PRE-EMPTION

PRE-EMPTION

Assignment Submitted In Partial Fulfillment of Semester IV

Batch: (2013- 2018)

[B.A/LL.B. (Hons)]

SUBMITTED BY,
SUBMITTED TO,
M R S.

MS. JANHAVEE MISHRA

AKSHITA SHRIVASTAVA
ENROLLMENT NO. A8111113070
(LECTURER)

PRE-EMPTION

AMITY LAW SCHOOL

AMITY UNIVERSITY, LUCKNOW CAMPUS
ACKNOWLEDGEMENT

It is my esteemed pleasure to present the assignment on PRE-EMPTION.

I express my gratitude to my assignment guide, Mrs. Akshita Srivastava, who gave me the
inspiration to pursue the project and guided me in this endeavor. She has been a constant source
of motivation and encouragement for me. I thank her for all the initiative and zeal she filled me
with throughout the assignment.
My profound sense of gratitude is due to my parents and all my friends for constant
encouragement and valuable guidance.

Janhavee Mishra
B.A/ LL.B (IV Semester)-B,
Enrollment No. A8111113070

PRE-EMPTION

CONTENTS
Introduction..04
Origin of Right.05
Definition..06
Basis of Rights..07
Grounds of Justification08
The Extent of Continuation of the Grounds of Pre-Emption....09
Nature of Right..10
Application of Hindu..11
Constitutional Validity of the Law of Pre-Emption .11-13
Subject of Pre-emption..13
Formalities14-16
Conclusion..17
Bibliography...18

PRE-EMPTION

INTRODUCTION
The law of pre-emption is based upon the texts of Muslim Law and it is a well-founded doctrine
in India. The object of the pre-emption is to prevent the introduction of a stranger among coshares. Participators in appendages and neighbours so that no inconvenience and disturbance is
caused to them. It is well settled that the law relating to exercise of right of pre-emption is of a
highly technical nature. Talab-i-mowasibat and Talab-i-ishhad are conditions precedent for
exercise of the right of pre-emption. The rules relating to aforesaid two talabs must be strickly
complied with. Presence of the witnesses at the time of talab-i-ishhad is also important.1
Pre-emption- The right of pre-emption or Shufa is a right to acquire by compulsory purchase, in
a certain cases, immovable property in preference to all other persons. It is, says Phear, J.,
founded on supposed necessities of a Mohammedan family, arising out of their minute division
and interdivision of ancestral property, and as, the result of its existence is generally adverse to
the public interest, it certainly will not be recognized by this Court beyond the limits to which
those necessities have been judicially divided to extend.2
The pre-emption of the Muslim Law does not resemble the pre-emption of the Roman law but
resembles the Retract retch of German Law. In Ibrahim Saib v. Muni Mir Uddin Saib, 3 Holloway
J. observed, The word pre-emption is a little deluding. That was an institution known to Roman
Law and sanctioned an obligatory relation between the vendor and a person determined, binding
the vendor to sell to that person is he offered as good conditions as the intended vendee. It arose
from a contract and also from the provisions of positive written law. It was protected solely by a
1 Azizur Rahman Barbhuiya v. Haji Moshaid Ali Laskar, A.I.R. 1991 Gau.66.
2 In re. Nusrat Raza, (1862)8 W.R.309.
3 (1870) 6 MHCR 26
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personal action, and gave no right of action against the vendee to whom the property had been
passed.

ORIGIN OF THE RIGHT

Their Lordships of the Privy Council in Digamber Singh v. Ahmad,4 have described the origin of
the right of pre-emption in the following words:
Pre-emption in village communities in British India had its origin in the Mohammedan Law as
to pre-emption and was apparently unknown to India before the time of the Mughal rulers. In the
course of time, customs of pre-emption grew up or were adopted among village communities. In
some cases, the shares in a village adopted or followed the rulers of Mohammedan Law of preemption, and in such cases the custom of the village follow the rule of the Mohammedan Law of
pre-emption. In other cases, where a custom of pre-emption exists, each village community has a
custom of pre-emption which varies from the Mohammedan Law of pre-emption and is peculiar
to the village in its provisions and its incidents. A custom of pre-emption was doubtless in all
cases the result of agreement amongst the shareholders of the particular village, and may have
been adopted in modern times and in villages which were first constituted in modern times.
Rights of pre-emption have in some States been given by the Acts of the Indian Legislature.
Rights of pre-emption have also been created by contract between the shares in a village. But in
all cases, the object is, as far as possible, to prevent strangers to a village from becoming shares
in the village. Rights of pre-emption when they exist are valuable rights, and when they depend
upon a custom or upon a contract, the custom or the contract as the case may be, must, if
disputed, be proved.

