In the words of Mulla, “The right of shufaa or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person”.
The foundation of the right of pre-emption is the human desire to avoid the inconvenience and disturbance which is likely to be caused by the introduction of a stranger into the land
The Muslim law of pre-emption is to be looked at in the light of the Muslim law of succession. Under Muslim law, death of a person results in the division of his property into fractions. If an heir is allowed to dispose of his share without offering it to other co-heirs, then it is likely to lead to the introduction of strangers into a part of the estate with resultant difficulties and inconveniences.
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ADVERTISEMENTS:
In view of this, the law of pre-emption imposes a limitation or disability upon the ownership of property to the extent that it restricts the owner’s unfettered right of transfer of property and compels him to sell it to his co-heir or neighbour, as the case may be.
The person, who is a co-sharer in the property, or owes property in the vicinity, gets an advantage corresponding to the burden with which the owner of the property is saddled, even though it does not amount to an actual interest in the property sold.
It is now an established view that the right of pre-emption is not a mere right to re-purchase; it is akin to legal servitude running with the land. The right exists in the owner of the pre-emption tenement for the time being which entitled him to have an offer of sale made to him whenever the owner of pre-emptional property desires to sell it.
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It is 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 under which he has derived his title.
It is, in effect, as if in a sale-deed the vendee’s name was rubbed out and the pre-emptor’s name substituted. Or, in the words of Mahmood J. “…..a right, which the owner of certain immovable property possesses, as such, for the quite enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as those on which such latter immovable property, is sold to another person”.
Mukerjee, J. very aptly says that the crux of the whole thing is that the benefit as well as the burden of the right of pre-emption runs with the land and can be enforced by or against the owner of the land for the time being although the right of pre-emption does not amount to an interest in the land itself.
The law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser. Thus, the right of pre-emption in that sense is right in rem, its exercise, from the time it arises upto the time of the decree, is restricted as a personal right.
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It is a right which is neither heritable nor transferable. In this context, the following passage in the Hedaya is also instructive: ‘The right of shufaa is but a feeble right, as it is the disseizing another of his property merely in order to prevent apprehended inconvenience”. The right of pre-emption is a very weak right and can be defeated by a defendant by all lawful means.
In Indira Bai v. Nandkishore, the Supreme Court observed that the right of pre-emption is a weak right and it can be defeated by estoppel. Even in Muslim law, which is the genesis of this right, as it was unknown to Hindu Law and was brought in the wake of Mohammedan Rule, it is settled that the right of pre-emption is lost by estoppel and acquiescence.
Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith. It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked and applied to aid the law in administration of justice. But for it great many injustice may have been perpetrated.