Suit for pre-emption
usif Magsi
(Querist) 07 March 2011
This query is : Resolved
Bhai. I have taken the brief of the Suit for the pre emption on the side of the defendant, the defendant had purchased the area of the 200 yards, but soon sold the same to an other person, who is the nephew of the plaintiff, now the defendant is neither owner nor possessor of the suit land, but the plaintiff is not filing the suit against to his nephew who is at present owner and possor and no issue against my defendant, What the grounds are in the favour of the defendant for getting rid of the suit. thanks
A V Vishal
(Expert) 07 March 2011
I presume your client is a muslim, then, in such case The right of pre-emption or Shuffa, is a preferential right as it implies ‘to become the buyer of an immovable property.’ The principle of pre-emption was developed under the Muslim law, to prevent a stranger from becoming a co-owner of the property, which may cause inconvenience. The right of pre-emption arises only when a complete sale takes place.
Pre-emption is recognized under the Shia law, only when there are two co-owners. In case one co-owner sells his share, the other co-owner has a preferential right to be the purchaser. Suppose a person died, leaving behind two sons. His property was divided equally, among the brothers but one brother wants to sell off his share to another person. Based on the right to pre-emption under Muslim law, he can be stopped by his brother from doing so.
Doctrine of pre-emption was developed as a custom under muslim law from early days. This is to restrain and prevent a stranger coming in between or among co sharers or neighbors which could cause inconvenience. An offer has to be made to near relatives and neighbors first in order to avoid inconvenience. Such principle disscussed and recognised in following decisions. AIR 1996 SC 2146; AIR 2002 SC 2500; AIR 1958 SC 838; AIR 1991 SC 1055; AIR 2001 SC 2611. Under Shia law only co sharers are entitled to right of pre-emption.
Muslim Law or any other personal Law should not over ride the statute. Thus where T.P.Act applies, no right of pre-emption would arise unless the title has passed according to the Act. The demand of exercise of right of pre-emption shold e made after registration of sale deed. AIR 1960 SC 1368; AIR 1961 SC 1747; AIR 1968 SC 450. Right of pre-emption is lost by Estoppel and acquiescence. AIR 1991 SC 1055.
In Mahfooz Ali Khan case: AIR 1980 All 5. Muslim law of pre-emption was applied in certain parts of the country to the owners of the property irrespective of their religious persuasions, which shows that it was not applied as the personal law of muslims but as customary law of that local area.
In case there exists a will or any other kind of disposition of property made by the deceased MUSLIM in his lifetime, it may be limited to one third of his estate, and the remaining two thirds would devolve on the heirs. AIR 2001 SC 3067.
usif Magsi
(Querist) 07 March 2011
Bhai, the grounds shall be that,
01/. That there is no issue against to my client.
o2/. That the suit is not maintainable
03/. That the defendant has remained no more owner
04/. what the further grounds shall be.?
a.manoharan
(Expert) 08 March 2011
Bhai. ANYTHING DONE IN LIS-PENDENCE IT IS INVALID AS PER TP ACT. CONFIRM YOURSELF NOW.