4 421 A 18 (1915) 37 All.p.129.

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In Indira bai v. Nand Kishore,5the Supreme Court held the right of pre-emption is a weak right
and it can be defeated by estoppels. Even in Muslim Law, which is the genesis of this, right, as it
was unknown to Hindu Law and was brought in wake of Mohammedan Rule, it is settled that the
right of pre-emption is lost by estoppels and acquiescence.

DEFINITION
The technical Arabic term for its Anglo-Mohammedan equivalent pre-emption, is Shufa which
literally means adding. In law, pre-emption is defined as a right which the owner of certain
immovable property possesses, as such, for the quiet 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.6 Thus pre-emption is the right which the owner of an immovable property possesses to
acquire another immovable property for the price for which it has been sold to another person. 7
According to Mulla, the right of Shufa or pre-emption is a right which the owner of an
immovable property posse to acquire by purchases another immovable property which has been
sold to another person.8 The definition as it stands seems very difficult and complicated but is
most scientific and comprehension. The main ingredients of this definition are:1. Pre-emption is a right which the owner of a certain immovable property possesses to
obtain property possession of certain other immovable property, not his own.

5 A.I.R. 1991 S.C. 1054.

6 Govind Dayal v. Inayatillah, (per Mohmood,J0 I.L.R.7 All. 775
7 Mohd. Ismail v. Abdul Rashid, A.I.R. 1956 All.1 (F.B.).
8 Mulla: Principles of Mohamedan Law 16th Ed., p.225.
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2. The right is obtained in substitution for the buyer (who has already purchased that other
immovable property).
3. The right of proprietary possession is obtained on the same terms on which that other
immovable property is sold to the purchasers.
4. The right is given by law for the quiet enjoyment of property.

BASIS OF THE RIGHT

The origin of pre-emption may be traced in the saying of the Prophet. A number of Traditions are
given in Hedaya (p.548):
A neighbor has a right, superior to that of a stranger, in the lands adjacent to his own.
The right of Shufa holds in a partner who has not divided off and taken separately his share.
The neighbor of a house and the neighbor of land has a superior right to those lands and if he be
absent, the seller must wait his return, provided, however, that, they both participate in the same
road.
According to the Tradition of the Prophet, it is morally objectionable, though not unlawful, to
sell a property without offering it to the pre-emptor (who is either a neighbor, participator in the
appendages of the property or its cosharer). But Imam Shafi held pre-emption to be repugnant to
qiyas (analogy) as it involves taking possession of anothers property contrary to his inclination;
whence it must be confined soley to those to whom it is particularly granted by law. Thus,
according to Hedaya the right of pre-emption is a feeble right and the Courts in India grant it
only on the full and complete observance of formalities.
It is a ritual. If the ritual be defective, the Jinn will not emerge from his bottle. Unless the words
are Khulja Simsim the door will not open. If the ceremonies are in anyway incomplete or
erroneous, the right of Shufa does not take form but remains unsubstantial.
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The full bench of the Allahabad High Court has held that the right of pre-emption is not a right
to re-purchase from the vendee but is a right of substitution 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 rights and
obligations arising from the sale. It is a right of an extremely feeble nature solely and
exclusively based upon consideration of apprehended inconvenience to pre-emptor. In Audh
Behari Singh v. Gejadhar Jaipuri9, the Supreme Court observed:
The correct legal position seems to be that the law of pre-emption imposes a limitation or
disability upon the ownership of a property to the extent that it restricts the owners unfettered
right of sale and compels him to sell the property to the co-sharer or neighbour as the case may
be.

GROUNDS OF JUSTIFICATION
The grounds of justification for the right of pre-emption are the following:
1. The hardship and inconvenience of a joint owner would be greater than those of a
stranger vendee, and in having him as his participator; it may happen that he may be
required to abandon his property.
2. The democratic conception underlying the Muslim Law of inheritance tends to
disintegrate the family property and the law of pre-emption considerably mitigates the
evil10.

When does the Right Arise:

The right of pre-emption arises only in case of sale and only when such sale is complete. It does
not arise in cases of transfer of immovable property without consideration, such as by way of
gift. But the transfer of property in lieu of mehr is treated as one for consideration and hence
subject to pre-emption. So we take the two separately as follow:9 A.I.R.1954 S.C.41
10 See Muslim Law by K.P. Saxena P. 741
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1. It arises in cases of sale.

