Who can claim Haq-Sufa (pre-emption) and what are the formalities to claim right to pre-emption? State the legal devices for evading right of pre-emption.

Question: Who can claim Haq-Sufa (pre-emption) and what are the formalities to claim right to pre-emption? State the legal devices for evading right of pre-emption. [HJS 2001]

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Answer

The right of pre-emption is known in Muslim Law as 'Shufa'. It is the right, which the owner of a share in the immovable property possesses to acquire another's share in immovable property for the price for which it has been sold to another person.

The right of pre-emption or Shufa'a means the right posses by one person to acquire a property sold to another in preference to that other by paying a price equal to that settled, or paid by the latter. The original meaning of Shufa or pre-emption is a conjunction. In the language of the law, it is a right to take possession of a purchased parcel of land, for a similar (in kind and quality) price, that has been set out on it to the purchaser (Bailie 1.475).

The right of Shufa can be claimed by three different classes of persons and one of them is co-sharer ('shafe-e-sharik'), and the other two classes are those, who claim the right by way of being owners of adjoining property.

Who can pre-empt

Pre-emption arises from the following categories of persons. The following three persons may be pre-emptor:

1. Co-sharer by Inheritance (Shafi-i-Sharik)

2. Participator in Immunities & Appendages (Shafi-i-Khalit)

3. Owner of Adjoining Property (Shafi-i-Jar)

Pre-emption enforcement requisites; There are three formalities or necessary steps that are to be followed strictly for claiming Shufa, they are known as three demands:

1. The First demand-Talab-i-mowasibat

2. The second demand-Talab-i-ishhad

3. The third demand-Talab-i-tamlik

According to Shia law, there is no distinction between Talab-i-mowasibat and Talab-i-ishhad and therefore, only one demand needs to be made.

Formalities to claim the Right to Pre-emption

There are two essential formalities, the performance of these is a condition precedent to enable the preemptor to claim the right of pre-emption.

1. A person who intends to advance a claim based on the right of pre-emption in respect of the property which has been sold out to another, must, immediately on receiving information of sale, express in explicit terms his intention to claim the property.

The intention must be formulated in the shape of a demand. No express formula is necessary so long as the assertion of the right or what caused a demand is expressed in unequivocal language. This is called as Talab-e-Muwasabat (Jumping demand). This demand must be made immediately upon the receipt of the information any delay in making this demand on hearing the sale defeats the right of pre-emption. It is not necessary, however, that it should be made in presence of witnesses. It is not material in what words the claim is preferred so long as they imply a claim, they are sufficient.

The presence of witnesses is not necessary at the formulation of this demand, the evidence regarding the performance of this preliminary formality generally rests on the evidence of the pre-emptor. But the demand must be made after the sale has been completed if made while negotiations one going on between the vendor and vendee, it is of no avail.

2. The second condition is that the pre-emptor should with the least practicable delay as is possible in the circumstances, repeat before witnesses his demand, (a) either on the premises in the dispute or (b) in the presence of the vendor or (c) of the vendee, calling on the witnesses to bear the testimony to the fact. This formality is called Talab-e-ishhad or demand by invocation of the witnesses.

As the right of pre-emption is strictissimi juris, failure to perform the "demands" in accordance with the requirement of the law would defeat the claim. In order to entitle the pre-emptor to perform the second demand in presence of the vendee it is not necessary that he should be in possession of the property in respect of which the right is claimed. For the performance of the demand of Talab-e-Ishhad, the preemptor must take some witnesses with him to the vendor if the property sold to is still in possession or to the vendee or to the property which is the subject matter of the claim and there in presence of the witnesses he must say to the following effect; "such a person brought such a property, of which I am the Shafi: I have already claimed my right of Shuffa and now again claim it, therefore, witnesses thereof".

The courts have held that at the time of making the second demand the pre-emptor should distinguish state that he has already made the Talab-e-Mowasibat.

These formalities may be observed by the pre-emptor in person or by proxy. It has also been held that the performance of the Talab-e-Ishhad depends on the preemptor's ability to perform it. He may do it by means of a letter or a message or may depute an agent if he is at a distance and cannot attend personally.

Legal devices for evading the right of pre-emption

The right of pre-emption affects the rights of ownership of a person on flimsy ground namely, the apprehended inconvenience of another person. Therefore, the right of pre-emption may not be generally favoured.

Any legal method may be adopted by a seller for defeating the pre-emptor's claim. Thus, when a vendor apprehends that a neighbour may claim pre-emption, he may sell the whole of his property except a very narrow strip of land bordering the neighbour's property.

In this manner, the neighbour's property would not be adjacent to the property sold, and he would not be entitled to claim pre-emption. Similarly, in order to avoid the claim of pre-emption a transferor may make a gift but take the price secretly from the donee.

Several other methods of evading pre-emption may be suggested. But, it is to be noted that Muslim jurists, especially Imam Muhammad, discouraged the invention of new methods for defeating this right. Fabrication is not permissible under Muslim law for defeating the right of pre-emption.

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