Right of Preemption
Introduction
The r ight of Preem pt ion also known as " Shufaa" is a r ight which the owner of an
im m ovable property possesses to acquire by purchase another im m ovable
property which has been sold to another person.
Basically this r ight is available to one so that a stranger is not introduced in
neighbor or the fam ily which m ay cause a hindrance to ones privacy.
I n this article i am dealing with what kind of this r ight of Preem ption is?
Whether it is a statutory r ight or a custom ary r ight? Whether the law recognizes
it ? When did this r ight originate? What is the nature of this r ight and what is it s
object? Whether such r ight is beneficial or not?
Apart from this who can claim this r ight? What are the form alit ies required and
when this r ight vanishes? The different opinions of Courts and controversy
regarding it .
ORI GI N OF PRE- EMPTI ON
The history of preem pt ion in I ndia has been given by Sir John Edge in Digam
har Singh v. Ahm ad Said Khan.
Pre- em pt ion in village com m unities in Brit ish I ndia had it s origin in the Moham m
edan law as to
pr ec-oeumr spet
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ewfoerree tahdeopt itmede aomf tohne Mvuillgahael
cr
uolmerms.unI
nit iet hse. I
n
som e cases the sharers in a villa e adopted or followed the rules of the Moham m
edan law of the preem pt ion, and in such cases the custom of the villa e follows
the rules of the Moham m edan law of pre- em pt ion. I n other cases, where custom
s of preem pt ion exists, each villa e com m unity has a custom of preem pt ion
which varies from the Moham m edan law of preem pt ion and is peculiar to the
villa e in it s provisions and it s incidents. A custom of preem ption was doubtless
in all cases the result of agreem ent am ongst the share- holders of the particular
villa e, and m ay have been adopted in m odern t im es and in villa es which
were first constituted in m odern t im es. Ri ht o
preem pt ion has in som e provinces been given by Acts of the I ndian
Legislature. Right of pre- em pt ion has also been created by contract between
the sharers in a village. But in all cases the object is as far as possible to prevent
st rangers to a village from becom ing sharers in the village. Right of preem pt ion
when they exist are valuable r ights, and they depend upon a custom or upon a
contract, the custom or the contract, as the case m ay be, m ust, if disputed, be proved.1
N ATURE OF PRE- EMPTI ON
Mahm ood J. observes in Gobind Dayal's cases :
The law of pre- em pt ion is essentially a part of Muham m adan in j
urisprudence. I t was introduced into I ndian by Muham m adan Judges who
were bound to adm inister the Muham m adan law. Under their adm
inistration it becam e, and rem ained for centuries, the com m on law of the
country, and was applied universally both to Muham m adans and Hindus,
because in this respect the Muham m adan law m akes no distinction between
persons of different races or creeds. " A Musalm an and a Zim m ee being
equally affected by principles on which shafa or r ight of pre- em pt ion is
established, and equally concerned in it s operation, are therefore on an
equal footing in all cases regarding the privilege of shafa." ( Ham ilt
on's Hedaya, vol. I I I , p.592.) What was the effect of this? I n course of t
im e, preem pt ion becam e adopted by the Hindus as a custom .2
The law of pre- em pt ion is based clearly upon the texts of I slam ic law, and while
there seem to foreign elem ent in it ,3 it is a well- established doctrine in I ndia. I t
was adopted by I slam , in general, to prevent the int roduction of a stranger am ong
co- sharers and neighbours likely to cause both inconvenience and vexation.4 I n
Govind Dayal v. I nayatullah, Mahm ood, j . defined pre- em pt ion ( shufa) as :
A r ight which the owner of certain im m ovable property possess, as
such, for the quiet enj oym ent of that im m ovable property, to obtain, in
substitution for the buyer, proprietary possession of certain other im m
ovable property, not his own, on such term s as those on which such lat ter
im m ovable property is sold to other person.5
Three things are, therefore, requisite: ( i) the pre- em ptor m ust be the owner of
im m ovable property; ( ii) there m ust be sale of certain property not his own; ( iii)
the pre- em ptor m ust stand in a certain relationship to the vendor in respect of the
property sold. I f these conditions are satisfied, he has the r ight to be substitute for
the purchaser.
