Personal laws

This article is written by Shafaq Gupta. The article deals with the right of Shufa, also known as the right of pre-emption under Muslim law. It deals with the various aspects of it in detail, like, the conditions and the formalities which must be observed for claiming Shufa. The article also throws light on the various sources of it and its development in modern day India.

Introduction

With the advent of Mughal rule in India, the law of Shufa was introduced. Gradually, it became applicable to all people, including the Hindus. However, Muslims follow their own set of regulations in certain matters such as the right of pre-emption, and are governed by personal laws rather than general laws. When the Britishers came to India in 1600s, the right of preemption, also known as Shufa, already existed as part of Muslim law or as part of customs or by way of contracts. 

Pre-emption, which is referred to as Shufa under Muslim law, basically means a ‘first opportunity to buy or purchase.’ The pre-emptor stands in a privileged position as compared to other buyers as he should be given first priority in matters of sale of the property. The right of pre-emption comes into being when there is joint property and it is owned by more than one person i.e. multiple co-owners. It may also come into being on the basis of consanguinity (blood relationship) etc.

Download Now

In the case of Kunwar Digamber Singh vs. Kunwar Ahmad Sayeed Khan (1914), Sir John Edge threw light on the history and origin of the right of preemption. In British India, it referred to the right of a group of people to take over the village property and had its origin in Mohammedan Law. Gradually, it developed in the form of customs in some areas and these rights were embraced or nurtured by the village community. The villages either had their unique customs or derived them from the Muslim law of pre-emption. Sometimes these rights were exercised by way of agreements or by acts of legislature. In case of conflict between any customs or agreements, they need to be proved. The main objective behind the right of pre-emption was to prevent the outsiders from joining the village as sharers and not let them hold or acquire property. As we all know, the transfer of property is an essential pre-requisite for the growth of an economy and no one would want any stranger to enter upon and hold their property as the owner. 

In this article, we will be dealing with the right of Shufa under Muslim law, its constitutional validity, and its associated rights. 

Meaning of Shufa (pre-emption) in Muslim Law

Shufa is an Arabic word that refers to conjunction. It is the right of the owner of the property that is adjacent to or in conjunction with another immovable property. The word ‘right’ implies haq. The haq-Shufa connotes the right to acquire the neighbouring property at a later stage from the fresh purchaser. 

In the words of Mulla, the Shufa or right of pre-emption is a right obtained by the owner of an immovable property by purchasing another immovable property that has been sold to others. It gives the person priority over the property already being sold by the owner and can be claimed by paying the same price as would have been paid by any other buyer. 

For example, if A, the owner of an immovable property, wishes to sell his land and B is the owner of the adjoining property, then A is under a legal obligation to first ask B for it. If B refuses to buy that land or is not interested in it, then A may make an offer to sell his land to any other stranger C. When a situation arises that A sold his land to C, without even asking B, then B can exercise his right of pre-emption and dislodge C from that property by paying an equal amount paid by C to A.

The Muslim law of pre-emption should be seen in the light of the Muslim law of succession. As per Muslim law of succession, after a person dies, his property is divided into fractions. Now suppose that his property is offered for purchase to a stranger without asking the other co-sharers, it would automatically create inconvenience. Therefore, the law of pre-emption limits the right of transfer of ownership of property to any other person without asking the co-heir or co-owner first. 

The right of pre-emption was also recognized by the Romans but in a different manner. The vendor (the owner of the immovable property to be sold) was under an obligation to sell the immovable property to a determined person if he agreed to purchase it on the same conditions as that of the vendee (the stranger who came to buy the property). But, according to Romans this right of pre-emption could only be exercised before the completion of sale of immovable property. It is not the same as in India. In India, Shufa can only be exercised after the completion of valid sale of property and even affects the fresh purchaser i.e. the vendee. A decree has to be passed by the court with regards to it and can be considered as acquisition by way of compulsory purchase.  

In the case of Mohd. Rashid vs. Abdul Rashid (1955), the Allahabad High Court defined pre-emption under Muslim law as the right that gives preference to the pre-emptor who lives adjacent to the property being sold. It can neither be inherited nor transferred. 

