Doctrine of Pre-emption

What is Pre-emption - Pre-emption is a right that allows a person, usually a co-owner or a

neighbor, to buy a property before it is sold to an outsider. This is done to prevent strangers
from entering a closely-knit community, like a village or a family-owned property.
Definition of Pre-emption (Shufa): Justice Mahmood, in the case of Gobind Dayal v. Inayatullah,
defined pre-emption as the right of a property owner to replace the buyer and acquire another
property being sold. This right ensures that property remains with people who have a close
relationship with the seller, preventing outsiders from entering the community.
Conditions for Pre-emption: For a person to claim pre-emption, three conditions must be met.
1. First, the pre-emptor must own immovable property such as land or a house.
2. Second, a sale of another property must have taken place, which does not belong to the
pre-emptor.
3. Third, the pre-emptor must have a specific relationship with the seller, for example, as a
co-owner or neighbor.
If these conditions are fulfilled, the pre-emptor has the right to step into the buyer’s place and
purchase the property on the same terms.
Origin of Pre-emption in India - The concept of pre-emption in India comes from Islamic law,
which was introduced during the Mughal rule. Before the Mughals, this system was not known
in India. Over time, this practice was adopted as a custom by various village communities,
including Hindus.
Supreme Court Summary in Bishan Singh v. Khazan Singh - The Supreme Court outlined
important rules about pre-emption.
 Pre-emption is not a direct right to the property but a right to be offered the property
before it is sold to an outsider.
 If the sale happens without informing the pre-emptor, they have a secondary right to
claim it later.
 Pre-emption is a right of substitution rather than re-purchase, meaning the pre-emptor
takes over the buyer’s role and terms instead of negotiating a new deal.
 The pre-emptor must buy the entire property and not just a part of it.
 The right is based on preference, so the pre-emptor must prove they have a stronger
right than the buyer.
 However, pre-emption is considered a weak right and can be defeated if another
claimant with an equal or stronger right is substituted..
Who Can Claim Pre-emption - Justice Mahmood outlined different situations to determine when
pre-emption applies.
 If all parties involved in a transaction are Muslims, then Islamic law of pre-emption
applies without any issues.
 If all parties are Hindus, then Islamic law does not apply.
 If the seller and buyer are Hindus but the pre-emptor is a Muslim, there is no pre-
emption.
 The seller and buyer are Muslims, but the pre-emptor is Hindu while there is no pre-
emption.
 If the buyer is Muslim while the seller and pre-emptor are Hindus, pre-emption does not
apply.
 Likewise, if the seller is Muslim while the pre-emptor and buyer are Hindus, pre-emption
does not apply.
  The only situation where pre-emption is allowed against a Hindu buyer is when both the
seller and the pre-emptor are Muslims.
Justice Mahmood explained that this is because Islamic law is now considered personal law
rather than the common law of India. Rights and obligations under personal law must be
reciprocal, meaning that if Muslims cannot claim pre-emption against Hindus, then Hindus
cannot claim it under Islamic law either.
Explanation of Sheikh Kudratulla v. Mahini Mohan Shaha (1869) and Subsequent Developments
- Justice Mitter, in this case, described pre-emption as a right of repurchase from the buyer, not
the seller. He established two key principles: first, the right of pre-emption does not exist before
an actual sale takes place, and second, once a sale occurs, the buyer gains full ownership,
without any defect in title. Based on this reasoning, he concluded that pre-emption was
essentially a right to repurchase from the new owner rather than an automatic substitution in
the sale. That the right of pre-emption does not arise merely due to the sale itself but is instead
linked to the relationship between neighboring properties. The sale only triggers the
enforcement of this right, but the right itself exists independently of and prior to the sale.
He further clarified that the purpose of pre-emption is not to prevent all outsiders from buying
property but only those who may be considered objectionable from the pre-emptor’s
perspective. However, the pre-emptor cannot take action before the sale actually happens. The
rule of pre-emption places a partial restriction on the seller, requiring them to first offer the
property to those who have a pre-emptive right.
Conditions for the Right of Pre-emption - Pre-emption applies only when full ownership is
transferred. It does not apply when a lesser interest, such as a lease, is sold.
Pre-emption applies only to landed property:
 Houses, gardens, agricultural land.
 Movables cannot be pre-empted.
 If a house or trees are sold with the land, they can be subject to pre-emption.
The entire estate must be claimed:
 A pre-emptor cannot claim only part of the property.
 If multiple people have a pre-emption right, they can claim only their proportionate
share.
 If multiple properties are sold in one contract, the pre-emptor can choose to claim some
or all of them.
 Joinder of Parties: If a pre-emptor joins a stranger in the claim, it does not invalidate the
right.