The free I ndia found that the law of preem pt ion prevailed in various parts of the
country. I n som e parts it existed as part of the Muslim personal law, in other
parts it was based on custom , which st ill in som e other parts, it existed under
statutes, and am ong som e people it had com e into existence by contract. Thus, the
law of preem pt ion has the following four sources :
(i) ) I n the greater part of the country it existed am ong the Muslim s as
part of their personal law, i.e., where the law of pre- em pt ion is neither
territorial nor custom ary it is applicable as between Muslim s as part of their
personal law.6
(ii) ) I t existed in certain parts of the country under statutes. Thus, in Punj
ab it existed under the Punjab Pre- em pt ion Act, 1915, in Agra under the
Agra Pre- em pt ion Act, 1922, and in Oudh under the Oudh Laws Act,
1876. I n these areas the statutory law of preem pt ion applies to both
Muslim s and non- Muslim s, and the Muslim s law of pre- em pt ion does
not apply even to Muslim s. ( This should be read subj ect to the saving
contained in the Agra Pre- em pt ion Act under which it is laid down that the
Muslim law of pre- em pt ion will apply where the vendor and the pre- em
ptor are both Muslim s) .
(iii) ) I n Bihar, Sylhet, and certain parts of Gujarat ( such a Surat,
Broach of Godhra), the r ight of pre- em pt ion is recognized by custom am
ong Hindus who were either dom iciled there or were natives of these
parts. I n these areas it was the Muslim law of pre- em pt ion which applies
to Hindus except in so far as it was m odified by custom .7 Where pre- em pt
ion
is based on custom it is part of lex loci,8 and is enforceable irrespective of the
religions of
the parties concerned.
(iv) ) Am ong som e people it cam e into existence by contract. The r ight
of pre- em pt ion was created by contract am ong the sharers in a village.9
For instance, a Hindu vendee and a Muslim vendor m ay agree that the
Muslim law of pre- em pt ion which applies to the vendor and his sharers
would also apply the vendee.
The question whether the r ight of pre- em pt ion is violative of Article 19( 1) ( b) of
the Constitution of I ndia has com e up before the Suprem e court in two cases,10
in one the statutory r ight of pre- em pt ion and in another the custom ary r ight
of pre- em pt ion was challenged. Both cases related to the r ight of pre- em pt ion
on the basis of vicinage. I n both cases, the Suprem e Court cam e to the
conclusion that the r ight of pre- em pt ion on the basis of vicinage im posed
unnecessary restrictions on the vendor's r ight to sell the property to a purchaser of
his choice, and, therefore, was unconstitutional.
I n Avadh Behari v. Gujadhar,11 the Suprem e Court gave effect to the r ight of
pre- em pt ion based on co- ownership in j oint property. However, in this case the
constitutional validity of the law of pre- em pt ion was not challenged before the
Suprem e Court. I n fact, the constitutional validity could not have been challenged
in this case, as it was a pre- constitutional case, where the leave to appeal had
already been granted by the Privy Council. After the com ing into the force of the
Constitution of I ndia, the appeal was has heard by the Suprem e Court. Thus,
from this case, no inference can be drawn that the Suprem e Court had upheld the
Constitutional validity of the law of pre- em pt ion based on co- ownership.
I n Bishan Singh v. Khazan Singh the court sum m arised rules of pre- em pt ion in I ndia :
(1) ) The r ight of pre- em pt ion is not a r ight to the thing sold but a r ight to the
offer of a thing
about to be sold. This r ight is called the prim ary or inherent r ight.
(2) ) The pre- em ptor has a secondary r ight or a rem edial r ight to follow the thing
sold.
(3) ) I t is a r ight of substitution but not of re- purchase, i. e., the pre- em
ptor takes the entire bargain and step into the shoes of the original vendee.
(4) ) I t is a r ight to acquire the whole of the property sold and not a
share of the property sold.
(5) ) Preference being the essence of the r ight, the plaintiff m ust have a
superior r ight to that of the vendee or the person substituted in his place.