In the case of Indira Bai vs. Nandkishore (1991), the Supreme Court defined the right of pre-emption, which arose out of Muslim personal law, as a feeble and weak right that could be defeated by the law of estoppel. Estoppel puts checks and balances on the conduct of the person and prohibits the person from claiming an advantage of his own wrong. The earlier statements made by him cannot be denied at a later stage and strike at the fairness of justice. 

Historical background

The history of the right of pre-emption can be traced back to the sixth century AD which was known as the pre-Islamic dark age in relation to the Arab countries. No particular norms were followed. Anyone could enter upon another’s property without any permission. On a regular basis, the women of their families were mistreated by the male dominated society. To find a solution to this problem, Prophet Mohammad, the founder of Islam, organised a campaign by putting the teachings of the Quran into practice. In the words of the Prophet – “It is unlawful for a partner to sell his share without the permission of his partner. If the latter likes, he would buy or would let go of it. If one partner sells with his partner’s permission, the latter is more entitled to it.” The purpose behind this practice was to build harmony and peace among people. The law of pre-emption became applicable to every jointly owned undivided property. It prevented any inconvenience and disturbance caused by the strangers. As a result of this practice, the co-owners could acquire a jointly owned property for their own family benefits and they all developed an amicable relationship among themselves. 

Shufa was mainly practised as a part of Muslim personal law only. They used to obey it as the common law of the lands which were under the influence of the Mughal rulers.  But when the other communities felt the need to make such laws for themselves too, they started following it as part of customs. As a customary law, it became applicable to all the properties that came within those areas where that custom was followed, regardless of the religion, nationality, or the domicile of the property owners. After that, when the Britishers came to India, they enforced the right of pre-emption on the basis of justice, equity, and good conscience. Later, they codified these laws into acts of legislature in a few parts of the country. 

Objective of Shufa (pre-emption) 

The objective behind the right of Shufa is to prevent annoyance or disturbance that may be created by giving rights over property to a stranger. It gives preference to a person who already shares a certain relationship with the owner of the immovable property who wishes to sell it. He is given priority over property as compared to third parties. The practice of Shufa basically dislodges the stranger from entering his neighbourhood. 

In the case of Bhoop vs. Matadin Bhardwaj (1990), the Supreme Court held that the right of pre-emption is purely a personal right. According to the Apex Court, this right may be founded in a statute, custom, or personal law but in every case, the sole object of this right is to keep away an objectionable stranger from the neighbourhood.

Parties involved

Shufa which means the right of party adjacent, involves three parties:

The Vendor: The owner of the immovable property who wishes to sell it.

The Vendee: The third party or the stranger who wishes to buy it.

The Pre-emptor: The party living adjacent to or neighbour, co-owner, or co-heir of the property.

So generally, if A (vendor) is selling land that is adjacent to B’s house, he must first ask B (pre-emptor) whether he wishes to purchase it or not. Only if B denies, he must sell it to any person C (vendee). 

Essential elements of Shufa (pre-emption) under Muslim Law

These are basically the essential elements of Shufa:

  1. The right of pre-emption is only available to the owner of immovable property. He must have full ownership of that immovable property.
  2. There must be sale of the immovable property and it must not belong to the pre-emptor. 
  3. There should be a certain relationship between the seller and the pre-emptor.
  4. The buyer is subject to the same conditions as would have applied to any other buyer. He is liable to pay an amount equal to the amount paid by any other buyer.
  5. The right is given by law for the quiet enjoyment of the property.

Nature of the right of pre-emption

In the case of Sk. Kudratullah vs. Mohini Mohan Saha (1869), the High Court of Calcutta stated that the sale of immovable property which is subject to the right of pre-emption passes on the full ownership to the purchaser. The right arises after the completion of the sale of that property. They opined that the right of pre-emption is a mere right of repurchase. 

