Pre-emption

The pre-emption rule is based on the text of Muslim Law and is a well-
known legal concept.

“A right of shufa, or pre-emption, is a right that an immovable owner of

the property has to gain another immovable property that has been
sold to another person” According to Muslim law, when an individual
dies, his property is divided into fractions.

Just two forms of property transfers give rise to the right of pre-
emption: sale and trade. When it comes to a sale, the transaction must
be complete, genuine, and legitimate.

If an heir is able to sell his share without first selling it to other co-
heirs, it is possible that outsiders will be introduced into the estate,
causing problems and inconveniences.

Essential of pre- emption are :

1. Pre-emption is the right that the owner of one piece of property has
to acquire another piece of land that is not his.
2. The right is acquired in place of the buyer. who has already bought
the other piece of property.
3. The right to proprietary ownership is obtained on the same terms as
the purchase of the other immovable property.
4. The law grants the right to peaceful enjoyment of one's land.

When Does the Right Occur?

The right of pre-emption arises only when there is a sale and only when
the sale is completed. It does not apply when property is transferred by
gift, sadaqa waqf, bequest, or inheritance etc. The right exists until the
date on which the court issues the decree.

Bishan Singh v. Khazan Singh SC summarized some rules of pre-

emption :

1. The right of pre-emption is a right to the offer of a thing about to be

sold rather than a right to the thing sold itself. This is known as the
primary or inherent right.
2. The pre-emptor has a secondary or remedial right to pursue the item
sold.
3. It is a right to acquire the entire property sold rather than a share of
the property sold.
4. Because the right is very weak, it can be defeated by any legitimate

method, such as the vendee allowing the claimant of a superior or

equal right to be substituted in his place.