H.

P NATIONAL LAW UNIVERSITY,

SHIMLA

Assignment

FAMILY LAW II

Pre- emption under Muslim law

Submitted To:

Dr. alok kumar

Ms. Sarita

Submitted By:

KAUSHAL SHARMA
Roll no. –1020161714

BA.LLB. (HONS.) –VI SEMESTER

Pre- emption under Muslim law

RESEARCH METHODOLOGY
In the project titled “Pre- emption under Muslim Law” the researcher has used the doctrinal
method of research. According to it the researcher has used the book, journals and other print
materials available in the library. Furthermore the researcher has also used the legal databases
and authentic websites. The researcher has use analytical method to perform the research.

Research Problem
The research problem or research question is to find out the law relating to the right of pre-
emption among Muslims.
INTRODUCTION
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 is 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.”
The definition as it stands seems very difficult and complicated but is most scientific and
comprehensive. The main ingredients of this definition are:

1. Pre-emption is a right which the owner of a certain immovable property possesses to obtain
property possession of certain other immovable property, not his own.

2. The right is obtained in substitution for the buyer (who has already purchased that other
immovable property).

3. The right of proprietary possession is obtained on the same terms on which that other
immovable property is sold to the purchasers.

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

Pre-emption was defined by Mahmood,J. In Govind Dayal v. Inayatullah1 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
1
(1885) 7 All 779.
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 pre-emption 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.2

Origin of the right

“Pre-emption in village communities in British India had its origin in the Mohammedan Law
as to pre-emption and was apparently unknown to India before the time of the Mughal rulers.
In the course of time, customs of pre-emption grew up or were adopted among village
communities. In some cases, the sharers in a village adopted or followed the rules of
Mohammedan Law of pre-emption, and in such cases the custom of the village follows the
rule of the Mohammedan Law of pre-emption. In other cases, where a custom of pre-emption
exists, each village community has a custom of pre-emption which varies from the
Mohammedan Law of pre-emption and is peculiar to the village in its provisions and its
incidents. A custom of pre-ernption was doubtless in all cases the result of agreement
amongst the shareholders of the particular village, and may have been adopted in modern
times and in villages which were first constituted in modern times. Rights of pre-emption
have in some States been given by the Acts of the Indian Legislature. Rights of pre-emption
have also been created by contract between the sharers in a village. But in all cases, the object
is, as far as possible, to prevent strangers to a village from becoming sharers in the village.
Rights of pre-emption when they exist are valuable rights, and when they depend upon a
custom or upon a contract, the custom or the contract as the case may be, must, if disputed, be
proved.

In Indira Bai v. Nand Kishore3, the Supreme Court held 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 andwas brought in wake of Mohammedan Rule, it is
settled that the right of pre-emption is lost by estoppel and acquiescence.
2
Mohd. Ismail v. Abdul Rashid, AIR 1956 All 1: 1955 All LJ 727
3
A.I.R. 1991 SC 1055.
 SOURCES OF PRE-EMPTION
The law of pre-emption is based on the following sources:

Pre-emption is a part of Muslim Personal Law: In some parts of India, the 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 Jaipuria,4the 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 MughalEmperors the law of pre-
emption 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 as
largely to be found in provinces like Bihar and Gujarat which had once been integral parts of
the Muslim Empire.
Pre-emption by Custom: Subject to any law which is in force for the time being, pre-
emption may be claimed on the basis of a custom. In some parts of India, the law of pre-
emption was based on custom. 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 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.

Pre-emption by Statutes: In some parts of India, the right of pre-emption existed under
statutes. For example, in Oudh under the Oudh Laws Act, 1876, in Punjab under the Punjab
Pre-emption Act, 1915, Agra Pre-emption Act, 1922, etc. In such areas, the law of pre-
emption based on these statutes applies to both Muslims and non-Muslim. In such areas the
Muslim law of pre-emption does not apply even to Muslims.