After 16 years of the above judgement, the nature of the right of pre-emption was explained in the case of Inayatullah vs. Gobind Dayal (1885). It was held that the right of pre-emption is exercised in the same way as the property had been sold to any other person. The co-owner (pre-emptor) claimed the property had to pay the same amount as would have been paid by any stranger or the vendee, to the vendor. The sale of the property itself is not the cause of pre-emption as the right arises after the sale, but the circumstances surrounding that property. The right exists independent of the sale and gives a preferential right to the pre-emptor.

In the case of Bishan Singh vs. Khazan Singh (1958), Justice Subba Rao of the Supreme Court of India summarised the right of pre-emption in the following pointers:

  1. The right of pre-emption can be exercised against the property which is offered to be sold and not against the already sold property. Therefore, a primary right.
  2. The pre-emptor holds a remedial right to follow the thing sold. 
  3. It is not a right of repurchase, but rather a right of substitution as the pre-emptor himself bargains by stepping into the shoes of the original vendee. 
  4. Through it, the whole immovable property which is to be sold is acquired, not merely a part of it as the pre-emptor may choose the best part for himself.
  5. The pre-emptor must have a superior right over the property than a vendee because the right of pre-emption is based on preference. 
  6. It is a weak right that can be defeated by lawful methods. Like, the vendee may allow a person who is in superior or equal authority over the disputed property, to be substituted in his place. 

Who can claim the right of Shufa (pre-emption) under Muslim Law

The pre-emptors have been classified into various kinds based on the person who can pre-empt. They are as follows:

  1. The Shafi-i- Sharik – Co-owners of the property.

If there is more than one owner of an undivided property, the co-owner has the right to claim that property before others. It cannot be exercised on a property which is leased or mortgaged. The vendor must be the full owner of the property in dispute. Under Shia law, the right can be claimed on the basis of Shafi-i-Sharik when the co-owners of the property are limited to two only.  

  1. The Shafi-i-Khailat – The participator in immunities and appendages.

The right of Shufa can be exercised by the person who is a participator in immunities and appendages. Immunities basically mean the pre-emptor has the right of easement over the disputed land and appendages refer to the land attached to the land of the pre-emptor. So, it basically means that the pre-emptor has the right of easement over the land attached to his property and is in dispute. For example, the pre-emptor may be exercising an easementary right of way or right to discharge water from the disputed land.

In the case of Ladu Ram vs. Kalyan Sahai (1963), it was held by the Rajasthan High Court that the right of Shaif-i-Khailat cannot be claimed against the right of easement of light or air. It can only be claimed against the right of way and the right to water. As it is a right in rem, it cannot be claimed against the right to draw water from the government water course. 

  1. The Shafi-i-jar – The owner of an adjoining property. 

It can be exercised by the neighbour or the owner of the adjoining immovable property which is to be sold. It cannot be claimed by the tenant as he is not the full owner of the property. Similarly, the Wakif or Mutawalli do not have the right to pre-empt as they hold property in the name of God and not themselves. They are not the owner of the property entrusted to them. It was not used to extend to larger properties such as zamindaris and jagirs but was restricted to small properties such as houses, gardens, etc. 

In the case of Sakina Bibi vs. Amiran (1888), it was held that Shufa is exercised against the owner of the property. It is immaterial whether he has the possession of property or not. 

Shufa (pre-emption) and schools of Muslim Law 

The different schools of Muslim law recognize the rights of Shufa differently. They all do not follow it in a uniform manner.

Shafi law – They recognize the right of pre-emption only to co-sharers of property. The right of pre-emption of the same class is in proportion to their share in the property. Among the pre-emptors of the same class, no differentiation is made.

Hanafi law – They recognize it to the fullest extent. All three types – i) Shafi-i-Khailat ii) Shafi-i-Sharik iii) Shafi-i-jar are recognized by them. The pre-emptors of the same class have the right to pre-empt in equal proportions, even though they own unequal shares. 

Ithana Ashari law – It recognizes the right of pre-emption only in case of co-sharers but the number of co-sharers must not exceed two. It is not offered to neighbours as it does not recognize the right of pre-emption by Shafi-i-jar. 

Fatimidi law – Like many other schools of Muslim law, this school also does not recognize the right of neighbour or participator in appendages. Only the right of the co-sharer is allowed. 

