Pre-emption notes
There are four sources of the right of pre-emption in India which include
Muslim personal law, Custom, Statute and Contract. For Muslims, the law
of pre-emption was a part of their personal law, while among Hindus the
law of pre-emption was mainly recognized as a customary right
Right of Pre-Emption and it’s Essentials
The right of ‘pre-emption’ is given to the owner of immovable property to
acquire another immovable property that has been sold to some other
person. It is the purchase by one person before all others. Therefore, it is
a right of substitution and not of re-purchase.[5] The objective behind this
right is to maintain privacy and prevent strangers to come in neighbour or
in a family.
It is basically the right given to the owners of an immovable property for
quiet enjoyment of that immovable property to obtain in substitution for
the buyer, possession of certain other immovable property, on such term
that as those on which such latter immovable property is sold to any other
person.
However, to exercise the right of pre-emption, there are certain
conditions that need to be satisfied. Those conditions are-
1. ownership over an immovable property,
2. sale of the property which is not of the person exercising the right of
pre-emption,
3. there should be some relation with respect to the property between the
pre-emptor and the seller of the land,
4. possession of the other property is given to the pre-emptor on the same
terms as on which the other person is given the right.
SUBJECT OF PRE-EMPTION
The first rule is that the subject of pre-emption must be an immovable
property. It may be zamindari property or a house or a garden or a small
plot of land . In this connection, it should be noticed that the superstructure
of a house, sold apart from the land on which it is built is not an immovable
property.
The second rule is that subject of pre-emption must be pre-empted as a
whole. No pre-emptor can claim a part of the property sold. The reason for
this is that if it is allowed , every pre-emptor will try to take the best part
of the property.
The right of pre-emption is lost in the following manner:
Omission to claim or waiver; or excessive delay in demanding it:
when the person entitled to this right, either expressly or impliedly
waived it or omits to assert immediately his right.
Death of pre-emptor: the right to pre-emption dies with the death
of pre-emptor, where the pre-emptor dies before enforcing it,
under the Hanafi law. Under Shafi’s and Shiite law, the right to
pre-empt delegates upon the pre-emptor’s heirs in the proportion
of their right of inheritance.
Formalities required to claim Pre-emptive rights:
1)Talab-i-Mowasibat or Immediate demand
2) Talab-i-Ishhad or Confirmatory demand
3) Talab-i- Tamleek or Demand for possession
To exercise the right of pre-emption, pre-emptor has to perform
certain formalities.
a) The pre-emptor has to declare his intention to assert the right
immediately after getting information regarding the sale (this is
called talab-i-mowasibat). The talab-i-mowasibat can also be made
by the person authorized by pre-emptor or by de facto guardians in
case the pre-emptor is a minor.
b) Such declaration of the intention should be made in the presence of
two witnesses (this is known as talab-i-ishhad).
c) After that, the legal action gets initiated i.e. talab-i-tamlik. However,
the third stage to exercise the right is not mandatory while
establishing the right of pre-emption
The pre-emption right can be exercised by any of the following
three categories of the people- (Types of Pre-emption)
The right of pre-emption is available to owners that is, any of the
following three types of ownerships:
Pre-emption on the basis of co-sharers (Shafi-i-Sharik)
The owner of an undivided share in the immovable property previously
inherited from a deceased person. In the case where the other co-owner
sells his share to someone without first offering it to his co-sharer, then the
co-owner has a right to claim it back from the outsider.
Pre-emption on the basis of a participator in immunities and
appendages (Shafi-i-Khalit)
The pre-emptor is known as a participator in immunities and appendages
There are three ways in which a person may be considered to be a Shafi-i-
Khalit:
1. he may be the owner of a dominant heritage;
2. he may be the owner of a servient heritage:
3. the property sold, also the property of the pre-emptor may be a
dominant heritage to a third person’s property.
