Introduction

Pre-emption (Shufa) is a right. Under this right owner of an immovable property is entitled to repurchase
an adjacent property which has been sold to someone else. Exercising this right, the owner of an
immovable property can compel the purchaser of his adjacent property to sell it to him at the same price
at which it was purchased by the said purchaser. In other words, it is the preferential right of the owner of
an immovable property, to acquire an adjacent property. The person who claims this right is called a pre-
emptor or Shufee.
The origin of the law on pre-emption may be traced back to the traditions of the Prophet.
The Prophet is reported to have said:
“A neighbour has a right, superior to that of a stranger, in the lands adjacent to his own”; and “the
neighbour of a house has a superior right to that house and the neighbour of lands has superior right to
those lands, and if he be absent, the seller must wait his return…”
Definition
Mulla defines pre-emption in the following words:
The right of Shufa or pre-emption is a right which the owner of an immovable property possesses to
acquire by purchase another immovable property which has been sold to another person.
In Gobind Dayal v. Inayat Ullah, Mahmood, J. defined pre-emption in the following words:
“Pre-emption is a right which the owner of certain immovable property, possesses 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.”

Nature of the Right of Pre-emption

It may be said that the right of pre-emption is a right in rem, i.e. it can be claimed against all the persons
who may purchase a property adjacent to the pre-emptor‘s property.
The nature of the right of pre-emption has been a subject of some judicial controversy. Fortunately, it was
held by certain courts that pre-emption was a personal right of the claimant. Another view was that it was
a proprietary right i.e. incident of property. However, now this controversy has been resolved. The settled
law on the nature of the right of pre-emption is that it is purely a personal right.
Earlier in Bishan Singh v. Khazan Singh, the Supreme Court had approved the view taken in Gobind
Dayal’s case and has held that the right is proprietary rather than personal.
But subsequently in Bhoop v. Matadin Bhardwaj the Supreme Court has 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 or
custom or personal law but in every case the sole object of this right is to keep away an objectionable
stranger from the neighourhood.

Classification of Haq Shufa (Pre-emption)

Classification of Pre-emptors: Who Can Pre-empt?
Once it is established that the law of pre-emption is applicable to a person (on the ground of equity,
custom or statute) he may exercise this right. A person who is entitled to claim this right, is called a pre-

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emptor. Under Muslim law, pre-emptors are classified into three categories, given below, in the order of
merit.
(1) The Co-sharers (Shafi-i-sharik)
The persons who are entitled to inherit the properties of a common ancestor are called co-sharers. Where
the vendor and pre-emptor are co-sharer, the pre-emptor is called a shafi-i-sharik and has the preferential
right of pre-emption against any other class of pre-emptors.
For example, brothers or two sisters are the co-sharers. If one of them sells his or her house, the other is
entitled to claim pre-emption. Co-sharers are given preference against other categories of pre-emptors
because they are common blood- relations tie related to each other on the ground of consanguinity.
Therefore, if one co- sharer sells his share of property, his nearest blood-relation would be the person
worst affected by substitution of a stranger. However, since the list of blood-relations may be very large,
the category of consanguine (blood) relations entitled to claim preferential right of pre-emption must not
be unreasonable.
In Atma Prakash v. State of Haryana, the Supreme Court held that if the classification of pre-emptors
on the ground of consanguinity is ‘unreasonable’ the classification is unconstitutional. It is submitted that
co-sharer as a class of pre-emptors, as such, has not been declared unconstitutional. Recently, in Krishna
v. State of Haryana, the Supreme Court has held that right of pre-emption to co-sharers is valid and it is
not violative of Articles, 14, 15 and 16 of the Constitution.

(2) The Participators in Immunities (Shafi-i-khalit)

Where two or more persons enjoy a common privilege e.g. a common right of way or, drainage or any
other common right to use a property, they are participators in immunities. In Bhau Ram v. Baij
Nath, the Supreme Court has held that participation in certain appendages e.g. a common entrance to the
property or a common stair case, was a reasonable ground for the claim of pre-emption. However,
preemption on the basis of participation exists only in the easements of way and water on private lands. It
does not extend to any other easement such as easements of air and light.

