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Ans: - Definition, The right of pre-emption is a right to acquire by compulsory purchase, in certain cases, immovable property in, preference to all other persons. It is the right of a third person called the pre-emptor, to step in, when contract is, made for the sale of immovable property, and claim to take the place of the buyer, i.e., to take the property at, the same price and on the same conditions as the buyer and seller have agreed upon., When pre-emption arises, The right of pre-emption arises only out of a valid, complete and bona fide sale, and in the case of no other, alienation, such as gift, wakf or bequest. The right can be exercised only in regard to immovable property; thus,, it would not apply to a sale of crops or trees intended to be removed., It is important to note that the right of pre-emption arises only completion of the sale. According to Muslim law,, a sale is complete even if no registered instrument is executed. But, according to Section 54 the Transfer of, Property Act, a sale of immovable property, of the value of one hundred rupees or more, must be affected by a, registered instrument., Then, for 'the purpose of pre-emption, by what law is the sale deemed to have been completed ? The question is, important, because the demands of pre-emption are to be made immediately on completion of 9ale. According, to the Privy Council, the question is, be determined with reference to the intention of the vendor and the, vendee, as to what law should apply, and what is to be taken as the date of sale, with reference to which the, ceremonies are to be performed., The nature of pre-emption, 53, 1

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Muslim Law (K-3001), The right of pre-emption is in the nature of an easement, and is annexed to the land under Muslim law. The, right comes into existence on the sale of the adjacent property. The right to pre-emption is not a right of a re-, purchase, either from the vendor or from the vendee, but is simply a right of substitution, entitling the pre-, emptor, by reason 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., It is rather anomalous that the right of pre-emption is not recognised in Madras. The reason given by the Madras, High Court for refusing to recognise the right of pre-emption amongst Muslims is that it places a restriction on, the liberty of a person to transfer property, and is, therefore, opposed to justice, equity and good conscience., (Ibrahim v. Muni Mir Uddin, (1870) 6 M.H.C. 26), Object of pre-emption, The object of the rule of pre-emption is to prevent the inconvenience which may result to families and, communities from the introduction of a disagreeable stranger as a coparcerner or near neighbour., To whom applied, The doctrine of pre-emption is applicable to all Muslims in general., Applicability to Hindus, The law of pre-emption is applied to Hindus also (i) by legislation, as in the Punjab and Oudh, where there are, general territorial enactments; or (ii) by custom, as in Bihar and certain parts of Gujarat; or (iii) when there is a, contract between the parties that the law should apply., In the Mofussil of Bombay, under Regulation IV of 1827, (which does not mention pre.-emption or any other, topic of Muslim law as expressly applicable to the Muslims), the law of pre-emption can be applicable on the, principles of justice, equity and good conscience, or on the.ground of custom. But it has been held in Mahomed, Beg Amni Beg. & Anr. v. Narayan Meghaji Patil & Ors., (1916) I.L.R. 40 Bom. 358, that preemption is, opposed to justice, equity and good conscience. So, it can apply only on the ground of custom, Who can claim pre-emption?, According to the Muhammadan law, the right of pre-emption appertains to the following persons, 1D A shafii-i-sharik, i.e., co-sharer or partner in the property sold., 54, 2

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Muslim Law (K-3001), 2) A Shafii-i-khalit, i.e., a partner in the amenities and appendages of the property (such as the right to, water and roads, or a common access). These are persons connected with the property sold either as, holders of dominant or servient heritages, or as sharing a common right., 3) A Shall-i-jar, i.e., an owner of neighbouring immovable property. This right of pre-emption on the, ground of vicinage does not extend to estates of large magnitude such as villages and zamindaris, but is, confined to houses, gardens and small parcels of land., Constitutional validity of pre-emption, It has been held by the High Courts of Rajasthan, Madhya Bharat and Hyderabad that pre-emption on the, ground of vicinage is void after 26th January 1950, as it imposes an unreasonable restriction on the, fundamental right guaranteed under Article 19(1)(f) of the Constitution. However, pre-emption as between co-, sharers (see 1 above) and owners of dominant and servient heritages is saved by Article 19(5) of the, Constitution., The Bombay, Allahabad and Patna High Courts have, however, taken a different view and upheld the, Constitutional validity of pre-emption by all the three classes of persons mentioned above. However, the, Supreme Court has now approved the view taken by the Rajasthan High Court (above)., Formalities (Three demands), > In order that a claim for pre-emption should be held to be valid, no particular formula is necessary, provided the, > claim is unequivocally asserted., But, under the Sunni law, certain formalities are strictly to be observed. No person is entitled to a right of pre-, emption, unless he or his manager, or any other person previously authorized by him in his behalf, has made the, following three demands, viz.-, 1. Talab-i-mowasibat, i.e, immediate demand (or demand of jumping), which is not effective unless it is, followed by a formal claim by talab-iishhad. Talab-i-mowasibat is an announcement by one entitled to preempt,, of his intention of making the claim. This announcement is to be made immediately on his receiving, 2 information of the sale, but after (and 'not before) the sale is completed., 2. Talab-i-ishhad, i.e., demand with invocation of witnesses. The talab-i-mowasibat (demand of jumping) is of, no effect, unless it is followed by a formal claim which is called talab-i-ishhad (demand with invocation of, witnesses), in which the pre-emptor must-(1) affirm his intention to assert his right of pre-emption, referring, 55, 3

