The basis of the right of pre-emption is the peaceful enjoyment of an immovable property by its owner. The right is available against any person who purchases the property adjacent to that of the claimant.
Once it is established that the claimant i.e. the pre-emptor, possesses this right, it is irrelevant as to who is the purchaser. As such, it may be said that the right of pre-emption is a right in rem, i.e. it can be claimed against all the persons who may purchase a property adjacent to the pre-emptor’s property.
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ADVERTISEMENTS:
The nature of the right of pre-emption has been a subject of some judicial controversy. Formerly, it was held by certain courts that pre-emption was 2 personal right of the claimant. Another view was that it was a proprietary right i.e. incident of property.
Now the controversy has been resolved by the Supreme Court by holding that a right of pre-emption is purely a personal right. However, these two divergent views are stated below because of academic value.
Personal Right:
The Calcutta and Bombay High Courts have held that right of pre-emption is a personal right of the pre-emptor. These High Courts have held that it is merely a right of repurchase from the vendee who is treated as the full owner for all practical purposes till the right of pre-emption is exercised. The right comes into existence only when ownership of the adjacent property has completely passed on to the vendee i.e., when the sale is complete.
Therefore, it is a personal right against the owner of another property. Similarly, the Bombay High Court had also held that the right was not an incident relating to property but an option which is exercised by a Muslim owner after the completion of a sale by owner of another property.
Proprietary Right:
ADVERTISEMENTS:
According to Allahabad and Patna High Courts the right of pre-emption is a proprietary right, i.e. right attached to property. In other words, it has been held that preemption is an incident of property rather than personality. In the leading case, Gobind Dayal v. Inayatullah, the Allahabad High Court held that pre-emption is not a right of repurchase; it is a right of substitution.
In the exercise of this right, the pre-emptor is entitled to be substituted in the property i.e. he is entitled to stand in the shoes of the vendee in respect of all the rights and obligations pertaining to the property sold.
It was held by the court that right of pre-emption is a right which exists because of the vicinage (neighbourhood) of a property. It does not exist only because that property has been purchased by some person. The court further observed that the right of preemption creates a legal servitude running with the land.
Accordingly, it was held that as the right was not a personal right, it could be claimed even if the purchaser of the adjacent property was a Hindu. This reasoning was followed by other High Courts as well. The High Courts of Patna and Madhya Bharat have held that right of pre-emption is a proprietary right and goes with the land as being annexed to it.
ADVERTISEMENTS:
However, now this controversy has been resolved. The settled law on the nature of the right of pre-emption is that it is purely a personal right. Earlier in Bishan Singh v. Khazan Singh the Supreme Court had approved the view taken in Gobind Dayal’s case and has held that the right is proprietary rather than personal. But subsequently in Bhoop v. Matadin Bhardwaj the Supreme Court has held that the right of pre-emption is purely a personal right.
According to the Apex Court this right may be founded in a statute or custom or personal law but in every case the sole object of this right is to keep away an objectionable stranger from the neighourhood.
Pre-emption is Weak Right:
The right of pre-emption is a weak right. Claim of pre-emption operates against the concept of ownership. In effect, the claim of pre-emption hints directly against the absolute right of a person to own and possess a property. In presence of this right, a bona fide purchaser has to give up his ownership compulsorily in favour of the pre-emptor.
It may be stated, therefore, that pre-emption imposes a limitation or disability upon the ownership of a property merely on the ground of future possible inconvenience of the pre-emptor. As such, the right of pre-emption is feeble (weak) as well as defective right.
This means that the right is transitory in nature. The right may be lost in the event of any slightest delay in its enforcement. Moreover, the right is defective in the sense that it may be defeated by all lawful means e.g. by showing that there was a gift or exchange and not a sale to the vendee.