(3) The Owners of Adjacent Properties (Shafi-i-jar).

The neighbours, who are owners of immovable properties, constitute a class of pre-emptors on the basis
of vicinage. There is vicinage if two properties are adjacent to each other. Only the owners of properties
may be pre-emptors, not their tenants. Moreover, the right of pre-emption on this ground exists only in
respect of houses, gardens and small lands. Pre-emption on the ground of vicinage does not exist in
respect of large estates e.g. Zamindaris or Villages.
However, as discussed earlier, after the Bhau Ram’s case in 1962, the claim of pre-emption only on the
ground of vicinage has now been declared to be unconstitutional. This means to suggest that claim of pre-
emption only on the ground that pre-emptor is owner of a property which is adjacent to the property sold,
is not valid. In A. Razak Safari Saheb case stated in the preceding lines, the Supreme Court, reiterating its
earlier decisions held that claim of pre-emption only on the ground of ‘vicinage’ or, being ‘co- sharer’ is
now unconstitutional.

The right of Pre-emption

A person can exercise his right of pre-emption under two circumstances:

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 1. When the property is subjected to a valid sale.
2. When the sale is complete

A person loses his right of pre-emption under the following circumstances.

1. By acquiescence or estoppel or waiver or forfeiture

2. By the death of the Preemptor (The right of pre-emption is also forfeited if the preemptor dies
after making the first two demands but prior to the lawsuit being filed or the third demand, in
which case his legal representatives are not permitted to bring the lawsuit.)
3. By misjoinder of plaintiffs (if the preemptor shares his right of pre-emption as a co-plaintiff, his
right can also be forfeited)
4. By release
5. Loss of right before the final decree
6. By statutory disability

FORMALITIES: THE THREE DEMANDS

Muslim law prescribes certain formalities for the claim of pre-emption. No person is entitled to the right
of pre-emption unless he observes these formalities strictly and at proper time. The right of pre-emption
is a weak right because its operation hits directly against the very concept of ownership and freedom of
contract.
In Mohd. Noor v Mohd. Ibrahim, the Supreme Court held that availability of is weak or archaic right
has to be construed strictly. Muslim law of pre-emption is a law of technicalities and the availability of
the right depends upon the full and complete observance of formalities. If the formalities are in any way
incomplete or defective, the right of pre-emption is not available to the pre-emptor. The formalities for
the claim of this right consist of three demands. The demand must be made by the pre-emptor step by step
and, at proper time.

The First Demand (Talab-i-Muwasibat)

First demand is the initial step for enforcing the right of pre-emption. The first demand is immediate
declaration by which the pre-emptor expresses for the first time his intention to enforce his right.
Significant features of the first demand are given below:
(i)This demand is made only after lawful completion of the sale (or exchange) of me property. The first
demand cannot be made before the sale is completed.
(ii)The first demand is to be made immediately after getting the information that sale is completed.
Promptness is an essential element in the claim of pre-emption. Law requires that a pre-emptor must
assert his claim without any delay.
(iii) It is not necessary that Talab-i-Muwasibat is made personally by the pre- emptor. It may be made by
any person authorised by the pre-emptor. But, unless a person is specifically appointed by a pre-emptor
for this purpose, he cannot place the demand lawfully even though he might be a close relative of the pre-
emptor. Where the pre-emptor is a minor, this demand may be validly made by his (or her) guardian.
(iv) Talab-i-Muwasibat must be made in express words so that the intention of the pre-emptor is evidently
clear. If it is not clear, the first demand is not valid and the claim fails. For example, where the pre-emptor
filed a petition before the Sub-Registrar for staying the sale of pre-empted property it was held by the
Court that filing of the petition was not any assertion of the claim of pre-emption, therefore, it was not
Talab-I-Muwasibat. In Alimon Nessa v. Sudhir Chandra Day, the owner of a property offered the sale of

