FAMILY LAW-II

PRE-EMPTION

SUBMITTED BY: NIKITA SAYAM

CONTENTS
1. The Concept of Pre-emption

2. Sources of Pre-emption

3. Definitions

4. Classification

5. Formalities of Pre-emption

6. Constitutional Validity

The Concept of Pre-emption

The term pre-emption refers to a purchase by one person before opportunity is offered to others. It is the legal right of buying a thing before all others. The right of pre-emption is also known as Shufaa. It is the right of an owner of immovable property to purchase another immovable property which has been sold to someone else. In other words, under this right the owner of an immovable property is entitled to repurchase an adjacent property which has been sold to someone else. Exercising this right, the owner of an immovable property can compel the purchaser of his adjacent property to sell it to him at the same price at which it was purchased by the said purchaser. It means it is the preferential right of the owner of an immovable property to obtain an adjacent property. The person who claims this right is called a pre-emptor or Shufee. The law of pre-emption was not a part of the personal law of Muslims. Before the advent of Moghul rule in India, there was nothing similar to the law of preemption.1 It was only during the Moghul rule, that the law of pre-emption was used and made applicable as a rule of general law of the land for all communities. The concept of pre-emption has also been implied for certain purposes by Section 22 of the Hindu Succession Act, 1956. According to Hedaya: A Muslim and Zimmee (non-Muslim) being equally affected by principles on which Pre-emption is established, and equally concerned in its operation, are therefore, on an equal footing in all cases regarding the principle of pre-emption. With the result that pre-emption was adopted by Hindus as a custom.

Digambar Singh v. Ahmad, AIR 1914 PC 14.

When the British rule came, the custom of pre-emption was so prevalent among the village communities that they administered it on the grounds of justice, equity and good conscience.2 Gradually it existed in some parts of the country as a part of Muslim Personal Law, in some parts it was based on custom; among some people it came into existence by contract between the sharers in a village and in other parts it existed under statutes. After independence, the law of Preemption prevailed in many parts of the country.

Rangnath v. Babu Rao, AIR 1956 Hyd 120: ILR (1956) Hyd 565.

Sources of Pre-emption
The law of Pre-emption is based on the following sources: 1. Pre-emption as a part of Muslim Personal Law: In some parts of India, pre-emption existed among some Muslims as part of their personal law. Where the law of pre-emption is neither territorial nor customary, it is applicable as between Muslims as part of their personal law. In Audh Behari Singh v. Gajadhar Jaipuria3, the Supreme Court observed: The law of pre-emption was introduced in India by the Muslims. There is no indication of any such conception in the Hindu Law.....During the period of Moghul Emperors the law of preemption was administered as a rule of common law of the land in those parts of the country which came under the domination of the Muslims and Zimmees (non-Muslims) no distinction being made in this respect between persons of different races and creeds.....In course of time Hindus came to adopt pre-emption as a custom for reasons of convenience and the custom is largely to be found in provinces such as Bihar and Gujarat which had once been integral parts of the Muslim Empire. 2. Pre-emption by Custom: Subject to any law in force for the time being, pre-emption may be claimed on the basis of a custom. In Bihar, some parts of Bombay and Gujarat such as Surat, Broach, etc., and Bengal the right of pre-emption is recognized by custom among Hindus, though the right is under Muslim law. As the practice was in vogue since the Moghul period, it has taken deep roots in the Indian society. In Jagannath v. Inderpal Singh4, the Allahabad High Court observed that in the absence of proof of modification, is a custom of pre-emption is proved to exist, the custom must be in accordance with Muslim law.

3 4

AIR 1954 SC 417: 1954 SCJ 590: 1955 SCR 70. AIR 1935 All 236: 153 Ind Cas 172.

Though the custom has been confined, in some cases, to a particular locality, but the right, when based on custom becomes law for the place and all lands belonging thereto are subjected to the law irrespective of religion, nationality or domicile of the owners.5 But this right is limited to the persons who are residing or are domicile in such places, and not to those who simply own the property in that place. When the custom is proved to exist in a certain place, it could not be extended to other places. 3. Pre-emption by Statutes: In some parts of India, the right of pre-emption exists under statutes. For example, the Punjab Pre-emption Act, 1915, the Agra Pre-emption Act, 1922, etc. In such areas, the law of pre-emption based on these statutes applies to both Muslims and non-Muslims. In such areas, the Muslim law of pre-emption does not apply even to Muslims. 4. Pre-emption by Contract: Apart from the existing legal and customary right of pre-emption, the same right may be created through a contract, particularly where one of the parties is nonMuslim, the right of pre-emption would be created if he agrees with the Muslim vendee for his co-sharer. In such cases, the right may be used against the nonMuslim. When two co-sharers are Muslim and a Hindu purchaser agrees to be governed by Muslim law of pre-emption, the right could be used against the Hindu purchaser by the co-sharer, when he makes a demand.

