Pre-emption is a right. The term pre-emption specifically means an opportunity to purchase an estate which is offered to one person before others. “It is a legal right of buying a thing before all others”. Shufaa, or the privilege of pre-emption, is characterized to be an intensity of having property which has been sold, by paying a total equivalent to that paid by the buyer. It is the privilege of a proprietor of immovable property to secure by buying another immovable property which has been offered to someone else.
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In more simple words this is a legal instrument by which an owner of an estate can repurchase a contiguous estate which has been sold to someone else. Exercising this right, the proprietor of an immovable property can urge the buyer of his adjoining property to offer it to him at a similar cost at which it was bought by the said buyer.
It implies it is the special right of the proprietor of an immovable property to procure an adjacent property. The individual who asserts this privilege is known as a pre-emptor or Shufee. We can understand pre-emption with this illustration: A and B are proprietors of their homes which are contiguous one another. B offers his home to C, who might be an outsider for A. Under this pre-emption right, A who is a pre-emptor can legitimately repurchase that house from C at a similar cost at which B offered it to C. As such, the privilege of pre-emption would empower A to evade C from being his permanent neighbour.
As matter of fact, an anticipatory inconvenience brought about by an outsider has been the very premise of this right. From the above it very well may be said that Pre-emption is the lawful benefit to secure some immovable property in priority to the next planned buyers on the terms which the latter might have genuinely offered. It may be noted that this concept has now been implied for specific purposes also by section 22 of the Hindu Succession Act, 1956.
The law of pre-emption was not a piece of Islamic law. Before the appearance of Moghul Rule in India, there was nothing similar to the law of preemption. It was distinctly during the Moghul rule, that the law of pre-emption was presented and made relevant as rule of general rule that everyone must follow for all communities.
As per Hedya “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”. Henceforth it was adopted as a custom by Hindu community.
During the British rule this custom was so common among the town networks that they regulated it on the grounds of equity, value and good conscience. Step by step, it existed in certain parts of the nation as a piece of Muslim Personal Law, in certain parts it depended on custom; among certain individuals it appeared by contract between the sharers in a town and in different parts it existed under resolutions. After freedom, the law of preemption was regulated in many parts of the nation.
The researcher would discuss the source of this law, its objective conditions for exercising the right and is there any way to dodge this right. The latter part of the project also discusses the validity of this right on the cornerstone of constitutional principles. The researcher would discuss whether the ambit of the right of pre-emption intrinsically contravenes the constitutional provisions. This article additionally discusses whether the right of pre-emption (Shufaa) should be considered as a feeble right and how this right could be easily vanquished.
Sources Of Law Of Shufaa
The law is based on the principle of convenience. As per Hedya this principle is based on “conjunction of property and its object is to prohibit the vexation from a disagreeable neighbour.” This law is based on the following resources-
A Piece Of Muslim Personal Law – In few states of India the law relating to pre-emption exists as an integral part of Muslim personal law. In Audh Behari Singh v. Gajadhar Jaipuria the court observed that this law is only a part of Muslim law and has continued since Mogul times and has no place in Hindu law.
Pre-emption By Custom- In due course of time Hindus also adopted it as a custom as per their convenience. Application of these laws is usually found in Bihar and Gujarat who were part of the Mogul empire. Allahabad HC in Jagannath v. Inderpal Singh, held that without the poof modification if such a custom persists, that has to be in consonance with Muslim law.The benefit of this law could be availed by those who reside in these areas and not by owners of estates in these areas.
Pre-emption By Statutes: Right of pre-emption also exists in few states by the virtue of a statute. Like, Oudh under the Oudh Laws Act, 1876, in Punjab under the Punjab Pre-emption Act, 1915. In such an area where it exists by virtue of a statute the law is applicable to everyone irrespective of their religion.
