Describe the classes of person who can claim a right of pre-emption. Examine whether the right of pre-emption is still available on grounds of the vicinage.

Question: Describe the classes of person who can claim a right of pre-emption. Examine whether the right of pre-emption is still available on grounds of the vicinage. [JJS 2017]

Find the question and answer of Muslim Law only on Legal Bites. [Describe the classes of person who can claim a right of pre-emption. Examine whether the right of pre-emption is still available on grounds of the vicinage.]

Answer

The word pre-emption is a right of substitution conferred on someone either by statute, custom, or contract. The right is to step into the shoes of the vendee preferentially, on the terms of sale already settled between the vendor and vendee. [Vijayalakshmi v. B. Himantharaja Chetty, (1996) 9 SCC 376]

In the words of Mulla,

"The right of Shufa or Pre-emption is a right which the owner of the immovable property possesses to acquire by purchase another immovable property which has been sold to another person."

Who can Pre-empt or the Classification of Pre-emptors

There are three classes of people who can claim the right of Pre-emption:

1. The shafi-i-sharik or a co-owner in the property.
2. The shafi-i-khalit or a participator in appendages: This expression means a person who is entitled to such easements as a right of way, or discharge of water.
3. The shafi-i-jar or owner of an adjoin.

So, as mentioned aforesaid, the right of pre-emption is available to owners of pre-emptive tenements only, that is, any of the following three types of ownerships:

a. Pre-emption on the basis of co-sharers (Shafi-i-Sharik)

The owner of an undivided share in the immovable property previously inherited from a deceased person. In the case where the other co-owner sells his share to someone without first offering it to his co-sharer, then the co-owner has a right to claim it back from the outsider. Nothing except the sale will bring to life the right of pre-emption. The right of pre-emption can't be accessed in the case of a lease or mortgage. According to Shia law, pre-emption can be claimed only when there are two co-sharer.

b. Pre-emption on the basis of a participator in immunities and appendages (Shafi-i-Khalit)

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.

c. Pre-emption on the basis of neighbourhood or vicinage (Shafi-i-Jaar)

The owner of adjoining immovable property, which is a neighbour. The right of pre-emption on the ground of the vicinage doesn't extend to the estate of large magnitude; it is confined to houses, gardens, and small pieces of land. Where more than one pre-emptor belongs to different categories, the first category or class excludes the second, and the second excludes the third.

Validity of Grounds of Vicinage

Several High courts held that pre-emption on the ground of vicinage is void, being an unreasonable restriction under Article 19(1)(f), but pre-emption between co-sharers (shefi-i-Sharik) or owners of dominant and Shafi-i-khalif, is protected by clause (5) i.e., reasonable restriction. In Bhau Ram v. Baij Nath Singh, 1961 AIR 1327, the Supreme Court held that pre-emption by vicinage, restricts the right to dispose of property and is not in the public interest, the restriction imposed was not reasonable. Additionally, it divided society based on caste and religion which is prohibited by Article 15 of the Constitution of India.

However, after the 44th Constitutional Amendment Act, 1978 amendment was brought in Article 19(1)(f) and the right to property, and Article 31 was taken away from the Constitution and was subjected under Article 300A. The question was raised whether the judiciary can be used to implement customary rule (by vicinage) on the grounds of caste and religion prohibited under Article 15 of the Constitution.

In the case of Razzaque Sanjansaheb Bagwan v. Ibrahim Haji Mohd, (1998) 8 SCC 83, the right of pre-emption was claimed on the ground by vicinage, having property adjacent to the suit house. The Supreme Court observed and held that the law of pre-emption constructed on vicinage is void and unconstitutional, hence, the claim was dismissed.

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