2. It arises when the sale is complete.
In Sitaram v. Ziaul Hasan,11 the Privy Council expressed the view that the intention of the parties
(i.e., the vendor and the vendee) should be looked at in determining what system of law was to
be taken as applying and what was to be taken to be the date of the completion of sale.

The Extent of Continuation of the Grounds of Pre-Emption

The ground of pre-emption arises when the sale is complete but it continues, not only up to the
date of suit for pre-emption, but till the decree is passed. Thus, if a plaintiff, who claims preemption as an owner of the contiguous property, sells his property to another after the institution
of the suit (but before the decree is passed), he will not be entitled to a decree because he ceases
to own the property which gave him ground to claim pre-emption. But it is not necessary that the
right should be subsisting till the date of execution of decree or till the date of the decree of the
Appellate Court. In Alimon Nessa v. Sudhir Chandra Dey 12, the Gauhati High Court observed
that where the owner of the suit property offered the property for sale to the owner of adjacent
land who in turn offered to purchase it by making payment of consideration in instalments to
which the owner of suit property did not agree and there was no evidence on records either oral
or documentary to show that the adjacent owner either jointly or individually declared the
intention to assert the right of pre-emption on receipt of the information of proposed sale of the
suit property, the right of pre-emption would not be available to him on sale of property to
another person.
When right does not arise?- The right of pre-emption does not arise out of:1. Gifts,
11 A.I.R. 1960 S.C.1368
12 A.I.R. 1991 Gau.13.
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2. Sadaqa,
3. Waqf,
4. Inheritance,
5. Bequest, and
6. Lease, even though in perpetuity.
In Munni Lal v. Bishvanath Prasad,13 it was held by the Supreme Court that under the
Mohammedan Law of pre-emption, there must be full ownership in the land pre-empted; and
therefore the right to pre-emption does not arise on the sale of lease-hold interest in the land.
The pre-emptor also must have the full ownership in order to maintain a suit for pre-emption,
because, reciprocity is the basis of the Mohammedan Law of pre-emption.
7. Mortgage, even though it may be by way of conditional sale. (But the right will accrue
when the mortgage is foreclosed).
8. Conditional sale.

Nature of the Right

A kind of preferential right:- As is clear from the above, the right of pre-emption (Shufa) is a
kind of preferential right which is given to the owner of a property to purchase another property
adjoining to his or of which he is the co-owner or in which he is entitled to immunities or
appendages. This right of pre-emption must subsist till matter is finally decided by ultimate
Court.14
Is it a right of re-purchase:- Formerly there existed a sharp difference of opinion between
various High Courts on this point. The Calcutta and Bombay High Courts held that right of preemption is a right of re-purchase while the Allahabad and Patna High Courts held that it is not a
right of re-purchase but a right of substitution entitling the pre-emptor to stand in the shoes of
the first purchaser. Their Lordships of the Allahabad High Court in the case of Govind Dayal v.
Inayat Ulla,15observed: pre-emption is in effect, as if in the sale-deed the vendees name were
rubbed out and the pre-emptors name inserted in its place. The Allahabad view has been
accepted by the Supreme Court.
Is it a right of Easement?- Mahamood J., in Govind Dayal v. Inayat Ullah, 16 observed that like
easement, the right of pre-emption goes with the land, and also like easement, right of pre13 A.I.R. 1968 S.C.450
14 See Ishaque v. Addl. Member, Board of Revenue, A.I.R.1986 Pat. 53.
15 I.L.R.7 All.775
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emption exists before the injury to that right gives birth to a cause of action,. It is in a way a
legal servitude running with the land. The only point of distinction between the two is that while
easement admits preventive relief, the right of pre-emption does not, i.e., the purchaser cannot be
prevented from purchasing the property from before. It is only when he has entered into a
contract of sale that the right becomes enforceable.
To whom it is applicable:- The Privy Council in Digamber Singh v. Ahmad,17 held that there are
four grounds on which a claim for pre-emption may be based in India. These are the following:
1. By statutes
2. By custom
3. By contract
4. By Muslim Law

APPLICATION TO HINDU
Under the Muslim Law, non-Muslims are as much entitled to exercise the right of pre-emption as
Muslims under the following circumstances:
(i)
By Legislation:- By statute, the law of pre-emption is applied to Hindus as well as to
Muslims in the Punjab and Oudh.
(ii)
By Custom:- The right of pre-emption is recognized by custom among Hindus who
are either native of or are domiciled (only existence of property is not enough) in
Bihar and certain parts of Gujarat, and it is governed by the rules of Muslim Law of
Pre-emption except in so far as such rules are modified by such customs.
Where the existence of any such custom is generally known and judicially recognized, it is
not necessary to assert or prove it, but it is not judicially recognized, it must be proved by
those who assert it.
(iii)
By Contract:- The right of pre-emption may also be created by contract among the
non-Muslims, e.g., between the sharers in a village.

