ABSTRACT:
In Islamic law, the Right of Pre-Emptionalso referred to as “shufa”is a novel legal idea that gives some people the first opportunity to buy property before it is sold to others. Within the context of Islamic jurisprudence, this principle seeks to preserve economic justice, familiar peace, and social harmony. Shufaconnects property rights with the larger ethical and social ideals ingrained in Muslim legal traditions, emphasising the value of communal well-being and fair resource allocation. Shufa signifies conjunction, here refers to the right of the ousex of property that is adjacent to another property and in conjunction with it, “Haq” signifies right. Thus “Haq-Shufa” indicates a right to obtain the property adjacent to his own property from a new class of buyer.[1]Examining the nuances of this right prioritizes the values of justice and societal cohesion while providing insight into the complex systems that control property transactions.
INTRODUCTION:
The right of pre-exemption law is said to have its origin from the sayings of prophet. According to the reports of prophet shufa means, “A neighbour of a house has a superior right to the house and the neighbour of lands has superior right to those lands, and in case if he is absent then seller has to wait for his homecoming.”[2]In GovindDayal vs Inaytullah(1885) 7 All 775case, Sir Mahmood J attempted to define pre-emption as, “a right of the owner of the immovable property to remain in possession of the immovable property in order to obtain title to the other immovable property in the lieu of purchaser, not his own, on such terms as those on which such latter immovable property is sold to another person.”[3] Mulla defines pre-emption as, “the right of shufa or pre-emption is a right where the immovable property owner has right to obtainthe seller’s property which has been sold to a stranger.”[4]
Various types of people with the right of pre-exemption have been proposed by Muslim jurists. According to Hanafi law, [a person can fall into any of one of three categories:
- Co-owner in the sold property(Shafi-i-Sharik)
- Participant in the property’s amenities and outbuildings(Shafi-i-Khalit)
- Neighbour with adjacent immovable property(Shafi-i-Jar).][5]
Pre-exemption is only allowed by Shia law for co-owners of an undivided property, and only then if there are two of them. Only among co-sharers is where pre-exemption recognized by Shafi law. Pre-exemption based on vicinage or involvement in appendages is not recognized by either Shafi and Shia law.
[1]https://tahmidurrahman.com/pre-emption-in-land-law-of-bangladesh/.
[2]https://www.lkouniv.ac.in/site/writereaddata/siteContent/202004131508038207kiran_sharma_law_Family_Law_1.pdf.
[3]https://indiankanoon.org/doc/557898.
[4]https://thelawbrigade.com/wp-content/uploads/2019/07/Palash-Wadhwani.pdf.
[5]https://www.lkouniv.ac.in/site/writereaddata/siteContent/202004131508038207kiran_sharma_law_Family_Law_1.pdf