The authorities of Muslim law have expressed conflicting views on the question whether devices for evading pre-emption are valid or not. Abu Yusuf took the view that any device may be used for evading pre-emption.
The usual device that has been used to evade pre-emption is to sell the whole of the property leaving a small strip of land or property adjacent to the neighbour’s or co-owner’s property. Fabrication has also been a device permissible for defeating the right of pre-emption.
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The view that any device is good enough to evade the right of pre-emption is based on the notion that the right of sufa is but a feeble right as it is diseasing another of his property, merely to prevent apprehended inconvenience.
Differing from Abu Yusuf, Imam Muhammad considered the devices for evading the right of pre-emption as abominable. In Mohammed v. Mohammed, the Allahabad High Court said that Muslim law did not recognise the device of dressing up a transaction of sale in the garb of lease so as to defeat the right of pre-emption. It is submitted that modern India will follow the views of Imam Mohammed.
In Govind Dayal v. Inayatullah, Mahmood J. very aptly observed: “And, speaking generally, I may say that if once conceded that the technicalities of the Muhammedan law of contract, procedure or evidence are not binding on us, it will be found that no “tricks or artifices” can defeat the pre-emptive right in our courts. Such devices are held to be ‘abominable’ even where the technicalities of Muhammadan adjective law might give them some plausible effect; and this is the prevalent doctrine”.