Muslim Law:- SHUFA (PRE-EMPTION)

CHAPTER

SHUFA (PRE-EMPTION)

Pre-emption, which is referred to as Shufa under Muslim law, basically means a ‘first opportunity to buy or purchase.’

The pre-emptor stands in a privileged position as compared to other buyers as he should be given first priority in matters of sale of the property.

Shufa is an Arabic word that refers to conjunction. It is the right of the owner of the property that is adjacent to or in conjunction with another immovable property. The word ‘right’ implies haq. The haq-Shufa connotes the right to acquire the neighbouring property at a later stage from the fresh purchaser.

For example, if A, the owner of an immovable property, wishes to sell his land and B is the owner of the adjoining property, then A is under a legal obligation to first ask B for it. If B refuses to buy that land or is not interested in it, then A may make an offer to sell his land to any other stranger C. When a situation arises that A sold his land to C, without even asking B, then B can exercise his right of pre-emption and dislodge C from that property by paying an equal amount paid by C to A.

OBJECTIVE OF SHUFA (PRE-EMPTION)

The objective behind the right of Shufa is to prevent annoyance or disturbance that may be created by giving rights over property to a stranger.

It gives preference to a person who already shares a certain relationship with the owner of the immovable property who wishes to sell it.

He is given priority over property as compared to third parties. The practice of Shufa basically dislodges the stranger from entering his neighbourhood.

In the case of Bhoop vs. Matadin Bhardwaj (1990), the Supreme Court held that the right of pre-emption is purely a personal right. According to the Apex Court, this right may be founded in a statute, custom, or personal law but in every case, the sole object of this right is to keep away an objectionable stranger from the neighbourhood.

PARTIES INVOLVED

Shufa which means the right of party adjacent, involves three parties:

THE VENDOR:

The owner of the immovable property who wishes to sell it.

THE VENDEE:

The third party or the stranger who wishes to buy it.

THE PRE-EMPTOR:

The party living adjacent to or neighbour, co-owner, or co-heir of the property.

So generally, if A (vendor) is selling land that is adjacent to B’s house, he must first ask B (pre-emptor) whether he wishes to purchase it or not. Only if B denies, he must sell it to any person C (vendee).

ESSENTIAL ELEMENTS OF SHUFA (PRE-EMPTION) UNDER MUSLIM LAW

These are basically the essential elements of Shufa:

1. The right of pre-emption is only available to the owner of immovable property. He must have full ownership of that immovable property.

2. There must be sale of the immovable property and it must not belong to the pre-emptor.

3. There should be a certain relationship between the seller and the pre-emptor.

4. The buyer is subject to the same conditions as would have applied to any other buyer. He is liable to pay an amount equal to the amount paid by any other buyer.

5. The right is given by law for the quiet enjoyment of the property.

In the case of Bishan Singh vs. Khazan Singh (1958), Justice Subba Rao of the Supreme Court of India summarised the right of pre-emption in the following pointers:

1. The right of pre-emption can be exercised against the property which is offered to be sold and not against the already sold property. Therefore, a primary right.

2. The pre-emptor holds a remedial right to follow the thing sold.

3. It is not a right of repurchase, but rather a right of substitution as the pre-emptor himself bargains by stepping into the shoes of the original vendee.

4. Through it, the whole immovable property which is to be sold is acquired, not merely a part of it as the pre-emptor may choose the best part for himself.

5. The pre-emptor must have a superior right over the property than a vendee because the right of pre-emption is based on preference.

6. It is a weak right that can be defeated by lawful methods. Like, the vendee may allow a person who is in superior or equal authority over the disputed property, to be substituted in his place.

WHO CAN CLAIM THE RIGHT OF SHUFA (PRE-EMPTION) UNDER MUSLIM LAW

The pre-emptors have been classified into various kinds based on the person who can pre-empt. They are as follows:

1. THE SHAFI-I- SHARIK –

Co-owners of the property.

If there is more than one owner of an undivided property, the co-owner has the right to claim that property before others.

It cannot be exercised on a property which is leased or mortgaged.

The vendor must be the full owner of the property in dispute.

