The right of pre-emption may be classified on the basis of the persons who can claim the right.
(i) The shafii sharik or a co-owner in the property. This is a right of pre-emption of a co-sharer in the property. Obviously, no right of pre-emption arises on the sale of leasehold. The right of pre-emption can be claimed only by a full owner.
(ii) The shqfii sharik or a participator in the appendages. This is a right of pre-emption of a participator in immunities and appendages, such as right of way, or right to discharge water. On the basis that the branches of his tree project over the land of a neighbour of the owner of the tree cannot claim the right of pre-emption as shqfii khalit on the sale of that land.
ADVERTISEMENTS:
Similarly, the mere fact that the owners of lands have the right to draw water from government water-course does not give them any right of pre-emption. The right of pre-emption as shafii khalit cannot be claimed on the basis of easement of light or air. The right of pre-emption as shafii khalit exists only in respect of right of way and right to water and in respect of no other easement.
(iii) The shafii-i-jar or owner of an adjoining property. This is a right of pre-emption on the basis of neighbourhood, or the right of the owner of the adjoining immovable property. This right does not belong to a tenant or to a person, who is in possession of property without having any ownership in it.
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Thus, a wakif of mutawalli has no right of pre-emption on the basis of shqfii-i-jar, since the title of property does not vest in either of them but in God, and God, too, has no right of pre-emption.
ADVERTISEMENTS:
Even before the Supreme Court decision holding the right of pre-emption on the basis of vicinage as unconstitutional, the right of pre-emption of a shafii-i-jar did not extend to larger estates, such as zamindaris and jagirs, but was restricted to houses, gardens and small parcels of land.
Under the Hanafi law, the pre-emptors of the same class have the right to pre-empt in equal proportions, even though they own unequal shares. But under the Shafii law, even the right of pre-emption of the same class is in proportion to their share in the property. Among the pre-emption of the same class, no distinction is made.
Nearness may be recognized by custom.
The right of pre-emption arises from full ownership, and it is immaterial that a pre-emptor is not in possession of his property. It is ownership and not possession which gives rise to the right of pre-emption. There is no right of pre-emption on the sale of lease hold, whether of house or land.