A Comparative Study On Pre-Emption Between Muslim Law And Statutory Laws - A Legal Analysis

Author: LawSphereX

Category: Family & Personal Law

Published: 2026-08-23T16:58:03.565976+00:00

Updated: 2026-08-26T17:12:44.346+00:00

A COMPARATIVE STUDY ON PRE-EMPTION BETWEEN

MUSLIM LAW AND STATUTORY LAWS: A LEGAL

ANALYSIS

Md. Tarikul Islam, Lecturer, Department of Law, North Western University, Khulna, Bangladesh

ABSTRACT

The right of pre-emption is an important right in the field of law relating to property recognized by both Muslim personal law and statutory laws of Bangladesh. Pre-emption protects the right of a person who is entitled to purchase the immovable property that has been sold to another person according to the provisions of the Muslim personal law and statutory laws. This right of pre-emption can be claimed both under Muslim personal law and statutory laws of Bangladesh. But there are some basic differences between Muslim personal law and statutory laws regarding pre-emption. This study aims to make the basic distinctions and find out the major conflicts between Muslim personal law and statutory laws regarding preemption. The applicant or pre-emptor faces various problems because of the several provisions on pre-emption.

As a result, it causes confusion and difficulties for the pre-emptor or applicant, and the applicant or pre-emptor is somehow unable to establish his right of pre-emption. This article also aims at harmonizing the differences, confusions, and difficulties between the Muslim personal law and statutory laws regarding pre-emption and giving some suggestions to cope with these differences, confusions, and difficulties. Keywords: pre-emption, Muslim personal law, statutory laws, immovable property, conflicts

1. Introduction

Pre-emption is a right to purchase immovable property by pre-emptor before other person which is recognized by both Muslim law and the statutory laws of Bangladesh. The right of pre-emption under Muslim law is a right that is applicable only to Muslim pre-emptors, and the right of pre-emption under the statutory laws is applicable to any person irrespective of religion. Because Muslim law is a personal law that is applicable only to those persons who are Muslims. The concept of pre-emption was incorporated in the Partition Act, 1893 at first. Then the provision of pre-emption was incorporated in different statutes at different times for the purpose of providing the right of pre-emption for the persons who want to pre-empt under statutory laws.

The right of pre-emption accrues only when a complete transfer of the right, title and interest of the transferor has taken place and not where there is a mere agreement to sell or transfer or where the transfer is only fictitious or the sale is invalid1. The provision of pre-emption shall not be applicable to a transfer if it is not the complete transfer.

2. Meaning of Pre-emption

The term ‘pre-emption’ is derived from the Latin terms ‘prae’ which means ‘before and ‘empto’ which means ‘purchase. So the term ‘pre-emption’ means the right to purchase before the others2. There is no statute in Bangladesh which contains the specific definition of the term ‘pre-emption’. ‘‘The right of shuf’a or pre-emption is a right which the owner of an immovable property possesses to acquire by purchase another immovable property which had been sold to another person’’.3 “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”.4

1 Ameer Ali, Commentaries on MAHOMMEDAN LAW, 5th edition p 738

2 Dr. M. Rabiul Hossain, A Text-Book on Land Laws of Bangladesh, First Edition December, 2014, p 287

3 D.F. Mullah, Principle of Muhammadan Law

4 Gobinda Dayal Vs. Inayetellah (1885) 7 All 779

So pre-emption is a right which recognised by both the Muslim personal law and the statutory laws of Bangladesh to purchase by the pre-emptor certain immovable property which has been sold to another person.

3. Origin of the concept of pre-emption

The origin of the concept of pre-emption is different in case of Muslim law and statutory law. It is obvious that the sources of Muslim law and statutory law are quite different. The origin of the concept of pre-emption under Muslim law and statutory law is as follows:

3.1 Origin of pre-emption under Muslim law

The law of pre-emption is based clearly on the texts of Islamic law and now it is the wellestablished doctrine in the field of Muslim personal law. It was adopted in Islam to prevent the intrusion of a stranger among the co-sharers and the neighbours because it may cause inconvenience and injurious to that society.5 The origin of pre-emption is found in a number of Hadiths which are as follows: i) The right of shuf’a holds in a partner who has not divided off and taken separately his share6. ii) A neighbour has a right superior to that of stranger in the lands adjacent to his own7.

