to enforce his right. Thus, the third demand is not an essential formality.

When the right of Pre-emption is lost

The right of pre-emption may be lost in the following cases: a) by acquiescence or waiver, b)
by the death of the pre-emptor, c) by misjoinder, and d) by release.

By acquiescence or waiver – Acquiescence takes place when a pre-emptor fails to observe


necessary formalities, such as making of demands. The right of pre-emption is also lost when
the pre-emptor enters into a compromise with the buyer, such as when he agrees to cultivate
the land (subject matter of pre-emption) with the vendee.

By the death of the pre-emptor – If the pre-emptor dies after making both the demands but
before the filing of the suit, the right of pre-emption is lost. And his legal representative cannot
file the suit.

By misjoinder – If the pre-emptor joins himself as a co-plaintiff with a person who is not
entitled to claim pre-emption, then the right is lost and the suit must be dismissed.

By release – The right of pre-emption is lost if the pre-emptor releases the property for
consideration to be paid to him. However, the right of pre-emption will not be extinguished, if,
before the completion of the sale, the property was offered to the pre-emptor, but he refused to
buy it since the right of pre-emption accrues only after the completion of the sale.

Effect of Pre-emption

Once a suit for pre-emption is decreed, the pre-emptor stands the pre-emptor stands in the shoes
of the vendee and take the property subject to all existing equities. However, the original
vendee is entitled to mesne profits, such as rents and profits, of the property between the date
of the first sale and the date of transfer to the pre-emptor.

The right of pre-emption cannot be defeated, or affected by any disposition made by the vendee,
nor can it be defeated by the death of the vendee.

A decree of pre-emption cannot be transferred by the pre-emptor. If the pre-emptor transfers


the decree, then the transferee of the decree is not entitled to take possession of the pre-empted
property. [Mehr Khan vs. Ghulam, 1922 Lah 308]

Constitutional Validity of Pre-Emption:


It has been held by the High Courts of Rajasthan, Madhya Bharat and Hyderabad that pre-
emption on the ground of vicinage is void after 26th January, 1950, as it imposes an
unreasonable restriction on the fundamental right guaranteed under Article 19(1) (f) of the
Constitution. However, pre-emption as between co-sharers and owners of dominant and
servient heritages is saved by Article 19(5) of the Constitution.

The Supreme Court held that where the right of pre-emption rests upon custom, it becomes
the lex loci or the law of the place, and the right of pre-emption attaches to the properties
situated in that place.
In Indira Bai v. Nandkishore, the Supreme Court observed that the right of pre-emption is a
weak right and it can be defeated by estoppel. 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 behaviour deficient 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 injustice may have been perpetrated.