Ismaili law – It basically rejects vicinage (when two properties are adjacent to each other) as the basis of the right of pre-emption. Only co-sharer’s rights are recognized. 

So, based on the above information, we can see that the right of the co-sharer or Shafi-i-Sharik is the most widely recognized right of pre-emption. 

Conditions for exercising the right of Shufa

When does the right of Shufa arise

The right of Shufa arises in two types of transfer of property. They are- sale and exchange. 

In case of sale

The property must be subject to a valid sale. In the case of Najm-un-nissa vs. Ajaib Ali (1900), it was declared by the Allahabad High Court that the sale should have been valid, bona fide, and complete. The sale must be for proper consideration. There must be the actual sale of the property concerned and not a mere intention to sell. 

The court noted that in some instances, the right of Shufa does not arise. Like in the case of a gift, sadaqah, wakf, inheritance, bequest or lease. Moreover, It cannot arise out of a mortgaged property or a leased property even if it is leased in perpetuity as these are not considered as sale of property. 

In the case of Mt. Girraj Kunwar vs. Irfan Ali (1951), the Allahabad High Court delivered the judgement that a waqf estate cannot claim the right of pre-emption against the waqf property as they are not the owner of that land themselves. They hold property in the name of God. The Muslim law doesn’t recognize God as a party to a claim before a Qazi and there is no clear position of law on this point. 

In the case of Munni Lal vs. Bishwanath Prasad (1967), the Supreme Court stated that there must be full ownership of the land to be pre-empted and the pre-emptor must also be the full owner of his own land because the Muslim law of pre-emption is based on the law of reciprocity and both should fulfill similar obligations. The sale of a leasehold interest in the property is not a valid sale. 

When the sale is complete

The sale of the concerned immovable property must have been complete. In Muslim personal law, the sale is considered complete when the possession of the property is transferred to the vendor. It is not necessary to execute an instrument of sale. But, it is in conflict with Section 54 of Transfer of Property Act,1872 which says that the sale of property of value above Rs. 100 must be registered for it to be considered complete. 

The question before the courts was whether the sale must be considered complete as per the Muslim law or the Transfer of Property Act,1872. It was interpreted differently by different courts of law. 

In the case of Begum vs. Muhammad Yakub (1894), the Allahabad High Court held that if the sale is complete as per the Muslim personal law, the right of pre-emption will arise.  On the contrary, in another case of Jadulal vs. Janki Koer (1912), the Calcutta High Court held that the sale would be considered complete when the parties to it intended it to be considered complete. It wholly depends upon their intention. These different opinions were resolved by the Supreme Court of India in the case of Radhakisan Laxminarayan Toshniwal vs. Shridhar Ramchandra Alshi (1960). In this case, it was held that in the instances where the Transfer of Property Act, 1872 was applicable, the sale should have been complete as per the provisions of the Act and the Muslim personal law cannot override the authority of a statute. The right of pre-emption arises only on the completion of a valid sale but must persist as long as the decree is passed by the trial court. So, if the plaintiff sold his self-owned property to anybody else after the suit against pre-emption had been instituted, he would lose his right of pre-emption as he was no longer the owner of the property and wouldn’t be entitled to a decree by the court. 

In case of exchange

For the right of pre-emption, the exchange of property between both parties must be certain. There must not be an option to cancel it and take back the property during the lifetime of any of the parties. If such an option exists, the right of pre-emption would not arise. 

In cases where the parties belong to different religions or sects

In India, all the religions are considered equal as we believe in secularism. The right of pre-emption involves three parties: the pre-emptor, the vendor, and the vendee. When all the three parties belong to the same religion, it does not cause any conflict. But when some of them belong to different religions, the difficulty crops in. In such cases, the principle of reciprocity is to be applied which states that the people must respond to each other in similar ways and there must be uniform application of the laws on them. It is based on principles of justice, equity, and good conscience. So, it would be considered very unfair to apply general principles to all the three parties as some of them may not be subjected to fulfill the similar obligations. 