Pre-emption By Contract; The privilege of pre-emption can be additionally be made through agreement particularly when there is a party who does not profess Islamic religion. For instance, when a Muslim merchant and a non-Muslim vendee concurs that the Muslim law of pre-emption which applied to the seller and his sharers would likewise apply to the vendee, it is supposed to be an agreement which must be demonstrated. In a town setup the co-sharers may make, through an agreement, a right of pre-emption. At the point when two co-sharers are Muslim and a Hindu buyer consents to be administered by Muslim law of pre- emption, the privilege could be utilized against the Hindu buyer by the co-sharer, when he makes a ‘demand’.
Substance Of Law Relating To Shufaa-
Pre-emption Of Immovable Property: Subject to pre-emption can only be immovable property i.e (aqar) which incorporates both divisible and indivisible. Indivisible property is the property which cant be separated like bath, mill, well etc. Under Shia law this right is only available for divisible property as indivisible property if separated would be damaged. The right would arise in a case where there is as such no damage to the estate.
Permanent Fixtures, Included If Sold Along With: All such accessories attached to the land are covered under ‘Aqar’ but they should be sold as land appendages and should not be intended for removal. If plants and property is sold along then this right would arise. But when the commodities are sold distinctly then this right ceases to exist. If there is a sale of mere superstructure of a house then that would not be ‘aqar’. If a house or tree is bought along with its foundations or roots then this right arises. This right is not of repurchase but of substitution. If a house is passed to a vendee without the land on which it is stands, in such a case this right ceases.
Pre-emption In Case Of Movable Property- Any property which is not immovable one and is a piece of a material attached to the land could qualify as a subject of pre-emption. If any accessory is attached to the immovable property, it could also be subject matter of shufa even it is movable like for example “the sale of bath with water and utensils”. “When a land is sold on which a crop is standing that crop would become subject of pre-emption.”
The person who has this right is called Shafi . The Shafi can be a male or female, minor or major but the person should have full ownership rights of the immovable property, possession of the property is immaterial. In the case of Gobind Dayal v. Inayatulla certain rules were laid down for the application of law of preemption. If both parties profess Islam Muslim law applies, if both are Hindu then no application of this right. If the pre-emptor is Muslim but both vendee and vendor both are Hindus or if pre-emptor and vendee are Hindus and vendor a Muslim, in both cases this right ceases to exist.
Constitutional Validity Of The Law Of Pre-emption
This part would deal with the question of whether this right offends the provisions of the constitution. This would be dealing with two phases, the status before the 44th Constitutional amendment and the status of the right after it. Article 19 (1) (f) of Indian constitution prior to 1978 provided the citizens with the fundamental right to acquire and dispose of property. After the 44th constitutional amendment this fundamental right was taken and it was made a legal right under 300(A).
Status Before The 44th Constitutional Amendment-
Before 1978 right to property was a fundamental right and according to article 19 (5) reasonable restrictions could be imposed on this right. Under the garb of these two clauses on the ground of consanguinity, vicinage and on the pretext of participation of some immunity, this right was observed to be constitutional irrespective of the fact whether it is being exercised under personal law or under any statute. In case Bhau Ram v Baij Nath observed that this right can’t be enforced only on the pretext of vicinage. This right could be enforced only on the ground of being a co-sharer and participation in some immunity. This was also restated in Sant Ram v. Labh Singh
In Mahfooz Ali Khan v. Mohammed Ahsan that Muslim law of pre-emption would be unconstitutional if it violated fundamental right to property, it was stated that the law entitling a shafi-i-khalit to pre-empt sale property is a customary law and not a personal law of the Muslims and is unconstitutional under Art. l9 (l)(f) of the constitution. Article 13(3)(a) includes “custom or usage having in the territory of India the force of law” and therefore, the customary law of pre-emption is law within the meaning of law in Art. 13
If this customary right qualifies pre-emption to a Shafi i-khalit who have just easementary right in the property, then this custom would be considered as unconstitutional as it contravenes article 13 of the constitution.
- who has a land gives a structure lease of the land to B. B builds a house on the 1ease and offers it to C. An isn’t equipped for pre-emption of the house, however the land on which it is assembled has a spot with him, for he isn’t a co-sharer, nor a participator in the furthest points of the house, not an owner of interfacing property. This was held in the case of Pershadi Lal v. Irshad Ali.