(6) ) The r ight being a very weak r ight, it can be defeated by all legit im
ate m ethods, such as the vendee allowing the claim ant of a superior or
equal r ight being substituted in his place. 12
Classificat ion Of Pre- Em pt ors Or W ho Can Pre- Em pt
The r ight of pre- em pt ion m ay be classified on the basis of the persons who can claim the r
ight.
(i) ) The Shafi Sharik or co- owner in the property. This is a r ight f pre- em
pt ion of a co- sharer of the property. Obviously, no r ight of pre- em pt ion
arises on the sale of leasehold.13 The r ight of pre- em pt ion can be claim
ed only by a full owner.
(ii) ) The Shafi Sharik or a participator in the appendages. This is a r ight of
pre- em pt ion of a participator in im m unities and appendages, such as a r
ight of way, or r ight to discharge water. 14 On the basis that that the
branches of his t ree project over the land of a neighbor of the owner of the
t ree cannot claim the r ight of pre- em pt ion as Shafii Khalit on the sale of
that land. 15 Sim ilarly, the m ere fact that the owners of lands have the
any r ight to draw water from governm ent water- course does not give
them any r ight of pre- em pt ion. The r ight of pre- em pt ion as Shafii
Khalit cannot be claim ed as Shafii Khalit cannot be claim ed on the basis of
easem ent of light and air. The r ight of pre- em pt ion as shafii khalit exists
only in respect of r ight of way and r ight to water and in respect of no other
easem ent. 16
(iii) ) The Shafi- i- j ar or owner of an adjoining property. This is a r ight of
pre- em pt ion on the basis of nighbourhood, or the r ight of the owner of the
adj oining im m oveable property. This r ight does not belong to a tenant or
to a person, who is in possession of property without having ownership in
it . Thus, a wakif of m utawali has no r ight of pre- em pt ion on the basis of
shafi- i- j ar, since the t it le of property does not vest in either of them but
in God,17 and
God, too, has no r ight of pre- em pt ion. Even before Suprem e Court decision18
holding the
r ight of pre- em pt ion on the basis of vicinage as unconstitutional, the r ight of pre-
em pt ion of
a shafi- i- j ar did not extend to larger estates, such as zam indars and j
agirs, but was restricted to houses, gardens and sm all parcels of land.
Under the Hanafi law, the pre- em ptor of the sam e class has the r ight to pre- em pt
in equal proportions, even though they own unequal sharers. But under the Shafii
law, even the r ight of pre- em pt ion of the sam e class is in proportion to their
share in the property. Am ong the pre- em pt ion of the sam e class, no dist inction
is m ade.
Nearness m ay be recognized by custom s.19
The r ight of pre- em pt ion arises from full ownership,20 and it is im m aterial that
a pre- em ptor is not in possession of his property. I t is ownership and not
possession which gives r ise to the r ight of pre- em pt ion. There is no r ight of pre-
em pt ion on the sale of leasehold, whether of house or land.
W HEN DOES THE RI GHT OF PRE- EMPTI ON ARI SE
The r ight of pre- em pt ion arises only in two types of t ransfer of property, viz.,
sale and exchange. I t does not arise in respect of t ransfer of any other type. When
it arises in respect of sale, then sale m ust be com plete, bona fide and valid. 21 the
Allahabad High Court held that the t ransfer of property by a husband to his
wife in lieu of dower is sale and, therefore, the r ight of pre- em pt ion
arises22 , while the Oudh Chief Courts has held that it is a hiba- bil- iwaz, and
therefore, the r ight of pre- em pt ion does not exist 23 . Sim ilarly, the r ight of pre-
em pt ion arises in respect of exchange when it is com plete, bona fide and valid.
Thus, the r ight of pre- em pt ion will not arise in respect of
an exchange of property between two persons, if the exchange is subject to an
option at any t im e during their life t im e.
The r ight of pre- em pt ion does not exist in respect of Gift, Sadaqah, Wakf, I
nheritance, Bequest or Lease24 . I t does not apply to a m ortgage also, but if a m
ortgage is foreclosed, then the r ight of pre- em pt ion arises. The r ight of pre- em
pt ion does not arise in respect of a lease even when it in perpetuity.
I t is established rule that the r ight of pre- em pt ion arises out of a valid and com
pleted sale. The question that has caused som e controversy is:
Whether a sale should be t reated as com pleted sale under Muslim law or under the
Transfer of Property Act?