Both the vendor and the pre-emptor must be a Muslim. Even the vendee should be a Muslim because if he is a Non-Muslim, he would take advantage of property as a pre-emptor and won’t have to fulfill any similar obligations as that of a Muslim. If he has to sell his land acquired by the right of pre-emption, he can sell it to anyone and not necessarily to a Muslim. Different views have been taken on this instance by various high courts. There is a difference of opinion with regard to the question of who should be a purchaser i.e. the vendee. 

According To the Allahabad and Patna High Courts, it is not necessary that a vendee should be a Muslim. On the contrary, the Calcutta and Bombay High Courts are of the opinion that the vendee should also be a Muslim. In the case of Govind Dayal vs. Inayatullah (1885), the Allahabad High Court was of the view that the religion of the vendee is immaterial for the right of pre-emption to arise.

A situation may arise when all the parties to pre-emption are Muslims but they may belong to different sects i.e. Shia sect and Sunni sect. In the case of Pir Khan vs. Fyizaz Hussain (1914), the appellant (pre-emptor) was a co-sharer in a mahal and belonged to the Sunni sect of Muslims. But the vendor belonged to the Shia sect of Muslims and the vendors, who were strangers to the property, were Hindus. The Shia and Sunni sect of Muslims do not recognize the right of pre-emption in a uniform manner. So, the Allahabad High Court was of the opinion that the right of pre-emption can be claimed only if it is recognized by the laws that were applicable to the vendor. Therefore, in this case, the law of preemption, as applicable to the Shia sect, was held to be valid because the vendor belonged to the Shia sect. 

A five judge bench of Hyderabad High Court in the case of Pasha Begum vs. Syed Shabbu Hassan (1956), gave a few points which have been mentioned below.

In this case, the right of pre-emption was claimed on the basis of vicinage(neighbourhood) The majority pronounced the following tests : 

  1. If the vendor is Shia and the pre-emptor is a Sunni, then the right cannot be exercised as the Shia law does not recognize the right of pre-emption on the basis of vicinage.  
  2. In the reverse case also, the pre-emptor will fail again, as there is no reciprocity between the two schools.  
  3. If the vendee and the pre-emptor belong to the same school, then the rules of pre-emption of the school to which the parties belong will apply.

Moreover, under Shia law, the right of pre-emption cannot be claimed by a Non-Muslim pre-emptor where both the vendor and vendee are Muslims. It is because when a Muslim wants to sell his property, he is under an obligation as per Muslim law to sell it to his neighbour or co-sharer first before selling it to others. But a Non-Muslim is not under an obligation to perform such duties. So, if a Non-Muslim is allowed to pre-empt, he will be given a right without any corresponding obligation. 

Formalities for claiming the right of Shufa (pre-emption)

The Mohammedan law of pre-emption is very technical and all the formalities must be observed carefully and completely. If no demand is made for claiming it, the right of pre-emption does not arise by itself. 

First demand or talab-i-mowasibat

The first demand is referred to as ‘demand for jumping’ and must be made immediately as soon as the pre-emptor hears about the sale of the property being made. There is as such no prescribed form for making the demand. The Hedaya recommends that it can be asserted by saying, “I do claim my Shufa”. The first demand made must be clear and unequivocal and it must be made as soon as the fact of sale becomes known to the pre-emptor. 

It need not be made in the presence of witnesses. Moreover, it is not required to be made by the pre-emptor in person. It can be made by his manager or any person who had been previously authorised by him. The first demand is valid only after the completion of the sale. Otherwise, there is no demand.

Second demand or talab-i-ishhad

The second demand is referred to as the ‘demand involving witnesses’. It is a re-assertion made by the pre-emptor that he intends to claim his right of Shufa as previously intimated. It needs to be made in the presence of two witnesses. The second condition is that it must be made in the presence of the vendor (if he has possession of the property) or of the vendee or on the property. It is not necessary for the vendee to hold possession of the property while a second demand is made. If the demand is made on the property, it is not essential to enter the property completely. Even going near it and touching it is enough. 

