According to mulla “The right of pre-emption is a right which the owner of an immovable property possess to acquire by purchase another immovable property which has been sold to another person”. The main ingrediants of this definition are: –
- Pre-emption is a right which the owner of a certain immovable property possess to obtain proprietary possession of certain immoveable property not his own.
- The right is obtained in substitution for the buyer.
- The right of proprietary possession is obtained on the same terms on which that other immovable property is sold to the purchasers.
- The right is given by law for the quiet enjoyment of the property.
Subject matter of pre-emption
I. The subject of pre-emption must be an immovable property. It may be zamindari property or a house or a garden or a small plot of land. In this connection, it should be noticed that the superstructure of a house sold apart
from the land on which it is built is not an immovable property.
II. Subject of pre-emption must be pre-empted as a whole, no pre-emptor can claim a part of the property sold. The reason for this is that if it is allowed every pre-emptor will try to make the best part of property.
- Immediate demand – In Arabic it is known as talab-i-mowasibat which literally means a demand by jumping. The idea in giving this name is that the moment the news comes to a person that property has been sold, he should make an immediate demand at the very moment, whether there are witnesses or not.
- Confirmatory demand – In Arabic it is known as talab-i-taqrir or talab-ishhad. The unless it is followed by a formal claim i.e. talab-i-ishhad. The essentials for making it are that the pre-emptor must:
i. Affirm his intention to assert his right, referring expressly to his having made the “immediate demand or talab-i-mowasibat”.
ii. Either in the presence of the buyer or the seller or on the subject of sale. In the presence of the buyer at least 2 witnesses specially called for that purpose.
- Demand for possession or talab-i-tamlik – It is the dinal enforcement of claim by instituting a regular suit within the period prescribed by the Indian limitation act.
Legal effect of pre-emption – The legal effect of pre-emption take place on the basis of its applicability and on whom it is applicable. From the following points we can considered the legal effect of pre-emption.
- By statutes – if there is any special act of legislature relating to pre-emption, it shall govern the cases of pre-emption is applied by the acts of the legislature e.g., Punjab pre-emption act of 1913, agra pre-emption act IX of 1922 etc.
- By custom – in the absence of any statutory law of pre-emption, the right may be claimed on the basis of custom.
- By contract – Right of pre-emption may be created by contract. Even 2 persons of different religion may enter into such a contract.
- By Muslim Law – Where there is no custom or statute relating to the pre- emption, the right may be claimed under muslim law, on the basis of justice, equity and good conscience.