Partial pre-emption in respect of the share purchased by the strangers to the exclusion of the share purchased by a co-sharer by a single deed is permissible as there is no concept of jointers in Muslim family law.Discuss


The law of pre-emotion is based upon the texts of Muslim law. The right of pre-emotion is a right to is acquired by compulsory purchase. In certain case immovable property in preference to all person. The objective of pre- emotion the introduction of stranger among co-sharers and neighbor, so that no inconvenience and disturbance is caused to them.

Before going to discussion we have to know the details of Pre-emption and Muslim Law

In generally, a pre-emption right, or right of pre-emption, is a contractual right to acquire certain property newly coming into existence before it can be offered to any other person or entity.[1] Also called a “first option to buy.”[1] It comes from the Latin verb emo, emere, emi, emptum, to buy or purchase, plus the inseparable preposition pre, before. A right to acquire existing property in preference to any other person is usually referred to as a right of first refusal.

The Concept of Pre-emption

The term pre-emption refers to a purchase by one person before opportunity is offered to others. It is the legal right of buying a thing before all others. The right of pre-emption is also known as Shufaa.It is the right of an owner of immovable property to purchase another immovable property which has been sold to someone else.

1^ a b Garner, Bryan A., Editor-in-Chief (2009). Black’s Law Dictionary. St. Paul, Minnesota, USA: Thomson Reuters. ISBN 978-0-314-19949-2. “Right of pre-emption. A potential buyer’s contractual right to have the first opportunity to buy, at a specified price, if the seller chooses to sell within the contractual period. Also termed ‘first option to buy.'”

In other words, under this right the owner of an immovable property is entitled to repurchase an adjacent property which has been sold to someone else. Exercising this right, the owner of an immovable property can compel the purchaser of his adjacent property to sell it to him at the same price at which it was purchased by the said purchaser. It means it is the preferential right of the owner of an immovable property to obtain an adjacent property.

The person who claims this right is called a pre-emptor or Shufee.The law of pre-emption was not a part of the personal law of Muslims. Before the advent of Moghul rule in India, there was nothing similar to the law of pre-emption. [2]

 It was only during the Moghul rule, that the law of pre-emption was used and made applicable as a rule of general law of the land for all communities. The concept of pre-emption has also been implied for certain purposes by Section 22 of the Hindu Succession Act, 1956. According to 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 that pre-emption was adopted by Hindus as a custom.

  1. The moment a shafî’ gets the news of a sale and he does not verbally state that he will pre-empt, his right of pre emption will be invalid. It will not be permissible for him to make any claims later. Making a verbal statement immediately is so important that if a shafî’ receives a letter wherein it is mentioned at the beginning that a certain house has been sold and he does not make a verbal statement that he will exercise his right of pre-emption until he completes reading the entire letter, then in such a case his right of pre-emption will become invalid.

2 Digambar Singh v. Ahmad, AIR 1914 PC 14.

  1. A shafî’ says: “Pay me a certain amount of money and I will forgo my right of pre-emption.” In such a case, since he is happy to forgo his right, his shuf’ah will be considered to be surrendered. However, since this amounts to bribery, it is therefore harâm to give or to receive this money that he is willing to pay.
  1. If the shafî’ asks for the property but passes away before he can receive it, his inheritors will not have the right of pre-emption. But if the actual purchaser of the property passes away, the right of pre-emption will remain with the shafî’.
  1. The shafî’ heard that the house was sold for a certain price. He therefore relinquished his right of pre-emption. Thereafter he learnt that it was sold for a lesser price. At such a time he can exercise his right of pre-emption. Similarly, in the beginning he heard that a certain person is the buyer. Later he learns that the buyer is someone else.

 Alternatively, in the beginning he heard that half the property has been sold. Later he learns that the entire property has been sold. In all these cases, his relinquishing his right in the beginning, will not invalidate his right of pre-emption.