4
A.I.R. 1954 SC 417.
5
Mst. Nawrangi Tawaif v. Mintu Tawaif, 1955 NUC 2737 (All).
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 non-
Muslim, 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 non-Muslim. For example,
when a Muslim vendor and a non- Muslim vendee agrees that the Muslim law of pre-emption
which applied to the vendor and his sharers would also apply to the vendee, it is said to be a
contract which must be proved. In a village community the co-sharers may create, through a
contract, a right of pre-emption. 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’.

NATURE OF THE RIGHT OF PRE-EMPTION

After going through the definition and object of the right of pre-emption, a question regarding
the nature of this right arises. The nature of the right of pre-emption can be studied under the
following two heads:

(i)The right of pre-emption-Whether a weak right?

(ii) The right of pre-emption-Its constitutional validity.

The right of Pre-emption-Whether a weak right: -According to the Hedaya, ‘the right of
pre-emption is but a feeble right, as it is diseasing of another of his property merely in order
to prevent apprehended inconvenience.’ In Pyare Mohan v. Rameshwar6, also it was held that
the right of pre-emption is a very weak right and can be defeated by a defendant by all lawful
means. In the words of Tyabji: Pre-emption is not favoured by the law, and any device may
be adopted with the object of bringing the right of pre-emption from arising or defeating the
provisions of the law in favour of the pre-emptor. So, for the claiming the right of pre-
emption it is necessary for the plaintiffs to allege and prove that they were the owners of the
property on the basis of which they were claiming any right of pre-emption. The right is not
available to persons holding property is tenants. In the presence of this right, a bona fide
purchaser has to give up his ownership compulsorily in favour of the pre-emptor. It may be
stated, therefore, that pre-emption imposes a limitation or disability upon the ownership of a
property merely on the ground of future possible inconvenience of the pre-emptor. This

6
A.I.R. 1980 Raj. 116.
means that the right is transitory in nature. The right may be lost in the event in any slightest
delay in its enforcement.

The right of Pre-emption and Its Constitutional Validity :- As far as constitutional

validity of right of pre-emption is concerned, it can look into the pre-emption after dividing
two stages, (i) before 44th Constitutional
Amendment, and (ii) after 44th Constitutional Amendment.

(i) Before 44th Constitutional Amendment, 1978:Article 19(1) (f) of the Indian
Constitution provides all citizens had a fundamental right to acquire, hold and dispose off
property. Article 19(5) provided that reasonable restrictions may be imposed on this right of a
person to acquire, hold and dispose off a property yet it was protected under clause (5) of
Article 19. With the help of power exercise under this clause, this right on the ground of
vicinage or on ground of consanguinity or on ground of participation of some immunity was
held Constitutional. Further, the right held Constitutional whether it was exercised under
some enactment or under Muslim personal law. But in 1962, in the case of Bhau Ram v. Baij
Nath7the Supreme Court overruled this view and held that pre-emption only on the ground of
vicinage was unconstitutional and cannot be enforced. The Court held that unless the pre-
emptor and the vendor are co-sharer or participators in some immunity, the right cannot be
protected. Accordingly, claim of pre-emption on ground of being co-sharer or participator in
immunity was constitutional but pre-emption only on ground of vicinity was unconstitutional.
The Supreme Court reaffirmed this view in Sant Ram v. Labh Singh.8
(ii) After 44th Constitutional Amendment:Article 19(1) (f) has now been repealed
by the 44th Amendment Act, 1978. The result is that now there is no fundamental right of
acquiring, holding and disposing off a property. Thus, right to acquire, hold and dispose off,
is neither a fundamental right nor a mere constitutional right. However, pre-emption still
continues to be a legal right. It is, therefore, submitted that the reasonableness of the right of
pre-emption can still be examined under Articles 14 and 15 of the Constitution.

