Preemption law
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(Querist) 01 April 2012
This query is : Resolved
under which bare act statutory provisions are made regarding pre emption laws?
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prabhakar singh
(Expert) 01 April 2012
It came with Muslims rulers in India. The Hon'ble Apex Court tracing the origin and development of law of Pre-emption in India has observed in the case of Sri Oudh Behari Singh v. Gajadhar Jaipuriya and Ors. that law of Preemption was introduced in this country by Muhammadans. During the period of Mughal emperors, the law of Pre-emption was administered as a rule of common law of the land in those parts of the country which came under the domination of the Muhammadan Rulers. In the course of time, the Hindus came to adopt Pre-emption as a custom for reasons of convenience and the custom is to be found in Provinces like Bihar and Gujarat which had once been integral part of Muhammadan empire.
The right of pre-emption or Shuffa, is a preferential right as it implies ‘to become the buyer of an immovable property.’ The principle of pre-emption was developed under the Muslim law, to prevent a stranger from becoming a co-owner of the property, which may cause inconvenience. The right of pre-emption arises only when a complete sale takes place.
Pre-emption is recognized under the Shia law, only when there are two co-owners. In case one co-owner sells his share, the other co-owner has a preferential right to be the purchaser. Suppose a person died, leaving behind two sons. His property was divided equally, among the brothers but one brother wants to sell off his share to another person. Based on the right to pre-emption under Muslim law, he can be stopped by his brother from doing so.
Muslim Law: Difference between Sunni and Shia Law
Muslim law is broadly classified into the Sunni law and Shia law. However, there are some differences in the provisions of Shia and Sunni law, pertaining to the right of Shuffa, such as:
Number of Co-owners
The Shia law recognizes the right of Shuffa, when there are only two co-owners. However, the Sunni law recognizes this right, irrespective of the number of joint-owners. All the co-owners are entitled to the right of Shuffa.
Who all Are Entitled for Pre-emption
As per Sunni law, the participator of immunities, appendages and the owner of an adjoining property are also entitled to the right of pre-emption. However, under the Shia law no one else, but the two co-owners are entitled to this right.
prabhakar singh
(Expert) 01 April 2012
The Reewa Estate Pre-emption Act 1946 and
The Punjab Pre-emption Act, 1913 is or other laws on the topic.A case law from The Punjab Pre-emption Act, 1913 :
Kalwa vs Vasakha Singh And Anr. on 1 February, 1982
Equivalent citations: AIR 1982 P H 480
Author: S Sandhawalia
Bench: S Sandhawalia, P C Jain, S Mital, D Tewatia, M Sharma, R Mittal, A Bains
JUDGMENT
S.S. Sandhawalia, C.J.
1. ther sub-section (2) of Section 15 of the Punjab Pre-emption Act, 1913 is an independent self-contained provision or is merely a proviso to the preceding sub-section (1) despite the non obstante clause with which it begins has come to be the spinal issue in this reference to a Bench of seven Judges.
2. It is because of a veiled doubt about the correctness of the settled law within this Court by a Bench of five Judges in Karta Ram v. Om Parakash, AIR 1971 Punj & Har 423 (FB) and a co-equal Bench in Prithi Pal Singh v. Milkha Singh, AIR 1976 Punj & Har 157 (FB), that this reference seems to have been necessitated. Because of this and indeed in view of an implied challenge to the very doctrine of precedent which it involves, the matter calls for an exhaustive and in-depth examination.
prabhakar singh
(Expert) 01 April 2012
Shri Audh Behari Singh vs Gajadhar Jaipuria And Others on 23 April, 1954(S.C)
Equivalent citations: 1954 AIR 417, 1955 SCR 70
"When a right of pre-emption rests upon custom it becomes the lex loci or the law of the place and affects all lands situated in that place irrespective of the religion or nationality or domicile of the owners of the lands except where such incidents are proved to be a part of the custom itself.
The right of pre-emption is an incident of property and attaches to the land itself."
Radhakisan Laxminarayan ... vs Shridhar Ramchandra Alshi And ... on 23 April, 1960(S.C)
Equivalent citations: 1960 AIR 1368, 1961 SCR (1) 248
The vendors executed an agreement for sale in respect of a certain survey number which according to the agreement was to be diverted to non-agricultural purposes and thereafter a sale deed was to be executed. In pursuance to the said agreement the vendors applied for diversion which was sanctioned subject to the payment of premium and other conditions. Before the sale deed was executed respondent No. 1.Sridhar brought a suit for pre-emption against the appellant on the ground that he had a co-occupancy in the survey number in dispute being the owner of the adjoining survey number.
