UNIT – III

Wassiyat (Will)
• A wassiyat or will under Muslim law is a divine institution, since its
exercise is regulated by Koran.
• Will is the translation of Latin word “voluntas”, which was a term used
in the text of the Roman law to express the intention of a testator.
• Under Muslim law, every Muslim has the testamentary power of
disposing of his property.
• But his testamentary power is limited to the disposal of only one-third of
his property.
• A wassiyat offers to the testator the means of correcting to a certain
extent the law of succession, and of enabling some of those relatives who
are excluded from inheritance to obtain a share in his goods, and/or
recognizing the services rendered to him by a stranger, or the devotion to
him in his last moments.
• This seems to be the reason why the word “wassaya” or “wassiyat” has
two meanings; it means a will and it also signifies a moral
exhortation(pressure).
• The word wassiyat also means a specific legacy or the capacity of the
executor.

Capacity to make a Wassiyat or Will

• Every Muslim, who is of sound mind and of the age of majority, has the
capacity to make a will.
• Under the Shia law, a will made by a person, who has taken poison, or, has
wounded himself with a view to committing suicide, is invalid.
• But a will made by a person, who subsequently commits suicide is valid. A
will made by a person under coercion, undue influence, or fraud is invalid.
• Similarly, the court will scrutinize the will of a pardanaseen lady very
carefully before admitting it.
Formalities of a Wassiyat or Will
• Muslim law requires no specific formalities for the execution of a will. A
will may be oral or in writing.
• When the will is in writing, no specific form is laid down.
• It may not even be signed by the testator or attested by the
witnesses. [Ramjilal vs. Ahmed, 1952 MB 56]
• However, it is necessary that the intention of the testator should be clear
and unequivocal (unambiguous).
• In Mazhar vs. Bodha, 21 All 91 a letter was written by a Muslim shortly
before his death, containing directions for the disposition of his property,
was accepted to constitute a valid will.
• When a will is oral, no form of declaration is necessary. Obviously, the
burden of establishing an oral will is very heavy, and an oral will must be
proved with utmost precision and with every circumstance of time and
place. [Venkat vs. Namdeo, (1931) 58 IA 362].
Subject-Matter of Wassiyat or Will
o Any type of property, immovable or movable, corporeal or incorporeal, which is
capable of being transferred, may form the subject-matter of a bequest.
o Under Muslim law, it is possible that a testator may give to one person and the
usufruct to another.

Construction of Wassiyat or Will

• The general rule governing the construction of the will is that – a Muslim will is to
be construed in accordance with the rules of construction of the will laid down in
Muslim law, the language used by the testator and the surrounding circumstances.
• It is also a general rule of construction of wills that unless a different intention
appears, a will speaks from the death of the testator, and the bequests, contained in
it take effect accordingly.
• It is a universal rule of construction of wills that the courts try to give effect, as far
as possible, to the intention of the testator.
Revocation of Wassiyat or Will
Under Muslim law, a testator may revoke his will or any part of it anytime,
either expressly or by implication.

Express revocation
If a testator makes a bequest of some property to a person, and by the
subsequent will, he bequests the same property to another person, the first
bequest is revoked. A will may be expressly revoked by tearing it off, or by
burning it.

