Before the advent of Muslim rule, India had not known anything like shufaa. With the establishment of the Moghul rule, the law of shufaa was introduced in India; it became applicable to all people, including the Hindus. In the words of Hedaya, “A Muslim and Zimmee (non-Muslim) being equally affected by principles on which shufaa [or pre-emption] is established, and equally concerned in its operation, are, therefore, on an equal footing in all cases regarding the principle of shufaa.’ It appears that, in this sense, the law of pre-emption was not part of the personal law of Muslims.
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When the British rule was established in India, the pre-emption existed in some part of the country either as a part of Muslim law, and in some parts, by virtue of custom. In some cases it had also come into existence by contract.
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The British Indian courts were not required to enforce the pre-emption as part of Muslim personal law but as a matter of “justice, equity and good conscience”. The Madras High Court refused to enforce the law of pre-emption since it felt that it was against justice, equity and good conscience to give it effect, as it placed restrictions upon the liberty of alienation of property. However, other High Courts found it in consonance with justice, equity and good conscience.
The free India found that the law of pre-emption prevailed in various parts of the country. In some parts it existed as part of the Muslim personal law, in other parts it was based on custom, while still in some other parts, it existed under statutes, and among some people it had come into existence by contract. Thus, the law of pre-emption has the following four sources:
(i) In the greater part of the country it existed among the Muslims as part of their personal law, i.e., where the law of pre-emption is neither territorial nor customary it is applicable as between Muslims as part of their personal law.
(ii) It existed in certain parts of the country under statutes. Thus, in Punjab it existed under the Punjab Pre-emption Act, 1915, in Agra under the Agra Pre-emption Act, 1922, and in Oudh under the Oudh Laws Act, 1876.
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In these areas the statutory law of pre-emption applies to both Muslims and non-Muslims, and the Muslim law of pre-emption does not apply even to Muslims. (This should be read subject to the saving contained in the Agra Pre-emption Act under which it is laid down that the Muslim law of pre-emption will apply where the vendor and the pre-emptor are both Muslims).
(iii) In Bihar, Sylhet, and certain parts of Gujarat (such as Surat, Broach of Godhra), the right of pre-emption is recognized by custom among Hindus who were either domiciled there or were natives of these parts.
In these areas it was the Muslim law of pre-emption which applies to Hindus except in so far as it was modified by custom. Where pre-emption is based on custom it is part of the lex loci, and is enforceable irrespective of the religions of the parties concerned.
(iv) Among some people it came into existence by contract. The right of pre-emption was created by contract among the sharers in a village. For instance, a Hindu vendee and a Muslim vendor may agree that the Muslim law of pre-emption which applies to the vendor and his sharers would also apply to the vendee.
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The question whether the right of pre-emption is violative of Article 19(l)(b) of the Constitution of India has come up before the Supreme Court in two cases, in one the statutory right of pre-emption and in another the customary right of pre-emption was challenged.
Both cases related to the right of pre-emption on the basis of vicinage. In both cases, the Supreme Court came to the conclusion that the right of pre-emption on the basis of vicinage imposed unnecessary restrictions on the vendor’s right to sell his property to a purchaser of his choice, and, therefore, was unconstitutional.
In Avadh Behari v. Gujadhar, the Supreme Court gave effect to the right of pre-emption based on co-ownership in joint property. However, in this case the constitutional validity of the law of pre-emption was not challenged before the Supreme Court.
In fact, the constitutional validity could not have been challenged in this case, as it was a pre-constitutional case, where the leave to appeal had already been granted by the Privy Council. After the coming into force of the Constitution of India, the appeal was heard by the Supreme Court. Thus, from this case, no inference can be drawn that the Supreme Court had upheld the constitutional validity of the law of pre-emption based on co-ownership.