Once it is established that the law of pre-emption is applicable to a person (on the ground of equity, custom or statute) he may exercise this right. A person, who is entitled to claim this right, is called a pre-emptor. Under Muslim law, pre-emptors are classified into three categories, given below, in the order of merit.
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(1) The Co-sharers (Shafi-i-sharik):
The persons who are entitled to inherit the properties of a common ancestor are called co-sharers. Where the vendor and pre-emptor is co-sharer, the pre-emptor is called a shafi-i-sharik and has the preferential right of pre-emption against any other class of pre-emptors.
ADVERTISEMENTS:
For example, brothers or two sisters are the co-sharers. If one of them sells his or her house, the other is entitled to claim pre-emption. Co-sharers are given preference against other categories of pre-emptors because they are common blood- relations i.e. related to each other on the ground of consanguinity. Therefore, if one cosharer sells his share of property, his nearest blood-relation would is the person worst affected by substitution of a stranger.
However, since the list of blood-relations may be very large, the category of consanguine (blood) relations entitled to claim preferential right of pre-emption must not be unreasonable. In Atma Prakash v. State of Haryana, the Supreme Court held that if the classification of pre-emptors on the ground of consanguinity is ‘unreasonable’ the classification is unconstitutional.
It is submitted that co-sharer as a class of pre-emptors, as such, has not been declared unconstitutional. Recently, in Krishna v. State of Haryana, the Supreme Court has held that right of preemption to co-sharers is valid and it is not violative of Articles, 14, 15 and 16 of the Constitution.
ADVERTISEMENTS:
(2) The Participators in Immunities (Shafi-i-khalit):
Where two or more persons enjoy a common privilege e.g. a common right of way or, drainage or any other common right to use a property, they are participators in immunities. Upon the sale of the house by any one of such persons, the other participator is entitled to pre-emption. Thus, in the easement of discharge of water, the dominant tenement holder as well as the servant tenement holder, both are shafi-i-khalit.
In Bhau Ram v. Baij Nath, the Supreme Court has held that participation in certain appendages e.g. a common entrance to the property or a common stair case, was a reasonable ground for the claim of pre-emption. However, pre-emption on the basis of participation exists only in the easements of way and water on private lands. It does not extend to any other easement such as easements of air and light.
In Aziz Alimad v. Nazir Ahmad, the branches of a tree overhanged the land of a neighbour. Upon the sale of the land, the owner of the tree claimed pre-emption as a shafi-i-khalit. It was held by the court that owner of the tree was not a pre-emptor on the ground of participation. It may be noted that participators in the use of government water e.g. rivers and tanks or government lands, are not shafi-i-khalit.
ADVERTISEMENTS:
(3) The Owners of Adjacent Properties (Shafl-i-jar):
The neighbours, who are owners of immovable properties, constitute a class of pre- emptors on the basis or vicinage. There is vicinage if two properties are adjacent to each other. Only the owners of properties may be pre-emptors, not their tenants.
Moreover, the right of pre-emption on this ground exists only in respect of houses, gardens and small lands. Pre-emption on the ground of vicinage does not exist in respect of large estates e.g. Zamindaris or Villages.
However, as discussed earlier, after the Bhau Ram’s case in 1962, the claim of preemption only on the ground of vicinage has now been declared to be unconstitutional. This means to suggest that claim of pre-emption only on the ground that pre-emptor is owner of a property which is adjacent to the property sold, is not valid. In A. Razak Sajan Saheb’s case stated in the preceding lines, the Supreme Court, reiterating its earlier decisions held that claim of pre-emption only on the ground of ‘vicinage’ or, being ‘cosharer’ is now unconstitutional.
Classification of Pre-emptors in Order of Priority:
The classification of pre-emptors, as stated above, has been given in the order of merit. Class (1) excludes class (2) and class (2) excludes class (3). That is to say if there are two or more pre-emptors of different categories, then the co-sharer would be preferred over a participator in immunity and a participator would exclude a neighbour.
Pre-emptors of the same class are treated equal. No distinction is made between the pre-emptors of the same class; they are entitled to claim pre-emption simultaneously. Muslim law does not recognise degree of nearness in the same class of pre-emptors.