16 I.L.R.7 All. 775

17 (1915) 37 All. 129 (P.C.).
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CONSTITTUTIONAL VALIDITY OF THE LAW OF PRE-EMPTION

BEFORE THE 44TH AMENDMENT OF THE CONSTITUTION: Before the 44th
Amendment of the Constitution there existed Article 19(1) (f) in the constitution, Article
19(1) (f) of the Constitution of India gave the citizens of India, the right to acquire, hold and
dispose of property and Article 19(5) permitted a law to impose reasonable restrictions on
exercise of this either in the interests of the general public or for the protection of the
interests of any Scheduled Tribe. Article 13(1) declared that all laws in force in the territory
of India immediately before the commencement of the Constitution and inconsistent with the
provisions of the Constitution relating to the fundamental rights of the people shall to the
extent of such inconsistency be void. Article 13(2) forbids the State from making any law
which takes away or abridges the fundamental rights and declares that any law made in
contravention of this clause shall, to extent of the Constitution, be void.
Hence, the validity of law of pre-emption, whether it has its roots in Islamic Law or custom
or statute was to depend on whether it amounted to reasonable restriction in the interests of
the general public on the citizens right to acquire, hold and dispose of property.

AFTER 44TH AMENDMENT

By the 44th Amendment of the Constitution, Article 19(1) (f) has been abrogated, therefore,
after this amendment right of pre-emption on the ground of vicinage has been revived:
It is, therefore, submitted that the right of pre-emption still continues to be a legal right and
its reasonableness can still be examined under Article 14 and 15 of the Constitution. In Atma
Prakash v. State of Haryana, 18 the Supreme Court held that claim of pre-emption on the
ground of consanguinity, i.e., on the ground that pre-emptor is co-sharer of the vendor, is
ultra vires the Constitution. While considering the constitutionality of Section 15(1) (a) of
the Punjab Pre-emption Act,1923 (as amended in 1960) which provided pre-emption to the
pre-emption as the ground of consanguinity is the relic of feudal past and is totally irrelevant
with the constitutional scheme. The Court observed that the reason which justified preemption in the past, namely the preservation of integrity of rural society, the unity of family
life and the agnatic theory of succession, are totally irrelevant. The Court held that the claim
of possession by way of pre-emption only as the ground that claimant had superior rights
being fathers brothers son of the owner, cannot be sustained. According, Clause (1) (a) of
18 (1986)2 SCC249, 257
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Section 15 of the Act was held to be unconstitutional by the Supreme Court because there
was no reasonable classification of the co-sharers entitled to claim of pre-emption. It is
submitted that claim of pre-emption by co-sharer as such has not been declared
unconstitutional.
Who can pre-empt? Under the Sunni law, the right of pre-emption appertains to the following
persons:
1. Shafi-i-Sharik, i.e., a co-sharer in the property.
2. Shafi-i-Khalit, i.e., a participator in the immunities and appendages of the property i.e.,
right of a way or a right to discharge water.
3. Shafi-i-jar i.e. a neighbour, owner of adjoining immovable property.

(a) A person would not be a co-sharer for the purpose of pr-emption merely because there is
some common burial ground or chaupal, or same common road or watercourse, or same
property is left in joint occupation for convenience. Persons jointly liable for the payment
of revenue, even though the property has been partitioned, could however be co-shared.19
(b) A person, however, would not become Shafi-i-Khalit merely because branches of a tree in
his projected over the land sold, or he is only entitled to a right of support from a wall
standing on the property, sold, or because he and the vendor are both entitled to draw
water from a government watercourse.
There are three ways in which a person may be considered to be a Shafi-i-Khalit :20
He may be the owner of a dominant heritage;
He may be the owner of a servant heritage;
The property sold as also the property of the pre-emptor may be dominant heritage in
respect of a third persons property.
(c) Shafi-i-jar i.e., the right of pre-emption on the ground of vicinage does not extend to
estate of large magnitude, but is confined to houses, gardens, and small pieces of land.
The pre-emptors of the first class exclude those of the second class and the pre-emptors
of the second class exclude those of the third class. Under Hanafi Law, pre-emptors of the
same class are entitled to pre-emption in equal proportion, even though they are owners
of unequal sharers.21 But in Shafi Law, the right of a pre-emptor is proportionate to his
share in the property.
19 Verma : Muslim Law, p.550.
20 Mulla : Principles of Mohammadan Law, p. 212-13.
21 See Basudev Choudhary v. State of Bihar, A.I.R. 1984 Pat.178
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Shafi Law: Under Shafi Law, only a co-owner or a co-sharer is entitled to claim the right of preemption.
Shia Law: In Shia Law, the right of pre-emption is available only in cases where there are only
two co-sharers in the property.