Under Shia law, the right can be claimed on the basis of Shafi-i-Sharik when the co-owners of the property are limited to two only.

2. THE SHAFI-I-KHAILAT –

The participator in immunities and appendages.

The right of Shufa can be exercised by the person who is a participator in immunities and appendages. Immunities basically mean the pre-emptor has the right of easement over the disputed land and appendages refer to the land attached to the land of the pre-emptor. So, it basically means that the pre-emptor has the right of easement over the land attached to his property and is in dispute. For example, the pre-emptor may be exercising an easementary right of way or right to discharge water from the disputed land.

3. THE SHAFI-I-JAR –

The owner of an adjoining property.

It can be exercised by the neighbour or the owner of the adjoining immovable property which is to be sold. It cannot be claimed by the tenant as he is not the full owner of the property.

FORMALITIES FOR CLAIMING THE RIGHT OF SHUFA (PRE-EMPTION)

The Mohammedan law of pre-emption is very technical and all the formalities must be observed carefully and completely. If no demand is made for claiming it, the right of pre-emption does not arise by itself.

FIRST DEMAND OR TALAB-I-MOWASIBAT

The first demand is referred to as ‘demand for jumping’ and must be made immediately as soon as the pre-emptor hears about the sale of the property being made.

There is as such no prescribed form for making the demand.

The Hedaya recommends that it can be asserted by saying, “I do claim my Shufa”.

The first demand made must be clear and unequivocal and it must be made as soon as the fact of sale becomes known to the pre-emptor.

It need not be made in the presence of witnesses.

Moreover, it is not required to be made by the pre-emptor in person. It can be made by his manager or any person who had been previously authorized by him.

SECOND DEMAND OR TALAB-I-ISHHAD

The second demand is referred to as the ‘demand involving witnesses’.

It is a re-assertion made by the pre-emptor that he intends to claim his right of Shufa as previously intimated.

It needs to be made in the presence of two witnesses. The second condition is that it must be made in the presence of the vendor (if he has possession of the property) or of the vendee or on the property.

It is not necessary for the vendee to hold possession of the property while a second demand is made.

If the demand is made on the property, it is not essential to enter the property completely. Even going near it and touching it is enough.

There is no prescribed form for making a second demand.

THE THIRD DEMAND OR TALAB-I-TAMLIK

The third demand is referred to as the ‘demand for possession’.

If the pre-emptor fails to achieve his right in the first two demands, he can make the third demand by filing the suit in the court.

It is the mode of enforcing the right of pre-emption and must be made within one year of the vendee taking possession of the land.

WHEN THE RIGHT OF SHUFA (PRE-EMPTION) IS LOST

The right of Shufa is lost under the following cases:

1. BY ACQUIESCENCE OR WAIVER –

The right of Shufa is lost by acquiescence when the pre-emptor fails to follow the formalities for claiming it. Like, he does not fulfil all the three demands in time. If the pre-emptor, expressly or impliedly, waives of his right of pre-emption, he loses it.

2. BY THE DEATH OF A PRE-EMPTOR –

When the pre-emptor dies after making the first two demands and before filing the suit for claiming it, the right of pre-emption is lost and his legal heirs cannot file a suit on his behalf.

BY RELEASE –

The right of pre-emption is lost if the pre-emptor releases the property for consideration to be paid to him.

3. BY STATUTORY DISABILITY –

The pre-emptor must necessarily follow the provisions of the law. Anything done contrary to it will result in losing his power of pre-emption.

4. BY LOSS OF RIGHT BEFORE FINAL DECREE:

The right of the pre-emptor must exist till the date when the final decree is to be passed by the trial court. If he loses his right before the final decree is passed, he would no longer be entitled to it.

EFFECT OF SHUFA (PRE-EMPTION)

After the final decree for the suit of pre-emption is passed by the authorized court, the pre-emptor stands in the same position as that of the vendee and becomes liable to pay the same amount as paid by the vendee for the purchase of the property in question.

But the original vendee is entitled to some benefits. He has the right to get profits such as rent or other profits for the period between the date of the first sale and the date when the property was transferred to the pre-emptor.