For example, A and В are two pre-emptors. A is a participator in immunities and is also living in neighbourhood; but В is only a participator. Here both A and В belong to the category of shafi-i-khalit but A cannot claim any preference over В on the ground that he is also a neighbour.
Accordingly, both of them would have equal rights and each of them would be entitled to re-purchase the sold property in equal shares (i.e. half each). Similarly, a co-sharer who is neighbour of the vendor has no priority over another со sharer who is not a neighbour, both have equal rights of pre-emption.
Vendee himself as Pre-emptor:
In certain cases the purchaser himself may be a pre-emptor in respect of the property sold to him. In such a circumstance, vendee (purchaser) would be subject to the same rules as any other pre-emptor. That is to say, if the vendee pre-emptor belongs to second or third class of pre-emptors, he would be excluded by a pre-emptor of class one.
But, where he comes within the same class of pre-emptors, he would not be excluded by the other pre-emptors and is entitled to claim the right equally. For example, if the purchaser himself is a co-sharer then, together with other co-sharers, he too is entitled to pre-empt. The property sold to him would be divided equally between them.
Shia Law:
(a) Shia law recognizes co-shares (Shafiq-i- Sharik) as the only class of pre-emptors. The other two categories namely, the participators and the neighbours cannot become pre-emptor.
(b) Under the Shia law, the co-sharers too are entitled to pre-empt only where their number does not exceed two; if there are more than two co-sharers, the right is not available to any one of them.
(c) Under the Shia law, if there are two co-sharers, they are entitled to pre-empt only in proportion of their respective shares. Their right of pre-emption is simultaneous but not equal in magnitude.
For example, A and В are the two Shia co-sharers having 2/3 and 1/3 shares respectively. Upon the sale of pre-empted property, A is entitled to repurchase 2/3 of the property whereas В is entitled to re-purchase only 1/3 of it.
Transfer of Ownership in Immovable Property:
Essential condition for the claim of pre-emption is that (i) there is sale (transfer of ownership with money consideration) of immovable property and, («) the claimant himself is owner of an immovable property. Pre-emption is available only to the owners of immovable properties.
A person, who is simply in possession of house, cannot claim pre-emption. Thus, a tenant (or lessee), usufructuary mortgagee or, any other person: having merely the possession of an immovable property has no right of pre-emption.
Thus, a tenant (or lesse), usufructuary mortgagee or, any other person having merely the possession of an immovable property, has no right to pre-emption.
Recently, in Mohd. Noor v. Mohd. Ibrahim, it was held by the Supreme Court that right to pre-emption is riot available in the transfer of tenancy. A co-sharer can claim the right of pre-emption only if it is sale of ownership.
The claimant himself must be owner of the property in respect of which preemption is being claimed. The owner may claim pre-emption even if he is not in possession of the property. Where the owner of the property is a minor, the claim on behalf of such minor may be made by his guardian.
Pre-emption for Waqf-Property:
Pre-emption cannot be claimed in respect of waqf property. In a waqf, the ownership of property is vested in God. Therefore, neither waqif nor mutawalli or any other person, can claim pre-emption upon the sale of any property which is adjacent to the waqf property.
Difference of Religion or Sect:
In a claim of pre-emption, there are three parties (i) the pre-emptor, (ii) the seller and (Hi) the purchaser. Where the right of pre-emption exists on the basis of any Ideal custom or under a statute, the religion or sect of the parties is irrelevant.
A uniform customary or statutory law of pre-emption is applicable to all the parties irrespective of their religion or sect. But, where the pre-emption is claimed under Muslim personal law, the religion of the respective parties is an important factor.
In the case of any difference in the religion or sect of pre-emptor, seller and the purchaser, it may be difficult to ascertain as to which personal law is applicable. Under the personal law of one party there may be pre-emption whereas, under the personal law of the other there may not be such right.
In such a circumstance it would be unjust to apply the law of pre-emption in favour of persons who would not be subject to corresponding obligations under the personal laws of others.