SUBJECT OF PRE-EMPTION
1. The first rule is that the subject of pre-emption must be an immovable property. It may be
Zamindari property or a house or a garden or a small plot of land. In this connection, it
should be noticed that the superstructure of a house, sold apart from the land on which it
is build is not an immovable property.
2. The second rule is that subject of pre-emption must be pre-empted as a whole. No preemptor can claim a part of the property sold. The reason for this is that if it is allowed,
every pre-emptor will try to take the best part of the property.
Exception: However, there is one exception to the above general rule and that is where
several distinct properties are sold by the same contract. In this case, the pre-emptor may
claim the one and leave the other. In the same way where the sale includes properties which
are not subject to pre-emption the pre-emptor may exclude them and pre-empt the rest.
Where there is a sale, made to two or more persons, it is on the pre-emptors option that he
may pre-empt the portion of any one of them.

FORMALITIES
The Three Demands: The right of pre-emption being a right to interfere with anothers right
to sell his own property, is, both according to Hedaya as well as the case-law, but a weak
right and the law of pre-emption is full of technicalities. It is available only upon the full and
complete observance of the prescribed formalities. The person willing to enforce his right of
pre-emption must make three demands after hearing of the sale of the property concerned.
These are an immediate demand, a confirmatory demand in the presence of witnesses, and a
final demand for possession of the property. These are the most essential requisites for
claiming and enforcing the right and are dealt with in detail below:
1. Talab-i-Mowasibat or Immediate demand
2. Talab-i-Ishhad or Confirmatory demand
3. Talab-i-tamleek or Demand for possession.
Immediate demand: In Arabic it is known as talab-i-mowasibat which literally means a
demand by jumping. The idea in giving this name is that the moment the news comes to a
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person that property has been sold, he should make an immediate demand at the very
moment, whether there are witnesses or not. This shows that the right of pre-emption
must be asserted with the utmost promptitude. Thus it is a kind of announcement by one
entitled to pre-empt of his intention of making the claim. The first demand may be made
with such words as I do claim my shufa.22 The first demand must be made with extreme
promptness. Any laxity on the part of the pre-emptor will result in loss of his right.
Confirmatory demand: In Arabic it is known as talab-i-taqrir or talab-i-ishhad. The
first demand is of no effect unless it is followed by a formal claim i.e., talab-i-ishhad. The
essentials for making it are that the pre-emptor must
(1) Affirm his intention to assert his right, referring expressly to his having made the
immediate demand or talab-i-mowasibat and
(2) Then a formal demand :
Either in the presence of the buyer or the seller or on the subject of sale and
In the presence of at least two witnesses specially called for that purpose.
The second demand may be made by using such words as such a person has brought
such a house of which I am the shafee (pre-emptor); I have already claimed my
privilege of shufa and now again I claim it: be ye therefore witness thereof.
Demand for Possession or talab-i-tamlik: It is the final enforcement of claim by
instituting a regular suit within the period prescribed by the Indian Limitation Act, if it is
not conceded after the second demand.
Rule for making the Demand: The following formalities oftalab-i-mowasibat and talab-iishhad must be strictly observed and there must be clear proof of their observance:
1. The talab-i-mowasibat must be made after the sale is complete and not prior to its
completion.
2. It may be either in person or by an authorized agent or even by a letter.
3. No formula for making, the demand is necessary but the claim must be unequivocally
asserted. E.g., do claim my shufa.
4. The demand must be made immediately and affirmed without delay. Where the preemptor after hearing of the sale entered his house, took out some money for tender
and then performed talab-i-mowasibat it was held that he was not entitled to pre-empt
for delay was unnecessary.23
5. Where there are two or more buyers, the names of all names of all the purchasers
need not be mentioned in making the demand.
6. Where the second demand talab-i-ishhad is not in the presence of the vendor of the
property, the demand must be made to all the buyers.
22 Hedaya,551.
23 Jaffer Khan v. Jabar Meah, I.L.R.10 Cal.38.
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7. Tendering the price is not essential. It is sufficient that he should then declare his
readiness to pay the price.