In Atam Prakash v. State of Haryana,9the Supreme Court held that claim of pre-emption on
ground of consanguinity is ultra vires. The Court observed that the reasons which justified
pre-emption in the past namely, the preservation of the integrity of rural society, the unity of

7
A.I.R. 1962 SC 1476.
8
A.I.R. 1965 SC 314.
9
A.I.R 1986 SC 859.
family life and the agnatic theory of succession, are totally irrelevant. The Court held that the
claim for possession by way of pre-emption only on ground that claimant had superior rights
being father’s brother’s son of the owner, cannot be sustained. Accordingly, section 15 of the
Punjab Pre-emption Act, 1923 (which provided pre-emption to co-sharer for kinsfolk of a
vendor) was held to be unconstitutional by, the Supreme Court because there was no
reasonable classification of the co-sharer entitled to claim pre-emption.
After Atam Prakash’s case, the next case before the Supreme Court was Krishna v. State of
Haryana,10in which Constitutionality of the right of pre-emption was again raised under the
Punjab Pre-emption Act, 1923. While interpreting section 15(1) (b) of the above Act, the
Supreme Court held that the right of pre-emption to co-sharer is valid and is not violative of
Articles14, 15 and 16 of the Constitution.
After foregoing discussion we can make following inferences:

(i) The statutory right of pre-emption only on the ground of vicinage is now unconstitutional
(Bhau Ram’s case).

(ii) Pre-emption on the ground of being co-sharer is Constitutional provided the classification
of claimant is not unreasonable.

(iii) It is necessary for a pre-emptor to satisfy the court that without claiming this right there
would be personal inconvenience to him.

A kind of preferential right.—As is clear from the above, the right of pre-emption (Shufa) is a
kind of preferential right which is given to the owner of a property to purchase another
property adjoining to his or of which he is the co-owner or in which he is entitled to
immunities or appendages. This right of pre-emption must subsist till matter is finally decided
by ultimate Court.

SUBJECT-MATTER OF PRE-EMPTION (SHUFAA)

It believed that Prophet had said that there was no pre-emption except in a house or a garden.
In fact the Arabic word ‘Aqar’ (plural Aqarat) is subject of Shufa. It is a wide term which

10
A.I.R. 1994 SC 2536.
 may include all fixtures which are permanently attached to land, thus it cannot be confined to
land only. On this basis subject matter of Shufa can be classified in following categories:

(i) Pre-emption of immovable property: An immovable property can only be the

subject of pre-emption. The term ‘aqar’, includes immovable property divisible and
indivisible, e.g., a bath, a mill, a well, a canal of a stream and houses.1 Immovable property
includes not only the houses, gardens, small parcels of land but also Zamindari land. So far as
the accessories of aqar are concerned, they are also the subject of pre-emption and to such an
extent of accessories, movable properties may be the subject of Pre-emption, for example, the
sale of bath with water and utensils, etc.

(ii) Permanent Fixtures, included if sold along with: All permanent fixtures, such as
trees, houses and other accessories are included in the term ‘aqar’ provided that they are sold
as appendages of the land and are not intended for removal. For examples, if trees and houses
are sol1 along with the land, the right of pre-emption would arise. But when the things
attached to the earth are sold separately from the land, then no right of pre-emption relating to
such accessories would arise. For example, if a house or trees are sold separately from the
land on which they stand, then no right of pre-emption would arise in connection with such
accessories.5 So, the sale merely of the superstructure of a house will not be the subject of
pre-emption.6 If a house or tree is purchased with its foundations or roots then the right of
pre-emption arises.

(iii) Pre-emption of divisible or indivisible immovable property: In order to claim the

right of pre-emption, it is necessary that the property should be immovable. Such property
may be divisible or indivisible. Indivisible property is not capable of division. Indivisible
property includes a bath, mill, well, canal or stream, small houses and private road, etc.,
But under Shia law, the right of Pre-emption is not available in respect of indivisible
property such as bath so rivulets, ways, etc., because the division of these thing would cause
damage. But if there is no damage with division then the right of pre-emption would arise.
The right of pre-emption is a right of substitution but not of repurchase. If a house passes to a
pre-emptor without the land on which it stands, it would be baseless for the vendee; hence no
right of pre-emption could arise in such a case. But if the house is sold with its foundation
and the land on which it stands, then the right accrues.
(iv) Pre-emption of Movable Property: Every movable property which is part of a thing
which is attached to land could be subject of pre-emption. If a bath is sold, the water and
utensils etc. which are part of that bath, would become subject of pre-emption When a land is
sold on which a crop is standing that crop would become subject of pre-emption.