Fyzee suggests that in the conflict of personal laws of the parties, logically the law of pre-emption should be applied on reciprocal basis. The rules for the claim of pre-emption in the case of conflict in personal laws of seller, purchaser and pre- emptor, has been given below:
Difference of Religion:
(a) Where the pre-emptor, seller and the purchaser, all are Muslims, the Muslim law of pre-emption is applicable.
(b) Where purchaser is a non-Muslim, the judicial opinion is conflicting. According to Allahabad and Patna High Courts, the purchaser need not be a Muslim. Accordingly, the Muslim law of pre-emption may be applicable against a non-Muslim purchaser.
In other words, the right of pre-emption may be enforced by a Muslim pre-emptor against a Hindu or Christian purchaser. But according to Calcutta and Bombay High Courts, the Muslim law of pre-emption cannot be applied if purchaser is a non-Muslim.
(c) As stated above, where the pre-emption is claimed under custom or under an enactment, the claim is determined by uniform customary or statutory law, irrespective of religion of the parties.
Where the basis of this right is contract, there too the religion of the parities is irrelevant; the claim of pre-emption is determined according to terms and conditions of that contract.
Difference of Sect:
The pre-emptor, seller and the purchaser may all be Muslims but they may belong to different sects. Because of difference in their sects their personal laws may also differ. In such circumstance, following rules are followed:
(a) Where the pre-emptor and the seller belong to one sect, the rule of that particular school shall apply.
(b) Where the sect of seller and purchaser is different, the courts apply law of pre-emption of that particular school in which the right is narrower or limited. For example, if pre-emptor is Sunni and seller is a Shia the pre-emption under Shia law (which is narrower than Sunni law of pre-emption) would be applicable. The result is that if a Sunni pre-emptor claims pre-emption on the ground of vicinage or participation in immunities, his claim must fail because Shia law does not recognise pre-emption on these grounds.
Similarly if the pre-emptor is Shia but the seller is a Sunni, the claim of pre-emption fails because Sunni law (under which pre-emption on these grounds is recognised) cannot apply for want of reciprocity.
Illustrations:
(i) A and В are Muslims and, each is owner of a house in neighbourhood. В sells his house to С who is a Hindu. A is entitled to pre-emption against C. But, according to Calcutta and Bombay High Courts A cannot claim pre-emption against С because С is a non-Muslim.
(ii) A and В are the owners of their respective houses. A is Muslim and В is a Hindu. В sells his house to С who is a Muslim. A claims pre-emption against this Muslim purchaser.
Here, the right cannot be enforced because seller and pre-emptor both should be Muslims. Similarly, if A is Hindu but В and С are Muslims, there is no pre-emption because pre-emptor is a non-Muslim.
(iii) A Hanafi Muslim sold his house to another Hanafi Muslim. Upon the sale of house, his neighbour, who was a Shia Muslim, claimed pre-emption. Here, the seller and purchaser belong to one sect but the pre-emptor is of a different sect.
The narrower law of pre-emption is that of the pre-emptor, therefore, it is this law, (i.e. Shia law) which would be applicable in ascertaining the claim. As the Shia law does not recognise pre-emption on the ground of neighbourhood, the claim of Shia pre-emptor must fail.
Note:
Besides the Muslim law relating to difference of religion of the respective parties to the claim of pre-emption as discussed in the preceding lines, following rules enforceable in India are also to be taken into account:
(1) In most of the territories in India, the right of pre-emption is governed by statutory law (enactments). Under these Acts, the right of pre-emption is available to all persons irrespective of religion, caste and creed.
Therefore, the law of pre-emption in most parts of India is a ‘territorial law’ regulated by the provisions of the enactments enforced in the respective areas.
(2) The Supreme Court has emphasised that the ultimate basis of this right must be ‘personal inconvenience’ of the pre-emptor and in absence of this fact, the Apex Court has held the claim of pre-emption unconstitutional. It is submitted, therefore, that existence of this right is to be examined under the ‘personal inconvenience’ theory as propounded by the Indian courts in the light of constitutional provisions and not under the personal or customary laws.