“The Muhammadan law of pre-emption is a law of technicality, and the existence of the right depends upon the full and complete observance of formalities. It is a ritual. If the ritual be defective, the Dijnn will not emerge from the bottle.
Unless the words are ‘open sesame’ the door will not open. If the ceremonies are in any way incomplete or erroneous, the right of sufaa does not take effect, but remains unsubstantial.
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It is rightly so, because the doctrine involves interference with one of the fundamental human rights, the right of freedom of contract”. Thus, spoke Meredith J in C.S. Tiwari v. P. Dubey. Muslim law categorically lays down that the right of pre-emption can be exercised only on the observance of certain formalities. The observance of these formalities is imperative.
Non-observance of any of the essential formalities will be fatal to the suit of pre-emption. Once all the formalities are complete, the right of pre-emption can be defeated on any other basis. The two essential formalities are called “two demands”.
Fyzee says that there are three demands, though admits that the “third demand” is not really a demand. Fyzee’s third demand is the filing of the suit, which is not always necessary. The suit will be filed only when a claim of pre-emption is not conceded.
If right of pre-emption is not claimed, when no demand is made, right of pre-emption does not arise.
First demand or talab-i-mowasibat:
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This requirement lays down that the pre-emptor asserts his claim immediately on hearing of the sale, but not before. This is called talab-i-mowasibat or the first demand. No specific form of asserting this demand has been laid down. The Hedaya merely recommends that some such words may be used. “I do claim my shufaa”.
But this form or any other need not be adopted. What is essential is that the desire to assert the right of pre-emption must be expressed in clear and unequivocal terms. It is imperative that the first demand must be made as soon as the fact of sale becomes known to the pre-emptor. Any improper or unreasonable delays will simply an election not to exercise the right of pre-emption.
A delay of twenty-four hours, or even of twelve hours, was held to be too long. In Jafram Khan v. Jabbar Moah, a pre-emptor, on hearing of the sale entered his house, opened his chest and took out Rs. 47.25 (the price to be tendered to be buyer) and then made first demand. The court held that he was not entitled to claim pre-emption as the delay was quite unnecessary.
The first demand need not be made in the presence of witnesses. There is no legal requirement of presence of witnesses at the time of first demand. It is also not necessary that the first demand should be made by the pre-emptor in person. The demand may be made by his manager or a person previously authorized by him.
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The de facto guardian of a minor pre-emptor may validly make the demand. But a demand made by the father or brother of a major pre-emptor is not sufficient, unless the father or brother was previously authorized. When a pre-emptor is at a distance, the demand may be made by post.
The first demand to be valid must be made when the sale has been completed. If a demand is made before the completion of the sale, it is totally ineffective. In fact, it is no demand. As has been seen earlier there was a conflict of opinion among the High Court’s as to when a sale is complete: is it complete in the Muslim law of sales sense, or the Transfer of Property Act sense? The Supreme Court resolved the controversy in favour of the latter view.
This means that the demand should be made after the registration of the sale-deed. The Supreme Court observed that the right of pre-emptor is a weak right and the court will not go out of the way to help a pre-emptor.
It is a right which is looked upon with great disfavour by the court as it is in derogation of the individual’s right of alienating his property. It is, therefore, neither illegal nor fraudulent for the parties to a transfer to avoid and defeat a claim of pre-emption by all legitimate means.
Second demand or talab-i-ishhad:
The pre-emptor should, as soon as practicable, affirm the intention of asserting his right by making the second demand wherein he refers to the fact that he had already made the right demand. This is called the second demand or talab-i-ishhad.
It is imperative that the second demand should be made: (i) in the presence of two witnesses expressly called to bear witness to the second demand, and (ii) in the presence of the vendor (if he is still in possession of the property), or in the presence of the buyer, or on the property.
When the second demand is made in the presence of the vendee, it is not necessary that the vendee should be in possession of the property in respect of which the claim of pre-emption is made. When the demand is made on premises, then it is not necessary for the pre-emptor to enter them; it is enough if he goes near it and touches it, and then makes the demand.
The second demand, too, may be made in any form; so specific form is required. So long as the above two requirements of the second demand are fulfilled, any form may be used. The Hedaya states the form thus: “Such and such person (naming the vendee) has purchased the manson (or land) of which I am the safe, and I have demanded the pre-emption, and now do demand it; bear eye witnesses to this”.
However, compliance to this form or any form is not necessary. What is necessary is that the second demand must be made in the presence of two witnesses who are specifically called for this purpose; the reference to the first demand must be made.
It must be made either in the presence of the vendor (when he is in possession), or in the presence of the buyer (irrespective of the fact whether he is in possession or not of the pre-empted property), or on the premises, and the property in respect of which the demand is made must be clearly specified.