iii) It is morally objectionable although not legally unlawful to sell a property without offering it to the pre-emptor.8

3.2 Origin of pre-emption under statutory law

The concept of pre-emption under statutory law was at first incorporated in the Partition Act, 1893.Section 4 of the Partition Act, 1893 deals with the provision on pre-emption. “Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the

5 Ameer Ali, Commentaries on MAHOMMEDAN LAW, 5th edition p 734

6 Hedaya, p 548

7 Ibid

8 Ibid

Court shall, if any member of the being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in this behalf”9 Section 96 of the State Acquisition and Tenancy Act, 1950 deals with the provisions regarding the right of pre-emption in respect of agricultural land which was amended in

2006 with necessary modification. Section 24 of the Non-Agricultural Tenancy Act, 1949

deals with the provisions regarding the right of pre-emption in respect of the nonagricultural land. Section 13 of the Land Reforms Act, 2023 deals with the provision regarding the right of pre-emption in respect of agricultural land. Section 53D of the Transfer of Property Act, 1882 is about pre-emption. Section 27 of the Restoration of the Vested Properties Act, 2001 also deals with the provision regarding the right of preemption. Basically the concept of pre-emption which is incorporated in the different statutory laws has been taken from the concept of pre-emption under the Muslim personal law.

4. Basic principles of pre-emption

There are some basic principles of pre-emption both under Muslim personal law and statutory law. These basic principles of pre-emption are different in the case of Muslim law and the statutory laws.

4.1 Basic principles of pre-emption under Muslim law

There are some basic principles of pre-emption under Muslim law which must be followed to enforce the right of pre-emption. If these basic principles of pre-emption are followed by the pre-emptor properly, he can enforce his right of pre-emption under Muslim law. These basic principles are: i) The pre-emptor must be a Muslim. ii) There shall be a complete sale of the immovable property according to the

9 Section 4(1), the Partition Act, 1893

provision of the Islamic law.10 iii) The pre-emptor must be a shafi-e-sharik or shafi-e-khalit or shafi-e-jar of the immovable property. iv) He must follow the formalities of demands (Talab-e-Muwasibat, Talab-e- Ishad, Talab-e-Tamlik) before filing the suit for pre-emption. v) The provisions of Muslim law regarding pre-emption is not applicable to the non-Muslim pre-emptor.

4.2 Basic principles of pre-emption under statutory law

There are some basic principles of pre-emption under statutory laws which must be followed to enforce the right of pre-emption. If these basic principles of pre-emption are followed by the pre-emptor properly, he can enforce his right of pre-emption under statutory law. These basic principles are: i) The pre-emptor must be a co-sharer tenant in the holding by inheritance.11 ii) He must be a person who has less than 375 standard bighas of land.12 iii) He must apply to the proper Court for pre-emption within two months in the case of agricultural land from the date of the service of the notice under section

89 of the State Acquisition and Tenancy Act, 1950 regarding the sale of the

property.13 iv) He must apply to the proper Court for pre-emption within four months in case of non- agricultural land from the date of the service of the notice under section

23 of the Non-Agricultural Tenancy Act, 1949 regarding the sale of the

property.14

10 Ameer Ali, Commentaries on MAHOMMEDAN LAW, 5th edition p 735

11 Section 96(1)(a), the State Acquisition and Tenancy Act, 1950

12 Section 96(1)(b), Ibid

13 Section 96(1), Ibid

14 Section 24(1), the Non-Agricultural Tenancy Act, 1949

v) The application for pre-emption must be made within three years in the case of registration of the sale deed.15

5. Persons entitled to the right of pre-emption

There are some persons who are entitled to enforce the right of pre-emption both under Muslim law and statutory law. The Muslim personal law has mentioned the name of some persons who are entitled to the right of pre-emption under Muslim law. Statutory laws have also mentioned the name of some persons who are entitled to the right of pre-emption under statutory laws.