PERSONS ENTITLED TO RIGHT OF PRE-EMPTION

The person who has the right to Pre-emption is called, Shaft. Following are the qualification
which a person must fulfil to claim the right of pre-emption:

(1) Male or female: The person claiming the right of pre-emption may be a male or female.

(ii) Minor or major: The person may be a minor or an adult. A child in the womb is also
entitled to the right of pre-emption if it is born within six months and if the father had died
before the sale, then even if it is born after more than six months provided that it inherits the
property from the father.

(iii) Owner of an Immovable Property: The person claiming the right to pre-empt, must be the
owner of an immovable property. He or she should have full ownership it is immaterial that a
pre-emptor is not in possession of property. The basis of the right of pre-emption is that only
the adjacent owner of some immovable property has a right to acquire by purchase another
immovable property sold to another person so, a tenant, lessee in perpetuity, occupancy
tenant, spes-successions, benamidar, grove hold, etc., have no right of pre-emption because
these person cannot be said to be the owner of some immovable property and so would not be
entitled to pre-emption.

CLASSIFICATION OF PRE-EMPTORS OR WHO MAY PRE-EMPT

(i)The Co-sharers or Shafi-i-Shank: -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, i.e., related to each other on the ground of consanguinity. Since the
list of blood-relations may be very long, the category of consanguine relations entitled to
claim preferential right of pre-emption but that should not be unreasonable. With this ground
in case of Atam Prakash v. State of Haryana,11Supreme Court held the right of pre-emption
on the ground of category of consanguine relations is unconstitutional. But later on in
Krishna v. State of Haryana12, the Supreme Court has held that right of pre-emption to co-
sharer is valid and it is not violative of Articles 14, 15 and 16 of the Indian Constitution.

(ii) The Participators in Immunities or Shafi-i-Khalit :- The term ‘Khalit’ literally means
‘Mixed with’. Where two or more persons enjoy a common privilege, e.g., a common right of
way or drainage or any other common right to use a property, they are participators in
immunities. In the absence of a co-sharer, Shafi-i-Khalit is entitled to pre-empt in the
following cases:

(a) Where a person has the right of flow of water over the disputed property, then he has the
right of pre-emption as a Shaft-i-Khalit and has priority over the vendee, who is only a
neighbour. 13

(b) Where water was accustomed to flow to the pre-emptor’s land and from there to 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 right to way and right to discharge water. In Bhau
Ram v. Baij Nath,14the 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.15 It may be noted here that for claiming the right
of pre-emption on the basis of being a Shafii-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 pre-
emption in the following cases:

11
A.I.R. 1986 SC 859.
12
A.I.R. 1994 SC 2536
13
Kartm v. Pyare Lal Bose, ILR 28 All 127.
14
A.I.R. 1962 SC 1476.
15
Ladu Ram v. Kalyan Sahai, A.I.R. 1963 Raj. 195.
(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
16
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.17

(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 neighbourhood 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. The right of
pre-emption of a Shafi-i-Jar is restricted to houses, gardens and small parcels of land.18 It is
not extended to large properties, such as Zamindaris and Jagirs or village.19 The right of pre-
emption can be claimed on the ground of vicinage as owner of a plot of homestead land
adjoining the house, it is not necessary that a house on the land must have built.20

RIGHT OF PRE-EMPTION ACCRUES ONLY ON SALE.

The right to claim pre-emption arises only when immovable property is sold validly,
completely and in a bonafide manner. The right of pre-emption arises only in these two types
of transfer of property. It does not arise in respect of transfer of property of any other type
such as ift, Sadaqah, Waqf, bequest, Inheritance, mortgage or lease.21 For the purposes of pre-
emption, there are two types of transfer of property, (i) sale and (ii) exchange.

