When the right of pre-emption arises?

The right of pre-emption arises only in the case of sale and when such sale is completed. Otherwise the right of pre-emption will not arise from other transactions. So the right of pre-emption arises from following two factors;-

1. When there is a Transaction of sale;

2. When the sale is complete;

1. Transaction of Sale: The right of pre-emption arises when the disputed property has been sold to another person who is neither a co-sharer nor an owner of adjoining property or participator in immunities & appendages. The transaction of sale must be a valid one. Invalid sale transaction does not arise any right of pre-emption.

2. Sale is complete: The right of pre-emption arises when the transaction of the sale is completed. Now a question arises that when the transaction of sale is complete?

According to Muslim Law, ”A sale is complete when the price is paid to the vendor( sales person) and the possession of the property has been delivered to the vendee( purchaser) by the vendor( sales person). A mere executor contract does not give a right to the pre-emptor for pre-emption.”

According to section 54 of the Transfer of Property Act 1882, “A sale of property of the value of RS.100 and upwards is not complete unless made by a registered instrument”.

So, the transaction of the sale must be complete by executing proper deed and should be registered according to Registration Act 1908 and the possession of the sold property should be delivered to the purchaser. Except the above mentioned factor the right of pre-emption will not arise.

Written With The Help Of Refference Book:

Mulla’s Principles Of MAHOMEDAN LAW (19^th Edition)

Written By: M. Hidayatullah & Arshad Hidayatullah (India).

Text Book Of MOHAMMEDAN LAW (23^rd Edition)

Written By: Aqil Ahamad (India).

MUSLIM LAW (17^th Edition-2014)

Written By: Syed Khalid Rashid.

Revised By: Prof. V. P. Bharatiya (India).

Text Book On ISLAMIC LAW

[Including Statutory Family Laws]

Reprint: May 2009(1^st Edition)

Written By: Dr. Muhammad Faiz-Ud-Din (Bangladesh).