Status After The 44th Constitutional Amendment-
After this amendment right to property was no longer a fundamental right but rather as a legal right under section 300 (A). This technically means that this right would be limited only to a legal right. After this amendment the court tested this right according to articles 14 and 15 of Indian constitution. In the case of Atam Prakash V. State of Haryana the court declared that asserting this right only on the basis of kinship is void and Ultra Vires. The court stated that the reasons that defended in the past to be specific the integrity of the society, the solidarity of family life and the agnatic theory of succession are absolutely superfluous. The courts also declared that the argument of superior rights on the pretext of being the elder male of the family was also considered irrelevant. Section 15 of Punjab pre-emption act provided this right on the ground of consanguinity but this section was declared to be void in this case.
There was another case in law of preemption that was to pass the test of constitutional principles. This case referred to section 15 of Punjab pre-emption act. After Atam’s case, the case of Krishna v. State of Haryana was decided. In this case the court held that the right to a co-sharer is not void. This law does not contravene articles 14, 15 and 16 of Indian constitution. Different courts have different views regarding its constitutionality. The apex court has held a statutory or a “customary right of preemption based on vicinage to be unconstitutional”. But the court has upheld the legitimacy of this right based on co-ownership and on certain situations, such as a common entrance or a common staircase.
Hence from the cases referred above it is inferred that such statutory right on the pretext of vicinage is void. Pre-emption on the ground of consanguinity is valid provided the classification of claimant is not unreasonable. It is of utmost necessity that the plaintiff has to prove that if such right is not granted to him, he would face severe personal inconvenience.
Who May Be Pre-empt Or Pre-emptors
According Muslim law pre-emptors are of three types which are as follows-
The Co-sharers Or Shafi-I-Sharik the persons who have common blood relations are entitled to inherit the estates of common ancestors , they are known as co-sharers. The co-sharers are given priority over other pre-emptors to claim this right. Though the list of consanguine relations could be quite long but the list should be reasonable while claiming this right. Krishna v. State of Haryana the Court observed that right of pre emption to co-sharer is valid and is not violative of Articles 14, 15 and 16 of the Indian Constitution
The Participators In Immunities OR Shafi-i-Khalit The word khalit means Mixed with. When two or more individuals have a common right to enjoy the property, they are referred to as participators in immunities. When there is no co-sharer then pre-empt is , Shafi-i-Khalit. In case where an individual has privilege to flow the water over the impugned land then he gets priority over the vendee and has this right. This right is given to the person who has the either the privilege to give way to the water or right to discharge the water over the disputed land. In Bhau Ram v. Baij Nath  the Supreme Court has held that pre-emption on the basis of participation exists only in the easements of way and water on private land. It does not extend to any other easement such as easements of air and light”.
Owners Of Adjoining Properties OR Shafi-i-Jar The person who owns the adjacent property can be a pre-emptor but only if a co-sharer and Shafi-i-Khalit is not present. But a shafi-i-jar can claim this right only in the case of a house, garden or small parcel of land. It is not extended to larger properties, such as Zamindaris and Jagirs or village. According to Bhau ram’s case the apex court held that only on the pretext of vicinage this right can’t be claimed by Shafi-i-jar.
Difference Between Sunni And Shia Law Of Pre-emption –
Shia law doesn’t recognize the other two classes of pre-emptors, only recognises Shafi-i-sharik i.e. co-sharers. Under Shia law the co-sharers can only claim this right only if they are two in number. If there are more than two co-sharers then no one can claim this right. The pre-emptors of the same class shall have equal right to pre-empt the property irrespective of their proportion of shares. Degree of nearness has no role to play in claiming this right in case of Sunni law but this is not the case for Shia law. For instance if there are two sunni co-sharers A and B having ¾ and ¼ share of the land respectively but on sale of pre-empted property they both have equal right to repurchase the property. But in case if the two co-sharers are Shia then A would be having the right to repurchase 3/4th of land and B would re-purchase only 1/4th of the land.