16
Imam Baksh v. Mohd. Ali, A.I.R. 1945 Ker 374.
17
Aziz Ahmad v. Nazir Ahmad, A.I.R. 1927 All 505.
18
Abdul Rahim v. Kharg Singh, ILR 15 All 104.
19
Mulla, Principles of Mohammedan Law, Edn. XVII, p.259.
20
Mst. Sheorani v. Munshi Lal, A.I.R. 1926 Pat 542.
21
Munnilal v. Bishwanath, A.I.R. 1968 SC 450.
The right of pre-emption, when a sale is made: When the right of pre-emption arises in
respect of a sale then the sale must be completed, bona fide and valid. Under Muslim law, the
sale is completed, when the price is paid and possession is handed over to the purchaser.
However for the purpose of right of pre-emption completion of sale or exchange is
determined under the provisions of the Transfer of Property Act, 1882. Under this Act, the
sale or exchange of an immovable property worth rupees one hundred or more, is valid and
complete only after the deed has been duly registered.

The right of pre-emption when an exchange is made: The right of pre-emption arises in
respect of exchange, when it is completed, bonafide and valid. It may be noted here that
according to Muslim law, a sale is exchange of property with mutual consent. The Transfer of
Property Act does not include exchange with the ambit of sale as Muslim law considers it.
But when a question arises, when a sale has taken place it would be determined according to
the concepts of Muslim law for purposes of pre-emption.

Formalities for pre-emption:- Existence of right of pre-emption depends upon full and
complete observance of formalities because it is feeble right and as such full of technicalities.
It is ritualistic. ‘If ceremonies are in any way incomplete or erroneous, the right of Shufa does
not take form, but remains unsubstantial. As the Supreme Court has rightly said that
availability of this weak or archaic right has to be construed strictly. 22 Non-observance of any
of the essential formalities will be fatal to the suit of pre-emption. 23 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): The Arabic expression ‘Talab—i-Mowasibat’

means ‘Demand of Jumping’ which shows that it must be made immediately. It is essential
that the first demand must be made immediately on the hearing of the completion of sale.
Every class of pre-emptor must demand immediately, meaning thereby that pre-emptor
belonging to inferior class should not wait till a pre-emptor belonging to superior class
waives his right for exercise of his right. Completion of sale or exchange is determined under
the provisions of the Transfer of Property Act, 1882. Any improper or unreasonable delay
will simply an election not to exercise the right of pre-emption. 24 No witnesses or any form is
requires to make Talab-i-Mowasibat. The only condition is promptness after receiving the
22
Mohd. Noor v. Mohd. Ibrahim, A.I.R. 1995 SC 398.
23
C.S. Tewari v. R.P. Dubey, (1949) Pat 861.
24
Baijnath v. Ramdhari, (1908) 35 Cal 402.
 news of completed sale.
No particular words are necessary for making the first demand. The words showing clear
intention to claim the right of pre-emption are sufficient, such as, I do claim my Shufa, or I
demand pre-emption’.25 It would be of no use if the demand is made before the completion of
sale.26 The pre-emptor must make first demand after completions of sale. Courts are very
strict in observing any delay in making immediate first demand. They consider any
unreasonable delay in making the demand as an election not to pre-empt. A delay of 12 hours
or few hours was held to be too long, such demand must be made wherever the pre-emptor
may be even though nobody may be present at that time. 27 The Supreme Court made it clear
that sale is deemed to have been completed not on the date when it was executed but on the
date when it was copied out in the records of the Registration Office. Supreme Court has held
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 a check on
spurious conduct by preventing the inducer from taking advantage.28 Burden of proof on for
the pre-emptor to prove the fulfilment of all the requirements to sustain his claim for pre-
emption.