There is no prescribed form for making a second demand. The Hedaya gives a sample of it which may be followed. It states that such a statement may be made: “Such and such person (naming the vendee) has purchased the land, and I have demanded the pre-emption, and now do demand it; bear the witness to this.”

The third demand or talab-i-tamlik

The third demand is referred to as the ‘demand for possession’. If the pre-emptor fails to achieve his right in the first two demands, he can make the third demand by filing the suit in the court. It is the mode of enforcing the right of pre-emption and must be made within one year of the vendee taking possession of the land. This period of limitation can’t be extended on the basis of the minority of the pre-emptor. He may file a suit through his guardian or any other person authorised by law. The whole of the land in question must be claimed. The pre-emptor is not allowed to take a part of it because he may keep the best part of it for himself and leave the rest.

When the right of Shufa (pre-emption) is lost

The right of Shufa is lost under the following cases:

  1. By acquiescence or waiver – The right of Shufa is lost by acquiescence when the pre-emptor fails to follow the formalities for claiming it. Like, he does not fulfil all the three demands in time. If the pre-emptor, expressly or impliedly, waives of his right of pre-emption, he loses it.
  2. By the death of a pre-emptor – When the pre-emptor dies after making the first two demands and before filing the suit for claiming it, the right of pre-emption is lost and his legal heirs cannot file a suit on his behalf. 
  3. By misjoinder –  When the pre-emptor joins himself as a co-plaintiff in filing the suit with any such person, who is not entitled to it, the right of preemption is lost. It is known as a misjoinder of parties. But, if he joins himself as a co-plaintiff with a person who was entitled to the right but that person did not make the first two demands, his right would not be lost. 
  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 lost if the property was offered to the pre-emptor before its sale, but he refused to buy it because the right of pre-emption accrues only after the completion of the sale.
  5. By statutory disability – The pre-emptor must necessarily follow the provisions of the law. Anything done contrary to it will result in losing his power of pre-emption.
  6. By loss of right before final decree: The right of the pre-emptor must exist till the date when the final decree is to be passed by the trial court. If he loses his right before the final decree is passed, he would no longer be entitled to it. However, it is not necessary that the right must persist till the date of judgement by the appellate court. 

Constitutional validity of Shufa

Before the 44th Constitutional Amendment Act, 1978

The right of pre-emption infringed upon the fundamental rights guaranteed by our Constitution under Article 19(1)(f) and Article 31. It was a fundamental right to hold, acquire, and dispose of property and no person could be deprived of his property except according to the law. He was bound by the Muslim law of pre-emption or Shufa which was in conflict with the Constitution. But under Article 19(5) of the Constitution, reasonable restrictions can be imposed upon these fundamental rights, and the law of pre-emption which was in violation of these rights, as the owner of the property was not given a free will to dispose of his property, was protected under Article 19(5). 

In the case of Bhau Ram vs. Bhaji Nath Singh (1961), the honourable Supreme Court held that the right of pre-emption was illegal as it imposed unnecessary restrictions on the right to dispose of property and was opposed to the public interest. In another case Sant Ram vs. Labh Singh (1965), the right of pre-emption was held to be void by the Supreme Court as it restricted the rights of both the vendor and the vendee to dispose of their property according to their own choice. Moreover, it created discrimination among people based on caste and religion which is violative of Article 15 of the Constitution. 

After the 44th Constitutional Amendment Act, 1978

The 44th Constitutional Amendment Act came in 1976 and it changed the landscape of property rights in India to a greater extent. Article 19(1)(f) and Article 31 of the Constitution were repealed and the right to property was recognized as a constitutional right under Article 300A. There was no fundamental right to acquire, hold, or dispose of property. Though it did not remain a fundamental right, the law of pre-emption was still a legal right and therefore, was bound by restrictions imposed by Article 14  and Article 15 of the Constitution.

In the case of Atam Prakash vs. State of Haryana & Ors. (1986), it was held by the Supreme Court that the right of pre-emption claimed on the basis of consanguinity i.e. blood relationship is unconstitutional. Earlier, this right was exercised so as to maintain family integrity and unity in the rural society which are totally irrelevant today. Section 15 of Punjab Pre-emption Act, 1923 was held to be unconstitutional as there were no relevant and justifiable classifications of co-sharers who are entitled to claim pre-emption.  