 Sources of Pre-emption

The law of Pre-emption is based on the following sources:

  1. 1.      Pre-emption as a part of Muslim Personal Law:

In some parts of India, pre-emption existed among some Muslims as part of their personal law. Where the law of pre-emption is neither territorial nor customary, it is applicable as between Muslims as part of their personal law. In Audh Behari Singh v. Gajadhar Jaipuria[3], the Supreme Court observed:

The law of pre-emption was introduced in India by the Muslims. There is no indication of any such conception in the Hindu Law…..During the period of Moghul Emperors the law of pre-emption was administered as a rule of common law of the land inthose parts of the country which came under the domination of the Muslims and Zimmees (non-Muslims) no distinction being made in this respect between persons of different races and creeds…..In course of time Hindus came to adopt pre-emption as a custom for reasons of convenience and the custom is largely to be found in provinces such as Bihar and Gujarat which had once been integral parts of the Muslim Empire.

  1. 2.      Pre-emption by Custom:

Subject to any law in force for the time being, pre-emption may be claimed on the basis of a custom. In Bihar, some parts of Bombay and Gujarat such as Surat, Broach, etc., and Bengal the right of pre-emption is recognized by custom among Hindus, though the right is under Muslim law. As the practice was invogue since the Moghul period, it has taken deep roots in the Indian society. In Jagannath v. Inderpal Singh[4], the Allahabad High Court observed that “in the absence of proof of modification, is a custom of pre-emption is proved to exist, the custom must be in accordance with Muslim law.”

3 AIR 1954 SC 417: 1954 SCJ 590: 1955 SCR 70.

4AIR 1935 All 236: 153 Ind Cas 172

Though the custom has been confined, in some cases, to a particular locality, but the right, when based on custom becomes law for the place and all lands belonging thereto are subjected to the law irrespective of religion, nationality or domicile of the owners [5]

 But this right is limited to the persons who are residing or are domicile in such places, and not to those who simply own the property in that place. When the custom is proved to exist in a certain place, it could not be extended to other places

  1. 3.      Pre-emption by Statutes:

In some parts of India, the right of pre-emption exists under statutes. For example, the Punjab Pre-emption Act, 1915, the Agra Pre-emption Act, 1922, etc. In such areas, the law of pre-emption based on these statutes applies to both Muslims and non-Muslims. In such areas, the Muslim law of pre-emption does not apply even to Muslims.

  1. 4.      Pre-emption by Contract:

Apart from the existing legal and customary right of pre-emption, the same right may be created through a contract, particularly where one of the parties is non-Muslim, the right of pre-emption would be created if he agrees with the Muslim vendee for his co-sharer. In such cases, the right may be used against the non-Muslim. When two co-sharers are Muslim and a Hindu purchaser agrees to be governed by Muslim law of pre-emption, the right could be used against the Hindu purchaser by the co- sharer, when he makes a “demand”.

5 Mst. Nawrangi Tawaif v. Mintu Tawaif, 1955 NUC 2737 (All)


Only three classes of persons may claim the exercise of the right under Muslimlaw. Under Muslim law, pre-emptor are classified as:

  1. The Co-sharers or Shafi-i-Sharik
  2. The Participators in Immunities or Shafi-i-Khalit, and
  3. The Owners of Adjacent Property or Shafi-i-Jar
  1. 1.      The Co-sharers or Shafi-i-Sharik

The persons who are entitled to inherit the properties of a common ancestor are called co-sharers. The co-sharers have the preferential right of pre-emption against any other class of pre-emptor. Co-sharers are given preference against other categories of pre-emptor because they are common blood relations i.e. related to each other on the grounds of consanguinity. Since the list of blood relations may be very long, the categories of consanguine relations entitled to claim preferential right of pre-emption should not be unreasonable. In the case of Atam Prakash v. State of Haryana[6], the Supreme Court held that the right of pre-emption on the grounds of the category of consanguine relations is unconstitutional. But later on, in Krishna v. State of Haryana[7], the Supreme Court has held that the right of pre-emption to co-sharer is valid and does not violate of Articles 14, 15 and 16 of the Constitution of India.