Mst. Nawrangi Tawaif v. Mintu Tawaif, 1955 NUC 2737 (All).

Definitions
Literally, the term pre-emption means purchase by one person before the opportunity is offered to others. It is derived from a right which signifies conjunction i.e. the lands sold are conjoined to the land of the pre-emptor. It is the right under which the owner of an immovable property acquires another immovable property for the price for which it has been sold to another person. Mulla defines pre-emption as a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person. Pre-emption was defined by Mahmood,J. In Govind Dayal v. Inayatullah 6 as a right which the owner of 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 on which latter immovable property is sold to another person. Under the Shia law, pre-emption is the legal title of one partner in joint property to the share of another partner therein, in consequences of its transfer by sale. 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, hence the right of preemption in that sense is a right in rem, its exercise, from the time it arises up to the time of the decree, is restricted to a personal right which is neither heritable nor transferable.7

6 7

(1885) 7 All 779. Mohd. Ismail v. Abdul Rashid, AIR 1956 All 1: 1955 All LJ 727 (FB).

Classification
Only three classes of persons may claim the exercise of the right under Muslim law. Under Muslim law, pre-emptors are classified as: (i) (ii) (iii) The Co-sharers or Shafi-i-Sharik The Participators in Immunities or Shafi-i-Khalit, and The Owners of Adjacent Property or Shafi-i-Jar

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. Co-sharers are given preference against other categories of pre-emptors because they are common blood relations i.e. related to each other on the grounds of consanguinity. Since the list of blood relations may be very long, the categories of consanguine relations entitled to claim preferential right of pre-emption should not be unreasonable. In the case of Atam Prakash v. State of Haryana8, the Supreme Court held that the right of pre-emption on the grounds of the category of consanguine relations is unconstitutional. But later on, in Krishna v. State of Haryana9, the Supreme Court has held that the right of pre-emption to co-sharer is valid and does not violate of Articles 14, 15 and 16 of the Constitution of India. The Participators in Immunities or Shafi-i-Khalit The term Khalit literally means mixed with. Where two or more persons enjoy a common privilege, example, a common right of way, they are participants in immunities. In the absence of a co-sharer, Shafi-i-Khalit is entitled to pre-empt in the following cases:
8 9

AIR 1986 SC 859. AIR 1994 SC 2536

(a) Where the person has the right of flow of water over the disputed property, then he has a right of pre-emption as a Shari-i-Khalit and has priority over the vendee, who is only a neighbour. (b) Where water was accustomed to flow to the pre-emptors land and from there to the land in dispute, the pre-emptor was held to be a participator in the appendage and entitled to pre-empt on the basis of Khalit. (c) The right to pre-emption arises from the right to way and the right to discharge water. In Bhau Ram v. Baij Nath10, the Supreme Court 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 easement of air and light.11 The right to use common thoroughfare such as common village roads will not give rise to the right of preemption. The Owners of Adjacent Property or Shafi-i-Jar This is the right of pre-emption on the basis of neighbourhood, or the right of the owner of the adjoining immovable property. This right does not belong to a tenant or to a person, who is in possession of property without having ownership in it. Even before the Supreme Court decision12 holding the right of pre-emption on the basis of vicinage as unconstitutional, the right of preemption of a Shafi-i-Jar did not extend to larger estates, such as zamindars and jagirs, but was restricted to houses, gardens and small pieces of land.

10 11

AIR 1962 SC 1476 Ladu Ram v. Kalyan Sahai, AIR 1963 Raj. 195. 12 Dhanraj v. Rameshwar, AIR 1924 All 227.

Formalities of Pre-emption
Existence of right of pre-emption depends on full and complete observance of formalities because it is a feeble right and as such full of technicalities. The formality for the claim of this right consists of three demands. The demand must be made by the pre-emptor step by step and at a proper time. 1. The First Demand (Talab-i-Mowasibat): The pre-emptor must assert his claim immediately on hearing of the sale, but not before. Witnesses are not necessary, neither is any particular form essential. I have demanded or I do demand pre-emption is enough.13 The courts enforce this formality strictly and any unreasonable delay will be constructed as an election not to pre-empt. A delay of twelve hours was in one case considered too long; the principle is that the law requires extreme promptness and any laxity will be fatal to the pre-emptors claim.