When the right is lost: The right is lost on the following grounds:
1. Death: Under Sunni Law, the right is extinguished if the pre-emptor dies during the
pendency of the suit i.e., before obtaining a decree in the suit. 24 But under Sunni Law, the
right to sue may be carried on by the pre-emptors heirs.
2. If the pre-emptor waives his right in favour of the vendee i.e., he enters into a
compromise with the buyer.
3. By his acquiescence in the sale. The instances, inter alia, are- If he takes a lease of the
same property from the vendee or if he fails to perform the necessary demands for preemption. Thus, when there is a sale by the seller to the buyer and the pre-emptor without
sufficient cause fails to claim his right immediately the pre-emptor will be deemed to
have acquiesced in the sale and to have lost his right to pre-empt.25
4. When a pre-emptor joins with himself as co-plaintiff a person who has no right of shufa.
5. When he fails in the observance, of the formalities viz., talab-i-mowasibat and talab-iishhad.
6. When the pre-emptor transfers the subject of pre-emption, to a stranger i.e., when he
transfers or forfeits his land.
7. When the pre-emptor releases the right for consideration.
8. When the right is not lost: The right, however, is not lost:
1. By the death of the pre-emptor during the pendency of the suit.
2. By refusing to buy when the property is offered to him before sale for the right arises
only when the sale is complete and not before it.
3. By the previous notice of sale because, the right does not arise before sale.
How can the right be legally evaded:
1. By leaving an unsold strip of land touching the boundary of the pre-empyors land so that
his (pre-emptors) land does not adjoin the portion sold. It can defeat only the neighbor.
2. By leasing out the property in perpetuity instead of selling it. But the lease should be
bonafide.
3. By executing a deed of gift. It should also be bonafide and not colourable.
Pre-emption and Easement: Mahmood, J., further observed that like easement the right of
pre-emption goes with the land.

24 Mohd.Ismail v. Abdul Rashid, (1956) 1 All.143

25 Tyabji, Muslim Law.
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Further like easement, right of pre-emption exists before the injury to that right can give birth
to a cause of action, i.e., it exists before the sale of pre-emptional tenements, though it
becomes enforceable after sale.
The only point of distinction, he pointed out, it that while easement admits preventive relief,
right of pre-emption does not, i.e. the purchaser cannot be prevented from purchasing the
property. It is only when he has entered into a contract of sale that the right becomes
enforceable.

CONCLUSION
1. Property in the hands of Muslim is subject to pre-emption claim of his Muslim
coparceners neighbors.
2. Property in the hand of a Hindu is not so subject to Muslim rule of pre-emption.
3. A Muslim can claim the benefit of the law of pre-emption.
4. Hindus cannot claim the benefit to that law. Appeal dismissed on the ground that Muslim
Law would apply.
A decision of the Supreme Court26 was referred to in which the question of rival claims put
forward on behalf of two adjoining owners was discussed. Their Lordships laid down the
following propositions:
1. The right of pre-emption is not a right to the thing sold but a right to offer a thing about to
be sold. This right is called the primary or inherent right.
26 Bishan Singh v. Khazan Singh, A.I.R. 1958 S.C.838
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2. The pre-emptor has a secondary right or a remedial right to follow the thing sold.
3. It is a right of substitution and not of purchase, i.e., the pre-emptor takes the entire
bargain and steps into the shoes of the original purchaser.
4. Preference being the essence of the right, the plaintiff must have a superior to that of the
vendee or the person substituted in the place.
5. It is a right to acquire whole of the property sold.
6. The right being a very weak right, it can be defeated by all legitimate methods, such as,
the vendee allowing the claimant of a superior or equal rights being substituted in his
place.

BIBLIOGRAPHY

PRIMARY SOURCES

Ahmad Aquil, Mohammedan Law, 23rd Edition

WEB SOURCES
http://www.indiankanoon.org/search/pre-emption,
(Last accessed on February12,2015)
http://www.wikkipedia.com/search/pre-emption,
(Last accessed on February 12,2015)
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PRE-EMPTION

http://www.lawteacher.com/search/case/pre-emption,

(Last accessed on February12,2015)

http://www.manupatra.com,
accessed on February12,2015)

(Last

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