  1. 2.      The Participators in Immunities or Shafi-i-Khalit

The term “Khalit” literally means “mixed with”. Where two or more persons enjoy a common privilege, example, a common right of way, they are participants in immunities.

6 AIR 1986 SC 859.

7 AIR 1994 SC 2536

In the absence of a co-sharer, Shafi-i-Khalit is entitled to pre-empt in the following cases:

(a)   Where the person has the right of flow of water over the disputedproperty, then he has a right of pre-emption as a Shari-i-Khalit and haspriority over the vendee, who is only a neighbor.

(b)   Where water was accustomed to flow to the pre-emptor’s land and from there to the land in dispute, the pre-emptor was held to be a participator inthe appendage and entitled to pre-empt on the basis of Khalit.

(c)   The right to pre-emption arises from the right to way and the right todischarge water. In Bhau Ram v. Baij Nath[8]the Supreme Court held thatpre-emption on the basis of participation exists only in the easements of way and water on private land. It does not extend to any other easement such as easement of air and light[9]. The right to use common thoroughfare such as common village roads will not give rise to the right of pre-emption.

  1. 3.      The Owners of Adjacent Property or Shafi-i-Jar

This is the right of pre-emption on the basis of neighborhood, or the right of the owner of the adjoining immovable property. This right does not belong to attendant or to a person, who is in possession of property without having ownership in it. Even before the Supreme Court decision[10] holding the right of pre-emption on the basis of vicinage as unconstitutional, the right of pre-emption of a Shafi-i-Jar did not extend to larger estates, such as zamindars and jagirs, but was restricted to houses, gardens and small pieces of land.

8 AIR 1962 SC 1476

9 Ladu Ram v. Kalyan Sahai, AIR 1963 Raj. 195.

10 Dhanraj v. Rameshwar, AIR 1924 All 227.

Formalities of Pre-emption

Existence of right of pre-emption depends on full and complete observance of formalities because it is a feeble right and as such full of technicalities. Theformality for the claim of this right consists of three demands. The demand mustbe made by the pre-emptor step by step and at a proper time.

  1. 1.      The First Demand (Talab-i-Mowasibat):

The pre-emptor must assert his claim immediately on hearing of the sale, but not before. Witnesses are not necessary, neither is any particular form essential. “I have demanded or I do demand pre-emption” I enough11.The courts enforce this formality strictly and any unreasonable delay will be constructed as an election not to pre-empt. A delay of twelve hours was in one case considered too long; the principle is that the law requires extreme promptness and any laxitywill be fatal to the pre-emptor?s claim.

  1. 2.      The Second Demand (Talab-i-Ishhad):

The expression “Talab-i-Ishhad” means a demand with the invocation of witnesses. The pre-emptor must refer to his first demand and do so in the presence of two witnesses and also, do so in the presence of either the vendor (if he is in possession), or the purchaser or on the premises. This demand is also known as Talab-i-Taqrir, which means the demand of confirmation. The property, in respect of which the demand has been made, must be clearly specified. The second demand must be made within a reasonable time and as early as possible; with as little delay as possible according to the circumstances. A two month delay was declared to be fatal in Mohd. Raza Ali v. Israr Hasan12

11 C.S. Tiwati v. R.P. Dubey (1949) 28 Pat. 861.

12 AIR 1929 All 459.

Sometimes, the first two demands may be combined. If at the time of the first demand, the pre-emptor has an opportunity of invoking witnesses in thepresence of the vendor, or the purchaser or on the premises to attest the first demand and witnesses are actually present to testify to this formality, the requirements of both demands are satisfied. This is the only case when the first two demands may be combined lawfully.

  1. 3.      The Third Demand:

This is not exactly a demand but taking legal action and is not always necessary. It is only when his claim is not conceded that the pre-emptor enforces his right by bringing a suit. Such an action is called Talab-i-Khusumat which means the demand of possession or the demand where there is a dispute. This suit must be brought within one year of the purchaser taking possession of the property if it is corporal; or within one year of the registration of the instrument of sale if incorporeal 13

Under the Shia or Shafi law, if a pre-emptor dies during the pendency of the suit, the right is not lost. Now the matter is governed by the Hindu Succession Act, 1956, and the suit may be continued by the legal heirs of the pre-emptors.The Act applies to all sects of Muslims in India. If the pre-emptor dies leaving aWill, the suit may be continued by his executor and if the executor dies intestate, the suit may be continued by his heirs14.