Implied revocation
Any act inconsistent with the bequest will go to revoke the will. For instance,
bequest of a plot of land is revoked when the testator builds a house on it; or
bequest of a house is revoked when the testator sells or makes a gift of it to
another.
Hiba – gift under Muslim law
• The concept of Hiba under Muslim law has existed from 600 A.D.
• Gift is the transfer of a property from one person to another. Under Muslim
law, the Gift transfer is not controlled by the Transfer of Property Act, 1882
but is governed by Muslim law itself.
• The delivery of gift in Muslim law can be actual or constructive, in actual
delivery, the gift which is being made is physically transferred to the
donee, and in case of constructive delivery it is just a symbolic transfer of
property.
• Also, there are some instances where the delivery of the possession of the
property is not necessary.
• Under Muslim law, Muslims can divide their property in many ways. It
could be through Gift which is known as Hiba in Muslim law and through
a will which is known as Wasiyat in Muslim law.
• The term gift is known as ‘Hiba’ in Muslim law. Whereas in English, the
word ‘gift’ has a much wider expression which is applicable to each and
every transaction where an individual transfers his or her property to
another without any consideration for the same.
• In contradiction to this, the term ‘Hiba’ in Muslim law has a much narrower
connotation. A Muslim is allowed to give away his whole property in his
lifetime but he can only give one-third of his property through a will.
• Also, the religion of the person to whom the gift is made is irrelevant. The
transfer of property through the way of gift is immediate and without
consideration. It is an unconditional transfer of property. Although the gift
being a property has to be governed by the Transfer of property act, 1882.
• But Chapter 7 of Transfer of Property Act 1882 does not cover the gift under
Muslim law. So, the Muslim Personal law governs the Muslim gift or
“Hiba”.
Essentials of Hiba
There are mainly three conditions which need to be fulfilled for the successful
transfer of property or making of a gift by a Muslim person. These conditions
are as follow:
1. Declaration of gift by the donor.
2. Acceptance of gift by the donee.
3. Transfer of possession by the donor and it’s acceptance by the donee.

The person who signifies his willingness to the other person for transferring
his property is known as a Donor. On the other hand, the person who
expresses his consent for the acceptance of the gift made by the donor is
known as the Donee.
The requisites of the donor are as follow:
• Firstly, the person who is giving the property or making the gift i.e Donor,
he/she must be a Muslim. Any other person in place of Muslim cannot
make Hiba.
• Secondly, the person should be of the competent age i.e he/she must be
major.
• Thirdly, the consent of the donor must be free. If the consent of the person
is obtained by force, coercion, undue influence is no consent and such a
gift is no gift.
• Fourthly, the person must be of sound mind. Any gift made by a person of
unsound mind is not a valid gift.
• And lastly, the donor should be having the ownership of the property
which he is going to give away in the form of a gift.
Declaration of gift by the donor
• Declaration of gift by the donor represents his/her willingness to make a
gift. The declaration made should be clear and not ambiguous. A donor can
make the declaration in two ways that are oral or written.
• In the famous case of Ilahi Samsuddin v. Jaitunbi Maqbul, it was held by
the apex court that under Muslim laws the declaration made by the donor
and the acceptance made by the donee can be oral irrespective of the
nature of the property. The declaration and acceptance made in the form of
writing are through the way of gift-deed. In Muslim law, the gift deed is
known as Hibanama. The Hibanama may not be on the stamp paper and is
not compulsory to be registered.
• In the case of Md. Hesabuddin v Md. Hesaruddin, where Muslim women
transferred her property by the way of Gift or Hiba and the gift-deed was
not on the stamp paper it was held to be valid by the Gauhati High Court.
The declaration should also be expressed. A gift made in an unambiguous
manner is null and void.
The requisites of the donee
• Firstly, religion is no bar for accepting the gift which has to be
mandatorily made by a Muslim. The donee can be of any
religion, Muslim or non-muslim.
• Secondly, the age is again not a bar for a donee. He/she can be
of any age i.e. major or minor.
• Thirdly, a gift can be made to an unborn child, but it must be
in the womb of her mother. This is so because of the Transfer
of property act, 1882 which talks about the benefit for the
unborn person.
• Fourthly, the transfer of property can also be made to a
religious entity.
Acceptance of gift by the donee
For the valid gift, it must be accepted by the donee. If there are more than one
or two donee, then it must be accepted by both the donee’s and it must be
accepted separately. Since in Islamic law the Hiba is treated as a bilateral
transaction i.e the donor makes the transfer and it must be accepted by the
donee. If the acceptor of the gift is minor or any person of unsound mind then
it can be accepted by his guardians. These people are his/her-
1. Father
2. Father’s Executor
3. Paternal Grand-Father
4. Paternal Grand Father’s Executor
Transfer of possession by the donor and its acceptance by the donee
• After the transfer proposed by the donor and its acceptance by the donee is
complete the next important condition which needs to be fulfilled for a
valid gift is the transfer of possession by the donor and its acceptance by
the donee.
• As the formalities of a gift are mentioned under Section 123 of Transfer of
property act, 1882 but these are not applicable in case of “Hiba”.
• In Hiba, the transfer is complete as soon as the possession is transferred
from the donor to the donee.
• The valid effect of the gift is from the date of transfer and acceptance of the
possession and not from the date of declaration.
• In the case of Noorjahan v. Muftakhar, the court held that where the
declaration of the gift is made by the donor but afterwards till his death all
the profits made out of the property is taken by the donor himself the gift
is invalid and not effective in nature since the transfer of possession has not
taken place.
• The mode of delivery of possession is dependent upon the nature of the
property. The mode of delivery can be Actual or Constructive.