I n Begum v. Muham m ad25 , a full Bench of Allahabad High Court held that if the
sale is com plete in the Muslim law sense, then the r ight of pre- em pt ion will
arise. I n this case, Bannerji, J. expressed the opinion that it arises only when the
sale is com plete in the Transfer of Property Act sense. I n Jadulal v. Janki Koer
26 , the Calcutta High Court pronounced the test of intention of parties. I n other
words, the sale will be deem ed to be com plete when parties intended it to be com
pleted. This test
was adopted in Budhai v. Sanaullah27 , Kheyali v. Mullick 28 , and Sitaram v. Sayed
Sirajul29 . The decision in Sitaram 's case was affirm ed by the Privy Council30 .
The Suprem e Court has resolved the controversy by holding that in those cases,
where the Transfer of Property Act applies, the sale will com plete in accordance
with the provision of the Transfer of Property Act, and Muslim law or any
other personal law cannot override the provisions of Act 31 . I t m ay be noted that
the Muslim law of sale has been superseded by the Transfer of Property Act.
I t has been held in som e cases that the court should look into the real nature of t
ransaction. A deed which is called gift ( sankalp), if it is in fact a sale, then the r
ight of pre- em pt ion will arise. Sim ilarly, the r ight of pre- em pt ion will be
available in respect of an ostensible usufructuary m ortgage which is in fact a
sale.
CON FLI CTS OF LAW
Religion of Buyer, Seller And Pre- Em pt or :
Where the parties to a t ransaction which gives r ise to a case of pre- em pt ion are
governed by different personal laws, it is necessary to lay down the principles
upon which the court would act. I n I ndia all religions are t reated with equality
and therefore in this branch of the law of principle of reciprocity should be
logically applied. Hence, on general principles it would be unfair to apply the law
of pre- em pt ion and to create r ights in favour of persons who would not be
subject to corresponding obligations.
The seller and the pre- em ptor m ust necessarily be Muslim . The vendor should be
a Muslim ; for there is no reason why the Muslim law of pre- em pt ion should be
applied to a vendor who is a non- Muslim . The pre- em ptor should also be a
Muslim ; the reason being that a Muslim if he subsequently wishes to sell the
property he will be obliged to offer it to his Muslim neighbour's or co- owners. I
f, however the r ight of pre- em pt ion is recognized in favour of non- Muslim , he
m ay take advantage of it as a pre- em ptor; but would not be subject to a sim ilar
obligation.
As regards the purchaser, there is a conflict of opinion. According to Allahabad and
Patna decisions the purchaser need not be a Muslim ; while according to Calcutta
and Bom bay view the purchaser should also be a Muslim .
As between Sunnis and Shias, if a Shia sues a Sunni for pre- em pt ion the Shia law
which is the narrower law will be applied; thus a neighbor being a Shia will have
no r ight to pre- em pt from a Sunni vendor. A Hyderabad case illust rates the
principles to be followed in determ ining suits where one of the parties is a Sunni
and the other a Shia. 32 One Abdur Rahm an ( Hanafi) sold a house to Pasha
Begum ( also Hanafi). There upon Syed Shabber Hasan ( Twelver Shia) filed a suit
for pre- em pt ion. The question arose whether the Hanafi or the I thna Ashari law
was to apply. The two questions referred to the Full Bench were form ulated as
follows :
(1) Whether all suits of pre- em pt ion are to be decided according to the
rules of Hanafi law irrespective of the fact that the parties belong to
different persuasions?
(2) ) I n case it is held that the personal law of other sects has the force of
law then by what law suit would be governed if the person claim ing is a
Shiite and a Sunnite or vice versa.
The bench consisted of five j udges. The m ajority held that the law of pre- em pt
ion in Hyderabad is neither statutory nor custom ary, nor territorial, nor yet " the
com m on law." The t rue principle was that Hindu and Muslim laws were applied
as personal laws to Hindus and Muslim s, respectively. The law of pre- em pt ion has
been declared to be a personal law by the Suprem e Court, and if the parties are
Muslim no question arises and the Muslim law will apply.