5.1 Persons entitled to pre-emption under Muslim law

There are three classes of persons who are entitled to exercise the right of pre-emption under Muslim law and these classes of persons are: a) Shafi-e-sharik or co-sharers in the property A co-sharer is an owner of an undivided share in the property. There must have full

ownership in the land pre-empted and therefore, the right to pre-empt does not arise on the sale of a leasehold interest in the land.16 b) shafi-e-khalit or participators in immunities The terms shafi-e-khalit is meant a partner in the immunities and appendages of the property such as a right to water and roads. The right under khalit or easement is limited to path or water only and therefore, it cannot be claimed on the ground of easement of light or air.17 c) shafi-e-jar or owners of adjacent properties The neighbour is himself entitled to pre-empt. However, neither his tenant nor persons in possession without any title have the right.18 Shafi-i-Jar is the owner of

15 Section 96(1), the State Acquisition and Tenancy Act, 1950

16 Dr. Mohammad Towhidul Islam, LECTURES ON LAND LAW, First Edition, p 118

17 Dr. Muhammad Faiz-ud-din, A TEXT BOOK ON ISLAMIC LAW, Fourth Edition, p 210

18 Dr. Mohammad Towhidul Islam, LECTURES ON LAND LAW, First Edition, p 119

an adjoining property or in other words it is mere neighbour who can be a preemptor i.e., there is vicinage if two properties are adjacent to each other, but only in the absence of Shafi-i-Sharik and Shafi-i-Khalit. The right on the basis of neighbourhood arises only in favour of the owner of the adjoining immovable property. So, the right does not belong to a tenant or to a person who is in possession of property but does not have any ownership in it.19

5.2 Persons entitled to pre-emption under statutory laws

The statutory laws of Bangladesh have also mentioned the criteria and the name of some persons who are entitled to enforce the right of pre-emption under statutory laws. The persons who are entitled to pre-emption under statutory laws are: a) A co-sharer tenant by inheritance Only a co-sharer tenant in the holding by inheritance may make an application for pre-emption in case of agricultural land sold to a stranger purchaser. 20 It is important to notify that a co-sharer tenant of the holding by purchase or a tenant holding lands contiguous to the land transferred, cannot make an application for pre-emption under amended section 96.

It is also important to mention that the seller cannot apply for pre-emption even though he remains a co-sharer and a party in a preemption application; he is merely a proper party not a necessary party because in pre-emption proceeding co-sharers are made parties in order to enable them to exercise their similar right if they so desire. 21 b) A co-sharer tenant having less than 375 bighas of land Section 90 of the State Acquisition and Tenancy Act, 1950 allows a tenant to hold up to 375 standard bighas of agricultural land. If a tenant holds more than 375 standard bighas of agricultural land, he shall not be able to apply to enforce his right of pre-emption. Such limit has been reduced to 100 standard bighas under section

3 of the Bangladesh Land Holding (Limitation) Order, 1972 in which the word ‘in

19 Prof.Rakesh Kr. Singh, Law of Pre-emption, published on 2010

20 Section 96(1)(a), the State Acquisition and Tenancy Act, 1950

21 Md. Milan Hossain, Pre-emption: Bangladesh Approach, available at http://www.hrpub.org, 15 December 2024

the aggregate’ was used which includes agricultural and no-agricultural lands.22 Such ceiling of land has again been reduced to 60 standard bighas of agricultural land under section 4 of the Land Reforms Act, 2023. c) A bona fide cultivator The tenants who want to enforce his right of pre-emption under the State Acquisition and Tenancy Act, 1950 must be bona fide cultivators. A tenant shall not be able to apply for the enforcement of his right of pre-emption if he is not a bona fide cultivator.

6. Procedure to enforce the right of pre-emption

There are some certain and specific procedures that must be followed for the purpose of enforcing the right of pre-emption under both the Muslim personal law and statutory laws of Bangladesh. If these procedures are not maintained properly, the suit for pre-emption shall be dismissed by the Court.

6.1 Procedure to enforce pre-emption under Muslim law

The Muslim law of pre-emption has prescribed the tough procedure to be maintained for the enforcement of the right of pre-emption. The pre-emptor must follow the procedures and formalities to enforce his right of pre-emption. If he does not follow these procedures and formalities, his suit for the enforcement of the right of pre-emption is not maintainable. The Court shall dismiss the suit in this regard. The following procedures to be followed for the enforcement of the right of pre-emption under Muslim law: a) Suit by presentation of plaint The suit for pre-emption under Muslim law is filed by the Muslim pre-emptor by the presentation of plaint to the Court which has jurisdiction to hear the suit for pre-emption. The plaint contains all the particulars as mentioned in Rule 1 of Order

