Meaning of Pre-emption
The right of shufaa or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which has been sold to another person.
Demand for pre-emption
The manner of making demands for pre-emption as follows-
No person is entitled to the right of pre-emption unless
(1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talab-i-mowasibat (literally, demand of jumping, that is, immediate demand): and unless,
(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the talab-i-mowasibat had already been made, and has made a formal demand –
(a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale, and
(b) in the presence at least of two witnesses. This formality is called talab-i-ishhad (demand with invocation of witnesses)”.
Condition precedent for right of pre-emption
From a reading of the aforesaid section which deals with the manner of pre-emption it is clear that the talab-i-mowasibat is spoken of as the first demand, and the talab-i-ishhad is the second demand. The third demand consists of the institution of suit for pre-emption.
The talab-i-mowasibat and the talab-i-ishhad are conditions precedent to the exercise of the right of pre-emption. The talab-i-ishhad is as indispensable as the talab-i-mowasibat. The formalities must be strictly observed and there must be a clear proof of their observance.
Talab-i-mowasibat (immediate claim)
The talab-i-mowasibat should be made as soon as the fact of sale in known to the claimant. For validity of talab-i-mowasibat it is not necessary that it should be performed in presence of witnesses. It is enough if the pre-emptor makes known his intention in some way.
Talab-i-ishhad (formal claim)
But, it is of the essence of talab-i-ishhad that it should be performed before witnesses. It is also necessary when the talab-i-ishhad is made that the pre-emptor should refer expressly to the fact of the talab-i-mowasibat having been previously made. However, the formal demand called talab-i-ishhad can be made either in presence of the buyer or the seller or “on the premises which are the subject of sale”
Why right of pre-emption is considered as of high technical nature?
It is well settled that the law relating to exercise of right of pre-emption is of a highly technical nature.
- Talab-i-mowasibat and talab-i-ishhad are conditions predecent for exercise of the right of pre-emption.
- The rules relating to aforesaid two talabs must be strictly complied with.
- Presence of the witnesses at the time of talab-i-ishhad is also important.
- It is for the pre-emptor to prove the fulfilment of all the requirements to sustain his claim for pre-emption.
- However, once, the pre-emptor succeeds in adducing satisfactory evidence in regard to fulfilment of the aforesaid requirements, his claim cannot be rejected on hyper technical interpretation of the formalities or on miscroscopic examination of the evidence to find some fault here or there.
- In any event, the Court should examine the evidence and materials on record in regard to the observance of the formalities in a judicial manner keeping in view the practical and real state of affairs and also the fact that when the Mahomedan Law has given such a right to a person, it should not be whitted away by insisting hyper-technical and unrealistically strict compliance of the formalities accompanied with its exercise.
- It must be remembered that “formalities” after all are only formalities intended to serve some ostensible purpose and once that purpose is served, these should not be allowed to be used to take away the legal right of a claimant. “Formalities” in no case should be allowed to operate beyond the field allotted to them by law.
Ajijur Rahman Barbhuiya vs Haji Moshaid Ali Laskar, 1989