Pre-Emption

[Dazzling Eyes]

Pre-emption

1. Introduction:
 In Gobind Dayal v. Inayatullah, Mahmood J. defined pre-emption (Shuf’a) as:
“ 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, propriety, possession of certain other immoveable property, not his won, on such terms as those on which such latter immoveable property is sold to another person.”
 Thomas Patrick Hughes says:
Pre-Emption is called Shuf’ah in Arabic. Lit. “Adjunction The right of pre-emption is a power of possessing property which is for sale, and is established upon the teaching of Muhammad. It applies not to movable property but to immovable property (‘aqar). This right of pre-emption appertains in the first place to the co-sharer or p0artner in the property; secondly, to a sharer in the immunities and appendages of the property, such as the right to water, or to roads; and thirdly, to the neighbor. (Hidayah, vol, P594)
2. Three things are, therefore, requisite:
i. The pre-emptor must be the owner of immoveable property;
ii. There must be a sale of certain property, not his won;
iii. The pre-emptor must stand in a certain relationship to the vendor in respect of the property sold. If these conditions are satisfied, he has the right to be substituted for the purchaser.
3. Who can Pre-empt, and When?
Who can Pre-empt?
i. Hanafi Law
Three classes of persons are entitled in Hanafi law to exercise the right of pre-emption:
 Shafi-i-sharik,
 Shafi-i-khalit,
 Shafi-i-jar.
• Shafi-I Sharik i.e. a c-sharer in the property:
A co-sharer (sharik) is an owner of an undivided share in the property. There must be full ownership in the land pre-empted, and therefore the right to pre-empt does not arise on the sale of a leasehold interest in the land.
• Shafi-I Khalit, i.e a participator in immunities and appendages:
This expression means a person who is entitled to such easements as a right of way, or discharge of water.

• Shafi-I jar i.e. the neighbor, the owner of an adjoining property:
Although the neighbor is himself entitled to pre-empt, neither his tenant nor persons in possession without any title have the right. The right of pre-emption on the ground of vicinage does not extend to large estates, such as villages or zamindris, but is confined to house, gardens and small parcels of land.
ii. Shafii law
The Shafii School is stricter than the Hanafi and permits only a co-sharer to exercise the right of pre-emption.
iii. Ithana Ashari Shiite law
The shi’ite system goes a step further, and restricts the right of pre-emption to cases where there are only two co-sharers in the property. The right of a participator or a neighbor is not recognized, nor can pre-emption be claimed where there are more than two co-owners.
iv. Fatimid law
The Da’ a’ im does not recognize a neighbor’s right to pre-empt.
4. When Does the Right Arise?
The right of pre-emption arises only on sale or barter, that is exchange of property of property; it does not arise either on a transfer without consideration or on a transfer by operation of law. It is not necessary; however, that the land sold should be actually separated or divided by metes and bounds.
5. Transfer in lieu of mahr:
Where a husband transfers landed property to the wife in lieu of her unpaid dower, the question arises whether such a transaction is a sale or a barter, which would give rise to a right of pre-emption. The Allahabad High Court, guided by the opinion of Mahmood J. had held that, in as much as such a transfer is in satisfaction of a previous obligation, it is one for consideration and should be regarded as a sale thus giving rise to the right of pre-emption.
On the other hand, the Chief Court of Oudh, adopting the reasoning of Ameer Ali, came to the conclusion that the transaction should be regarded as a hiba bi’l-iwad- a gift of the property by the husband to the wife coupled with a gift by the wife to the husband of her dower debt and that the right of pre-emption does not arise.
6. The Necessary formalities
The Three Demands
No person is entitled to pre-empt unless he takes the proper steps at the proper time, and confirms strictly to the necessary formalities. These formalities or ceremonies are known as the Three Demands.
a The first Demand (talabe-i muwathaba):
The pre-emptor must assert his claim immediately on hearing of the sale, but not before. Witnesses are not necessary, as in the second demand; nor are any particular forms essential. ‘I have demanded or do demand’ pre-emption is enough. Literally, ‘the demand of jumping’.
b The Second Demand (talab-i ishhad):
The pre-emptor must, with the least practicable delay, make a second demand. He must:
i. Refer to his first demand;
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 premises. This is also known as talab-I taqrir, the demand of confirmation.
c The Third Demand (talab-I tamlik / khusumat):
The third demand is not really a demand, but taking legal action, and is not always necessary; it is only when his claim is not conceded that the pre-emptor enforces his right by bringing a suit. Such an action is called talab-I tamlik or talab-I khusumat (the demand of possession, or the demand where thee is a dispute). The suit must be brought within one year of the purchaser taking possession of the property, if it is corporeal; or within one year of the registration of the instrument of sale, if incorporated.
In a suit or claim for pre-emption, the whole of the interest must be claimed a claim to a part of the estate sold is not sufficient.
7. Right When Lost:
The right of pre-emption may be lost by acquiescence, death or release.
8. Acquiescence or Waiver:
The most ordinary form of acquiescence is to mit to take the necessary formalities.
i. Death:
The right of pre-empt is extinguished if the pre-emptor dies after the first two demands, but before failing a suit. The right is extinguished if death occurs during the pendency of a suit, and the action cannot be continued by his legal representatives. Under Ithna ‘Ashari and Shafe’i Law, the right descends to the heirs proportionately.
ii. Release:
The right may be destroyed if there is a release for consideration to be paid to the pre-emport; the right, however, is not lost if there has been a refusal on the part of the pre-emptor to buy before the actual sale, nor by an unwillingness to make an offer to purchase the property after notice that the property was for sale.
9. Subject of Pre-emption
 It is reported that the Prophet (PBUP) said that thee was no shuf’s except in a mansion or garden, whence the law lays down that landed property alone, including houses and gardens, can be subject to the law of pre-emption.
 In Shafi’s law property that is incapable of division cannot be the subject of pre-emption; and some Shi’ste authorities would allow pre-emption to be exercised even in the case of movables.
 To take a few familiar illustrations, movables cannot be the subjects of pre-emption, but trees or buildings, when transferred with the land on which they stand, or a dwelling house sold for occupation, without the ownership of the site, may be the subject of pre-emption.
 Pre-emption must be claimed of the whole of the estate; if the pre-emptor is one of many, he can claim his ratable share and tender the money. If several distinct properties are sold by one contract, the pre-emptor may exercise his right in respect of any one or some of them, and not necessarily in a respect of them all. The right, of a plaintiff pre-emptor is not lost if in a suit to enforce his right, he joins with him a stranger.
10. Legal Effects of Pre-emption
One the claim of pre-emption being enforced, the pre-emptor stands in all respects in the shoes of the buyer, and takes the property subject to prior equities. If the sale has already been completed in its entirety, the original buyers become the new vendor, and the pre-emptor the new purchaser. The original buyer is entitled to receive or retain the rents and mense profits between the date of sale to himself and the date of the transfer of the pre-emptor.