7 of the Code of Civil Procedure, 1908. The Code of Civil Procedure, 1908 shall

22 Asraf Uddin, Pre-emption under Different Statutes: A Comparative and Informative Discussion, available at http://www.researchgate.net/

be applicable to the plaint in case of return of plaint, rejection of plaint, amendment of plaint etc. which is presented for the suit of pre-emption. b) Submission of written statement When a suit is filed by the Muslim pre-emptor by the presentation of plaint, the defendant contests the suit by submission of the written statement to the Court in which the plaint is presented for the suit of pre-emption. After filing of the written statement, the procedure of a civil suit as mentioned in the Code of Civil Procedure,

1908 shall be applicable to all the stages of the suit filed for pre-emption.

c) Time limit of filing suit and deposit of amount The rules of Muslim law in case of pre-emption do not prescribe any specific time limit for filing the suit for the enforcement of the right of pre-emption under Muslim personal law. The pre-emptor can file the suit for pre-emption at any time when he knows or gets information regarding the sale of the immovable property. The statutory laws require depositing the consideration money and compensation at the time filing suit for pre-emption. But the Muslim law of pre-emption is different from statutory laws regarding pre-emption. The pre-emptor need not deposit any consideration money and compensation at the time of filing suit for pre-emption under Muslim law.

d) Summon to witnesses and proof of formalities In this stage, the witnesses are summoned according to the provisions of the Code of Civil Procedure, 1908 for the purpose of proving formalities of the preemption. 23The pre-emptor must prove that he has followed the formalities of demands according to the principles of the Muslim personal law. If he does not able to prove the formalities of demands, he shall not be able to enforce his right of preemption under Muslim law.

23 Order V, The Code of Civil Procedure, 1908

e) Hearing suit The suit for pre-emption under Muslim personal law is heard on the day specified for hearing of the suit. The suit is heard according to the provision of the Code of Civil Procedure, 1908. The evidence of the witnesses shall be taken orally in open court in the presence and under the personal direction and superintendence of the judges. 24 f) Giving judgment and appeal against judgment The Court shall pronounce the judgment in open Court, either at once or on some future day after giving due notice to the parties or their pleaders after the hearing has been completed. 25Once the hearing is over, there should not be a break between the reservation and pronouncement of judgment. 26 g) Drawing decree and execution of decree The decree shall be drawn up within seven days from the date of pronouncement of the judgment.

27A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. 28A Court which has neither passed a decree, nor a decree is transferred for execution, cannot execute it. 29

6.2 Procedure to enforce pre-emption under statutory laws

The statutory laws of Bangladesh have prescribed the tough procedure to be maintained for the enforcement of the right of pre-emption. The pre-emptor must follow the proper procedures and certain formalities as mentioned in section 96 of the State Acquisition and Tenancy Act, 1950 in the case of agricultural land and in section 24 of the Non-Agricultural Tenancy Act, 1949 in the case of non- agricultural land to enforce his right of pre-emption. If he does not follow these procedures and formalities, his suit for the enforcement of the right of pre-emption is not maintainable. The Court shall dismiss the suit without giving

24 Order V, rule 19, The Code of Civil Procedure, 1908

25 Section 33, order XX, rule 1, The Code of Civil Procedure, 1908

26 C.K. Takwani, Civil Procedure, Seventh edition, p 410

27 Order XX, rule 5A, The Code of Civil Procedure, 1908

28 Section 38, The Code of Civil Procedure, 1908

29 Ghantesher v. Madan Mohan, AIR 1997 SC 471

any order for pre-emption in this regard. The following procedures to be followed for the enforcement of the right of pre-emption under statutory laws: a) Filing suit by application named as miscellaneous case A co-sharer tenant in the holding by inheritance may make an application for filing

suit named as miscellaneous case within a period of two months of the service of the notice given under section 89 of the State Acquisition and Tenancy Act, 1950 for pre-emption in case of agricultural land sold to a stranger and whose land including the lands of his family does not exceed 375 standard bighas30. In an application for the purpose of making pre-emption, all other co-sharer tenants in the holding and purchaser shall also be made parties to such application. 31 b) Deposits of consideration money and compensation The applicant or applicants must deposit consideration money as stated in the deed of sale or notice served to the applicant under section 89; twenty five percentage compensation on consideration money; eight per centum simple annual interest on consideration money for the period from the date of execution of sale deed to the date of making of such application.