The right could only be exercised only if the sale is valid and is sold in bona fide manner. This right arises only in case of sale and exchange. “It does not arise in respect of transfer of property of any other type such as bequest, Inheritance, mortgage or lease.” As per Islamic law a sale is exchange of estate with mutual consent. For the purpose of pre-emption the sale of the property has to be completed according to Muslim personal law. There are few technicalities which need to be fulfilled in order to avail this right.
The first demand– (Talab-i-Mowasibat) – It means demand of jumping, that means it should be made spontaneously as soon as there is news that the sale of the property is complete. Pre-emptor belonging to different classes should demand this right as soon as possible after the sale irrespective of their superiority over other classes of pre-emptors. Any unreasonable delay can be taken as waiving of the right. No witness is required for making this demand. The words claiming the demand has to be made after the sale and should have clear intention to claim it. A delay of 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.
The Second Demand (Talab-i-Ishhad)- ( Demand with invocation of witness) This demand is also called Talab i-Taqrir i.e. demand of confirmation. Though it is made after the first one hence it is taken as a confirmatory one. It can only be made after the first demand is effectively made, there has to be the presence of two witnesses, the pre-emptor has to explicitly mention that this one is his second demand and has to clearly specify the property. It has to be referred to the seller or buyer if both not there then to the disputed property. It has to be made within a reasonable period. According to Hedaya- “a common condition for second demand is that the pre-emptor says, such a person has brought such a house of which I am the pre-emptor. l have already claimed my privilege of pre-emption and now I again claim it: be ye witnesses thereof”
The Third Demand (Talab-i-Tamlik)- ( Demand of possession) After the failure of the above two demands to re-purchase the property , then this one is exercised, basically it means to file a suit for the claim of pre-emption. The legal claim has to be made for the property in totality. Whosoever is in the possession of the property whether it is vendee or vendor (seller) becomes a party to the legal suit. If the vendor has sold to the vendee few properties some of which are not subjected to pre-emption, then though the sale deeds is one but it would have a distinct transaction of sale, then the pre-emptor has right to claim for pre-emption on which he has right and exclude other properties.
The pre-emptor has also the right to club both the demands. On the off chance that at the time of first demand the pre-emptor conjures the observers in presence of Vendor or the Vendee or on the property it will suffice for both the demands. In such cases there is no need to make separate second demand. Under shia law when the second demand is made it is mandatory to make a reference to first demand otherwise second demand (Talab-i-Ishhad) would be rendered invalid.
Right Of Pre-emption When Extinguished-
Through Acquiescence Or Estoppel Or Waiver Or Forfeiture- When the pre-emptor does assert the above demands then that results in him waiving his right. If the pre-emptor agrees with the vendee for not claiming his right then also his right is lost. It is also extinguished when the pre-emptor himself permits to sell the property to another person. In cases where he acts as a vendor then also his right is lost. If the pre-emptor makes a mere offer to the vendee regarding the repurchase of the property at the market price, that would not amount to acquiescence. If he has previous knowledge that negotiation regarding the sale of the property is going on and he made no offer to purchase the property, in such case his acquiescence can’t be inferred. If the pre-emptor refuses to purchase the property due to some mis-information that is also not acquiescence.
If The Pre-emptor Dies– After making two demands, in case the pre-emptor succumbs to death then the claim of pre-emption is extinguished. His legal heirs has no authority to file a suit to claim this right but if the pre-emptor if passes away during the pendency of the case then this right still exists. But after this it would be dealt under Indian succession act. If the pre-emptor makes a will, then it has to continue by his executor.
By Misjoinder Of Offended Parties:- When the pre-emptor joins himself as a co-plaintiff with an individual who isn’t qualified for claiming the privilege of pre-emption then likewise the privilege to pre-empt is lost. Yet, in the event that he gets together with himself as co offended party an individual who could have resorted to a case for pre-emption, however for the fact that he didn’t make two demands his right would continue to exist.
