Any person, on whom the law of pre-emption is applicable, can claim this right. In India, the right of pre-emption may exist or, be applicable to a person on any of the following grounds:
(A) Equity and Justice:
On the ground of equity and justice, the law of preemption is applicable to all the Muslims in India except in the State of Tamil Nadu. Preemption is essentially a part of Muslim personal law therefore, equity and justice requires that this right must be available to every Muslim.
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However, the law of pre-emption is not applicable to Muslims of Tamil Nadu on the ground of equity. Pre-emption is being claimed in this State on the basis of local customs. Such customs are prevalent among the Muslims of Malabar.
(B) Customary Law:
Under customary law, pre-emption is applicable to Hindus of Bihar, Sylhet and certain parts of Gujarat (e.g. Surat, Bharoch, Godhara). As dicussed earlier, the law of pre-emption was adapted by the Hindus because it was favourable to their community life and the concept of joint-family. Pre-emption, which developed among the Hindus as custom, was the Hanafi law on the point with certain modifications in some of the localities.
It may be noted that Anglo-Indian Courts have recognised pre-emption among Hindus merely as a custom. They never regarded the right as part of their personal law or any rule of general law of the land.
The result is that application of the law of pre-emption to Hindus is only territorial. Thus, the pre-emption on the basis of custom is available only to those Hindus who are either natives or domiciled in Bihar, Sylhet or Gujarat etc. where such custom prevails.
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If a Hindu, who is a native of Bihar, moves to a place where there is no such custom, he would not get the right of pre-emption. Similarly, if a Hindu who is residing in Bihar and has also some immovable property but, is not domiciled there, he cannot get the right under customary law.
In Parsashth Nath v. Dhanai a Hindu who was a co-sharer in an immovable property in Bihar, claimed, the right of pre-emption in respect of the said property.
The Calcutta High Court held that a necessary condition for application of the law of preemption to Hindus was that the claimant must be native or domiciled in a place where a custom to that effect prevails; mere residence is not sufficient. However, where the existence of such a custom has been judicially established the Hindu claimant is not required to prove it.
(C) Special Enactments:
Under special enactments, the law of pre-emption is applicable to Muslims as well as to non-Muslims of the areas where such enactments are in force. Special Acts which regulate the law of pre-emption are:
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(a) Punjab Pre-emption Act 1913 (as amended in 1960 and applicable to Haryana and part of Delhi).
(b) Agra Pre-emption Act 1922, and the Oudh Laws Act 1876, enforceable in Uttar Pradesh.’
(c) Bhopal Pre-emption Act 1934, and the Rewa State Pre-emption Act 1948, in Madhya Pradesh, and
(d) Rajasthan Pre-emption Act 1966.
It is to be noted that under these enactments, the right of pre-emption is applicable to Muslims arid the non-Muslims alike; therefore, in these places pre-emption is a territorial law rather than a part of Muslim personal law.
The statutory law of; preemption, as given in these enactments may be different from the pre-emption under Muslim law. The result is that Muslim law of pre-emption may not be applicable even to Muslims of these territories except under a custom. In other words, unless there is any local custom under which Muslim law of pre-emption is being applied to the Muslims of these areas, they too are subject to statutory law and they cannot claim the right under personal law.
(D) Contract:
In the absence of any, customary or statutory law, the, right of pre- emption may also be created by contract. Any two persons may bind themselves under a contract that the law of pre-emption would be made applicable to them. The contract may provide terms and conditions for the applicability of this contractual pre-emption.
In such a case, the law of pre-emption is made applicable in the absence of any customary and statutory law to that, effect but, where pre-emption is applicable on the basis of a contract, the right exists strictly according to the terms and conditions agreed upon between the parties. Further, pre-emption based on contract (or custom) need not be in accordance with the Muslim personal law; it is an independent right.