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his property to the owner of adjacent property. The owner of the adjacent land accepted the offer but in
turn offered to purchase it on installment basis. The owner of the property did not agree to it and sold it to
another person. Thereupon, the owner of the adjacent land claimed pre-emption and said that his offer to
purchase the land on installment was his first demand. The Guwahati High Court held that owner of the
adjacent land has no right of pre-emption because offer made by him to purchase the property in
installments cannot be regarded as evidence of placing his first demand.
(v) The first demand may be made orally or, in writing. It may also be made through a letter.
(vi) For placing the first demand, presence of witnesses is not necessary under Muslim law. First demand
without witnesses is valid and lawful. However there must be some evidence of the fact that this demand
was made properly and in time.

The Second Demand (Talab-i-Ishhad)

After making the first demand the next step in the formality is to place the second demand. The second
demand is repetition of the first demand, therefore, it is also called as the confirmatory demand or, Talab-
i-Taqrir. The second demand is in the form of making the second declaration. This too may be made
orally or in writing. It may also be made through a letter. Like first demand, the Talab-i-Ishhad may also
be made by any other person authorised by the pre-emptor. The second demand too can be placed by
guardian of the minor pre-emptor. Essential features of the second demand are given below:
(i) The second demand is effective only when the first demand was lawfully made at an earlier date.
(ii) There should be least practical delay in making the second demand. Although it is not necessary that
second demand is made immediately after the first, yet, there should not be any unreasonable interval of
time between the two demands.
(iii) In Talab-i-Ishhad, the pre-emptor must mention that he has already placed his first demand and now
he is asserting the claim for the second time.
(iv) The second demand should be addressed either to the seller or, to the purchaser. If both of them are
not available, the second demand should be addressed to the property sold. Where the second demand is
addressed to the purchaser, it should be addressed to all the purchasers, if there are more than one. If a
pre-emptor addresses his demand only to some of the purchasers and not to all then he can claim pre-
emption only against those purchasers to whom he had addressed the demand. However, where the pre-
emptor addresses the demand to seller of the property, all the purchasers are bound by the demand. It may
be noted that where the demand is addressed to the property sold, it is not necessary that pre-emptor
should enter into it. It is sufficient that pre-emptor makes the second demand near the premises, say
house, and touches the walls of that house.
(v) The second demand must be made in presence of two competent witnesses. Without testimony of the
witnesses, the second demand is not valid and the claim fails. According to Allahabad High Court it is not
necessary that witnesses have been specially called to testify the demand. But the Patna and Calcutta
High Courts have held that inviting the witnesses to bear testimony to this demand is necessary for its
validity.
(vi) While making the second demand, payment of the price is not necessary. The pre-emptor need not
tender the price to the purchaser then and there. It is sufficient that the pre-emptor has expressed his
readiness and willingness to pay the price.
Note- In certain cases, the first two demands may be combined together. If, per chance, the pre-emptor
gets the opportunity of having two witnesses and also the purchaser or seller (or the premises itself) he
may make the declaration satisfying the requirements of both the demands.