Actual Delivery: In actual delivery, the gift which is being made

is physically transferred to the donee. Actual delivery of the
possession is possible when the gift which is being transferred is
of tangible nature. Tangible means something which we can feel,
see and touch. But further in case of tangible goods, it can be
movable and immovable. Actual delivery can be done in case of
only movable goods.
For example- If a person wants to gift a laptop to the other he
can make his actual delivery as it is tangible and is movable in
nature.
Constructive Delivery: The transfer of immovable property and intangible
property is not possible so it is just a symbolic transfer of property.
For example- If the man wants to gift a house to someone, he can just hand
over the keys and the related documents to the donee. He cannot pick up the
house and hand it over to the donee. So, in this case, the delivery made is
constructive in nature.

Under Muslim law, the registration of the transfer is not important, the
condition which needs to be fulfilled for this is that the transfer must be made
according to the rules of Muslim law. As it has already been mentioned in this
paper that the Hiba can be oral or written and written transfer is known as
Hibanama and its registration or authorization by way of the stamp is not
necessary.
Kinds of Gifts
1. Hiba-il-iwaz
2. Hiba ba Shart ul Iwaz

Hiba-il-iwaz
Under Islamic law, Hiba means gift and iwaz means consideration. Hiba-il-
iwaz thus means, the gift for the consideration already given. Under all the
laws, there is no system where there is a consideration for the gift. But under
Muslim law, there is a system of gift with an exchange.

For example- If A makes a gift of his bungalow in favor of his friend B, and in
return, B makes a gift of his car to A, then it is known as Hiba-il-iwaz. The
second gift made by B to A is iwaz i.e. return.
Requisites of a valid Hiba-il-iwaz:
• Firstly, there must be a complete and valid gift made by the
donor to the donee. If the gift made is not according to the
rule of Muslim law then it is no gift.
• Secondly, there must be a payment consideration made by the
donee. In the case of Khajoorunissa vs Raushan Begam, the
facts were that the father gave one-third of his property to his
eldest son in return of Rs.10,000 but the consideration was
never paid. It was held that the quantum of consideration is
not important, the only thing important is that the
consideration must be bona fide.
Hiba-ba-Shart-ul-Iwaz
It means a gift made with a stipulation for return. In this case,
the consideration is not paid by the donee by his own choice but
it is paid because it is a necessary condition here.
Requisites of a valid Hiba-ba-Shart-ul-Iwaz:

• Firstly, the delivery of possession is important; it is revocable

until the iwaz is paid.
• Secondly, as soon as the iwaz is paid it becomes irrevocable.
• Thirdly, a transaction when completed by payment of Iwaz,
assumes the character of a sale.
Revocation of gift
Although old traditions show us that the prophet was against the system of
revocation of gifts. Today, it can be seen that it is the well-established principle of
Muslim law that all the gifts which are made voluntarily can be revoked. The
revocation of the gift of different kinds depends upon the different schools and Shia’s
and Sunni’s. The Muslim lawgiver categorized the types of revocation under two
different types:
1. Revocation of gifts before the delivery of possession
2. Revocation of gifts after the delivery of possession.
Under Muslim law, the revocation of gifts before the delivery of possession is
allowed. Suppose A has transferred the property to B by the way of gift-deed. Now, if
A revokes his gift and no delivery of possession has taken place, this revocation is
valid.
One the other hand, declaration of revocation of gifts by the donor after the delivery
of possession is not sufficient to revoke a gift. Until and unless the decree of a
competent court is passed, the donee can use the property in any manner he wishes
to.
When the delivery of possession is not necessary:
There are some cases where the delivery of possession is not necessary. Like, a
gift from one spouse to another, or say guardian to the ward.