32 The applicant or applicants in case of nonagricultural land must deposit in Court the amount of the consideration money or the value of the portion or share of the property transferred as stated in the notice served on the applicant under section 23 together with compensation at the rate of five per centum of such amount. 33 c) Joinder of plaintiff When an applicant or applicants remains left to apply, he or they may, within two months from the date of the service of the notice, apply to join in the said application. 34 When an application has been made by one or more co-sharer tenants,

30 Section 96(1), the State Acquisition and Tenancy Act, 1950

31 Section 96(1), Ibid

32 Section 96(3), Ibid

33 Section 24(2), the Non-Agricultural Tenancy Act, 1949

34 Section 96(6), the State Acquisition and Tenancy Act, 1950

any of the remaining co-sharer tenants may, within the period of four months, apply to join in the said application. 35 d) Hearing of suit The suit for pre-emption under statutory law is heard on the day specified for hearing of the suit. The suit is heard according to the provision of the Code of Civil Procedure, 1908. e) Inquiry by Court regarding consideration money and costs The Court shall, after giving all the parties an opportunity of being heard after holding an enquiry as to rent paid and the expenses incurred by the purchaser, direct the applicant or applicants to deposit a further sum36.

the Court shall inquire into disputes as to the correctness of the amount of the consideration money as stated in the notice issued under section 23 and determine the amount of the consideration money which the transferee has actually paid for the transfer of the portion or share of the property. 37 f) Order by Court for pre-emption The Court shall pass orders allowing the application or applications, apportioning the holding refunding money to the applicant or applicants, directing the purchaser be paid out of the deposits, directing the purchaser to execute and register deed or deeds of sale within sixty days in favour of the person or persons whose application or applications have been allowed and no tax, duty or fee shall be payable for such registration38.

g) Giving possession of pre-empted land to pre-emptor When the Court passes order for pre-emption, the purchaser shall deliver the possession of the pre-empted land to the pre-emptor or pre-emptors. The Court on

35 Section 24(4 ), the Non-Agricultural Tenancy Act, 1949

36 Section 96(5), the State Acquisition and Tenancy Act, 1950

37 Section 24(6), the Non-Agricultural Tenancy Act, 1949

38 Section 96(9), the State Acquisition and Tenancy Act, 1950

application of such applicant or applicants may place him or them, as the case may be, in possession of the property vested in him or them39. h) Appeal to Civil Appellate Court The statutory law provides the right of appeal to the pre-emptor, the owner of immovable property and the purchaser if they are aggrieved. An appeal shall lie to the ordinary Civil Appellate Court from any order of the Court40. An appeal from any order of a Court shall lie to the Civil Appellate Court having jurisdiction to entertain such appeals41

7. Difficulties to enforce the right of pre-emption

To maintain the necessary formalities of demands and to follow the proper procedure for preemption is a difficult matter under Muslim law. The proof of the necessary formalities by the pre-emptor in the Court is also very difficult. For this reason, the Court cannot give order in the suit for pre-emption. The statutory law also mention a tough procedure in the suit for preemption.

7.1. Difficulties to enforce the right of pre-emption under Muslim law

There are some difficulties to enforce the right of pre-emption under the Muslim personal law. It is somewhat impossible to enforce the right of pre-emption under the Muslim law because of the difficulties. The Court cannot give order for pre-emption within a reasonable time for the sake of these formalities and difficulties. So, the suit for pre-emption under the Muslim personal law takes much time. There are the following difficulties to enforce the right of preemption under Muslim law: a) Tough formalities The pre-emption under the Muslim personal law has provided tough formalities to enforce the right. A person is not entitled to pre-empt unless he takes the proper

39 Section 96(12), Ibid

40 Section 96(15), Ibid

41 Section 24(9), the Non-Agricultural Tenancy Act, 1949

steps at the proper time and observes the formalities necessary for conformation. The slightest delay to observe formalities will make the demand frustrated42. b) Difficult to prove demands The proof of the demands (Talab-e-Muwasibat, Talab-e-Ishad and Talab-e-Tamlik) is very difficult by the pre-emptor to establish his right. The defendant tries to prove that the plaintiff or pre-emptor has not made any demand before filing of the suit for pre-emption. c) Difficult to find out witnesses Another difficulty to establish the right of pre-emption under Muslim law is to find out the witnesses who were present at the time of making of the demands by the pre-emptor. As a result, the pre-emptor cannot establish his right of pre-emption. d) Difference of religion The provisions of Muslim personal law are applicable only to the Muslims.