Constitutional Validity

Before the 44th Amendment of the Constitution of India, there existed Article19(1)(f) in the constitution. Article19 (1)(f) of the constitution of India gave the citizens of India, “the right to acquire, hold and dispose of property” and Article19(5) permitted a law to impose „reasonable restrictions? on exercise of this “either in the interests of the general public or for the protection of the interests of any Scheduled Tribe”.

13 Article 10, Limitation Act, 1963.

14 Sitaram Bhaurao Deshmukh v. Jiaul Hasan, AIR 1923 PC 41

Article 13(1) declared that all laws in force in the territory of India immediately before the commencement of the constitution and inconsistent with the provisions of the constitution relating to the fundamental rights of the people shall to the extent of such inconsistency be void. Article 13(2) forbids the State from making any law which takes away, or abridges the fundamental rights and declares that any law made in contravention of this clause shall, to the extent of the contravention, be void. Therefore, the validity of the law of pre-emption, whether it has its roots in Islamic Law or custom or statute was to depend on whether it amounted to reasonable restriction in the interests of the general public on the citizen’s right to acquire, hold and dispose of property [Article 19(1)(f)].Though the pre-emptor right of a co-sharer in property is justified as it prevents disintegration of the Muslim family property due to its peculiar laws of inheritance and inconvenience which may result to families from the introduction of a disagreeable stranger as a coparcener, the right of a neighbor to pre-empt has been held to be unreasonable as it affords opportunity to obtain his neighbor’s property at a price far below its value by bargaining or haggling and renders a stranger aware of the risk unwilling to purchase it except for a price which the property ought to fetch.

In Sant Ram and Ors. v. Labh Singh and Anr.15, Srivastava, J. stated that the court’s answer to the question :

“Whether after coming into operation of the Constitution, the right of pre-emption is contrary to the provisions of Article19 (1)(f) read with Article 13 of the Constitution, or is it saved by Clause (5) of Article 19 ?” is that the right of pre-emption based on the ground of vicinage is saved by Clause (5) of Article 19 and has therefore not become void under Article 13 of the Constitution. The Supreme Court upheld the validity of the right to pre-emption between co-sharers, on the ground that restrictions imposed by such a right in the way of acquiring, holding and disposing of property were in the interest of public.

15  Associate Professor, Northwestern University School of Law and Department of History.

Muslim family Law and Property

Muslim Family Law

Parents and two children as the ideal family is just that, an ideal, a powerful ideal, but not the most common family form.16

Family law in Muslim-majority countries has undergone tremendous change over the past century, and this process continues today with intensity and controversy. In general, this change has been considered one of “reform,” defined loosely as the adoption  of national laws to modify the rules of Islamic law (fiqh) that had been applicable and  predominant in the particular country in an effort to improve the rights of women and  children.17 Reform efforts have largely focused on placing restrictions on a husband’s  right to enter into a polygamous marriage; limiting a husband’s right to unilaterally declare his wife divorced; extending a mother’s right to child custody and to be  compensated for it by her ex-husband; raising the minimum age of marriage; expanding a wife’s ability to get a divorce at her initiative; requiring a husband to compensate his wife if he arbitrarily divorces her; and limiting a wife’s duty of obedience towards her husband.18

In some Muslim-majority countries, and Turkey in particular, major modifications to family law have been made by essentially adopting western codes, such that Turkey’s family law today resembles that of a European nation.  In doing so, Turkish lawmakers, operating in the context of the Turkish form of secularism enshrined in its constitution.

16  J.D., Northwestern Law School, 2010.

17 The term “reform” has been challenged on the grounds that it “insinuates a transition, on the one level,  from the pre-modern to the modern, and on the other, from uncivilized to civilized.” Hallaq, Shar??a, 3  (2009).  Since reform is the term used by those engaged in efforts to change personal status law (such as the  groups Sisters in Islam, Musawah, others), we use it here.  Of course, not all changes in family law in  Muslim-majority countries are reformist under our definition.  