About the second requirement (i.e., witness should be specifically called for the purpose), there is some controversy among High Courts. In Ganga Prasad v. Ajudhia, the Allahabad High Court observed that the witnesses should be specifically told that they were called to witness the second demand.
The Calcutta High Court followed this decision. The court observed that the enforcement of the right of pre-emption must be preceded by observance of all the formalities prescribed by Muslim law.
The Allahabad High Court in two later decisions expressed a contrary view. In Shivshanker v. Laxmi, the Bombay High Court held that it was not necessary to utter the formula, “Be eye witnesses thereof’, to the witnesses. It would suffice, it observed, if the pre-emptor told the witnesses of his right to pre-empted followed by their witnessing the second demand.
It is not necessary that at the time of the second demand, the pre-emptor should tender the amount (the sale price); it would suffice if he expresses his intention to purchase the property at the same price as was paid by the purchaser.
It has been stated earlier in connection with the first demand that the demand should be made personally or by an authorized agent, unless the pre-emptor is unable to make the demand himself, such as when he is at a distant place.
The same applies to the second demand. When the demand is made through an agent or manager, then any omission on the part of the agent or the manager will be binding on the pre-emptor.
When two or more persons claim the right of pre-emption, then each one of them should make separately both the demands, unless one of them is authorized to make the demand on behalf of another or others.
When one of them is authorized to make demand on behalf of others, then he must make the demand on his own behalf as well as on behalf of others. If out of the several pre-emptors, only some of them have made the demand, but all of them file a suit, then the suit of those would proceed who had made the demand, and the suit of others would be dismissed.
Where there are several vendees, then demands must be made on all of them, unless it is made to the vendor or on the premises. If it is made on some of them, then the shares of those vendees only will be pre-empted on whom demand was made, and not of others.
It is possible that a pre-emptor may combine both the demands. Thus, if at the time of the first demand, the pre-emptor invokes the witnesses in the presence of the seller or the buyer or on the premises, to attest the demand that in fact do so, then it will suffice for both the demands. Subsequently, if the pre-emptor, nonetheless, makes a second demand (without referring to the first demand) then the right to pre-emption cannot be defeated, as this demand is superfluous.
The third demand or talab-i-tamlik:
After making the two demands when the pre-emptor files a suit to enforce his right, then it is called the third demand or talab-i-tamlik (demand of possession) or talab-i-khusumat (the demand where there is dispute). The occasion for the third demand will arise only if the claim is not conceded and, therefore, the third demand is not an essential formality.
In fact, it is a mode of enforcing the right, and it would be misnomer to call it a formality. It is necessary that the suit for the enforcement of the right of pre-emption should be filed within one year of the vendee taking possession of the premises, or within one year of the registration of the sale-deed (in those cases where the subject-matter of the sale does not admit of physical possession).
The period of limitation cannot be extended on account of pre-emptor’s minority. If the pre-emptor is a minor the suit may be filed by .his guardian or his next friend. But in every case, it must be filed within the period of limitation.
In a suit for pre-emption the whole of interest must be claimed. A suit for part of the estate sold is defective and cannot be entertained. The rationale behind this rule is that if pre-emptor is permitted to make a claim for a part, then it is likely to happen that he may claim to take the best portion and leave the rest. In Zainab Bibi v. Umar Hay at, the court observed that the right of pre-emption was never intended “to confer such a capricious choice upon the pre-emptor”. But, obviously, if there are two transactions of sale (either by the same sale-deed or by two sale-deeds) then the pre-emptor is free to pre-empt anyone of them.
Similarly, if a sale-deed includes properties which are subject to pre-emption and which are not subject to pre-emption then the pre-emptor may pre-empt only for those properties which are subject to pre-emption.
When a decree in a suit is passed in favour of the pre-emptor, then the property and the right of mesne profits, under O. 20, Rule 14, Civil Procedure Code vest in the pre-emptor from the date on which he pays the purchase price until that time the original purchaser is entitled to retain possession and take rents and profits.
On the question whether on the death of the pre-emptor during the pendency of the suit, the suit may be continued by his legal representative, there is some controversy among the schools of Muslim law.
According to the Shia and the Shafii law, the suit can be continued by the legal representative. According to the Hanafi law, the right to continue the suit is extinguished. The matter is now governed by the Indian Succession Act, 1925.
Section 306 lays down that the right is not extinguished and the suit may be continued by the legal representative of the deceased pre-emptor, i.e., by his executor or administrator. Since the matter is regulated by the statute, the differences between the schools are of no consequences.
Since the pre-emptor takes the property from the vendee, the vendee is a necessary party to the suit. If the property is in possession of the vendor, then the vendor is also a necessary party. But where the vendee is in possession, the vendor is not a necessary party.