Types

The right of pre-emption is available to owners of pre-emptive tenements only, that is,
any of the following three types of ownerships:
Pre-emption on the basis of co-sharers (Shafi-i-Sharik)
The owner of an undivided share in the immovable property previously inherited from
a deceased person. In the case where the other co-owner sells his share to someone
without first offering it to his co-sharer, then the co-owner has a right to claim it back
from the outsider. Nothing except sale will bring to life the right of pre-emption. The
right of pre-emption can’t be accessed in the case of lease or mortgage. According to
MEANING AND
Shia law, pre-emption can be claimed only when there are two co-sharer.
INTRODUCTION
Pre-emption on the basis of a participator in immunities
and appendages (Shafi-i-Khalit)
The pre-emptor is known as a participator in immunities and appendages There are
three ways in which a person may be considered to be a Shafi-i-Khalit: 1. he may be
the owner of a dominant heritage; 2. he may be the owner of a servient heritage: 3.
the property sold, also the property of the pre-emptor may be a dominant heritage to
a third person’s property.
Pre-emption on the basis of neighbourhood or vicinage
(Shafi-i-Jaar) Pre-emption law has its origin in the saying of
the prophet. Pre-emption or shufa means
The owner of adjoining immovable property, which is a neighbour. The right of pre-
conjunction, which is adjacent. In the case of
emption on the ground of the vicinage doesn’t extend to the estate of large
Govind Dayal v. Inaytullah (1885), Mahmood J
magnitude; it is confined to houses, gardens, and small pieces of land. Where more
describes pre-emption as, “… a right which the
than one pre-emptor belongs to different categories, the first category or class
owner of certain immovable property possesses,
excludes the second, and the second excludes the third.
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.”

in the case of Bishan Singh v. Khazan (1958),

the Supreme Court summarized the rules and Parties
nature of pre-emption:
From the above illustration, it is quite
• The right of pre-emption is the right evident that there are 3 parties involved.
to offer the property to be sold. It is the • Vendor: the person who owns
inherent right or the primary right of the the property and is willing to sell the
adjacent property’s owner. property. From the illustration X is the
• It is the remedial right of the pre- owner of the property and he decides to
emptor to follow the thing sold. sell it.
• It is not the right to repurchase; it SHUFA • Vendee: the stranger to the
is the right of substitution. property and who buys it. From the
• It is right to acquire the whole illustration, Z is the stranger to the
property, not the part of it. property. The third person involved.
• Preference is the essence of the • Pre-emptor: the neighbour, the
right. co-sharer or heir, from the illustration Y
• The right provided is weak and can has land adjacent to X. therefore,
be defeated by appropriate methods. neighbour – pre-emption right holder.

Illustration: A and B live adjacent to each

other. X is the owner of land A and Y is the
owner of land B, when X decides to sell land
A, it is the legal duty of X to first offer it to Y.
Only when Y shows no interest in buying the
property then only X can sell land to any
other person(z). And if X sells his land to Z
without offering to Y, then Y has a right of
pre-emption against Z and can dispossess
him after paying the same price which Z paid
to X. If the price appears inflated with a
motive to defeat or discourage Y, the pre-
emption right holder, the court will interfere
and rationalize the price. The main motive
behind this law is to dislodge a stranger from
disturbing the tranquillity of the
neighbourhood.

By statute
The law of pre-emption is
applicable under the following
statutes:
• Oudh laws act, 1876
• Punjab pre-emption
act, 1913
• Agra Pre-emption act,
1922
• C.P. Land Revenue act,
1917
• Berar Land Revenue
Code, 1928
• Zabta Shikmidaran