As the personal law of each party would apply, what happens if the pre- em ptor is
of the Shia school and the vendor of the Sunni faith? The following schem e was
adopted :
(a) ) I f both the parties belong to one and the sam e school, the rules of that
particular school will apply.
(b) ) I f the vendor is a Shia and the pre- em ptor a Sunni then as the
Shia law does not recognize the r ight of pre- em pt ion on the ground of
vicinage, applying the principle of reciprocity, the pre- em ptor does not
succeed.
(c) ) em ptor m ust fail
I t will be recalled that this reasoning is the one put forward by Mahm ood J. in
the leading case of Govind Dayal v. I nayatullah33, and the m ajority cited it with
approval and adopted the principle of reciprocity as being in consonance with j
ustice and equity.
N ECESSARY FORMALI TI ES
According to the Hedaya 't he r ight of shufa is but a feeble r ight as it is disseizing
another of his property m erely in order to prevent apprehended inconveniences.
For this reason the law considers certain form alit ies as im perative.
Three dem ands
No person is entitled to pre- em pt unless he takes the proper steps at the proper t im
e and conform s st r ict ly to the necessary form alit ies. These form alit ies or cerem
onies are known as the 'Three Dem ands'.
The First Dem and is taleb- e- m uwasabat. The pre- em ptor m ust assert his claim im
m ediately on hearing of the sale, but not before. Witnesses are not necessary, as in
the second dem and; nor in
is any particular form essential. 'I have dem anded or do dem and pre- em pt ion' is
enough. 34The courts enforce this form alit y strict ly; and any unreasonable delay
will be constructed as an election not to pre- em pt. A delay of twelve hours was in
one case considered too long; the principle is that the law requires extrem e prom
ptness and any laxity will be fatal to the pre- em ptor's claim .
The Second Dem and is talab- e- ishhad. The pre- em ptor m ust, with the least
practicable delay, m ake a second dem and. He m ust ( i) refer to his first dem and;
35 ( ii) do so in the presence of two witnesses; and ( iii) do so in the presence of
either the vendor ( if he is in possession) or the purchaser, or on the prem ises. This
is also known as talab- e- taqrir, the dem and of confirm at ion.
A com m on form of the dem and is: the pre- em ptor says, 'such a person has bought
such a house of which I am the pre- em ptor ( shafi). I have already claim ed m y
privilege of pre- em pt ion and now I again claim it : be yet witness thereof. The
property m ust be clearly specified by the pre- em ptor. I f the pre- em ptor is at a
distance and cannot be personally present, the second dem and m ay be m ade by
an agent, or even by a let ter. An om ission by the agent will bind the pre- em ptor.
Tendor of the price is not necessary, provided that he offers to pay the agreed price
and if that price appears to be fict it ious then such price as the court fixes. I f
there are several purchasers, the dem and m ust be m ade to all of them unless it
is m ade on the prem ises or in the presence of the vendor. I f however, the dem
and is m ade to som e only of the purchasers, the pre- em ptor can claim his r ights
as against these purchasers only and not as against the others.
Som et im es, the first two dem ands m ay be com bined. I f at the t im e of the
First Dem and the pre- em ptor has an opportunity of invoking witness in the
presence of the vendor or purchaser or on the prem ises to attest the First Dem and
and witness are actually present to testify to this form ality, the requirem ents of
both dem ands are satisfied. This, however, is the only case where the first two
dem ands can be com bined lawfully.
The Third Dem and is not really a dem and but taking legal action and is not
always necessary; it is only when his claim is not conceded that the pre- em ptor
enforces his r ight y bringing a suit. Such a action is called talab- e- khusum at ( the
dem and of possession, or the dem and where there is a dispute). The suit m ust be
brought within one year of the purchaser taking possession of the property if it is
corporal; or within one year of the registration of the instrum ent of sale if
incorporeal. 36
RI GHT W HEN LOST
The r ight of pre- em pt ion m ay be lost by acquiescence, death or release.