If all the parties are non-Muslims, the Muslim law does not apply to them. If the vendor (seller) and the vendee (buyer) are non-Muslims but the pre-emptor is a Muslim, there is pre-emption. 43It is difficult to establish the right of pre-emption under Muslim personal law for this reason of the difference of religion.

7.2. Difficulties to enforce the right of pre-emption under statutory laws

There are also some difficulties to enforce the right of pre-emption under the statutory law. All the statutory laws of Bangladesh such as the State Acquisition and Tenancy Act, 1950; the Non- Agricultural Tenancy Act, 1949 and the Partition Act, 1893 prescribe a difficult procedure to enforce the right of pre-emption. The followings are procedure to enforce the right of preemption under statutory law:

42 Dr. Muhammad Faiz-ud-din, A TEXT BOOK ON ISLAMIC LAW, Fourth Edition, p 214

43 Ibid, p 212

a) Lengthy procedure The statutory laws of Bangladesh have prescribed a lengthy procedure in case of the enforcement of the right of pre-emption. The application to enforce the right of pre-emption is made to the Court that has jurisdiction to entertain this suit with a certain time as provided by the statutory laws of Bangladesh. Then the Court inquires as to the consideration money, compensation and any other costs which have been incurred by the purchaser at the time of the sale. 44 b) Tendency to evade pre-emption There is a tendency between the seller and purchaser to evade the pre-emption. For this sake, they present the transfer to the pre-emptor as gift, exchange, partition, wakf etc. to which the provisions of pre-emption are not applicable according to the statutory law of Bangladesh.

45 c) Deposit of huge amount at the time of filing suit It is very difficult for the pre-emptor to deposit such a huge amount named consideration money and compensation at the time of filing suit. He must deposit consideration money as stated in the deed of sale or notice served to the applicant under section 89; twenty five percentage compensation on consideration money; eight per centum simple annual interest on consideration money for the period from the date of execution of sale deed to the date of making of such application. 46 The applicant or applicants in case of non-agricultural land must deposit in Court the amount of the consideration money or the value of the portion or share of the property transferred as stated in the notice served on the applicant under section 23 together with compensation at the rate of five per centum of such amount.

47 d) Non-applicability in maximum transfers The provisions of pre-emption under statutory law are only applicable in case of a 44 Section 96(5), the State Acquisition and Tenancy Act, 1950 and Section 24(6), the Non-Agricultural Tenancy Act, 1949

45 Section 24(11), Ibid

46 Section 96(3), the State Acquisition and Tenancy Act, 1950

47 Section 24(2), the Non-Agricultural Tenancy Act, 1949

complete sale48 or a complete transfer.49 The provisions of pre-emption are not applicable to a transfer made by exchange, or partition or a transfer by bequest or gift, wakf, debottor or any other dedication for religious or charitable purposes.50 For this reason, it is difficult to enforce the right of pre-emption under statutory law of Bangladesh.

8. Non-application of the provisions of pre-emption

There are some certain transfers of property in which the provision of pre-emption are not applicable both under the Muslim law and the statutory law. The Muslim law as well as the statutory law has mentioned the name of some properties or transfers which are exempted from pre-emption.

8.1 Non-application of the provision of pre-emption in the case of Muslim law

The right of pre-emption under Muslim personal law is not applicable in all kinds of transfer of property. The followings are the transfers of property in which the provisions of pre-emption under Muslim personal law are not applicable: i) The provision of pre-emption under Muslim law shall not apply to a transfer made by way of gift. ii) It shall not apply to transfer made by way of bequest.51 iii) It shall not apply to wakf. iv) The provision of pre-emption under Muslim law shall not apply to a transfer made by way of inheritance. v) It shall not apply to sadaqah.52 vi) It shall not apply to a transfer made by way of exchange.

48 Section 96(1), the State Acquisition and Tenancy Act, 1950

49 Section 24(1), Ibid

50 Section 24(11), the Non-Agricultural Tenancy Act, 1949

51 M. Jashim Ali Chowdhury, A Text Book on Muslim Personal Law, 2nd Edition 2016, p 451

52 Ibid

vii) It shall not apply to partition of immovable property.

