Introduction :

The concept of pre-emption is indeed a significant part of Islamic law, also known
as Sharia law, and it has been applied in various Muslim countries for centuries. In India,
pre-emption was introduced by the Muslim judges who were responsible for administering
Islamic law in the country.

It is important to note that preemption was initially applied only to Muslims in India, as it was
considered to be a part of Muslim personal law. However, over time, the application of
pre-emption was extended to non-Muslims as well, including Hindus, because there was no
legal provision for pre-emption in Hindu law.

As pre-emption became more prevalent in India, it also became a part of Hindu customary law,
which is based on social practices and traditions rather than written law. Hindu law did not make
any distinction between different races and creeds, so the concept of pre-emption was adopted
by Hindus as well.

Today, pre-emption is recognized as a legal right in India and is applicable to both Muslims and
non-Muslims. However, the rules of pre-emption may vary depending on the state and the
specific circumstances involved. In some cases, pre-emption may be limited to specific types of
properties, such as agricultural land, while in others it may apply to any type of property.

Meaning :
The word preemption is derived from pre-emption, a Latin word which means the act
of buying before another, the act of right of purchasing before others. In law. pre-emption
means, a right which the owner of certain immovable property possess, as such, for the quiet
enjoyment of that immovable property, to obtain in substitution for the buyer, proprietary
possession of certain other immovable property, not his own, on such terms as those on which
such latter immovable property is sold to another person.

Illustration :
A and B live adjacent to each other. X is the owner of land A and Y is the owner of
land B, when X decides to sell land A, it is the legal duty of X to first offer it to Y. Only when Y
shows no interest in buying the property then only X can sell land to any other person(z). And if
X sells his land to Z without offering to Y, then Y has a right of pre-emption against Z and can
dispossess him after paying the same price which Z paid to X. If the price appears inflated with
a motive to defeat or discourage Y, the pre-emption right holder, the court will interfere and
rationalise the price. The main motive behind this law is to dislodge a stranger from disturbing
the tranquillity of the neighbourhood.

Parties :
From the above illustration, it is quite evident that there are 3 parties involved
Vendor :
the person who owns the property and is willing to sell the property. From the
illustration X is the owner of the property and he decides to sell it.
Vendee :
the stranger to the property and who buys it. From the illustration, Z is the stranger to
the property. The third person involved.
Pre-emptor :
the neighbour, the co-sharer or heir, from the illustration Y has land adjacent to X.
therefore, neighbour – pre-emption right holder.

Nature :
The right of pre-emption in India is a legal right that gives a person or entity the first
option to purchase a particular property or asset before it is offered to anyone else. It is a right
that arises out of a relationship between the parties or a specific legal status, such as
co-ownership or tenancy.

The nature of the right of pre-emption in India is that it is a conditional right that can be
exercised only if certain conditions are met. These conditions include the type of property, the
location of the property, and the relationship between the parties involved. For instance, the right
of pre-emption may be applicable only to certain types of properties, such as agricultural land,
and may be restricted to certain geographic areas.

The right of pre-emption is also subject to limitations and restrictions that are imposed by the
law. For instance, the right may not be applicable if the property is being sold to a close family
member or if the seller is in urgent need of funds. Additionally, the pre-emptor must have the
financial capacity to purchase the property at the price at which it is being offered.

Object of pre-emption :
The object behind having the right of preemption :
1. To prevent strangers from becoming sharers in a village likely to cause inconvenience
2. Checking the difficulties which may result to families and communities
3. Enable landowners to avoid the advent of an undesirable neighbour
4. Pre-emption tends to advent division which otherwise would cause loss and damage
5. It also prevents the vexation arising from a disagreeable neighbour

Constitutional Validity :
Earlier the Bombay Allahabad and Patna High Court had upheld the
constitutional validity of pre-emption by all the three classes of persons entitled to preempt.
However it has been held by the high court of Rajasthan Madhya Bharat and Hyderabad that
pre-emption on the ground of vicinage is void after 26 January 1950 as it imposes and
reasonable restrictions on the right guaranteed by article 19 (1) (f) of the Constitution but
preemption as between co- sharers or owners dominant or servient tenements of the
constitution.

The constitution 44th Amendment Act 1978 has removed the article 19 (1) (f) and 31 which
guaranteed right to property from the chapter on fundamental rights and the right to property
has been incorporated as Article 300 An effort of the amendment is that the right to property is
there but no longer a fundamental right.

Requirements of right of pre-emption :

1. The pre-emptor should be a muslim
2. He should be the owner of certain property
3. The right of pre-emption arises only when some other owner has sold the property.
4. The buyer need not be a muslim
5. The necessary demand for pre-emption should be made

Who can claim right of preemption :

1] Hanafi/Sunni :
1. Shafi-e Sharik : (Co-sharer in the property)
Shafi-e-Sharik is a concept in Islamic law that deals with joint
ownership or partnership in property. It refers to the right of a co-owner or partner to purchase
the share of another co-owner or partner who wishes to sell his share. This right of pre-emption
is subject to certain conditions and limitations such as the type of property, the location of the
property, and the relationship between the co-owners or partners. Shafi-e-Sharik is important in
Islamic finance and business transactions, and it is included in partnership agreements and
contracts to protect the interests of co-owners or partners in a property.