2. The Second Demand (Talab-i-Ishhad):The expression, Talab-i-ishhad means a

demand with the invocation of witnesses. This demand is also called Talab-i-Taqrir which
means demand of confirmation. After making the first demand, it is the second demand, The
second demand is repetition of the first demand, and therefore, it is also called as the
confirmatory demand. The pre-emptor must, as soon as he can, affirm the intention of
asserting his right by making the second demand in which he refers to the fact that he had
already made the first demand. It is must and indispensable. No particular forms are
prescribed.29 For the validity of the second demand, the following requirements must be
fulfilled:

I. The Second demand must be made in the presence of at least two witnesses expressly called
to bear witness to the second demand,30

25
Fatawa-i-Alamgiri, 118.
26
Ram Saran Lall v. Mst. Domini Kuer, A.I.R. 1961 SC 1747.
27
Shivshankar Chhaganlal v. Laxman Chimanlal, A.I.R. 1943 Bom 83.
28
Indira Bai v. Nand Kishore, A.I.R. 1991 SC 1055.
29
Nur Khan v. Chhakku Khan, A.I.R. 1955 (NUC) 2480 (Ori).
30
Abdul Rahim v. Maidhar, A.I.R. 1928 Cal 584.
II. The Second demand is effective only when the first demand was lawfully made at an earlier
date.
III. The pre-emptor must mention that he has already placed his first demand and now he is
asserting the claim for the second time.
IV. The Second demand should be addressed either to the seller or, to the purchaser. If both of
them are not available, the second demand should be addressed to the property sold. When
there are more vendees than one then the demand must be made in the presence of all.31
V. The property, in respect of which the demand is made, must be clearly specified.32
VI. The second demand must be made within a reasonable time and as early as possible, with us
little delay as possible according to the circumstances. Two month delay was declared to be
fatal.33

No specific form of words is required for the second demand also. The demand may be made
by the pre-emptor through a letter or by a messenger, but only if he is unable to do so.
3. The Third Demand (Talab-i-Tamlik): If the pre-emptor fails to get the desire result
after making first two demands, he may take legal action. Therefore, if the purchaser sells the
property to him, then no further formality is required and the pre-emptor is substituted in
place of vendee. But, if after the first two demands, the pre-emptor fails to re-purchase the
property, then he has to take legal action. In other words, the third and the last step are to
maintain an action in a court of law. Filing of a suit for the claim of pre-emption is known as
the Third Demand. This is also termed as ‘demand of possession’.
Limitation for filing the suit is provided under the provisions of Limitation Act. If the
property is corporeal, then the suit should be filed within one year from the date purchaser
takes possession of the property and if the property is incorporeal then the limitation for filing
the suit would start from the date of registration of sale deed. The pre-emptor claims re-
purchase from the vendee, therefore, vendee is a necessary party in the suit for pre-emption.
But, if the vendor (seller) is still in possession of the property sold, the suit must be filed
against both.
The pre-emptor must claim for entire property. There cannot be a partial claim. If it is not for
entire property, the suit cannot be entertained by the court and claim of the pre-emptor is
defeated. Mulla explains the rule against partial pre-emption in the following words: The

31
Aliman Begum v. Ali Husain, ILR 45 All 449.
32
Fakir Sheikh v. Syed Ali Shaikh, A.I.R. 1955 Cal 349.
33
Mohd. Raza Ali v. Israr Hasan, A.I.R. 1929 All 459.
principle of denying the right of pre-emption have been sold, some of which are not subject
to pre-emption. The pre-emptor is entitled to exclude these properties from his suit. Similarly,
where the sale deed is one but it contains two separate transactions of sale, the pre-emptor
can pre-empt in respect of one property and exclude the other from his claim.
First and Second Demands may be Clubbed: The pre-emptor may combine both the
demands. If at the time of the first demand, the pre-emptor invokes the witnesses in the
presence of the Vendor or the Vendee or on the property it will suffice for both the demands.
If once both the demands have been combined and made, there would be no need to make the
second demand subsequently, and if made it would be superfluous. emptor. In Audh Behari
Singh v. Gejadhar34the Supreme Court observed that:

“The correct legal position seems to be that the law of pre-emption imposes a limitation or
disability upon the ownership of a property to the extent that it restricts the owner’s
unfettered right of sale and compels him to sell the property to the co-sharer or neighbour as
the case may be”.