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Muslim Law (K-3001), expressly to his having made the 'demand of jumping' and (2) make a formal demand, (1) either in the, presence of the buyer or the seller, or on the premises which are the subject of sale, and (II) in the presence of at, least two witnesses, specially called to bear witness to this demand. Any unreasonable delay in making this, second demand will defeat the preemptor's right., The Muhammadan law relating to demand before filing a suit for preemption is of a highly technical nature., Thus, talab-i-mowasibat is the first demand and talab-i-ishhad is the second demand. The third formality, consists of the institution of the suit for pre-emption. Both the talabs are conditions precedent to the exercise of, the right of pre-emption. The talab-i-mowasibat (or first demand) should be made as soon as the fact of the sale, is known to the claimant. Any-unreasonable or unnecessary delay will be construed as an election not to pre-, empt., Right of pre-emption, when lost The right of pre-emption is lost, 1) If the pre-emptor acquiesces in the sale, e.g., if he enters into a compromise with the buyer; or, 2) If the pre-emptor, in his suit for pre-emption, joins with himself, as co-plaintiff, a person who is not, entitled to pre-empt. (Dwarka Singh v. Sheo Shanker, (1927) 48 All. 810, 98 IC; 1007, (1927) A.A. 168;, Mahant Tokh Narayan v. Ram Rachhya, (1926) 5 Pat. 96, 90 1.C. 806 ('25) A.P. 743; and Narayana v., Karthiayani, .('62) A Ker. 122.), This view has, however, not been followed in Bachan Singh v. Bhupal Singh, (A.I.R. 1966 Punj. 36), where the, Punjab High Court held that when a person having no right of pre-emption is made a co-plaintiff by a pre-, emptor, the latter's right is not forfeited., Right of pre-emption, when not lost The right of pre-emption is not lost merely because, 1) prior to the sale, the pre-emptor had refused to buy the property in respect of which the right is claimed:, 2) the pre-emptor had previous notice of the sale, and he did not offer to purchase.., Difference between the Sunni and Shia law of pre-emption, 1 As to who can claim it.- Under the Sunni law, a co-sharer, a participator in the appendages an owners, of adioining lands are entitled to claim pre-emption; under the Shia law, a co-sharer alone is entitled to, claim pre emption, and that too, if the number of co-sharers does not exceed two. Thus, Shia law does, not recognise the right of pre-emption on the ground of "vicinage"., 56, 4

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Muslim Law (K-3001), 2) As to right to sue., Under the Sunni law, if the pre-emptor dies before obtaining a decree in a suit for, pre-emption, the right to sue is extinguished, whereas under the Shia law, the right to sue is not, extinguished, and the suet may be continued by the pre-emptor's heirs., 3) As to abatement of price. - Under the Sunni law, if after the completion of the sale, the vendor makes, an abatement of the price, the pre-emptor can claim the benefit of the abatement; under the Shia law, in, such a case, the pre-emptor cannot claim the benefit of the abatement of the price., 4) As to the number of demands., Under the Sunni law, the talab-i-mowasibat and the talab-i-ishhad, are the two conditions precedent to the exercise of the right of pre-emption, under the Shia law, the, distinction between the two demands is not recognised. Only one demand is necessary.-, ACKNOWLEDGEMENT OF PATERNITY