The suit was decreed and on appeal the High Court inter alia held that the transaction was a sale which was subject to pre-emption and that the failure to execute and register a sale deed was a subterfuge to defeat the right of pre-emption.
The question for decision before APEX court was
(1) whether a right of preemption had accrued to respondent Sridhar under the provisions of the Berar Land Revenue Code, 1928, and
2) whether the appellant was guilty of fraud in that in order to defeat the right of pre-emption the deed of sale was not executed, but for all intents and purposes the appellant had become the owner of the property.
prabhakar singh
(Expert) 01 April 2012
In addition section 22 of HINDU SUCCESSION ACT ALSO RECOGNIZE THIS RIGHT AS FOLLOWS:..
"22. Preferential right to acquire property in certain cases
(1) Where, after the commencement of this Act, interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolve upon to two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer
his or her interest in the property or business, the other heirs shall have a preferential right to acquire
the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation : In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the
State Government may, by notification in the Official Gazette, specify in this behalf."
A case law from ALLAHABAD HIGH COURT::
Allahabad High Court
Shyam Prasad Mishra And Anr. vs Vijay Pratap Singh And Anr. on 4 October, 2005
Equivalent citations: AIR 2006 All 56, 2006 (2) AWC 1235
Bench: R Misra, K Murari
Here it was held that "8. Before entering into the controversy as to whether right of Pre-emption by custom is prevalent amongst the Hindus and there exists a local custom of Pre-emption in the city of Allahabad, it would be appropriate to consider the question who can exercise the right of Pre-emption or in other words whether a tenant can claim right of Pre-emption against the owner of the property. During the pre-constitution days the right of Pre-emption in some Provinces and cities was followed as a custom and in some places it was embodied in statute passed by Legislature such as Reewa Estate Pre-emption Act 1946 and Punjab Pre-emption Act 1930. Irrespective of the fact whether it was by a custom or under a codified law, the right of Pre-emption could be exercised only either by a co-sharer or by a person on account of vicinage.
9. The appellants are only tenants in the house in dispute. The counsel for the appellants has failed to place before us any law either by usage or custom or under statute, which gives right of Pre-emption to a tenant.
"10. The plaintiff/appellant cannot claim right of Pre-emption in their capacity as tenants of the house in question. Thus the plaintiff/appellants having no enforceable right, have no cause of action and the suit filed by them has rightly been dismissed by the court below exercising power conferred by Order 7 Rule 11 C.P.C. It is well settled that irresponsible, frivolous and malafide litigation must not be allowed to continue and must be weeded out at the earliest. Hon'ble Apex Court in the case of T. Arvindandam v. T.V. Satyapal reported in AIR 1977 SC 2421 has observed that an irresponsible litigation must be nipped in the bud."
SO THERE IS NO ONE STATUTE BOOK TO GOVERN THE TOPIC.
prabhakar singh
(Expert) 01 April 2012
Visit the following page to know more:...
Essays in Classical and Modern Hindu Law: Current problems and the legacy of ...
http://books.google.co.in/books?id=3IEeAAAAIAAJ&pg=PA43&lpg=PA43&dq=law+of+preemption+in+india&source=bl&ots=sFabdv7PlV&sig=Dc
Rajeev Kumar
(Expert) 01 April 2012
Prabhakar sir has supplied a lot of knowledge on this topic in details
Adv.R.P.Chugh
(Expert) 01 April 2012
Pre-emption law is a concept of Muslim Law - to preserve the integrity and homogenous nature of dwellings. Wherein one person gets the preferential right buy other's property.
Under Muslim Law - this law is given to three kinds of persons :-
i) Shafi-i-Sharik - Co-sharers/Jt.Family Persons etc. See S.22 HSA & S.4 of the Partition ACt.
ii) Shafi-i-khalit - Sharing Appendages/Right of way/staircases etc.
iii) Shafi-i-Jar - Neighbour - (Vicinage) this one has been held to be unconstitutional by the SC in Bhau Ram v. Baij Nath (1964 perhaps)
Also see : Krishna v. State of Haryana (1994) as well as Atam Prakash v. State of Haryana (1986) for more on this.
Nadeem Qureshi
(Expert) 01 April 2012
Dear Querist
I think you are satisfied with the experts view.
free legal service
(Querist) 01 April 2012
i m indebted to mr prabhakar singh for such a great job.
V R SHROFF
(Expert) 02 April 2012
Congratulations, Prabhakarji has supplied a lot of information in details