When does the right arise? Introduction.—the right of pre-emption arises only in case of
sale and only when such sale is complete. It does not arise in cases of transfer of immovable
property without consideration, such as by way of gift. But the transfer of property in lieu of
mahr is treated as one for consideration and hence subject to pre-emption.
So we take the two separately, as follows: —

1. It arises in cases of sale.

2. It arises when the sale is complete.

(1) 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.

34
A.I.R. 1954 SC 417.
(2) Right arises only when sale is complete.35—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 of an instrument of sale is not necessary but, 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.

The above differences of opinion on this point were resolved by the Supreme Court in
Radhakishan Laxminarain v.Shridhar,36In this case the Court held that the transfer of
property, where the Transfer of Property Act applies, has to be under the provisions of that
Act only and Mohammedan Law or any other provisional law of transfer of property cannot
override the statute. Therefore, unless the title has passed in accordance with the Act, no right
to enforce pre-emption arises.
The extent of continuation of the grounds of pre-emption. The ground of pre-emption arises
when the sale is complete but it continues, not only up to the date of suit for pre-emption, but
till the decree is passed. Thus, if a plaintiff, who claims pre-emption as an owner of the
contiguous property, sells his property to another person after the institution of the suit (but
before the decree is passed), he will not be entitled to a decree because he ceases to own the
property which gave him ground to claim pre-emption. But it is not necessary that the right
should be subsisting till the date of execution of decree or till the date of the decree of the
Appellate Court.
When right does not arise ?—The right of pre-emption does not arise out of :—
1.Gifts,
2.Sadaqa,
3.Waqf,

35
Munnilal v. Bishawanath, A.I.R. 1968 SC 450.
36
A.I.R. 1960 SC1368.
4.Inheritance,
5.Bequest,and
6.Lease, even though in perpetuity.

7. Mortgage, even though it may be by way of conditional sale.(But the right will accrue
when the mortgage is foreclosed).

8. Conditional sale.

7. 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 prescribed, i.e., making three demands. 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.2
(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.
(iv) When the pre-emptor acts as agent of the vendor in transaction then also the right is lost.
(v) The right to pre-empt is lost when the pre-emptor becomes a surety for payment of the
consideration.
2. By death of the pre-emptor:When the pre-emptor dies after making the two demands but
before the filing of the suit7, i.e., third demand then also the right of re-emption is lost, his
legal representatives have no right to file the suit. However, under the Shia and Shafi law, if a
pre-emptor dies during pendency of the suit, the right is not lost. But now the matter is
governed by the Indian Succession Act 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.
3. By mis-joinder of plaintiffs: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.37

4. By release:The pre-emptor would lose his right if there is a release for consideration to be
paid to the pre-emptor.38 In other words when the pre-emptor releases the property for
consideration of something to be paid to him by the seller, then also the right to pre-empt is
lost. But the right of pre-emptor would not be lost if before the sale was complete, he was
offered the property and he refused to purchase. His right would be lost where, though the
pre-emptor had information of sale but did not offer to buy it.

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.

8. EFFECT OF PRE-EMPTION (SHUFA):-

1. Right of pre-emptor after Pre-emption:Thepre-emptor may take the possession of the

property which is the subject-matter of pre-emption, either by mutual consent or by paying
the purchase money to the vendee, after a decree is passed in favour of him by the court.
After taking possession of the property in the above manner, he is substituted for the vendee.
Now the original purchaser becomes the seller and pre-emptor becomes the buyer.