2. Shafi-e-Khalit i.e. a participator in immunities and appendages

Khalit means 'mixed up' Shafi-e-Khalit means a person who is entitled to
such easements as a right of way or discharge of water. 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.

3. Shafi-e-jar :
Shafi-e-Jar is a legal concept in Islamic law that provides the tenant or
lessee of a leasehold property the right of preemption, which means the right to purchase the
property before it is sold to someone else. The principle behind Shafi-e-Jar is that the tenant
has an interest in the property and should be given the opportunity to purchase it before it is
offered to anyone else. Shafi-e-Jar is an important concept in Islamic finance and property law,
particularly in the context of commercial leases and real estate transactions, and is often
included in lease agreements and contracts to protect the interests of the tenant or lessee.

2] Shia :
Under Shia law in India, the right of pre-emption is known as "shufa" and is based on
the principle of "qard al-hasan," which means the benevolent loan. The right of pre-emption in
Shia law is limited to certain categories of persons, including co-owners, neighbours, and
partners, and is subject to conditions and limitations such as the type and location of the
property and the relationship between the parties. The main purpose of the right of pre-emption
in Shia law is to protect the property rights of certain categories of persons and ensure that the
property remains within their community or circle of acquaintances.

When does the right of preemption not arise :

The right of pre-emption may not arise in certain situations, depending on
the specific laws and circumstances in a particular jurisdiction. Generally, the right of
pre-emption does not arise in the following situations:
1. If the property is sold through a public auction or tender process.
2. If the property is gifted or inherited.
3. If the property is sold to a government body or authority.
4. If the property is sold to a person who has a better right to purchase the property, such as a
co-owner or a mortgagee.
5. If the right of pre-emption has been waived or extinguished by the parties involved or by law.

It is important to note that the laws regarding the right of pre-emption can vary depending on the
jurisdiction and the specific circumstances of each case.

Formalities (Three demands) :

In order that a claim for pre-emption should be held to be valid, no particular formula
is necessary, provided the claim is unequivocally asserted.

But, under the Sunni law, certain formalities are strictly to be observed. No person is entitled to
a right of pre-emption, unless he or his manager, or any other person previously authorised by
him on his behalf, has made the following three demands, viz. -

1. Talab-al-mowasibat,
l.e., immediate demand (or demand of jumping), which is not effective unless it
is followed by a formal claim by talab-l-ishhad (- below-). Talab-i-mowasibat is an
announcement by one entitled to pre-empt, of his intention of making the claim. This
announcement is to be made Immediately on his receiving information of the sale, but
after (and not before) the sale is completed.

2. Talab-l-ishhad,
L.e., demand with invocation of witnesses. The talab-i- mowasibat
(demand of jumping) is of no effect, unless it is followed by a formal claim, which is
called talab-i-ishhad (demand with invocation of witnesses), in which the pre-emptor
must-
(a) affirm his intention to assert his right of pre-emption, referring expressly to his having
made the 'demand of jumping' and
(b) make a formal demand-
(1) either in the presence of the buyer or the seller, or on the premises which are
the subject of sale, and
 (2) in the presence of at least two witnesses, specially called to bear witness to
this demand. Any unreasonable delay in making this second demand will defeat the
preemptive right.

The Muhammadan law relating to demand before filing a suit for pre-Emption is of a
highly technical nature.

Thus, talab-i-muhasibat is the first demand and talab-l-ishhad is the second demand.
The third formality consists of the Institution of the suit for pre-emption. Both the talabs
are conditions precedent to the exercise of the right of preemption. The talab-l-mowasat
(or first demand) should be made as soon as the fact of the sale is known to the
claimant. Any unreasonable or unnecessary delay will be construed as an election not to
pre-empt.

When right is lost :

The right of pre-emption is lost in the following manner:

1. 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.
2. 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.
3. Forfeiture of right: the right of pre-emption is forfeited in the following conditions:
a. Where the pre-emptor releases it for consideration,
b. Tries to dispose of the subject of pre-emption to a stranger,
c. Partition is made of a property in respect of which the right of pre-emption can
only be claimed by coparceners,
d. There is some statutory disability with the pre-emptor as regards the purchase of
land in question concerned.

Case law :
In Bhagwan Singh v. Daljit Singh (2009), the case involved the sale of a piece of land
by the respondent, Daljit Singh, to a third party. The appellant, Bhagwan Singh, claimed that he
had a right of pre-emption under the relevant laws, and he filed a suit seeking to enforce that
right. However, the trial court and the lower appellate court both rejected his claim on the
grounds that he had failed to comply with the procedural requirements for exercising the right of
preemption.
The court emphasised the importance of providing timely notice and paying the full purchase
price in order to exercise the right of preemption. In this case, the court held that the pre-emptor
had failed to follow the required procedures and therefore was not entitled to exercise the right
of preemption. The decision reaffirmed the requirement that pre-emptors must strictly comply
with the procedural requirements in order to successfully claim the right of pre-emption.
Conclusion :
Pre-emption rights only apply when immovable property is transferred by sale;
they do not apply if it is transferred through a gift, bequest, lease (even if it is perpetual),
mortgage, or conditional sale with possession. The pre-emption right may be defeated, or the
pre-desire emptor's to use it may be lessened by the parties to a sale transaction using legal
means that are neither dishonest or illegal.