8.2 Non-application of the provision of pre-emption in the case of statutory law

The right of pre-emption accrues if a portion or share of a holding of a raiyat is sold to a person who is not a co-sharer tenant in the holding.53Use of the word ‘sold’ in the place of the word ‘transfer’ excludes any other mode of transfer and now pre-emption shall lie only against a transfer by sale.54The followings are the cases in which the provisions of statutory law are not applicable: i) Nothing of the State Acquisition and Tenancy Act, 1950 shall be deemed to apply to homestead land.55 ii) Nothing of the State Acquisition and Tenancy Act, 1950 shall take away the right of pre-emption conferred on any person by the Mohammadan Law.56 iii) Nothing of the Non- Agricultural Tenancy Act, 1949 shall apply to a transfer to a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase.57or iv) A transfer by exchange, or partition, or58

v)

A transfer by bequest or gift (including heba but excluding heba-bil-ewaz for

any pecuniary consideration) in favour of the husband or wife of the testator or the donor or of any relation by consanguinity within three degrees of the testator or donor, or59 vi) A wakf in accordance with the provisions of the Muhammadan Law, or60

vii)

A debottor or any other dedication for religious or charitable purposes without

53 Ibid

54 Justice Mohammad Hamidul Haque, Trial of Civil Suits and Criminal cases, 2010, p 166

55 Section 96(16), the State Acquisition and Tenancy Act, 1950

56 Section 96(17), Ibid

57 Section 24(11), the Non-Agricultural Tenancy Act, 1949.

58 Ibid

59 Ibid

60 Ibid

any reservation of pecuniary benefit for any individual.61

9. Relinquishment of the right of pre-emption

The right of pre-emption may be relinquished either expressly or impliedly. The pre-emptor may expressly forego the right of pre-emption with or without any compensation. Implied relinquishment depends upon inferences deducible from his conduct.62

9.1 Relinquishment of the right of pre-emption in the case of Muslim law

The right of pre-emption under Muslim personal law may be lost due to the following reasons: a) Acquiescence A person entitled to pre-empt loses his right if he expressly or impliedly

relinquishes to assert his right of pre-emption and once relinquished, it cannot be asserted again.63The right of pre-emption is lost when the pre-emptor enters into a compromise with the vendee, not to claim the right of pre-emption.64 b) Waiver of the right of pre-emption If the claimant of pre-emption expressly or impliedly waives his right of preemption or omits to claim his right of pre-emption immediately, his right of preemption shall relinquish.65A pre-emptor may waive his right by acquiescence i.e., by not asserting his claim. Upon the sale of the pre-empted property, a pre-emptor may either assert his right by making demands or may willingly forego his claim by not making any demand.66 c) By release The right of pre-emption is destroyed if there is a release for consideration to be paid to the pre-emptor.67The right is not lost if there has been a refusal on the part

61 Ibid

62 Ameer Ali, Commentaries on MAHOMMEDAN LAW, 5th Edition p 754

63 Dr. Muhammad Faiz-ud-din, A TEXT BOOK ON ISLAMIC LAW, Fourth Edition, p 209

64 Prof.Rakesh Kr. Singh, Law of Pre-emption, published on 2010

65 M. Jashim Ali Chowdhury, A Text Book on Muslim Personal Law, 2nd Edition 2016, p 455

66 Prof.Rakesh Kr. Singh, Law of Pre-emption, published on 2010

67 Dr. Muhammad Faiz-ud-din, A TEXT BOOK ON ISLAMIC LAW, Fourth Edition, p 210

of the pre-emptor to buy before the actual sale, nor by an unwillingness to make an offer to purchase the property after notice that the property was for sale. 68 d) Death of pre-emptor When the pre-emptor dies after making the two demands but before the filing of the suit i. e. , third demand then also the right of pre-emption is lost. His legal representatives have no right to file the suit. In the opinion of Hanafi School, the right of pre-emption is extinguished if the pre-emptor dies during the pendency of suit. 69 However, under the Shia and Shafi law, if a pre-emptor dies during the pendency of the suit, the right of pre-emption is not lost. 70 e) Loss of right of pre-emption by misjoinder of plaintiffs When the pre-emptor joins himself as a co-plaintiff with a person who is not entitled to claim the right of pre-emption then also the right to pre-empt is lost.