ACQUI ESCEN CE OR W AVI ER
The m ost ordinary form of acquiescence is to om it to take the necessary form alit ies. S
sells land to
B. P, who has the r ight to pre- em pt, on receiving inform ation of the sale om it s,
without sufficient cause, to claim his r ight im m ediately; or m akes an offer of
the house to B; or agrees to cultivate the land with B. in each of these cases P will
be deem ed to have acquiesced in the sale and to have lost his r ight to pre- em pt.
DEATH
The r ight to pre- em pt is extinguished if the pre- em ptor dies after the first two
dem ands but before filling a suit. The r ight is extinguished if death occurs during
the pendency of a suit, and the action cannot be continued by his legal
representatives. 37 Under I thna Ashari and the Shafei laws the r ight descends to
the heirs proportionately.
RELEASE
The r ight m ay be destroyed if there is a release for consideration to be paid to the
pre- em ptor; the r ight, however, is not lost if there has been a refusal on the part
of the pre- em ptor to buy before the actual sale, nor by an unwillingness to m ake
an offer to purchase the property after notice that the property was for sale.
OBJECT OF PRE- EMPTI ON
I n the words of Mulla," The r ight of shufaa or pre- em pt ion is a r ight
which the owner of an im m oveable property possesses to acquire by purchase
another im m oveable property which has been sold to another person". The
foundation of the r ight of pre- em pt ion is the hum an desire to avoid the
inconvenience and disturbance which is likely to be caused by the introduction
of a st ranger into the land. The Muslim law of pre- em pt ion is to be looked at the
light of the Muslim law of succession. Under Muslim law, death of a person results
in the division of his property into fractions. I f any heir is allowed to dispose of
his share without offering it to other co- heirs, then it is likely to lead to the int
roduction of strangers into a part of the estate with resultant difficult ies and
inconveniences. I n view of this, the law of pre- em pt ion im poses a lim it ation or
disability upon the ownership of property to the extent that it restricts the
owner's unfettered r ight of t ransfer of property and com pels him to sell it to his
co- heir or neighbor, as the case m ay be. The person, who is a co- sharer in the
property, or owes property in the vicinity, gets an advantage corresponding to the
burden with which the owner of the property is saddled, even though it does not
am ount to an actual interest in the property sold. I t is now an established view
that the r ight of pre- em pt ion is not a m ere r ight to re- purchase; it is akin to
legal servitude running with the land. The r ight exists in the owner of the pre- em
pt ion tenem ent for the t im e being which entitled him to have an offer of sale m
ade to him whenever the owner of pre- em pt ional property desires to sell it . I t is
a r ight of substitution entitling the pre- em ptor, by reason of a legal incident to
which the sale it self was subject, to stand in the shoes of the vendee in respect of
all the r ights and obligations arising from
the sale under which he has derived his t it le. I t is, in effect, as if in a sale- deed
the vendee's nam e was rubbed out and the pre- em ptor's nam e substituted.38 Or,
in the words of Mahm ood J."....... a r ight, which the owner of certain im m
oveable property possesses, as such, for the quiet enjoym ent of that im m oveable
property, to obtain, in substitution for the buyer, proprietary possession of certain
other im m oveable property, not his own, on such term s as those on which
such lat ter im m oveable property, is sold to another person". Mukerj ee, J. very
aptly says that the crux of the whole thing is that the benefit as well as the burden
of the r ight of pre- em pt ion runs with the land and can be enforced by or against
the owner of the land for the t im e being although the r ight of pre- em pt ion
does not am ount to an interest in the land it self. The law of pre- em pt ion
creates a r ight which attaches to the property and on that footing only it can be
enforced against the purchaser. 39 Thus, the r ight of pre- em pt ion in that sense is
r ight in rem , it s exercise, from the t im e it arise up to the t im e of the decree, is
restricted as a personal r ight.