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 The Third Demand (Talab-i-Tamlik)
After the first two demands, if the purchaser sells the property to him, the claim of pre-emption is
materialised No further formality is required and the pre-emptor is substituted in place of vendee. In such
a case, there is no need of any further formality.
But, if after the first two demands, the pre—emptor fails to re-purchase the property, then he has to take
legal action. In other words, the third and the last step is to maintain an action in a court of law. Filing of
a suit for the claim of pre-emption is known as the third demand. This is also termed as Talab-i Khusumat
or ‘demand of possession’. The third demand is, therefore, not always necessary.
The suit must be filed within one year of the completion of sale. Where pre-emptor is a minor, the suit
may be filed by his or her guardian But, the guardian too should file the suit within the period of
limitation referred above. The pre-emptor claims re-purchase from the vendee, therefore, vendee is a
necessary party in the suit for pre-emption. But, if the vendor (seller) is still in possession of the property
sold, the suit must be filed against both.
In a suit for pre-emption, the pre—emptor must claim the whole of his interest. He cannot claim pre-
emption only for a part of the property sold. For example, where some part of the preempted property is
beneficial and the rest is useless, the pre-emptor cannot claim pre-emption only in respect of beneficial
part. His claim must be for the whole property; there cannot be a partial claim. The suit must include the
entire property. If the suit does not ask for the right of pre-emption in respect of entire property, the suit
cannot be entertained by the court and, claim of- the pre-emptor is defeated. Malta explains the rule
against partial pre-emption in the following words:
“The principle of denying the right of pre-emption except as to the whole of the property sold is that if the
pre-emptor were allowed to split up the bargain, he would be at liberty to take the best portion of the
property and leave the worst pan of it with the vendee”.
However, if under one sale-deed two or more properties have been sold, some of which are not subject to
pre-emption, the pre-emptor is entitled to exclude these properties from his suit. Similarly, where the
sale-deed is one but it contains two separate transactions of sale, the pre-emptor can pre-empt in respect
of one property and exclude the other from his claim.
Another significant point to be noted in this respect is that the pre-emptor must have a right to pre-empt
not only at the time of the sale of the adjacent land but also at the time of filing of the suit for pre-
eruption and this right must continue till the decree in that suit is passed by the trial court.

Transfer of Property After The Demands

Once a pre-emptor has made the demands lawfully, he is supposed to have completed the formalities. If
the purchaser transfers the property after valid demands by pre-emptor, the pre-emptor need not repeat his
demands against the new transferee. The demands made against the original purchaser would operate also
against the new transferee.

Legal Effects of Pre-Emption

1. Once the right of pre-emption is established in favour of a pre-emptor, he is entitled to repurchase the
property on the same terms and conditions on which it was purchased by the original purchaser. The
original purchaser becomes the seller and pre- emptor becomes the buyer.
2. The pre-emptor gets ownership of the pre-empted property only after obtaining its possession. Unless the
original purchaser gives possession to the pre-emptor, the title is not transferred to him. However, a pre-
emptor may insist the original purchaser to hand over the possession only under a decree from court of
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 law. The decree ordering for the delivery of possession to pre-emptor is passed under Order 20 Rule 14 of
the Civil Procedure Code 1908. Such a decree specifies the date on which the property is to be transferred
and also the date on or before which the price-money is to be paid. It may be noted that under the decree
of pre-emption, the property vests in the pre-emptor from the date when he pays the purchase money to
the original purchaser.
3. Between the original sale and re-sale of the property to the pre-emptor, the original purchaser is entitled
to continue its possession. Accordingly, he is entitled to enjoy the rents and profits i.e. the usufruct of that
property. But, after payment of the purchase money as directed under the decree, the ownership vests in
the pre-emptor; therefore the pre-emptor may claim meme profit if the property continues to be in
possession of the original purchaser.
4. It is significant to note that the pre-emptor does not get the title of the pre-empted property through
original purchaser. He simply enters in the shoes of original purchaser in respect of all the rights and
obligations of that property. Therefore, where the property was mortgaged, upon re-sale, the pre-emptor
would get this property subject to that mortgage. Where the mortgagee has also the possession, the court
may direct that the pre-emptor would get possession only after redemption of the mortgage.
5. A pre-emptor is entitled to get the property in the same state or condition in which it was purchased by
the original purchaser. Where the original purchaser has made some improvements in the property
between the original sale and its re-sale the pre- emptor must pay the cost of improvement. If the
improvement is of temporary character, he may insist the original purchaser to remove it from the
property. Where the property deteriorates and its market value is considerably reduced due to negligence
of the buyer, the pre-emptor may waive his right and refuse to re-purchase the property.
6. Where a valid and complete sale has been made but, price could not be paid fully or, the price is to be
paid on any future date, the pre-emptor‘s right of repurchase remains unaffected. In such a circumstance
the pre-emptor can substantiate his claim and get the possession after paying full consideration to the
vendor instead of paying to the vendee. The pre-emptor may pay the full price either immediately or on
the stipulated future date. However, the pre-emptor is entitled to get the possession only after paying full
amount to the vendor.
7. As discussed earlier, the right of pre-emption is not affected by any attempted transfer of pre-empted
property. Transfer of the pre-empted property by original purchaser to any other person would not defeat
pre-emptor’s right to get the property. Similarly, the death of original purchaser before re-sale to pre-
emptor, also does not effect the pre-emptor’s right of re-purchase. The pre-emptor is entitled to re-
purchase and get the possession from legal heirs of original purchaser.
8. The decree of pre-emption is non-transferable. A pre-emptor cannot transfer the decree of pre-emption to
any other person; such transferee is not entitled to get possession on the basis of this decree. The reason is
simple. The decree of pre-emption establishes the personal right of a pre-emptor. Being a personal right
of the pre-emptor, it is non-transferable right.