Application of Pre-emption in India
1. Among Muslims: Pre-emption is applied across India as a principle of justice, equity, and
good conscience. However, in Tamil Nadu, it is considered contrary to these principles
and is not enforced.
2. Among Hindus by Custom: In certain regions such as Bihar, Sylhet, and parts of Gujarat,
Hindus have also adopted pre-emption as a customary practice.
3. By Law in Certain Regions: Statutory laws in Punjab, the former North-West Frontier
Province, and Oudh enforce pre-emption for both Hindus and Muslims.
4. By Contract: In some cases, the right of pre-emption can be established through a
contractual agreement.
Constitutional Validity of Pre-emption - Before the Supreme Court’s decision in Bhau Ram v. Baij
Nath, there was significant debate over whether pre-emption laws were constitutional,
particularly under Article 19(1)(f) of the Indian Constitution, which protected the fundamental
right to acquire, hold, and dispose of property. Thus, The Court observed that the
reasonableness of a custom is not fixed—it evolves with societal progress. What might be
considered reasonable in one era may not be so in another. Based on this principle, the Court
made the following rulings:
1. Pre-emption based on neighborhood (vicinage) is not a valid ground and was declared
unconstitutional.
2. Pre-emption by a co-sharer in a property is reasonable and can be upheld.
3. Pre-emption rights for those sharing common amenities, such as a common entrance,
are justified.
4. The right also applies in cases where a common staircase is shared.
The right of pre-emption arises only when there is a sale or barter (exchange of property for
property).
 It does not arise for transfers without consideration (such as gifts or inheritance).
 It does not apply to transfers by operation of law.
 The right exists even if the land is not yet physically separated or demarcated.
When can pre-emption be done- A sale is officially complete only after registration, according to
the Supreme Court. This means you cannot claim pre-emption before registration—if you do, it
will be rejected as too early. Some earlier rulings said that just handing over the property was
enough, but the Supreme Court changed that. Now, registration is the final step that makes the
sale legal, and only after that can pre-emption be claimed.
A wakif (the person who donates property as wakf) cannot claim the right of pre-emption (the
right to buy a neighboring property before it is sold to someone else) on behalf of the wakf
property. The reason is that, in Islamic law, all property ultimately belongs to God, and God
cannot be a party in legal disputes. Since a wakf is considered property dedicated to God, it
cannot claim pre-emption rights like a regular landowner. Courts have ruled that wakf estates
do not have the legal authority to demand pre-emption over the sale of nearby land.
The Muhammadan law of pre-emption is highly technical, requiring strict adherence to
procedural formalities. If the exact legal wording is not followed, the right does not materialize.
Any procedural mistake invalidates pre-emption.
The Three Demands in Pre-emption (Talab) –
1. First Demand – Talab-e Muwathaba (Immediate Demand)
 Must immediately declare pre-emption upon learning of the sale.
 No specific words or witnesses are needed.
 Any delay (even a few hours) cancels the right.
2. Second Demand – Talab-e Ishhad (Demand with Witnesses) - Must repeat the demand in
front of two witnesses and either:
 The seller (if still in possession).
 The buyer.
 At the sold property.
o Must mention the first demand and clearly identify the property.
o Can be done through an agent or letter if far away.
Special Cases:
 If the first demand is made in front of witnesses, it also counts as the second demand.
 The pre-emptor must offer the actual sale price or a fair court-decided price.
3. Third Demand – Talab-e Tamlik / Talab-e Khusumat (Legal Action) - If the buyer refuses, the
pre-emptor must file a lawsuit within:
 1 year from the buyer taking possession (for land, houses, etc.).
 1 year from sale registration (for shares, rights, etc.).
o The pre-emptor must claim the entire property, not just part of it.
o If the property is sold again after the pre-emptor makes demands, their right
remains valid.
To successfully claim pre-emption, the pre-emptor must act fast, follow strict formalities, and
take legal action on time.
Loss of Right to Pre-emption – If the pre-emptor does not act immediately, they forfeit their
right. Not making the first demand as soon as they learn of the sale.
Death – Right does not always pass to heirs - The right is lost if the pre-emptor dies:
 After making the first two demands but before filing a case.
 While the case is still in court (right does not pass to heirs).
Release – Giving up the right for payment
 A pre-emptor can give up their right in exchange for money.
 However, they do not lose the right if:
o They refused to buy before the actual sale happened.
o They seemed uninterested before being informed of the sale.
 Liabilities on Pre-emption: If the property is mortgaged, the pre-emptor inherits the
mortgage. Even if the pre-emptor was unaware of the mortgage, they must still pay the
debt.
Evasion of Pre-emption Rights
Legal systems, including Jewish, Canon, and Roman law, have historically included legal fictions
to evade pre-emption rights. Islamic jurisprudence also debates whether evasive tactics are
acceptable.