Donor and donee living in the same property:

In a case where the subject matter of the gift is a house in which both the
donor and donee are living together, any delivery of possession is not
important. But there must be the bona fide intention of the donor for the
transfer of property.
In the case of Humera Bibi v. Najmunnissa, in this case, was an old lady who
used to live with his nephew. She transferred the property to his nephew who
was living with her in the same house. However, when the property was
given on rent, the rent was collected in the name of the donee. The court held
the gift valid.
Gift by the spouses to each other:
Where a gift of immovable property is made by one spouse to the other the
delivery of possession is not mandatory.
In the case of Fatma Bibi v. Abdul Rehman, the husband made an oral
declaration of transfer of property in the name of his wife. The stepson who
was living with the mother challenged the validity of the gift as no delivery of
possession was made. The court held that the gift was valid.

Gift of property already in possession of donee:

In the cases where the possession of the property is already with the donee,
only the declaration by the donor and acceptance by the donee is enough to
make this gift as a valid gift.
For example- If A is having a car and he is using it for his own use and now
his father transfers it to his name, the declaration by the father and the
acceptance by the son is enough to make this gift as a valid gift.
Gift of Musha
The term Musha has been derived from the Arabic word which refers to Shuyua which
actually means ‘confusion’. It means Musha the ‘undivided part’ or share, which could
also be a common building or land. As a gift of a part of a thing which is capable of
division is not valid unless that particular part is divided off and separated from the
property of the donor, however, the gift of an indivisible thing is absolutely valid. In
Muslim law, Musha signifies an undivided share in joint property. Musha is thus, a co-
owned which is also the joint property. Moreover, if one of the several owners of that
particular property makes a gift of their own share, there may be a confusion
regarding the matter that which part of the property has to be given to the donee. In
other words, there could be a real difficulty in delivering the possession of the gift if it
is of a joint property which is made by a donor without partition of that gifted share.
In order to avoid such confusions and difficulties in the stage of delivery of possession,
the jurists pertaining to the Hanafi law have evolved the principle of Musha where the
matter of a gift is co-owned or joint property, the doctrine of Musha becomes
applicable for examining the validity of that particular gift. The doctrine is strictly
confined to the rules by the interpretation of judiciary and has been cut down in a
considerable manner.
Wakf/ Waqf
• The concept of Waqf has been developed under Islamic Law. There was no
concept of waqfs in Arabia before the advent of Islam.
• Although there is no mention of Waqf as such in Quran such Quranic
injunctions which deal with the charity are at the root of the development
and extension of wakfs.
• Ameer Ali describes the law of Waqf as, “the most important branch of
Muslim Law, for it is interwoven with the entire religious life and social
economy of Muslims Waqf in its literal sense means detention or
stoppage .”
• The definition of Waqf according to the accepted doctrine of the Hanafi
school is the extinction of the proprietor’s ownership in the thing
dedicated and its detention in the implied ownership of God in such a
manner that the profits may revert to and be applied for the benefit of
mankind.
Waqf under the Muslim Law owes its origin to a rule laid down by the
Prophet and means the tying up of property in the ownership of the God,
the Almighty and the devotion of the profits for the benefit of human
beings.

Meaning of Waqf
• If we look at the word ‘Waqf’, in its literal sense it is referred to
as ‘detention’, ‘stoppage’ or ‘tying up’. According to the legal definition, it
means a dedication of some property for a pious purpose in perpetuity. The
property so alienated should be available for religious or charitable
purposes. Such a property is tied up forever and becomes non-transferable.
• It has been observed in the case of M Kazim vs A Asghar Ali that waqf in
its legal sense means the creation of some specific property for the
fulfilment of some pious purpose or religious purpose.
A lot of eminent Muslim jurists have defined Waqf in their own way.
According to Abu Hanifa, “Wakf is the detention of a specific thing that is in
the ownership of the waqif or appropriator, and the devotion of its profits or
usufructs to charity, the poor, or other good objects, to accommodate loan.”
“As defined by Abu Yusuf, waqf has three main elements. They are-
• Ownership of God
• The extinction of the founder’s right
• The benefit of mankind

Definition under Mussalman Waqf Validating Act, 1913- Section 2 of the

Act defines waqf as, “the permanent dedication by a person professing the
Mussalam faith of any property for any purpose recognised by Musalman
Law as religious, pious or charitable.”
Wakf Act, 1954 defines Wakf as, “Wakf means the permanent
dedication by a person professing the Islam, of any movable or
immovable property for any purpose recognized by Muslim Law
as religious, pious, or charitable.”

