Sometimes the right of pre-emption (Shufa) is termed as "a right of purchase from the buyer" whereas sometimes it is referred to as "an incident annexed to property and as such a right of substitution". Keeping all such versions in view, discuss the concept of the right of pre-emption in Mohammedan Law.

Question: Sometimes the right of pre-emption (Shufa) is termed as "a right of purchase from the buyer" whereas sometimes it is referred to as "an incident annexed to property and as such a right of substitution". Keeping all such versions in view, discuss the concept of the right of pre-emption in Mohammedan Law. [BJS 1984]

Find the question and answer of Muslim Law only on Legal Bites. [Sometimes the right of pre-emption (Shufa) is termed as "a right of purchase from the buyer" whereas sometimes it is referred to as "an incident annexed to property and as such a right of substitution". Keeping all such versions in view, discuss the concept of the right of pre-emption in Mohammedan Law.]

Answer

Under the Mohammedan law, only three classes of persons are entitled to claim pre-emption viz:

(1) a co-sharer in the property (shafi-i-sharik);

(2) a participator in immunities and appendages, such as a right of way or a right to discharge water (shafi-i-khalit);

(3) owners of adjoining immovable property (shafi-i-jar).

The first excludes the second, and the second excludes the third. Therefore, the right of pre-emption on the ground of vicinage is by far the weaker right. The right of shufaa or pre-emption is a right that the owner of an immovable property possesses to acquire by purchasing another immovable property that has been sold to another person.

It may be stated that the right of a pre-emption becomes enforceable only when there is a sale. When the sale has taken place, the purchaser is obliged to surrender the property to a neighbour or a partner seeking to enforce that right on receipt of the price of it by him.

Accordingly, the person who takes the property by virtue of the right of pre-emption takes it under or through the first purchaser as if he were taking it directly from the original vendor. The property is in fact sold by the original vendor, subject to the liability to be taken from the purchaser by any person entitled to the right of pre-emption. The effect of the law of preemption is that even a purchaser for good consideration is deprived of his property simply because the neighbour had a preferential right to the property sold.

The law of pre-emption was to be treated as a real law that is a law affecting and attaching to the property itself. The liability to the claim of pre-emption is a quality impressed upon and inherent in the property which is subjected to it, or in other words an incident of that property.

It is a right, which the owner of certain immovable property possesses as such, for the quiet enjoyment of that immovable property, to obtain, in the 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, and being a personal right remains neither transferable nor inheritable. The right of pre-emption is one of the repurchases from the vendee. It is a right inherent in the property and hence could be followed in the hands of the purchaser whoever might be.

Thus, the right of preemption is simply a right of substitution entitling the pre-emptor, by reasons of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It is in effect as if in a sale deed the vendee's name was rubbed out and the pre-emptor's name was substituted in its place." (Mahmood, J. in Gobind Dayal v. Inayatullah, (1885) ILR 7 All 775)

Is the Muslim Law of pre-emption applicable in the following cases:-

1. If the vendor, the vendee, and the pre-emptor are all Muslims.

2. If the vendor and vendee are Muslim but the pre-emptor is a Hindu.

3. If the vendee is Muslim but the pre-emptor and the Vendor are Hindus.

4. If the Vendor is a Muslim but the pre-emptor and the vendees are Hindus.

The right of pre-emption can be claimed under Muslim law when the vendor and the vendee are Muslims. It applies to Muslims throughout India and it is part of the personal law.

The difference arises in the religion of the vendor, vendee, and the pre-emptor or the buyer, seller, and the pre-emptor. In situations or circumstances where all the parties that are involved are Muslim then there is no place for an issue to come up and the law of pre-emption is solicited. But what if all the parties involved are not belonging to the religion of Muslim? Hence in the circumstances or cases penned down below, the law of pre-emption can't be applied:

(1) Where everyone to the parties to pre-emption is Hindu and there is no pertinent custom present.

(2) The pre-emptor is a Muslim being the vendor and the vendee is Hindu.

(3) The pre-emptor is Hindu, being the vendor, and the vendee is Muslim.

(4) When the vendor and pre-emptor are Hindu but the vendee is Muslim.

(5) When the vendor and pre-emptor are Muslim but the vendee is Hindu.

(6) Where the vendor is Muslim but the vendee and pre-emptor are Hindu.

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