 |
| Right of Pre-emption |
Introduction
A right of a person who is the owner of an adjacent property of another person. If that person sells his property to the third person then his neighbour (adjacent property owner) can claim his right to pre-emption. This person is called a pre-emptor.
Under this right the owner of an immovable property seems to repurchase his adjacent property which has been sold to another person. It is merely a right of preference in order to acquire adjacent property. It is important to know that the same price has to be given by the pre-emptor that it was sold to another.
Origin of this Right
Origin of pre-emption you can trace from the era of the prophet when he emphasizes on the rights of the neighbours. We can find out from the hadith that neighbors have more rights than your relatives. And that's why he stated that your neighbour has a supreme right to purchase the land adjusted to him rather than you selling it to a stranger.
They wanted that everyone should ask first with neighbors before selling the property, because the first right to purchase the property belongs to your neighbor.
Right of Pre-emption is justified on the basis of inconvenience that would be caused by a stranger. The owner of such property should ask the pre-emptor first before selling the property.
Firstly, the concept of pre-emption was established by the Mughals and that time it was applied to both muslims and hindus. The non Muslims were happy to adopt it on the basis of practicability. Additionally, it favoured their inheritance system as well as their lives. The British established that the pre-emption was customary practice for non Muslims and a part of law for the Muslims. Therefore the application of it was confirmed by Britishers through Legislation.
Right of Pre-emption in Muslim Law
A very famous writer Mulla defines this - “as a right in which an owner of the property claims his right to purchase another immovable property first (that is next to his property). This right lies against the buyer to whom the property has been sold.
Mahmood, J. defines that the owner of some immovable property possesses his right to obtain another property in substitution for the buyer.
Essential Elements of Pre-emption
Under the muslim law there are several essentials of the pre-emption, which have been given below:- There must be a sale of immovable property which does not belong to the pre-emptor.
- Pre-emption right is available to the owner of an immovable property that is adjacent to the property had sold. Ownership refers to complete ownership.
- Pre-emptor can claim his right to buy that immovable property adjacent to his.
- It is crucial that the pre-emptor has to give the same price on the same conditions that the buyer paid.
- It can challenge the sale deed against buyers irrespective of religion, caste or ethnicity.
Nature of Right of Pre-emption
This right of pre-emption imposes many disadvantages on the purchaser who has a bona fide intention to purchase the property. Though this right is considered as a weak right against the concept of ownership.
Although, this right is not a permanent right in nature that's why if there is any delay while claiming it then it can be lost also. Furthermore, the right of pre-emption can also be defeated by showing that property was a gift or exchange with another property.
The Supreme Court of India given some rules in the case of Bishan Singh v. Khazan Singh, which are listed below:
- It is not a right to the property sold but a right to the offer the property which has to be sold.
- Pre-emptor has a right to follow adjacent property which has been sold to a third party.
- It is considered a very weak right because it can be easily defeated with legitimate claims.
- It is the right of substitution and not repurchase. The pre-emptor tries to be an original buyer.
- Pre-emptor must have a primary right as a buyer in order of preference.
The pre-emption is a right in rem therefore it is available against the whole world although it is a personal right.
What is the constitutional validity of pre-emption in Muslim law?
It imposed restrictions on the right to transfer of a property while the owner sells to the third party. It was seen as a violation of this fundamental right under right to property Article 30. Further, many of the high courts held this right of pre-emption as a void while stating that it imposed an unreasonable restriction on the right to freedom under Article 19(1)(f) of the Indian Constitution.
But after the 44th Amendment, the right to property was removed from the list of fundamental rights and became a legal right under Article 300A. Hence, courts upheld the constitutionality of the preemption laws and this principle remains reasonable and must not infringe any fundamental rights guaranteed by the Constitution.
0 Comments