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Law of Pre-emption in the state of Gujarat

It is the right of an owner of immovable property to acquire by purchase another immovable property which has been sold to another person. In other words, under this right owner of an immovable property is entitled to repurchase an adjacent property which has been sold to someone else.

Definition of pre-emption is also given by Mohmood, J., in Gobind Dayal case in which he observation as, 'Pre-emption is a right which the owner of immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as those on which such latter immovable property is sold to another person.

We can understand pre-emption with this illustration: A & B are owners of their houses which are adjacent to each other. B sells his house to C, who may be a stranger for A. Under this pre-emption right, "A" who is a pre-emptor can legally repurchase that house from C at the same price at which B sold it to C. In this manner, the right of pre-emption would enable A to avoid C from being his permanent neighbour. As a matter of fact, an apprehended inconvenience which may be caused by a stranger has been the very basis of this right.

The law of pre-emption was not a part of the personal law of Muslim. Before the advent of Moghul Rule in India, there was nothing akin to the law of pre-emption. It was only during the Moghul rule, that the law of pre-emption was introduced and made applicable as rule of general law of the land for all communities. According to the Hedaya : A Muslim and Zimmee (non-Muslim) being equally affected by principles on which Pre-emption is established, and equally concerned in its operation, are, therefore, on an equal footing in all cases regarding the principle of pre-emption.

With the result pre-emption was adopted by Hindus as a custom.

Object of the right of Pre-Emption:

The law is based on the principle of convenience. According to the Hedaya, 'Besides, according to our tenets the grand principle of Pre-emption is the conjunction of property, and its object is to prevent the vexation arising from a disagreeable neighbour'.

Bhajgovind Chunilal Sevak Vs Harilal Gordhandas, (1942) 44 Bomlr 401

In this case the question there was whether, if the custom was judicially recognized as existing in the city of Ahmedabad, it should be held that it existed in that area which was known as the city of Ahmedabad as it stood at the time when the custom began or that it should be recognized as existing in the whole of the area which is now known as the city of Ahmedabad.

It seems to have been relied on by the appellants by way of analogy, but even so it was taken for granted that the right of pre-emption did exist in the city of Ahmedabad. In the case of custom of privacy the decisions are that the right of privacy does exist in the whole of Gujarat.

Dahyabhai Motiram Bhat Vs Chunilal Kishoredas Pandya, (1913) 15 Bomlr 1136

It was held that "This was not done because it appears to be generally accepted that the Mohammedan law of pre-emption has been adopted as part of the customary law and usage of the Hindus of Gujarat generally. This notion which certainly is widely spread throughout the whole legal profession, appears to me to rest upon no solid foundation whatever. Mohammedan law of pre-emption has been adopted not only in the towns of Surat and Bharuch but by every Hindu inhabitant of Gujarat.

The particular law which is thus sought to be made applicable to the entire population of a Province is a law which the Courts, I think, would only so extend with the very greatest reluctance and on compulsion after being satisfied in proper cases and upon proper evidence that that law had been adopted from time immemorial and had been invariably and consistently acted upon from time immemorial to the present day to those Hindus of Gujarat who are now upon mere assumption said to have incorporated it in their own Hindu law with which it has absolutely no affinity in any point.

Gopal Vs Hari Dutt Sharma, S.B. Civil Second Appeal No. 271 Of 1968

In this case, the Rajasthan High Court had quoted the words of the famous author Mulla in Principles of Mohammedan Law 18th edition by M. Hidayatullah, former Chief Justice of India at Page 257 in Section 229 has observed:
"The right of pre-emption is recognized by custom amongst Hindus who are either natives of, or are domiciled in Bihar, sylhet and certain parts of Gujarat, such as Surat, Bharuch and Godhra, and it is governed by the rules of the Mohammedan Law of pre-emption except in so far as such rules are modified by such custom.

Where the existence of any such custom is generally known and judicially recognized, it is not necessary to assert to prove it. It is thus clear that where the existence of any custom of pre-emption is generally known and judicially recognized, it is not necessary for the plaintiff to aver or prove the same.

Smt.Lata Singh Vs Uttar Pradesh Avas Evam Vikas, Second Appeal No. 196 Of 2015

In this case, the High Court of Uttarakhand had held that "In Agra, under the Agra Pre-emption Act, 1922, and in Oudh, under the Oudh Laws Act, 1876, the statutory law of pre-emption applies to both Muslims and non-Muslims. In Bihar, Sylhet, and certain parts of Gujarat, it was the Muslim law of pre-emption which applies to Hindus except in so far as it was modified by custom".

Hamedmiya Badamiya Saheb V. Joseph Benjamin, Second Appeal No. 503 Of 1926

The Bombay High Court in this matter observed that "So far as the Bombay Presidency is concerned, it was held by Batchelor J. in Mahomed Beg Amin v. Narayan Meghaji (1915) I.L.R. 40 Bom. 358, 364, s. c. 18 Bom. L.R. 81 that the reasoning of the decision of the Madras High Court in Ibrahim Saib v. Muni Mir Udin Saib (1870)6 M.H.C.R. 26 is applicable generally to the Bombay Presidency with the exception of Gujarat. The rule of pre-emption is recognised by custom among Hindus who are either natives or domiciled in Bihar and certain parts of Gujarat".

Shyam Prasad Mishra And Another V. Vijay Pratap Singh And Another, First Appeal No. 740 Of 2005

In the above case High Court of Allahabad held " The Honble Apex Court tracing the origin and development of law of Pre-emption in India has observed in the case of Sri Oudh Behari Singh v. Gajadhar Jaipuriya and Ors.: [1955]1SCR70 that law of Preemption was introduced in this country by Muhammadans.

During the period of Mughal emperors, the law of Pre-emption was administered as a rule of common law of the land in those parts of the country which came under the domination of the Muhammadan Rulers. In the course of time, the Hindus came to adopt Pre-emption as a custom for reasons of convenience and the custom is to be found in Provinces like Bihar and Gujarat which had once been integral part of Muhammadan empire".

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