18  Welchman, ed., Women’s Rights and Islamic Family Law, 4-5 (2004).

Reformers pursuing this internal method have developed interpretive strategies in  order to present changes they desire as Islamically legitimate.  In the earliest reforms of Muslim family law in the Middle East, which can be considered to have begun with the 1917 Ottoman Law of Family Rights, three particular strategies were heavily relied upon:exercising preference (takhayyur), patching (talfiq), and constricting the jurisdiction of national courts.  In brief, preference involves choosing a more desirable rule (from the perspective of women and children) from a different school of Islamic law than that followed in the particular country or community (or from a minority view from within the school that is followed).  Patching is similar, but it involves taking two or more rules or parts of rules and putting them together to form one hybrid rule that, while derived frogfish opinions, would not be recognizable (or even permissible) by any one school.   Preference and patching depend on the fact that a diversity of opinion exists within classical Islamic law and in particular among the four Sunni schools of law.  The jurisdiction stripping strategy simply removes a topic (for which the Islamic rules produced an unsatisfactory result) from a court’s jurisdiction, functionally preventing the judicial application of that rule while not attempting to affect its underlying legitimacy within the corpus of fiqh.  To the extent that the scholarly literature on Muslim family law deals with types of internal strategies (rather than the actual substantive changes), these three particular ones are typically the main or only ones discussed.18

Family law reform has been very active in recent years, however, and some advocates have developed creative and innovative ways to continue to push legal change that is presented as coming from within the Islamic legal tradition.  This article, drawing mainly on examples from Egypt and Morocco, seeks to identify and examine the breadth of strategies in Sunni Islam that have been used beyond these well-known three.19

18 Welchman, ed., Women’s Rights and Islamic Family Law, 4-5 (2004).

19 This is the approach of the Malaysian group Sisters in Islam, for example.  Mona Zulficar describes the advocates of a new marriage contract for Egypt (discussed below) as having “adopted a strategy of engagement in the religious discourse based on women’s reading of their rights under the principles of the Shari?a.” Zulficar, “The Islamic Marriage Contract in Egypt,” in Quraishi and Vogel, eds., The Islamic See, for example, Esposito, Women in Muslim Family Law (2001); Ali, “Marriage in Classical Islamic Jurisprudence,” in Quraishi and Vogel, eds., The Islamic Marriage Contract, 27 (2008).

We are not judging whether each strategy is in any objective sense Islamically compliant, but rather are concerned with studying those reforms that are presented as based on Islamic arguments.20

By naming and defining them, we hope to facilitate discussions and research in this area, among academics and those engaged in reform projects alike, in several specific ways.

First, we want to encourage empirical studies of the practical impact of reforms. Such studies have been slow in developing, hindered mainly due to lack of access to court records or meaningful statistics.  As more of these are undertaken in the future, we suggest that the reform’s interpretive strategy should be a variable that is evaluated.    Opposition to family law change almost always comes in the form of an attack on its Islamic validity or authenticity, a challenge that the change has gone beyond the bounds of legitimate Islamic legal interpretation. To fully measure a law’s impact, including whether members of the population appeal to its use and whether judges are willing to apply it or find reasons to avoid doing so, the Islamic legal justifications for that law must be considered, but this cannot be done without a clear understanding of the current scope of these strategies.

Second, we seek to draw attention to the potential unintended consequences produced by each type of strategy.  In each case, the reform is achieved not by simply announcing the desired result, such as a minimum marriage age, for example, but rather by attempting to approximate that desired result to the degree that textual Islamic legal arguments seem to allow.21

20 As drafts of this article are read by academics and activists, we hope to be made aware of additional

strategies (or variations on the ones presented here). 