A waqf can be either in writing or can be made by an oral

presentation. In the case of an oral agreement, the presence of
words emphasising on the intention of the parties is a
prerequisite.
Essentials of Waqf

Waqf Under Sunni Law

The essential conditions of a valid waqf, according to the Hanafi
Law (Sunni Law) are:
1. A permanent dedication to any property.
2. The dedicator (waqif) should be a person professing the
Mussalman faith and of sound mind and not a minor or
lunatic.
3. The dedication should be for a purpose recognised by the
Mussalman law as religious, pious or charitable.
1. Permanent dedication of property
The most important essential of a valid waqf is that it should be ‘a permanent
dedication of property.’ It has the following prerequisites.
• There must be a dedication.
• The dedication must be permanent.
• The dedication must be of any property.
The Waqf himself has the right to donate such property and give it for any
purpose recognized under the Muslim Law. If the wakf is made for a limited
period, it cannot be considered as a valid wakf.
In the case of Karnataka Board of Wakfs v. Mohd. Nazeer Ahmad, it was held
that “if a Muslim man provides his house to the travellers irrespective of their
religion and status for their stay, this cannot be considered as a valid Wakf on
the ground that under Muslim law a Wakf has a religious motive, that it
should be created for the benefit of Muslim community. When a Wakf is
constituted, it is always a presumption that it is a gift of some property, made
in favour of God. This is a legal fiction.
2. By a person professing Mussalman faith
The person creating a waqf should be an adult Muslim of sound mind.

3. For any purpose recognised by Muslim Law

The main objective behind creating a waqf is that it should be dedicated for a
purpose recognised as religious, pious or charitable under Muslim law.

Waqf Under Shia law

The essential conditions for creating a valid Waqf according to Shia Law are:
1. It must be perpetual.
2. It must be absolute and unconditional.
3. Possession of the thing appropriated must be given.
4. The waqf property should be entirely taken out of waqif.
The Madras and Nagpur High Courts have held that a non-
Muslim can also create a valid waqf provided the objective of the
waqf so created is not against the principles of Islam. According
to the Patna High Court, a valid waqf can also be constituted by
a non-Muslim. However, such a waqf would only be constituted
under a public waqf ie. a non-Muslim cannot create any private
waqf (e.g. an Imambara).
A person of unsound mind is incompetent to constitute a waqf
property as such a person cannot judge the legal consequences of
such a transaction. Therefore, a waqf constituted by an insane or
minor person is void.
Modes Of Creation of Waqf
Waqf can be created in the following ways.
1. By an act inter vivos– This type of waqf is created between living voices,
constituted during the lifetime of the waqif and takes effect from that very
moment.
2. By will– A waqf created by will is contradictory to a waqf created by an
act inter vivos. It takes effect after the death of the waqif and also known
as ‘testamentary waqf’. Such a waqf cannot operate upon more than one-
third of the net assets, without the consent of the heirs.
3. During death or illness (marz-ul-maul)– Like the gifts made while the
donor is on the death bed, will operate till the extent of one-third of the
property without the consent of the heirs of the property.
4. By immemorial user– Limitation of time also applies to the creation of
waqf property, but waqf property can be established by way of
immemorial use.
Mutawalli
 Under Muslim Law, as soon as a wakf is created, all rights of property pass
out of the wakif and vest in God.
 But there is a need for a person who can look after the property and
manage it.
 Mutawalli under Muslim Law is that person who supervises or take over
the management of a wakf.
 Mutawalli is the person who takes over the management of wakf.
Appointment of Mutawalli is compulsory in Shia Law. However, there is
no such compulsion in Sunni Law.
 Mutawalli under Muslim Law has no right in the property belonging to the
wakf. The property is not vested in him.
 Technically, the position of Mutawalli under Muslim Law is different from
that of a trustee. He is merely a manager or supervisor.
 Any person of sound mind and of majority age and is capable of
performing the functions to be discharged under a particular wakf can be
appointed as mutawalli.
 However, a minor can also be a mutawalli where the office is hereditary or
where the line of succession is laid down in the wakf-nama and office falls
on a minor.
 Generally, a woman can be appointed as mutawalli but where the
Mutawalli is required to discharge also religious function, a female, as well
as a non-muslim, cannot be appointed as a Mutawalli.
Appointment of Mutawalli
1. Founder: Founder of a wakf enjoys the full power of appointment. Moreover, he
can appoint himself as the first mutawalli. He can also lay down the rules for the
further appointment of mutawallis. On his deathbed, he can appoint even a
stranger as mutawalli.
2. Mutawalli: In case, where founder and wakif are dead and there is no laid out
scheme of succession, the ongoing mutawalli may appoint his successor on his
deathbed. But he has no such power in health. On the death of one of joint
mutawallis and the wakf is silent on what to be done in the event of one of them,
the office will pass on by survivorship.
3. Court: In all those cases where the founder has not appointed a mutawalli or he
cant be appointed as mutawalli, the court can appoint a mutawalli. The power of
appointment is vested in District Court. Few rules are followed by the court as
follows:-
a. The court disregards the direction of the settler.
b. Preference should be given to a member of settler over a stranger.
4. Congregation: Where a wakf is purely local like a graveyard or a mosque, then the
mutawalli can be appointed by collective decision of locality.
Power of Mutawalli under Muslim Law
A mutawalli has the power of management and administration of wakf
properties. He has the full power of utilising of wakf property for the purpose
for which the wakf has been created. He can alienate property with the prior
sanction of the court. Even without prior permission of the court, it is merely
voidable. Before the coming into force of Wakf 1954, mutawalli could file a
suit relating to a wakf. But now this power is with Wakf Board.

