What is the right of Pre-emption? Who may claim the right of preemption? When can this right of preemption be exercised? Comment.

Question: What is the right of Pre-emption? Who may claim the right of preemption? When can this right of preemption be exercised? Comment. [BJS 2018]

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Answer

The right of Pre-emption is the right of an owner of immovable property to acquire by purchasing another immovable property that has been sold to another person. In other words, under this right owner of an immovable property is entitled to repurchase an adjacent property that has been sold to someone else.

The definition of pre-emption is also given by Mahmood, J., in Gobind Dayal case in which he observed as, 'Pre-emption is a right which the owner of immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in 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.'

The law is based on the principle of convenience. According to Hedaya, 'Besides, according to our tenets, the grand principle of Pre-emption is the conjunction of property, and its object is to prevent the vexation arising from a disagreeable neighbor.'

Further, in the case of Bishan Singh v. Khazan, 1958 AIR 838, the Supreme Court summarized the rules and nature of pre-emption:

i. The right of pre-emption is the right to offer the property to be sold. It is the inherent right or the primary right of the adjacent property's owner.

ii. It is the remedial right of the pre-emptor to follow the thing sold.

iii. It is not the right to repurchase; it is the right of substitution.

iv. It is right to acquire the whole property, not part of it.

v. Preference is the essence of the right.

vi. The right provided is weak and can be defeated by appropriate methods.

A. Classification of Pre-Emptors or who may Pre-empt

Only three classes of persons may claim the exercise of the right under Muslim law. Under

Muslim law, and pre-emptor are classified into three categories:

i. The Co-sharers or Shafi-i-Sharik

ii. The Participators in Immunities or Shafi-i-Khalit, and

iii. The Owners of Adjacent Properties or Shafi-i-Jar

The Co-sharers or Shafi-i-Sharik

The persons who are entitled to inherit the properties of a common ancestor are called co-sharers. The co-sharers have the preferential right of pre-emption against any other class of pre-emptors. For example, brothers or two sisters are the co-sharers. If one of them sells his/her house, the other is entitled to claim pre-emption. Co-sharers are given preference against other categories of pre-emptor's because they are common blood relations.

The Participators in Immunities or Shafi-i-Khalit

In the absence of a co-sharer, Shafi-i-Khalit is entitled to pre-empt. In Bhau Ram v. Baij Nath, AIR 1962 SC 1476 the Supreme Court has held that pre-emption on the basis of participation exists only in the easements of way and water on private land. It does not extend to any other easement such as easements of air and light.

It may be noted here that for claiming the right of pre-emption on the basis of being a Shafi-i-Khalit, is that the right to way and right to discharge water must be a private right. The right to use common thoroughfares such as common village roads will not give rise to the right of pre-emption.

Owners of Adjacent Properties or Shafi-i-Jar

Shafi-i-Jar is the owner of an adjoining property or in other words, it is a mere neighbour who can be a pre-emptor i.e., there is vicinage if two properties are adjacent to each other, but only in the absence of Shafi-i-Sharik and Shafi-i-Khalit. The right on the basis of neighborhood arises only in favour of the owner of the adjoining immovable property. So, the right does not belong to a tenant or to a person who is in possession of the property but does not have any ownership of it.

B. When can this right be exercised?

There are two circumstances under which the right of pre-emption arises:

1. In case of a sale

The right to claim pre-emption arises when the property is subjected to a valid sale. Merely an intention to sell can't be ground for claiming the right of pre-emption. The sale excludes inheritance, gift, waqf, and bequest of a lease in perpetuity and the sale includes exchange. The sale must be bonafide.

2. When the sale is complete

A mere intention to sell can't give rise to the right to claim. The right to make a claim arises when the sale is completed. According to Muslim law, a sale is considered to be completed when the purchaser pays the vendor and the possession is transferred/ delivered by the vendor. It might not be necessary that the execution of an instrument of sale is according to the Transfer of Property Act 1882. Section 54 of TPA states that, the sale of property of the value of Rs. 100 and upwards is not complete unless made through a registered instrument. Further, the High Court of Patna and Calcutta stated that the right of pre-emption doesn't arise until registration is completed as per TPA.

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