21 Further, whether any national law can properly be considered to be derived from Islamic law has been

challenged.  See an-Na?im, Islamic Family Law i

The strategy used to approach that desired result, however, can itself cause adverse results for the very community that was intended to be helped by the reform. This phenomenon is particularly true with the limitation of judicial jurisdiction strategy, discussed below.

Third, and related to the first two, we intend to contribute to a larger conversation about the benefits and disadvantages of internal approaches, on a case by case basis and as a whole, in comparison with other ways that might be used to achieve legal

Property and Ownership:

  1. 1.   The Nature of Property and Ownership

The word used by Muslim jurists for ownership is milk¯?yah and that used for property is m¯ al. The term milk, however, is sometime used for ownership and at other times for the subject-matter of    ownership.

  1. 2.   Ownership (milk¯?yah ) and possession (milk al-yad )

Ownership (milk¯?yah  or milk ) is de?ned by Muslim jurists as “the relationship that exists between a person and a thing that gives absolute control and right of disposal over it to the exclusion of others.”This dentition, as it can be seen, is very close to the de?nition of ownership given by Saving on the basis of Roman law. Some Muslim jurists de?ne it as “the relationship between man and property that has been established by the shar¯?‘ah  through which he exercises exclusive control and right of disposal over it as long as there is no shar‘¯?  restriction.” This, however, does not change the essential nature of the de?nation with respect to “control” and “exclusion of others.”

  1. 3.   Types of ownership (milk )

Ownership is classi?ed in various ways. Some of these are given below-

  • Classi?cation on the basis of participation.

Ownership is classi?ed on the basis of the persons participating in the ownership into three types:

  1. A.     Sole ownership.

This is ownership by a single person of a particular property with all the attached rights and control.

  1. B.    Co-ownership :

Co-ownership also called sharikat al-milk. When two or more persons jointly hold property it is called co-ownership. It is treated as a kind of partnership in Islamic law and is called sharikat al-milk.Closely related to this type of ownership is the concept of mush¯ a’,which is joint ownership in each particle of the undivided property. This concept, along with the right of pre-emption, has a bearing on the issue whether the undivided share can be sold to a stranger. Some modern scholars are trying to use it for the right to sell shares in a company.

  1. C.    Communal or public ownership.

These are things that are jointly shared by the entire community including land, grass, ?re. An individual does not have the right to exclude another person from such things, unless it has been converted to his personal ownership or possession through a legally valid mode of acquisition. Out of these there are certain things that do not accept individual ownership. These are ?re, water, grass, air, public roads and commons. The evidence for this is a tradition to the e?ect that all mankind are partners in three things: water, grass and ?re. This does not mean that all mankind share the water that comes out of private tube-wells or the grass on private property. There are other things that can be converted to private ownership as is the case in gathering ?re wood or cultivation of barren lands.

  • Classi?cation on the basis of corpus (‘ayn), usufruct (manfa‘ah ), and use (istimt¯ a’ ).

A person may own a thing as well as the bene?ts ?owing from it, although he may temporarily alienate the bene?ts through contract, like an owner renting out his house to another person or mortgaging it as security for a debt. The H.anaf¯?s do not make a distinction between the ownership of the corpus and ownership of bene?ts or services for purposes of ownership. Both are attached to the same thing. The owner may contract out the use of a thing to another, but that does not make the other person the owner. The bene?t of this rule is that the other person not being the owner of the bene?ts does not have a right of further disposal in them. Thus, a tenant in a house cannot further sublet it.

The majority of the jurists do make a distinction, with some of them distinguishing between the rightto manfa‘ah and the right of intif¯ a‘.The wor istimt¯ a‘  pertains to conjugal rights. They arise fromthe marriage contract.

  • Classi?cation on the basis of complete and incomplete ownership.

The word milk is also used to qualify other legal categories that are related to ownership, but are not ownership proper. The word milk  or ownership is employed in three senses: milk al-raqabah (proprietary rights);milk al-yad (possession); and milk al-tas.arruf (right of disposal). Thus,milk al-raqabah is ownership properthat includes both exclusive control and the right of disposal. Possession or milk al-yad  consists of exclusive control and the right to keep others out of such control, but it does not include the right of disposal. This is discussed below. The third type involves the right to dispose of property on behalf of the owner. This type of ownership belongs to the guardian, the executor and the agent and withsome restrictions to the mortgagee and the bailee as well.