2. Right of vendee after Pre-emption:With the reference of property to the pre-emptor, the
rights of the vendee also emerge. The 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 of the pre-
emptor. The date of transfer is not the date of decree but the date when the pre-emptor pays
the purchase money. And the pre-emptor becomes entitled to mesne profit from the date on
which he pays the purchase price after the decree in favour of him is passed. For example, if
37
Dwarka Singh v. Sheo Shankar Singh, A.I.R. 1927 All 168.
38
Sitaram Deshmukh v. Jiaul Hasan, A.I.R. 1923 PC 41.
first sale of property is made to Anon 1st January, 1993 but the pre-emptor pays the purchaser
money on 1st September, 1993. A decree in favour of the pre-emptor, B is passed on 1st
August, 1993. Then the vendee A is entitled to mesne profit of the property from the period of
31st January, 1993 to 31st August, 1993 even though the decree in favour of the pre-emptor,
B is passed on 1st August, 1993. From 1st September, 1993 onwards B, the pre-emptor
becomes entitled to mesne profit.

3.Deterioration of property: When the property becomes deteriorated after the first sale, then
the pre-emptor when pays the whole purchase money will be entitled to a proportionate
reduction in price only if the following circumstances occur:
(a) A proportionate reduction in price will be made only if the deterioration is due to made
only if the deterioration is occurred due either by vendee or a stranger.
(b) A proportionate reduction in price will be made if deterioration has occurred due to some
natural calamity. For example, if a portion of the land is destroyed by any natural cause such
as flood, earthquake, etc., then a proportionate reduction in price will be made.’

4. Reduction in price by the vendee: The vendor and the vendee may change the price. If the
vendor has made any reduction in the price, then the pre-emptor is entitled to such reduction.
But if the whole price is remitted by the vendor, the vendee is entitled to the profits.

5. Increase in price: If any increase in the price is made, the pre-emptor would not be bound
to pay the increased amount. But under the Shia law, the pre-emptor is bound to take the
property at the contract price, irrespective of any increase or reduction made by the vendor
and the vendee.’

6. Effect on pre-emption by disposition or death: The right of pre-emption cannot be

defeated by any disposition or property made by the vendee. The right can also not be
defeated by the death of the vendee.

7. No transference of the decree of pre-emption:The decree of pre-emption obtained by the

pre-emptor cannot be transferred by him. On such transference, the transferee is not entitled
to take possession of the pre-emptor’s property.

9. DIFFERENCE BETWEEN SUNNI AND SHIA LAWS. :-

1. As to who can claim it.—Under the Sunni Law, a co-sharer a participator in the
appendages and owners of adjoining lands, are entitled to claim pre-emption, whereas under
the Shia Law, a co-sharer alone is entitled to pre-emption, and that too if the number of co-
sharers does not exceed two.

2. As to right to sue.—Under Sunni Law if the pre-emptor dies before obtaining a

decree in a suit for pre-emption the right to sue is extinguished whereas under Shia Law, the
right to sue is not extinguished and the suit may be continued by the pre-emptor’s heirs. But
now, Indian Succession Act applies and in such a case the right to sue is not extinguished
irrespective of the fact whether the pre-emptor is Sunni or Shia.

3. As to abatement of price.—Under the Sunni Law, if after the completion of the sale,
the vendor makes an abatement of the price, the pre-emptor can claim the benefit of the
abatement. Under the Shia Law, in such a case, the pre-emptor cannot claim the benefit of the
abatement of the price.
4. As to the number of demands.—Under the Sunni Law, the talab-i-mowiisibat and
the talab-i-islthadare the two conditions precedent to the exercise of the right of pre-emption.
Under the Shia Law, the distinction between the two demands is not recognised; all that is
necessary is that the pre-emptor should use reasonable diligence, without any unnecessary
delay to make the assertion of his right after receiving the information.

CONCLUSION

In the words of Mulla, “The right of shufa 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”. 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 the introduction of
a stranger into the land. The Muslim law of pre-emption is to be looked at in the light of the
Muslim law of succession. Under Muslim law, 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 other
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 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-heir or
neighbour, as the case may be. The person, who is a co-sharer in the property, or owes
property in the vicinity, gets an 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 now an established view that the right of pre-emption is not a mere right to re-
purchase; it is akin to legal servitude running with the land. The right exists in the owner of
the pre-emption tenement for the time being which entitled him to have an offer of sale made
to him whenever the owner of pre-emotional property desires to sell it.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.