Removal of Mutawalli
After Mutawalli has been appointed, the founder can’t remove him unless
such power has been provided under wakf-nama. The court has the power to
remove a mutawalli. A court may remove mutawalli on the ground of
misfeasance, breach of trust or his unfitness or any other valid reason.
Pre-emption/Shuffa
• The word pre-emption is a right of substitution conferred on someone
either by statute, custom or contract.
• The right is to step into the shoes of the vendee preferentially, on the
terms of sale already settled between the vendor and vendee.
• In the words of Mulla, “The right of Shuffa or Pre-emption is a right
which the owner of the immovable property possesses to acquire by
purchase another immovable property which has been sold to another
person.” The Muslim law of pre-emption is to be looked at in the light of
the Muslim law of succession.
• Under Muslim law, the 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 the 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 the property to the extent that it restricts the
owner’s unfettered right to transfer of property and compels him to sell it
to his co-heir or neighbor, as the case may be.

Who can Pre-empt or the Classification of Pre-emptors

1. The shafi-i-sharik or a co-owner in the property.
2. The shafi-i-khalit or a participator in appendages. This expression means
a person who is entitled to such easements as a right of way, or discharge
of water.
3. The shafi-i-jar or owner of an adjoining property.

The right of pre-emption arises from full ownership, and it is immaterial that
a pre-emptor is not in possession of his property. It is the ownership and not
possession which gives rise to the right of pre-emption.
When does the Right of Pre-emption Arise
• The right of pre-emption arises only in two types of transfer of property –
sale, and exchange. When it arises in respect of a sale, then the sale must be
complete, bonafide and valid. [Najam-un-nissa vs. Ajaib Ali, (1900) 22 All
342] Similarly, the right of pre-emption arises in respect of exchange when
it is complete, bonafide and valid.
• The right of pre-emption does not exist in respect of a gift, sadaqah, wakf,
inheritance or lease. It does not apply to a mortgage also, but if a mortgage
is foreclosed, then the right of pre-emption arises.
• It has been held in various cases that the court should look into the real
nature of the transaction. A deed which is called a gift, if it is, in fact, a sale,
then the right of pre-emption will arise. [Bhagwan Dutt vs. Brij, 1938
Oudh 27]
The right of Pre-emption when parties belong to different sects or schools
and when some of the parties are non-Muslims