By Discharge- “If the consideration to be paid to pre-emptor is released then the pre-emptor would lose his right of shufaa.” When the pre-emptor discharges the estate for exchange in lieu of something which is to be paid to him by the vendor, at that point likewise the privilege to pre-empt is lost. In any case, the privilege of pre-emptor would not be lost before the deal was finished, he was offered the property and he wouldn’t buy. His privilege would be lost where, however the pre-emptor had information of sale but still he didn’t offer to purchase the property.
Final Decree By The Court- Pre-emptor right to claim the right to pre-emption exists till the passage of final decree by trial court. He can’t claim this right after the passage of final decree.
If There Is Any Sort Of Statutory Hindrance- If by any off chance the pre-emptor is not able to buy the pre-empted property due to statutory disability then his right of pre-emption is annulled. In such cases though the pre-emptor is competent enough to purchase the property but he is unable to exercise his right due to statutory disability.
The limitation period for filing a suit claiming this right is mentioned in Article 97 of Limitation Act 1963. According to which the suit has to be filed within 1 year of vendee taking possession or registration of sale deed. If there is no registration or possession then according to article 113 of the act the limitation period would be 3 years starting from the time when the right to sue accrues.
Right Of Pre-emption – A Feeble One Or A Firm One
This part of the project deals with the question of whether this right of pre-emption is a weak right or a strong right. It discusses if there are any limitations to this right. It also deals with methods by which vendee and vendor can dodge this right. There are few requisites to be fulfilled to claim this right. First being that the offended party must allege and necessarily prove that they are the owner of the property. As mentioned in this research paper the pre-emptor has to make all the necessary formalities to claim pre-emption .i.e. (all the demands as explained above). The right of pre-emption is not an absolute right and it could be dodged by few methods.
Such devices utilized for avoiding pre-emption are brought in Arabic as Hila .A few devices used for dodging the privilege of pre-emption are legitimately allowed. There are two methods which might be utilized for vanquishing the privilege of pre-emption however they must be utilized before the suit for pre-emption is filed by the pre-emptor.
Disposal Of Property:
The typical method that has been utilized to vanquish the privilege of pre-emption is to sell the entire property leaving a little portion of property adjoining the neighbour’s or co-sharer s property. In such a case the neighbour’s property wouldn’t be contiguous to the property sold, and he would not be qualified for claiming the right of shufaa.
There is also another method through which this right can be defeated and that is if the transferor gives the property but takes the cost covertly from the donee. At the end of the day an exchange might be qualified as Hiba-bil-lwaz and not a sale transaction. It is likewise fundamental that the device ought not to be deceitful to cheat the pre-emptoror prohibited by law in light of the fact that the law doesn’t allow fabrication.
As per Hedya-
“Fabrication should not be considered as one of the lawful methods which are allowed under Muslim law in order to just vanquish this right of pre-emption.
For fairness striking on conduct inadequate in compliance with good faith , it was held by the Court that estoppel works keep an eye on fake conduct by keeping the inducer from deriving benefit and assailing forfeiture already accomplished. Legitimate impact of one s conduct by taking plan of action to law to check and control such baseless conduct, the courts have broadened the board and fundamental contemplations of value, to exchanges, express or inferred to maintain a strategic distance from foul play.
Sometimes this right is not supported by the law, and any device might be embraced with the purpose of bringing the privilege of pre-emption from emerging or vanquishing the provisions of the law for the pre-emptor. “So, for the asserting the right of pre-emption it is fundamental for the offended parties to charge and demonstrate that they were the proprietors of the property based on which they were claiming any right of pre emption.”
The right of pre-emption isn’t accessible to people acquiring property as tenants. Within the sight of this right, a bona-fide buyer needs to surrender his ownership obligatorily for the pre-emptor. It might be expressed, in this manner, that pre-emption forces a constraint on the ownership for property merely on the account of future inconvenience of the pre-emptor. This implies the privilege is temporary in nature. This right can even be curtailed even in the slightest moment of delay of its enforcement. As per the wordings of Hedya this right is a feeble one-
“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 the case of Pyare Mohan v. Rameshwar  the court held that this right is not a strong one but a weak right and can be easily vanquished by the other party by all lawful methods. There are many lawful methods to curtail this right as discussed above. The next part of the research project would be discussing all the aspects in which this right ceases to exist.