In the case of Razzaque Sajunsaheb Bagwan vs. Ibrahim  Haji  Mohd. Husain (1998), the right of Shufa was claimed on the basis of vicinage i.e. having property adjoining to the property to be sold. The Supreme Court of India declared it to be void and unconstitutional. 

In the case of Raghunath(D) by Lrs. vs. Radha Mohan(D) by Lrs. (2020), it was held by the Supreme Court that the right of pre-emption could only be used for the first time when the need arose. After that, it lapses and can’t be claimed at a later stage. 

Applicability of Shufa (pre-emption) in India

By Muslim Personal Law 

Shufa existed as part of Muslim Personal Law in India as earlier there were no such statutes and customs related to it. It was applicable only to Muslims. In the case of Avadh Behari vs. Gajadhar (1954), it was held by the Supreme Court that Shufa was neither a customary right nor a territorial right, but applicable as part of Muslim personal law. In another case Mohamed Bed Amin Beg vs. Narayan Patil (1915), the Bombay High Court opined that the right of Shufa restricted the freedom of sale of property as per the choice of the owner and it was abrogated as per provisions of Transfer of Property Act, 1882 and Indian Contract Act,1872. 

By Statutes

In some areas of India, the right of pre-emption existed by way of statutes. People were given statutory rights and could go to court in case of their violation. A few examples of it are:

Rights under these Acts were given to both Muslims and Non-Muslims. 

By Customs

In a few areas, where there was no statutory law, it was recognized as part of customs. Customs are those common practices that have been followed since time immemorial and are reasonable, certain, moral, and not opposed to public policy. They have been followed by a large number of people consistently and therefore, enjoy the force of law. The burden of proving the custom lies on the person who asserts it. It was applicable to Hindus who either had their domicile there or were the permanent natives of these areas for a long time. For example, the customary law of pre-emption was followed in all these areas – Bihar  Sylhet, parts of  Maharashtra, and  Gujarat such as Surat,  Godhra, and Ahmedabad;  parts of  Uttar Pradesh such as  Banaras,  Muzaffarnagar,  and  Saharanpur; and Bengal. 

In the case of Avadh Behari vs. Gajadhar (1954), it was held that the customs form the part of lex loci (law of the place) and are applicable to everyone, irrespective of the religion of the parties concerned. Shufa was also followed as custom in certain areas and it had to be followed by everyone as the law of the land.

By Contract

The right of Shufa could also become applicable to anyone by entering into a valid contract. For example, a contract may be entered into by a Hindu vendee and a Muslim vendor, and the Muslim law of Shufa, as applicable to the vendor, may also be applicable to the vendee in the same manner. 

Effect of Shufa (pre-emption) 

After the final decree for the suit of pre-emption is passed by the authorised court, the pre-emptor stands in the same position as that of the vendee and becomes liable to pay the same amount as paid by the vendee for the purchase of the property in question. But the original vendee is entitled to some benefits. He has the right to get profits such as rent or other profits for the period between the date of the first sale and the date when the property was transferred to the pre-emptor. The property is considered to be transferred to the pre-emptor when he pays the actual price to the vendor. The death of the vendee or any disposition of property made by him does not affect the right of pre-emption of the pre-emptor. But the pre-emptor cannot transfer the final decree executed in his name. 

Conclusion

In conclusion, we see that the right of pre-emption exercised by the co-owners of the property is most widely recognized under various schools of Muslim law. It can only be exercised against a completed sale of immovable property and the Transfer of Property Act,1872 overrides the Muslim personal law. It is a weak and feeble right which can be defeated by way of estoppel. It must be made compulsory to go to alternative dispute resolution before going to court to file the suit as it would reduce the overburden caused by the pendency of cases. 

References 

RELATED ARTICLESMORE FROM AUTHOR

LEAVE A REPLY

Please enter your comment!
Please enter your name here