  • Classi?cation on the basis of primary and incidental rights.

Primary rights are associated with the property itself, while incidental rights are those that may be related to other property because of the primary rights. These incidental rights give rights to easements like the right of passage ( h .aqq al-mur¯ ur ), the right to ?ow of water (h .aqq al-majr¯ a ), the right to water (h .aqq al-shirb) and the rights of a neighbour (h .aqq al-jiw¯ ar ). The last right may also lead to the right of pre-emption.

  1. 4.   Possession

Possession (milkal-yad ) may become a means to ownership. It possesses most of the attributes of ownership—control and the right to exclude others—as against all except the original owner. It is of two types: actual physical possession (h .aq¯?q¯? ) and legal possession (h .ukm¯? ). In the ?rst case, a person maybe wearing his coat or holding his horse, but this is not possible for all things. When it is not possible to take physical possession of a thing, like possession of land, the law treats it like physical possession when there is intention to keep others out. This intention may be exhibited in various ways that the law recognizes.

  1. 5.   The concepts of property (m¯ al) and ownership (milk)

In Islamic law, the terms milk andm¯ al are intimately related. It is by understanding this relationship thatwe understand the discussions in ?qh about ownership and property. The word milk, as already stated, is sometimes applied to mean ownership and at other times to mean the subject-matter of ownership. When the word is applied to mean the subject-matter of ownership it may include the following four things:

  1. Things having a corpus (body).This body can be destroyed or consumed independently of anything else. Once destroyed it may be liable to compensation. Such things qualify for being called m¯ al  according to all the jurists, unless the shar¯?‘ah  speci?cally excludes some of these things.
  2. Things generated from something that has a corpus. These are bene?ts that we derive from the use of di?erent things. Manfa‘ah or usufruct or services fall in this category. These Bene?ts cannot be destroyed independently of the body from which they are generated. In other words, they have no existence independent of the corpus from which they are generated. The transactions through which ownership of bene?ts is transferred are commodity loan ( ‘¯ arah), hire ( ij¯ arah  ), charitable trust(waqf  ) and bequest ( was.¯?yah )..
  3. Things that have a body and can qualify as m¯ al,but are not considered¯ al due to some technical reason. For example, a slave is owned by a person, but is not referred to asm¯ al,because a human being cannot bem¯ al.
  4. Pure rights that do not have a body of their own. Like the right to stipulate an option, say khiy¯ ar al-shart .

The position of the schools of law on the above categories is as follow-

1. According to the H.anaf¯? School it is only things with a corpus that can qualify as m¯ al (property).The other three are not m¯ al, but can be the subject-matter of ownership. Bene?ts arise in contractslike ij¯ arah  hire). In such contracts, the H.anaf¯?s say that the corpus from which future bene?ts willarise is substituted in place of the non-existent bene?ts so that the o?er and acceptance can belinked to it. They do not consider pure rights as m¯ al. They also do not consider such incorporealthings like knowledge to have the quality of m¯ al.

2. The M¯alik¯?s and Sh¯a?‘¯?s consider bene?ts to be m¯ al. They do not consider pure rights to be m¯ al, because they do not arise directly from a corpus.3. The H.anbal¯?s consider pure rights to be m¯ al  although they have not clearly indicated this. They consider the ‘urb¯ un  (earnest money) as legal on the basis of a solitary tradition. By acknowledging this they acknowledge the sale of options and pure rights. The OIC has preferred this tradition and opinion. We thus see that traditional Islamic law has a somewhat narrow concept of m¯ al and does not treat in-corporeal rights, like patents and copyrights, as m¯ al.