Extinction of the Right

When the Right of Pre-emption is Lost?
The right of pre-emption is extinguished in the following circumstances:
(1) Acquiescence or Waiver: Where a pre-emptor waives his right, it is lost forever. A pre-emptor may
waive his right by acquiescence i.e., by not asserting his claim. Upon the sale of the pre-empted property,
a pre-emptor may either assert his right by making first and second demands or, may willingly forego his
claim by not making any demand. Knowing that sale has been made, if a pre-emptor deliberately fails to
observe the formalities or demands, he is supposed to have abandoned his right.
In Indira Bar v Nand Kishore, the Supreme Court observed that pre-emption is a weak right and in
Muslim law it is settled law that the right of pre-emption is lost by estoppel and acquiescence.

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(2)Misjoinder of Co-plaintiffs
Where a bona fide pre-emptor joins with himself such persons as claimants who are not entitled to pre-
empt, the suit for pre-emption is dismissed and the pre-emptor’s right is extinguished. However, where
the co-plaintiffs, joined by the pre-emptor, who are otherwise competent pre-emptors but could not make
the required demands properly, ‘the suit is not dismissed and the pre-emptor’s right is not lost. But in
such a situation the co—plaintiffs would not get the right of pre-emption.

(3) Forfeiture:
The right of pre-emption is lost by forfeiture in the following circumstances:
(i) The right of pre-emption is lost by forfeiture if a pre-emptor releases the right in consideration of
something paid to him by the seller. However, under Hanafi law a pre-emptor cannot lawfully claim
payment of the consideration for any such release whereas, under the Shia law, be may lawfully claim the
consideration amount.
(ii) The right of pre-emption is extinguished if a pre-emptor transfers his own property (the subject of
pre-emption) to any stranger. Upon transfer of property, the pre-emptor ceases to be its owner whereas, a
pre-emptor must be owner of some immovable property.
(iii) Where the original sale is avoided or, it is impossible for the pre-emptor to carry it out, the re-sale to
pre-emptor cannot take place and the right is lost. It may be noted that in the original sale, there may be
an option (either with the seller or with the purchaser) to dissolve the contract of sale. Where the original
sale itself has been dissolved under such option, the pre-emptor has no right to claim repurchase from the
vendee. Similarly, if the price cannot be determined or in the case of exchange, if the consideration has
perished, the pre-emptor cannot carry it out, therefore, his right is automatically extinguished.
(iv) Where the right of pre-emption may be claimed only by co-parceners, the right is forfeited upon
partition amongst them.
(v) Lastly, the right of pre-emption may be forfeited if there is any statutory disability on the part of pre-
emptor to repurchase the pre-empted property. In such a circumstance a pre-emptor who may otherwise
be competent to enforce the right, is unable to claim the right because of statutory disability.
(4) Death of Pre-emptor:
As discussed earlier, if a pre-emptor dies after the first demand or, after the second demand or, during the
pendency of the suit for pre-emption, his right is extinguished. However, under the Shia and Shafi laws, if
“a pre-emptor dies during pendency of the suit, the right is not lost.

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