But if he joins with himself as co-plaintiff a person who could have filed a suit for preemption, but for the reason that he did not make the two demands the right to preempt will not be lost. 71

9.2 Relinquishment of the right of pre-emption in the case of statutory laws

There are some certain reasons for which the right of pre-emption under statutory law comes to an end. The followings are the reasons for which the right of pre-emption may be relinquished: a) Acquiescence A person who is entitled to apply for pre-emption under statutory law shall lose his

right if he expressly or impliedly relinquishes to assert his right of pre-emption and once relinquished, it cannot be asserted again.72The right of pre-emption is lost

68 D.F. Mullah, Principles of Mahommedan Law. P 220

69 Ibid

70 Hedaya, p 561

71 Dwarka Singh v. Sheo Shankar, AIR 1927 All 168

72 Dr. Muhammad Faiz-ud-din, A TEXT BOOK ON ISLAMIC LAW, Fourth Edition, p 209

when the pre-emptor enters into a compromise with the vendee, not to claim the right of pre-emption.73 b) Expiration of time limit One or more co-sharer tenants may apply to the Court for pre-emption within two months of the service of the notice given under section 89.74 No application for pre-emption shall lie after expiry of three years from the date of registration of the sale deed75. The pre-emptor in case of non-agricultural land may apply to the court for pre-emption within four months of the service of notice issued under section

23.76 If the pre-emptor does not apply to the Court for pre-emption within the said

period, he shall lose his right of pre-emption under the statutory law. c) Death of pre-emptor The pre-emptor is to apply for the pre-emption within the specified time which has been mentioned in the statutory laws of Bangladesh. If the pre-emptor dies before applying to the Court for pre-emption, the right of pre-emption under statutory law is lost. d) Non-deposition of consideration money The applicant must deposit consideration money for the establishment of their right of pre-emption. If he does not deposit consideration money to the Court at the time of application for pre-emption, his right of pre-emption shall be lost. e) Non-deposition of compensation and interest for costs The applicant must deposit compensation and interest for costs at the rate fixed by the statutory laws of Bangladesh for the establishment of the right of pre-emption.

If he does not deposit compensation and interest for costs to the Court at the time of application for pre-emption, his right of pre-emption shall also be lost.

73 Prof.Rakesh Kr. Singh, Law of Pre-emption, published on 2010

74 Section 96(1), the State Acquisition and Tenancy Act, 1950

75 Ibid

76 Section 24(1), the Non-Agricultural Tenancy Act, 1949.

10. Suggestions

The right of pre-emption is a right to purchase the land which is sold to another person. But, this right is a limited right for some reasons. Because, there are huge legal complexities between the Muslim law and the statutory laws. This right is not applicable in most of the transfers such as transfer by gift, exchange, wakf, lease, mortgage etc. the following steps should be taken to ensure the right of pre-emption: i) The scope of pre-emption should be broadened and transfer by gift, will, exchange, lease and mortgage should be included under the provisions of pre-emption. ii) A notice should be hanged over the land which will be sold within seven days so that it is to be properly circulated. iii) A notice regarding transfer of such property should be served after registration by the registered office with cost of purchaser.

By this, the pre-emptor can avoid subsequent complexity and he can improve his purchased land smoothly. iv) The time limitation of application for pre-emption should be six months (now it is three years). v) ADR system should be introduced compulsorily to pre-emption process in order to bring a suit or an application for pre-emption. vi) The Muslim personal law and statutory laws should be merged and made a unique provision to remove ambiguity regarding pre-emption.

11. Conclusion

The provisions on pre-emption contained by both Muslim law and different statutory laws of Bangladesh are a very effective rule in the field of property law. The provision on pre-emption has been prescribed in various statutory laws of Bangladesh. This right of pre-emption gives the pre-emptor a benefit to buy and enjoy the adjacent property which is sold to a stranger. This right of pre-emption also helps the pre-emptor to prevent the intrusion of a stranger to the property which is contained by the pre-emptor. Some laws are applicable to agricultural land and some are applicable to non- agricultural land. A person can enforce his right of pre-emption

both under the Muslim personal law if he is a Muslim and under the statutory laws of Bangladesh. Again, the provisions of pre-emption are not applicable in some transfer such as gift, bequest, exchange, partition, wakf, debottor property etc.