In short: participator in appendage such as a right of way etc (Shafi-i-
khalit), and
Pre-emption on the basis of neighbourhood or vicinage (Shafi-i-
Jaar)
The owner of adjoining immovable property, which is a neighbour. The right
of pre-emption on the ground of the vicinage doesn’t extend to the estate
of large magnitude; it is confined to houses, gardens, and small pieces of
land. Where more than one pre-emptor belongs to different categories, the
first category or class excludes the second, and the second excludes the
third.
In short: owner of an adjoin property (shafi-i-jar). In addition to that, the
right of pre-emption arises only out of a valid and complete sale. It does
not arise out of a gift or mortgage
Constitutional Validity and case law:
In the case of Pyare Mohan v. Rameshwar the Court observed that the right
of pre-emption is a very weak right and a bona fide purchaser cannot buy
land which he is legally entitled to own.[11] Before 1978, the Indian
Constitution also recognized the right to property as a fundamental right
under section 19(1)(f). Therefore, pre-emption is not favoured by the law
as it seizes the property merely on the apprehension of inconvenience.
In 1962, the Supreme Court got an opportunity to decide the question of
constitutionality in the case of Bhau Ram v. Baji Nath, wherein the
Supreme Court held the statutory provision of pre-emption on the basis of
vicinage is unconstitutional.
Constitutional Validity
Before the 44th Constitutional Amendment Act, 1978
The law of pre-emption infringes the fundamental right to hold and dispose
of property, guaranteed under Article 19(1)(f) of the Constitution?
Article 19(1)(f) of the Constitution of India states that all citizens have the
fundamental right to acquire, hold and dispose of the property. Also, as
per clause 5 reasonable restrictions can be imposed, in the interest of the
general public.
Several High courts held that pre-emption on the ground of vicinage is void,
being an unreasonable restriction under Article 19(1)(f), but pre-emption
between co-sharers (shefi-i-Sharik) or owners of dominant and Shafi-i-
khalif, is protected by clause (5) i.e., reasonable restriction. In Bhau Ram
v. Baij Nath Singh (1961), the Supreme Court held that pre-emption by
vicinage, restricts the right to dispose of property and not in the public
interest, the restriction imposed was not reasonable. Additionally, it divided
society based on caste and religion which is prohibited by Article 15 of the
Constitution of India.
After the 44th Constitutional Amendment Act, 1978
After the amendment Article 19(1)(f)- right to property and Article 31 was
taken away from the Constitution and it was subjected under Article 300A.
The question was raised whether the judiciary can be used to implement
customary rule (by vicinage) on the grounds of caste and religion prohibited
under Article 15 of the Constitution.
In the case of Razzaque Sanjansaheb Bagwan v. Ibrahim Haji Mohd (1998),
the right of pre-emption was claimed on the ground by vicinage, having
property adjacent to the suit house. The Supreme Court observed and held
that the law of pre-emption constructed on vicinage is void and
unconstitutional, hence, the claim was dismissed.
HOW CAN THE RIGHT BE LEGALLY EVADED
1) By leaving an unsold strip of land touching the boundary of the pre-
emptor’s land so that his land does not adjoin the portion sold. It can defeat
only the neighbour
2) By leasing out the property in perpetuity instead of selling it. But the
lease should be bonafide.
3) By executing a deed of gift. It should also be bonafide and not colourable.
DIFFERENCE BETWEEN SUNNI AND SHIA LAWS on Preemption
Sunni Law Shia Law
As to who can claim it; under sunni Whereas in shia law on co-share
law a co-sharer,participator in alone and that too if the number of
appendages and owner of adjoining co-sharer doesnot exceed two.
land.
As to right to sue; In sunni law if whereas in shia law it may be
pre-emptor dies cause of action continued by legal representatives .
ends But now section 306 of ISA,1925
applies even if pre-emptor dies it
will continue.
As to number of demands;Under but not in case of shia.
sunni law two conditions are to be
fulfilled
As to abatement of price; Under but not in shia law.
sunni law if after the completition of
sale if
vendor makes an abatement of
price, the pre-emptor can claim the
benefit
