However weak the right may be, the validity of the law of shuffa or pre-emption in every jointly owned and undivided property has a pragmatic approach for the better environment of society and hence the right of pre-emption is undoubtedly a special and valuable right.

“It is unlawful for a partner to sell his share without the permission of his partner. If the latter likes, he would buy or would let go of it. If one partner sells with his partner’s permission, the latter is more entitled to it” – Hedaya

Historical background

It was in the sixth century AD; widely known as the pre-Islamic dark age in the history of Arab countries. There was a lack of norms in society. Anyone could enter anybody else’s residence without permission. Women were repeatedly persecuted and afflicted by the male-dominated society. At this juncture, Prophet Mohammed, the founder of Islam organised a movement by applying Quranic Principles for the establishment of peace and harmony in society.

The genesis of the right of shuffa or pre-emption, comes out of the above-quoted ‘saying’ of the Prophet. During his time the Prophet had firmly decided the validity of pre-emption in every jointly owned and undivided property. The reason behind such a decision was to avoid inconvenience and disruption owing to introduction of a stranger as purchaser and, consequently, the co-owner or other partner obtained the legal right by purchasing the share of the jointly owned or undivided property for the advantage of his family members. As a result, a harmonious relationship amongst the co-sharers or co-owners grew up in society.

Literal and legal meaning

The Arabic term ‘shuffa’ literally means ‘conjunction’ and the legal meaning of shuffa according to the grand principle as prescribed in the Hedaya is ‘the conjunction of property’ i.e., as adjacent to another property. It is a right to stop a stranger from entering into one’s neighbourhood. Hence shuffa, according to Mohammedan jurisprudence, is the right possessed by the owner of certain immovable properties to acquire by compulsory purchase certain other immovable properties in preference to a third person.

So the right of shuffa or pre-emption is vested in partners, coparceners and neighbours with respect to immovable property. The object of this rule is to prevent discomfort and commotion which would arise by conjunction of stranger.

In a word, as observed by Justice Mahmood in ‘Gobind Dayal vs Inayatullah’ [ILR – (1885) 7 All –775] it is the right which the adjacent owner of an immovable property possesses to acquire another immovable property which has been sold to a stranger and this right of pre-emption arises when the seller declares his intention to sell his property. Hence the actual legal position is that the law of pre-emption introduces a limitation upon the ownership of a property to the extent it restricts the owner’s untrammelled right of sale and compels him to sell the property to his co-sharer or neighbour.

Religious and social aspects

Muslim law originates from the holy Quran and the sayings of the Prophet. The law and religion in Islam are so intimately related to each other that they are inseparable. Since the days of the Prophet, the Muslim community began to follow this valuable doctrine of shuffa as their personal law. It is perfectly clear from the above saying of the Prophet that the very concept of pre-emption comes out of the existence of the right before the sale. In fact, sale is not the real cause of pre-emption. The real cause is the situation of properties in question although the right comes into being after the sale.

Although the law of pre-emption was purely a personal law of the Muslim community; other communities of India felt the necessity for such a law and, consequently, this personal law of pre-emption became a customary law amongst other communities in various places of the country. It affects all lands situated in that place irrespective of the religion or nationality or domicile of the owners of the properties.

In India, the law of pre-emption was evidently unknown before the Mughal empire. During the period of Mughal emperors this law was administered as a rule of common law of the land in those parts of the country which came under the strong influence of Muslim rulers and it was applied not only to Mohammedans but also Christians, Hindus and many other communities.

Thereafter, when the British rulers came to India, the Mohammedan law ceased to be the general law of the land. On the contrary, the courts in British India implemented the Mohammedan law of pre-emption as between Mohammedans entirely on the grounds of justice, equity and good conscience.

Regarding the applicability of the law of pre-emption during British rule I quote here a nice observation of Sir Ameer Ali: “—The rights of pre-emption in some provinces like Punjab, Agra and Oudh have been embodied in statutes passed by the Indian Legislature and where the law has been thus codified, it undoubtedly becomes the territorial law of the place and is applicable to persons other than Mohammedan by reason of their property being situated therein. In other parts of India its operation depends upon custom and when the law is customary, the right in enforceable irrespective of the religious persuasion of the parties concerned. When the law is neither territorial nor customary, the right is applicable only between Mohammedans as part of their personal law”.

This was the actual position of the law of pre-emption during the British rule in India.

Regarding Constitutional validity of the law of pre-emption in India the most important question that comes out for real test is what is the nature of the right of pre-emption claimed and whether the law which gives such a right is affected by the provisions of Article 13 read with Article 19(1)(f) of the Constitution of India. However, Article 13 of the Constitution is prospective in operation and hence it cannot affect any right that had already accrued. Moreover, under Article 13 the constitutionality of law is limited to the future exercise of the fundamental rights.

From the practical point of view the right of pre-emption, in effect, restricts the power of acquiring, holding and disposing of the property in derogation of the fundamental right guaranteed by the Constitution under Article 19(1)(f). It is pertinent to mention here that this right of pre-emption is a special right which supersedes ordinary legal rights and prescribes certain restriction upon normal rights of conveyance for the sake of social need and public interest.

Hence it is not correct to say that the free right to dispose of property has been taken away by the old-age custom or newly framed statute which violates the fundamental rights of a citizen. On the contrary, by this custom or statutory provisions certain persons have been given advantageous right to purchase the adjoining property from the owner thereof which is very much reasonable and Constitutional. Thus the liability of a property to be pre-empted is a burden attaching to that property. This burden is not in any way taken away by Article 19(1)(f) of the Constitution.

Utility of pre-emption

Although pre-emption is a creature of Muslim law and the origin of this doctrine is embedded in the precepts of the Prophet; in India, the right of pre-emption is now not a personal right of the Muslim community. It is an incident annexed to the property and hence it might be claimed even against a Hindu or any other non-Muslim purchaser in as much as the primary object of this rule is to prevent vexation and disruption which may occur to families and communities from the introduction of an obnoxious stranger into the land.

Moreover, this valuable right arises not only out of a private sale, but also out of a sale by the court or a receiver appointed by the court. Only, in order to enforce this right the pre-emptor shall be bound to prove the existence of the right by observing all the requirements of law relating to pre-emption i.e., the right existed at the date of sale, at the date of institution of the suit and at the date of original decree. Long back in the year 1885 describing the utility of the right of pre-emption in India, Justice Mahmood aptly remarked: “…this right, no doubt, operates as a restriction to the free sale of property, but its utility outweighs its drawbacks. In a country like Germany a similar right was enforceable. This right must not be lightly death within a country like India where difference of caste, religion etc. presents quite the opposite state of things”.

The writer is a freelance writer and Advocate, Kolkata High Court.