I t is a r ight which is neither heritable nor t ransferable. 40 I n this context, the
following passage in the Hedaya is also instructive: " The r ight of shufaa is but a
feeble r ight, as it is the disseizing another of his property m erely in order to
prevent apprehended inconvenience". The r ight of pre- em pt ion is a very weak r
ight and can be defeated by a defendant by all lawful m eans. 41
I n I ndira Bai v. Nandkishore,42 the Suprem e Court observed that the r ight of
pre- em pt ion is a weak r ight and it can be defeated by estoppels. Even in
Muslim law, which is the genesis of this r ight, as it was unknown to Hindu Law
and was brought in the wake of Moham m edan Rule, it is settled that the r ight of
pre- em pt ion is lost by estoppel and acquiescence. Estoppel is a rule of equity
flowing out of fairness st r iking on behavior efficient in good faith. I t operates as
a check on spurious conduct by preventing the inducer from taking advantage and
assailing forfeiture already accom plished. I t is invoked and applied to aid the law
in adm inistration of j ustice. But for it great m any injustices m ay have been
perpetrated.
CON CLUSI ON
From the subm ission given in the article it is clear what sort of a r ight of pre- em
pt ion is. I t is of an extrem e im portance which one has got from law and one's
own culture. Thought there are m any controversies regarding who can opt for
such r ight, if the sect of a person according to Muslim law is different, and when
the r ight is lost, st ill it plays an im portant role as one can use this r ight can an
enjoy sole possession of the entire property without any interference from any one.
I n this project I have dealt in dept detail of r ight of pre- em pt ion regarding when
does the r ight arises, who can claim this r ight, when the r ight is lost, what are
the form alit ies. Though after the decisions of Suprem e Court the law is settled
now and the religion or the sect is no barrier now. The form alit ies related to
this r ight are also very sim ple in nature whereby one can approach the vendor
alone or with a witness and if the first two dem ands are rejected than one m ay
knock the
doors of the Courts.
At last we can see that the object of his r ight is j ust that, one can enjoy his r ight
over the entire property without any disturbances but his intention should be a fair
one in this regard.
________________
_________
* Abhishek Agrawal I I year Student, Hidayatullah national Law University, Raipur.
1. AI R ( 1914) 42 I A 10.
2. ( 1885) 7 All 775.
3. I brahim Saib v. Muni Mir, ( 1870) MHCR 26.
4. Sayeeduddin Ahm ed v. I unus Mia, PLD 1960 Dacca 416.
5. Supra Note. 2
6. Avadh Behari v. Gaj adar, AI R 1954 SC 417.
7. Jagannath v. I nderpal, AI R 1935 ALL 236.
8. Supra Note 6.
9. Digam ber Singh v. Ahm ed, ( 1915) 37 ALL 129.
10. Bhan Ram v. Baij Nath AI R 1962 SC1976; Sant Ram v. Labh Singh, AI R 1965 SC
314.
11. Supra Note 6.
12. AI R 1958 SC 838. ( Dealing with the Punj ab Pre- em pt ion Act, 1913) .
13. Bibi Saleha v. Hazi Am iruddin, AI R 1929 Patna 214.
14. Karim v. Priya Lal, AI R 1943 Bom bay 83.
15. Aziz v. Nazir, AI R 1927 All 504.
16. AI R 1963 Raj 195.
17. Girraj Kum ar v. I rafan Ali, AI R 1932 All 688.
18. Dhanraj v. Ram eshwar, AI R 1924 All 227.
19. I bid.
20. Munilala v. Bishwanath, AI R 1968 SC 450.
21. Naj m - Un- Nissa v. Aj aib Ali, ( 1900)
22. All 342. 22 ( 1916) 37 All 533.
23. AI R 1923 All 57.
24. AI R 1968 SC 450.
25. ( 1894) 16 All 344.
26. ( 1908) 35 Cal 575.
27. ( 1914) 41 Cal 943.
28. ( 1916) 34 I C 210.
29. ( 1917) 41 Bom 636.
30. ( 1921) 44 Bom 1056 ( PC) .
31. Radhakrishan v. Sridhar, AI R 1960 SC 1368.
32. Pasha Begum v. Syed Shabber Hasan, AI R 1956 Hyd 1.
33. Supra Note 2.
34. C. S. Tiwati v. R. P.Dubey ( 1949) 28 Pat 861.
35. I bid.
36. See Article 10, Lim itat ion Act 1963.
37. Mohd. I sm ail v. Abdul Rashid AI R 1956 All 1.
38. AI R 1980 Raj 116.
39. AI R 1954 SC 417 at pg 422.
40. Supra Note. 37
41. Supra Note. 38
42. AI R 1991 SC 1055.
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