RULE OF PRE-EMPTION

Under Hindu & Muslim Law

Under Hindu Law

Meaning & Objective
The law of pre-emption is indicated in S.22
of Hindu succession Act, 1956.
The general & most understandable
meaning of pre-emption is A
preferential right to acquire
property.
The basic objective of this provision is to
prevent fragmentation of the estate and to
avoid the introduction of strangers into the
family property or business.

Basic requirement for application of

pre-emption rule
The basic requirement for exercising the right of pre-emption are:
The property inherited is an interest in an immovable property, or
in any business.
Property is inherited by two or more heirs in class I heirs.
One of such heir proposes to sell or otherwise transfer it.
The consideration is based on mutual agreement & in absence of
any agreement it can be decided by court.
In case if two or more heirs are interested to purchase, then the
heir offering highest consideration will have a right to buy.
This rule requires willingness on both the sides, and the
consideration plays a pre-dominant role, as no person only for the
sake of preventing fragmentation of estates, can be compelled to
sell his share, below the market price.
In case of a heir demands unreasonable or at exorbitant sum of
money, the court can settle the dispute with respect to
consideration.
The right of pre-emption is also not available if the property had
already been partitioned.

Under Muslim Law

pre-emption is termed as SHUFA

The right of pre-emption or shufaa is a right which the

owner of an immovable property possesses to acquire by
purchase of another immovable property which had been
sold to another person.
In Yacub Khan v. Mst. Zaibunissa (1974) 40.C.L.T
202: The policy of the law behind pre-emption is the
same asto prevent introduction of strangers into
residential house.& to bring the property under one
owner eventually.
In order to claim a right of pre-emption, it is necessary,
first of all, for the plaintiff to allege and prove that they
were owners of the property on the basis of which they
were claiming the right of pre-emption.

Explanation and
interpretation..
The mohammadean law of pre-emption is
aplplied by the courts of India to
mohammadean as a matter of equity,
justice and good conscience.
Under the mohammadean law , non
mohammadean are as much entitled to
exercise the right of pre-emption as
mohammadeans.
Right of pre-emption can also be created
by contract.

Who may claim pre-emption?

Three classes of persons are entitled to
claim pre-emption:
A co-sharer in property. (shafi-i-sharik)
A participator in appendages, such as a
right of way, or a right to discharge water
from common tank. (shafi-i-khalit)
Owner of adjoining immovable property
(shafi-i-jar), but not their tenants , nor any
person in possession of such property
without title.

Illustrations.
A owns a house which he sells to B.M owns a house
towards the north of As house, and is entitled to a right
of way through that house. N owns a house, towards the
south of As house, separated from As house, through a
supporting wall. Both M and N claims the right of preemption over the house sold to B.
In whose favor claim will be decided?
A, B, C, and D own each a house situated in a private
lane common to all four houses. A sells his house to B.
Here, B C and D,all are participators in appendages of
the house sold, the appendage being the right to way.
Thus, all will have an equal right to claim as preemptors.

Interpretations
The right of pre-emption arises from ownership and cannot be
defeated or resisted on want of possession.
Also, the fact that the branches of a tree project over the land of a
neighbour does not give the owner of a tree any right as shafai-ikhalit on a sale of that land.
The right of pre-emption arises only out of valid , complete and
bonafide sale. It does not arise out of gift, will, wakf, inheritance
etc.
Ground of pre-emption must continue until the decree is passed.
Thus the right in which the decree is claimed, whether its coownership, or participation in appendages must exist not only at
the time of sale, but from the date of suit of pre-emption to passing
of decree.
It is not necessary that the third party against whom pre-emptor
can claim, should be a mohammadean.
Where there is plurality of persons, entitled to the privilege of
shuffa, the right of all is equal.

Demands for partition & further

steps to proceed with the claim
No person is entitled to the right of pre- emption
Unless He has declared his intention to assert the right
immediately on receiving information of the sale. This
formality is called talab-i-mowasibbat, literal meaning
demand of jumping over the property.
He has expressed his intention clearly, and has made
a formal demand1. Either in the presence of the buyer, or the seller, or
on the premises which are the subject of sale.
2. or In the presence of at least two witnesses.

Formalities and legal effect..

It is not necessary that the talab-i-mowasibbat, i.e, demand
for claim should be made by the pre-emptor in person. I t is
sufficient if it is made by a manager or a person previously
authorized by the pre-emptor to make a demand.
When the pre-emptor is a minor, then such right shall be
exercised by his guardian.
When the pre-emptor is at distance, the communication of
demand can be by way of letter, e-mail, etc..
After that, pre-emptor shall express his readiness and
willingness to pay the price stated in the deed of sale, or if
he has reasonable grounds to believe that the price
mentioned in the sale deed is fictious, the matter can be
referred to the court.
Any transfer made by the purchaser of property after a
demand by pre-emptor, will be void and hence not
jeopardize the rights of pre-emptor

When this right is lost?

Right of pre-emption is not lost due to death of preemptor, rather it is allowed to be continued by LR.
The right of pre-emption is lost if the pre-emptor
enters into any compromise with the buyer. But a
mere offer by a pre-emptor to purchase from the
buyer at sale price, made with the object of avoiding
litigation is valid.
As the right of pre-emptor accrues after the
completion of the sale,it is not lost because before
the completion of the sale, the property was offered
to the pre-emptor and he refused to buy.
Right is also not lost by previous notice of sale.

laws of different sect of Muslims

governing pre-emption..
If the vendor(Here, seller of property) & the preemptor is a sunni, the right of pre-emption will be
determined according to sunni law. Same rule apply
if both are shias.
Points of difference between sunni and sia law
of pre-emption
According to shia law, no right of pre-emption exists
in the case of property owned by more than two cosharers.
Secondly, shia law does not recognize the right of
pre-emption on thr ground of participation in
appendages
Sunni law is more wider with respect to claim of preemption.