Shufaa - Pre Emption | Family Law - CLAT PG PDF Download

Introduction of Shufaa in India by Muslims

Shufaa, the right of pre-emption, was introduced in India by Muslims and has various sources:

• In major parts as personal law of Indians.
• In Punjab under statute.
• In Bihar and Gujarat as customs among Hindus.
• By contract.

Concept of Shufaa

The right of Shufaa allows the owner of an immovable property to purchase another immovable property that has been sold to someone else.

Necessity of Shufaa

• Avoiding Inconvenience: Shufaa helps prevent the disturbance caused by introducing a stranger into the land.
• Division of Property: Under Muslim law, when a person dies, their property is divided among heirs. If an heir can sell their share without offering it to the other heirs, it introduces strangers into the estate. Shufaa limits the owner's right to transfer property freely, compelling them to sell it to co-heirs or neighbors.

Classification of Pre-emptors

• Shafi Sharik (Co-owner in Property): A co-sharer in the property has the right to pre-empt, but this right is held by the full owner, not a leaseholder.
• Shafi Sharik (Participation in Appendages): This right is based on participation in appendages, such as the right of way or the right to discharge water.
• Shafi-i-jan (Owner of Adjoining Property): This right is based on neighborhood, allowing the owner of an adjoining property to pre-empt the sale.

When Does the Right of Pre-emption Arise?

Right of pre-emption can arise in two scenarios: during a sale and during an exchange that is complete, bona fide, and valid.

Allahabad High Court Ruling

• The Allahabad High Court determined that when a husband transfers property to his wife in exchange for dower, it is considered a sale. Consequently, the pre-emptive right of Shufaa does not apply to situations involving gifts, mortgages, inheritances, etc.
• It is essential that the basis on which the right of pre-emption is claimed continues to exist until the decree is passed. For example, if a person claims pre-emption as the owner of contiguous property by filing a suit but sells the property after the suit is filed, the suit will be dismissed.

Right of Pre-emption Among Different Sects/Schools

• When parties belong to different sects or schools, or when some parties are non-Muslims, the right of pre-emption involves three parties: the pre-emptor, the vendor, and the vendee.
• If all parties are of the same sect or school, there will be no issue. The right of possession applies only if the vendor acknowledges the vendor's religion.
• When the law of possession is lex-loci or arises by custom or contract, it does not matter if some of the parties are non-Muslims.

Right of Shaffi to Claim Possession

• If one Shaffi sells his property to another Shaffi, the remaining Shaffi cannot interfere with the transaction.

Formalities for Exercising the Right of Possession

• First Demand/Talab-i-Mowasibat: The preemptor asserts his claim immediately upon hearing of the sale, with no specific form required.
• Second Demand/Talab-i-Ishhad: As soon as practicable, the preemptor affirms his intention to assert his right by making the second demand in the presence of two witnesses and either the vendor or the buyer.
• Third Demand/Talab-i-Tamlik: This demand arises when parties file a suit to enforce their right after making the first two demands. It is only applicable if the first two demands are not fulfilled.

Loss of Right to Possession

• The right to possession can be lost in the following ways:
• By acquiescence or waiver
• By the death of the preemptor
• By misjoinder
• By release

Effect of Pre-emption

• Once a suit is decreed, the parties involved stand in the shoes of the vendee and take possession of the property.