"Pre-emption is a weak right." Discuss this statement.

Question: "Pre-emption is a weak right." Discuss this statement. [RJS 1988]

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Answer

Justice Mahmood has defined pre-emption as a right which the owner of certain immovable property possesses as such, for the quiet enjoyment of immovable property, to obtain in substitution for the buyer's 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.

The law of pre-emption under the Muslim religion is to be looked at in the light of the Muslim law of succession. Under Muslim law, the death of a person results in the division of his property into fractions. If an heir is allowed to dispose of his share without offering it to other co-heirs, then it is likely to lead to the introduction of strangers into a part of the estate with resultant difficulties and inconveniences.

It is pertinent to note that the right of pre-emption is a weak right. The claim of pre-emption operates against the concept of ownership. In effect, the claim of pre-emption hints directly against the absolute right of a person to own and possess property. In presence of this right, a bona fide purchaser has to give up his ownership compulsorily in favour of the pre-emptor. It may be stated, therefore, that pre-emption imposes a limitation or disability upon the ownership of a property merely on the ground of future possible inconvenience of the pre-emptor.

As such, the right of preemption is feeble (weak) as well as defective right. This means that the right is transitory in nature. The right may be lost in the event of any slightest delay in its enforcement. Moreover, the right is defective in the sense that it may be defeated by all lawful means e.g. by showing that there was a gift or exchange and not a sale to the vendee.

In Raghunath v. Radha Mohan, AIR 2020 SC 502, iterating that pre-emption is a weak right, it was held that once a plaintiff-pre-emptor chooses to waive his right of Pre-emption, he loses that right forever, and could not raise the right in perpetuity every time there is a subsequent transaction or sale. It is only exercisable for the first time when the cause of such a right arises.

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