Modern jurists, courts and the Islamic Fiqh Academy of the OIC have attempted to expand the concept of property to include such rights. It may be argued that intellectual property rights cannot be placed in the category of non-existent bene?ts. In fact, they are bene?ts that have been extracted and stand packaged for use. They come closer to things with a corpus than do bene?ts. So if bene?ts can be sold, whatever the legal reasoning behind it, why not intellectual property rights. The sale of options, however, is a di?erent matter. These are pure rights that are being sold and are considered to have an intrinsic value. The acceptance of the H.anbal¯? opinion on earnest money should open the way for the trading of options and derivatives on the commodity and stock exchanges as well asin the world of ?nance generally.

6. The di?erent classi?cations of m¯ al

The jurists have classi?ed property (m¯ al ) in di?erent ways for understanding the operation of the rules:

  1. 1.      Marketable and non-marketable.

Marketable things are those that can be converted to private property and whose use has been permitted by the shar¯?‘ah. These things are called mutaqawwam.

Non-marketable things are those that cannot be converted into private property like birds in the air, sunshine, ?sh in the sea and so on. They also include those things whose sale and purchase has been disallowed by the law, like wine, swine-?esh. The second types are marketable for non-Muslims. A contract for non-marketable things is not valid.

  1. 2.      Moveable and immovable.

This is the classi?cation into ‘aq¯ ar and manq¯ ul. It has the samemeaning as that in law. The Classi?cation a?ects many rules. For example, bay‘al-waf¯ a’ and shuf‘ah are applicable to immovable property. Moveable property is divided into things sold by measure of capacity, weight and count. This division for purposes of  rib¯ a  is one that was followed at the time of the Prophet (p.b.u.h.). Thus, if wheat was sold by measure in those days, but was later sold by weight, the earlier Classi?cation is followed for purposes of the derivation of the rules.

  1. 3.      Fungible and non-fungible.

This is the division into mithl¯?  and q¯?m¯?. Fungible things are those for which a substitute can be found by weight or measure and quality. Thus, wheat and rice of a certain quality will have a substitute. Non-fungible or q¯?m¯?  property comprises those goods whose similar cannot be found and have their own value, that is, their value is determined by valuation. Thus, a horse, a water-melon and a dress have no exact substitute in the market. The fungible goods need only be mentioned in a contract by weight or measure and quality, but non-fungible goods have to be examined at the time of the contract. Further rib¯ a does not run in non-fungible goods. The term ‘ur¯ ud . is generally considered to apply to moveable property, but the way al Sarakhs¯? has usedit gives the impression that it is being used for goods called q¯?m¯?.

  1. 4.      Consumable and non-consumable.

Currency, food and the like are consumed when used. Non-consumable goods like a house, a horse for riding and the like are not consumed by use. Again, rib¯ a  does not run in non-consumable goods.


From the submission given in the article it is clear what sort of a right of pre-emption is. It is of an extreme importance which one has got from law and one’s own culture. Thought there are many controversies regarding who can opt for such right, if the sect of a person according to Muslim law is different, and when the right is lost, still it plays an important role as one can use this right can an enjoy sole possession of the entire property without any interference from any one.

In this project I have dealt in dept detail of right of pre-emption regarding when the right does arises, who can claim this right, when the right is lost, what are the formalities. Though after the decisions of Supreme Court the law is settled now and the religion or the sect is no barrier now.

The objective of pre- emotion the introduction of stranger among co-sharers and neighbor, so that no inconvenience and disturbance is caused to them.


  1. Muslim Law, Rakesh Kumar Singh, 2011 Ed.
  2. Concise Description of Islamic Law and Legal Opinions, A. Ezzati, 2008Ed.
  3. Introduction to Islamic Law, Alhaji A.D. Ajijola, 2007 Ed.
  5. Maulana Ashraf Ali Thanwi in: Bahishti Zewar,Fiqh,Part 5-Principles of Business
  7. Ab¯u D¯aw¯ud Sulaym¯an ibn al-Ash¯ath al-Sijist¯an¯? (817 or 18889).Sunan Ab¯ u Daw¯ ud. Trans. Ahmad Hasan. 1st Ed. 3 vols.Lahore, 1984.
  8. Austin, John.Lectures on Jurisprudence.2 vols. London, 1911
  9. 9.