Pre-emption involves three parties: the pre-emptor, the vendor, and the
vendee. When all of the parties belong to same sect or school no difficulty
arises. But difficulties crop up when parties belong to different schools or to
different religions. It appears to be established that the right of pre-emption
can be claimed only if the law applicable to the vendor recognizes pre-
emption. [Pir Khan vs. Fyizaz Hussain, (1914) 36 All 488]

Under Shia law, the right of pre-emption cannot be claimed by a non-Muslim

pre-emptor where the vendor and vendee are Muslims. Also, where the law
of pre-emption is lex loci, or arises by custom, or is created by contract, then it
is immaterial that some of the parties are non-Muslims.
Formalities Necessary for the Exercise of the Right of Pre-emption
The Mohammaden law of pre-emption is a law of technicality, and the
existence of the right depends upon the full and complete observance of
formalities. Non-observance of any of the formalities will be fatal to the suit
of pre-emption. The two essential formalities are called “two demands”.
Fyzee says that there are three demands, though admits that the “third
demand” is not really a demand.

First demand or talab-i-muwasibat

This requirement lays down that the pre-emptor asserts his claim
immediately on hearing of the sale, but not before. This is called talab-i-
muwasibat or the first demand. No specific form of asserting this demand
has been laid down. It is imperative that the first demand must be made as
soon as the fact of sale becomes known to the pre-emptor. Any improper or
unreasonable delay will imply an election not to exercise the right of pre-
emption. [Baijnath vs. Ramdhari, (1908) 35 Cal 402]
The first demand need not be made in the presence of witnesses. The first demand to
be valid must be made when the sale has been completed. If a demand is made before
the completion of the sale, it is totally ineffective.

Second demand or talab-i-ishhad

The pre-emptor should, as soon as practicable, affirm the intention of asserting his
right by making the second demand wherein he refers to the fact that he had already
made the right demand. This is called the second demand. No specific form of
asserting this demand has been laid down.
It is imperative that the second demand should be made in the presence of two
witnesses and in the presence of the vendor (if he is still in possession of the property),
or in the presence of the buyer.

Third demand or talab-i-tamlik

The occasion of talab-i-tamlik will arise only if the claim is not conceded, and,
therefore, the pre-emptor files a suit to enforce his right. Thus, the third demand is not
an essential formality.
When the right of Pre-emption is lost
The right of pre-emption may be lost in the following cases: a) by acquiescence or
waiver, b) by the death of the pre-emptor, c) by misjoinder, and d) by release.
1. By acquiescence or waiver – Acquiescence takes place when a pre-emptor fails to
observe necessary formalities, such as making of demands. The right of pre-emption is
also lost when the pre-emptor enters into a compromise with the buyer, such as when he
agrees to cultivate the land (subject matter of pre-emption) with the vendee.
2. By the death of the pre-emptor – If the pre-emptor dies after making both the demands
but before the filing of the suit, the right of pre-emption is lost. And his legal
representative cannot file the suit.
3. By misjoinder – If the pre-emptor joins himself as a co-plaintiff with a person who is not
entitled to claim pre-emption, then the right is lost and the suit must be dismissed.
4. By release – The right of pre-emption is lost if the pre-emptor releases the property for
consideration to be paid to him. However, the right of pre-emption will not be
extinguished, if, before the completion of the sale, the property was offered to the pre-
emptor, but he refused to buy it since the right of pre-emption accrues only after the
completion of the sale.
Effect of Pre-emption
Once a suit for pre-emption is decreed, the pre-emptor stands the pre-emptor
stands in the shoes of the vendee and take the property subject to all existing
equities. However, the original 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 to the pre-emptor.
The right of pre-emption cannot be defeated, or affected by any disposition
made by the vendee, nor can it be defeated by the death of the vendee.
A decree of pre-emption cannot be transferred by the pre-emptor. If the pre-
emptor transfers the decree, then the transferee of the decree is not entitled to
take possession of the of the pre-empted property. [Mehr Khan vs. Ghulam,
1922 Lah 308]