The idea of ‘pre-emption’ finds its origin in the Mohammedan Law, and was unknown in India till the advent of Moghal rule.[1] This was administered as general law of land and applied to both Hindus and Muslim. Later, it was introduced by the Britishers on the grounds of justice, equity and good conscience even on the Muslims.[2]
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.[3] In some areas, pre-emption was regulated by statutory law such as Punjab Pre-emption Act 1913 and Agra Pre-emption Act 1922. Lastly, the right of pre-emption was also created by contract. Fourthly, pre-emption is also sometimes included in contracts apart from the custom or any legal sanction. These types of contracts are generally entered by when one of the parties is Muslim and other is Non- Muslim.[4]
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.
The pre-emption has also been defined by Justice Syed Mahmood as a 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[6].
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.[7]
To exercise the right of pre-emption, pre-emptor has to perform certain formalities. 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.[8] Such declaration of the intention should be made in the presence of two witnesses (this is known as talab-i-ishhad). 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 preemption.[9]
The pre-emption right can be exercised by any of the following three categories of the people-
1. co-owner of the property (shafi-i-sharik),
2. participator in appendage such as a right of way etc (Shafi-i-khalit), and
3. 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.[10]
Constitutional Validity
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 recognizes 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.
Though, the right to pre-emption was in direct contravention with the fundamental right to property. However, the challenge to the right was justified on the basis of article 19(5). It was contended that reasonable restriction can be put on the fundamental right to property. Also, holding it unconstitutional will go against one of the important principles of Islamic law as the practice of pre-emption is a part of Muslim personal law.[12]
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.[13] Later, in the year 1965, in the case of Sant Ram v. Labh Singh, the Court with similar line holds the customary practice of pre-emption by vicinage is unconstitutional.[14]
The entire debate over the constitutionality got altered after 1978 due to the introduction of 44th amendment and application of the previous laws has to be deal with carefully.[15] It rendered the right to property merely a constitutional right and not a fundamental right.[16] However, the legality of pre-emption continues to remain under judicial scrutiny. Since, the right to property was there as a constitutional right, its reasonableness was checked under article 14 and 15 of the constitution.[17]
After the amendment, the validity of the Punjab Pre-emption Act, 1923 was challenged in two important cases. Firstly, in the case of Atam Prasad v. State of Haryana, the Supreme Court has to deal with s. 15(1)(c) of the Punjab Pre-emption Act, which provided for the right of pre-emption to the co-sharer or kinfolks of the vendor. In that case, the Apex Court held pre-emption on the basis of consanguinity is unconstitutional.[18] Secondly, in the case of Krishna v. State of Haryana,[19] the constitutional validity of s. 15(1)(b) was challenged, and the court declared that the pre-emption on the basis of co-sharer is constitutionally valid.
When pre-emption by vicinage was made unconstitutional, this approach of the judiciary was criticized by saying that such moves is uprooting old institution of Islamic Jurisprudence. However, it is important to note that the only form of pre-emption that was held unconstitutional is the pre-emption on the basis of vicinage that is recognized by customary and statutory provisions and not Islamic law. Also, no interference has been made by the judiciary on the right of pre-emption based on co-ownership.
Impact of Judicial Decisions on Islamic Law
Islamic law is not a monolithic legal system but has many schools and sub-schools following different legal principle, and all the schools are valued equally. There are four major schools of Islamic law – Shafi’i, Hanafi, Ismai’il & Ithna’ Ashari. All these schools follow a wide variety of legal principles; therefore, the impact of judicial approach on Islamic jurisprudence can be determined only by looking at the law of pre-emption followed in these different schools.
The Hanafi School recognizes three circumstances when the right of pre-emption can be exercised, and that are–
1. co-ownership of the property (sharik),
2. a participator in appendage (khilt,) and
3. owner of adjoining property (jar).
But, the right given in the last category does not extend to the large estate. The Ithan’Ashari school defines pre-emption right as a legal title of one of the partners on the share of another partner in the joint property when any sale or transfer takes place. Under the Shafi’i school, the right of pre-emption is very limited. This school gives pre-emption right only to the co-owners of property.[20] The pre-emption by vicinage is not recognized in Shafi-i school. In addition to that, the Ismai’il School specifically rejects the vicinage a ground to get pre-emption right.[21]
On the basis of the above findings, in the Islamic Law, only the Hanafi School recognizes the pre-emption right on the basis of the vicinage. Moreover, such right is not applicable for a large estate that shows the purpose of this right is to prevent any newcomer in the locality.[22] It is only the principle of one school that is contrary to laws and social condition of our country.
When the laws of one school are contentious then, such laws of one school can be replaced with that of other schools. So, for the law of pre-emption on the basis of the vicinage, which is contrary to the law, principle of other schools can be followed. It is not mandatory as well as reasonable to adhere to Hanafi School of law and apply to all Muslims of the country exclusively.
Illustrations
1. X owns a land which he leases to Y. Y builds a house and sells it to Z. Here, X cannot claim the right of pre-emption because he is neither a co-sharer, nor participator in the appendages of the house, nor an owner of adjoining property.
2. Where a property is owned by 4 persons in equal proportion and one of them sells his share in the property, the other three owners would have equal right of pre-emption and if they all take up the right then they will pay equal amount and will acquire equal share it that property.
Frequently Asked Questions:
1. What is Pre-emption?
Pre-emption is a right of claiming or purchasing property before or in preference to others.
2. What is Pre-emption in Muslim Law?
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.
3. 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.
5. When the right of Pre-emption is lost?
The right of pre-emption may be lost in the following cases:
1. by acquiescence or waiver,
2. by the death of the pre-emptor,
3. by misjoinder, and
4. by release.
5. What are the sources of pre-emption?
There are four sources of the right of pre-emption in India which include Muslim personal law, Custom, Statute and Contract.
Edited by Parul Soni
Approved & Published – Sakshi Raje
Reference
[1] Digambar Singh v. Ahmad Sait Khan, AIR 1914 PC 11.
[2] Id.
[3] Parasashth Nath v. Dhanai, (1905) 32 Cal. 988.
[4] Sitaram v. Syad Sirjul, (1917) 41 Bom. 636.
[5] Bishan Singh v. Khazan Singh AIR 1958 SC 838.
[6] Govind Dayal v. Inayatullah ILR 7 All 755.
[7] Dinshaw F. Mulla, Principle of Mahomedan Law, (20th Edition, 2013), LexisNexis, New Delhi .
[8] Shamsuddin v. Aliauddin, (1913) AA L J 1803.
[9] Manjar Saeed, Muslim Law in India, 2013.
[10] Batul Begam v. Mansur Ali (1910) 24 All 17.
[11] AIR 1980 Raj 116.
[12] S P Sen Gupta, Mahomeden Law, (2nd Edition, 2009), Kamal Law House, Kolkata, p 224.
[13] AIR 1962 SC 1476.
[14] AIR 1965 SC 314.
[15] Phulchand v. Lata Neemchand, AIR 1978 All 539.
[16] 44th Amendment to the Indian Constitution, 1978.
[17] Supra (n 7) p 304.
[18] 1986 SCR (1) 399.
[19] 1994 SCC (4) 703.
[20] Tahir Mahmood, Judicial Reform on the Law of Pre-emption in India: Impact on Muslim Law in Islamic Law in Modern India, 213-218, (1972), Indian Law Institute, New Delhi.
[21] Supra (n19).
[22] Id.