2. The Second Demand (Talab-i-Ishhad): The expression Talab-i-Ishhad means a demand with the invocation of witnesses. The pre-emptor must refer to his first demand and do so in the presence of two witnesses and also, do so in the presence of either the vendor (if he is in possession), or the purchaser or on the premises. This demand is also known as Talab-i-Taqrir, which means the demand of confirmation. The property, in respect of which the demand has been made, must be clearly specified. The second demand must be made within a reasonable time and as early as possible, with as little delay as possible according to the circumstances. A two month delay was declared to be fatal in Mohd. Raza Ali v. Israr Hasan.14 Sometimes, the first two demands may be combined. If at the time of the first demand, the pre-emptor has an opportunity of invoking witnesses in the

13 14

C.S. Tiwati v. R.P. Dubey (1949) 28 Pat. 861. AIR 1929 All 459.

presence of the vendor, or the purchaser or on the premises to attest the first demand and witnesses are actually present to testify to this formality, the requirements of both demands are satisfied. This is the only case when the first two demands may be combined lawfully.

3. The Third Demand: This is not exactly a demand but taking legal action and is not always necessary. It is only when his claim is not conceded that the pre-emptor enforces his right by bringing a suit. Such an action is called Talab-i-Khusumat which means the demand of possession or the demand where there is a dispute. This suit must be brought within one year of the purchaser taking possession of the property if it is corporal; or within one year of the registration of the instrument of sale if incorporeal.15 Under the Shia or Shafi law, if a pre-emptor dies during the pendency of the suit, the right is not lost. Now the matter is governed by the Hindu Succession Act, 1956, and the suit may be continued by the legal heirs of the pre-emptors. The Act applies to all sects of Muslims in India. If the pre-emptor dies leaving a Will, the suit may be continued by his executor and if the executor dies intestate, the suit may be continued by his heirs.16

15 16

Article 10, Limitation Act, 1963. Sitaram Bhaurao Deshmukh v. Jiaul Hasan, AIR 1923 PC 41.

Constitutional Validity
Before the 44th Amendment of the Constitution of India, there existed Article 19(1)(f) in the constitution. Article19(1)(f) of the constitution of India gave the citizens of India, the right to acquire, hold and dispose of property and Article 19(5) permitted a law to impose reasonable restrictions on exercise of this either in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Article 13(1) declared that all laws in force in the territory of India immediately before the commencement of the constitution and inconsistent with the provisions of the constitution relating to the fundamental rights of the people shall to the extent of such inconsistency be void. Article 13(2) forbids the State from making any law which takes away, or abridges the fundamental rights and declares that any law made in contravention of this clause shall, to the extent of the contravention, be void. Therefore, the validity of the law of pre-emption, whether it has its roots in Islamic Law or custom or statute was to depend on whether it amounted to reasonable restriction in the interests of the general public on the citizens right to acquire, hold and dispose of property [Article 19(1)(f)]. Though the pre-emptory right of a co-sharer in property is justified as it prevents disintegration of the Muslim family property due to its peculiar laws of inheritance and inconvenience which may result to families from the introduction of a disagreeable stranger as a coparcener, the right of a neighbour to pre-empt has been held to be unreasonable as it affords opportunity to obtain his neighbours property at a price far below its value by bargaining or haggling and renders a stranger aware of the risk unwilling to purchase it except for a price which the property ought to fetch.

In Sant Ram and Ors. v. Labh Singh and Anr.17, Srivastava, J. stated that the courts answer to the question : "Whether after coming into operation of the Constitution, the right of pre-emption is contrary to the provisions of Article 19(1)(f) read with Article 13 of the Constitution, or is it saved by Clause (5) of Article 19 ?'' is that the right of pre-emption based on the ground of vicinage is saved by Clause (5) of Article 19 and has therefore not become void under Article 13 of the Constitution. The Supreme Court upheld the validity of the right to pre-emption between cosharers, on the ground that restrictions imposed by such a right in the way of acquiring, holding and disposing of property were in the interest of public.

17

AIR 1962 All 199

Bibliography
1. Muslim Law, Rakesh Kumar Singh, 2011 Ed. 2. Concise Description of Islamic Law and Legal Opinions, A. Ezzati, 2008 Ed. 3. Introduction to Islamic Law, Alhaji A.D. Ajijola, 2007 Ed.