According to Hidya, 'the right of Shufa' (Presumption) is but a feeble right, as it is divesting another of his property merely in order to prevent apprehended inconveniences. For these reasons, he considers certain formalities imperative. Comment on the above statement and fully discuss the import importance of the formalities in this connection. What is the effect of non-compliance with the above requirement?

Question: According to Hidya, 'the right of Shufa' (Presumption) is but a feeble right, as it is divesting another of his property merely in order to prevent apprehended inconveniences. For these reasons, he considers certain formalities imperative. Comment on the above statement and fully discuss the import importance of the formalities in this connection. What is the effect of non-compliance with the above requirement? [BJS 1978]

Find the question and answer of Muslim Law only on Legal Bites. [According to Hidya,' the right of Shufa' (Presumption) is but a feeble right, as it is divesting another of his property merely in order to prevent apprehended inconveniences. For these reasons, he considers certain formalities imperative. Comment on the above statement and fully discuss the import importance of the formalities in this connection. What is the effect of non-compliance with the above requirement?]

Answer

The formalities to be satisfied for enforceability of a right of pre-emption in Mahomedan Law are detailed in Mulla's Mohammedan Law, Paragraphs 233,236, and 241 as below:

Ground of pre-emption must continue until the decree is passed: The right in which preemption is claimed must exist not only at the time of sale, but at the date of the suit for preemption, and it must continue up to the time the decree is passed. But it is not necessary that the right should be subsisting at the date of the execution of the decree or at the date of the decree of the appellate Court. The reason is that the crucial date in these cases is the date of the decree of the Court of the first instance.

Demands for pre-emption: No person is entitled to the right of pre-emption unless:

(1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talab-i-mowasibat (literally, demand of jumping, that is, immediate demand); and unless

(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the talab-i-mowasibat had already made, and has made a formal demand:

(a) either in the presence of the buyer, the seller, or on the premises- which are the subject of sale, and

(b) in the presence at least of two witnesses. This formality is called talab-i-shhad (demand with invocation of witnesses).

Bight lost by Joinder of plaintiffs not entitled to pre-empt: If a plaintiff who has a light of pre-emption joins with himself as co-plaintiff a person who has no such right, he is not entitled to claim pre-emption, and the, suit must be dismissed.

In Jagarinath. Rugbainath v. Ranchhod Chansiram, AIR 1950 Madh B 40, though the parties were Hindus, the observance Of the formalities prescribed by Mohammedan law for the enforcement of a right of pre-emption was held essential to entitle the plaintiff to a decree for redemption:

"There must be clear proof of the observance of formalities prescribed, It is time that the two demands may in certain circumstances be combined; but in the latter case, the correct principle is that when a second demand is made after invoking witnesses, a mention of the first demand is necessary in order to inform the vendee that it was properly made as required by law.
..... Judged in this light, there is no proof of the plaintiff having affirmed in the presence of the vendor and the witnesses that he had made a talab-i-mowasibat and the combination of the demands even if it were justified in this case does not help the plaintiff.''

The Mohammedan Law texts are clear on the point on page 568, Vol. III of Hamilton's Hedaya, it is stated thus:

"The right of Shaffa is not established until the demand be regularly made in the presence of witnesses, and it is requisite that it be made as soon as possible after the sale is known; for the right of Shaffa is but a feeble right, as it is the disseizing another of his property merely in order to prevent apprehended inconveniences. It is therefore requisite that the Shafee without delay discovers his intentions, by making the demand; which must be done in the presence of witnesses, otherwise, it cannot be afterward proved before the Kazee.

When the demand has been regularly made in the presence of witnesses, still the Shafee does not become proprietor of the house until the purchaser surrenders it to him, or until the magistrate passes a decree; because the purchaser's property was complete, and cannot be transferred to the Shafee but by his own consent, or by a decree of a magistrate; in the same manner as in the case of a restriction of a grant, where the property of the grantee being completely established by the grant, it cannot be transferred to the grantor, but by the surrender of the grantee, or by a decree of a magistrate.

The use of this law appears in a case where the Shafee, after having preferred his claim before witnesses previous to the decree of the magistrate or the surrender of the purchaser, dies, or fells the house from whence he derived his right; or where the house adjoining to that to which the right of Shaffa relates is sold; for in the first of these instances the house is not a part of his hereditaments, because it was not his property; and the right of Shaffa fails in the second instance, as the fundamental principle of that right is extinguished previously to his becoming the proprietor; and in the third case, he has no right to Shaffa with respect to the house which is sold, since the house from which he would have derived that right is not his property."

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