Effect Of Pre-emption (Shufaa)
Right Of Pre-emptor After Pre-emption:- The pre-emptor is entitled to possess the estate that is the topic of pre-emption, either by mutual assent or by giving the buy cash to the vendee, after an announcement is passed for him by the court. After this the first buyer turns into the vendor and pre-emptor turns into the purchaser.
Right Of Vendee After Pre-emption:- The vendee is qualified for mesne profits, for example, leases and benefits, of the property between the date of the main deal and the date of transfer to the pre-emptor. Date of transfer is when the pre-emptor pays the purchase money and it is not when the decree is passed in his favour. The benefit obtained from the property between these dates is given to vendee and after the purchase price is paid then pre-emptor is entitled to mesne profits.
Decay Of Property:- When the property becomes decayed after the first deal, at that point the pre-emptor when pays the entire purchase cash will be qualified for a proportionate decrease in cost. This reduction is applicable in cases where the decay has been caused by vendee or a stranger or the property has deteriorated due to a natural calamity.
Decrease In Cost By The Vendee:- The seller and the vendee may change the cost. In the event that the vendor has made any decrease in the value, at that point the pre-emptor is qualified for such decrease. Be that as it may, if the entire cost is dispatched by the seller, the vendee is qualified for the benefits.
Increment In Cost:- If any sort of expansion in the cost is done, the pre-emptor would not will undoubtedly pay the expanded cost. But under the Shin law, “the pre-emptor will undoubtedly take the property at the contract price, regardless of any expansion or decrease made by the vendor and the vendee.”
Effect On Pre-emption By Disposition Or Passing: The right doesn’t extinguish by any disposition or any property made by the vendee or passing of vendee. The decree of pre-emption is not transferable. If transferred by the pre-emptor then transferee wouldn’t be qualified to possess the property.
Law of pre-emption is a legal right. Right of Shuffa enables a person called (Shafi) to own the immovable property before anyone else could even if it is sold to the buyer. Exercising this right the pre-emptor can claim the adjoining property if it has been sold to a vendee. It is right which is fixed to the property, such right is neither transferable nor heritable. It is a personal right. It relies on the principle of easement. This rule depends on a combination of property and its purpose is to restrict the vexation from a repulsive neighbour. Pre-emption is a part of Mohammedan law but can be created as custom, by a statute or by a contract. Usually this right is available to immovable property or to permanent fixtures. Shafi should have full ownership of the property, possession is immaterial. There are three classes of pre-emptors- based on consanguinity Shafi-I-Sharik , based on common enjoyment of the property Shafi-i-Khalit and owners of adjacent property Shafi-i-Jar. Shia law only recognizes Shafi-I-Sharik.
This right could only be exercised if there is transfer of the immovable property either through exchange or sale. There are few formalities which need to be fulfilled by the pre-emptor to claim the right as discussed in the research paper. The first demand is made immediately after the completion of sale and second one after the failure of first demand and the last demand is of legal suit when both demands fail.
Constitutionality of this right deferred in two phases, one before the 44th constitutional amendment and one after that. This amendment shifted the status of right to property from fundamental right to a legal right. This right can’t be granted only on the ground of vicinage and can be granted on the ground of co-sharer if classification of the plaintiff seems reasonable. The claimant has to prove his personal inconvenience while claiming this right.
This right is not of absolute nature and could easily be dodged by few lawful devices as discussed through the project. One of the lawful methods is selling the entire property only leaving a small parcel of land adjacent to the neighbour’s property. There is another method to vanquish this right i.e. fabrication (gifting the property and covertly taking the price ) but this is strongly condemned in Mohammedan law. Hence this right is a feeble one and could be easily be curbed by the vendee and vendor by all lawful methods. Pre-emptor loses his right through acquiescence, estoppels and by waiver. It gets cancelled if the pre-emptor dies or if it is in contravention to a statute.
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BY ANAMTA KHAN | NATIONAL LAW UNIVERSITY, DELHI