We know that three classes of persons are entitled in Hanafi law to exercise the right of pre-emption (shuf’a): (i) shafi-e sharik, (ii) shafi-e khalit, (iii) shafi-e jar. The second and third category are clear and unambiguous in their very names as well as their definitions. But there are some ambiguity of the first category of sharik (coparcener) in the perspective of Muslim Law with the similar statute law in Bangladesh. In this article we shall try to bring about clarification about the first category of sharer, i.e. shafi-e-sharik.
(i) shafi-e sharik: ‘Shafi-e sharik’ means a co-sharer in the property sold. A co-sharer (sharik) is an owner of an undivided share in the property. There must be full ownership in the land pre-empted. The right of Shaffa in a partner, is founded on various precept/tradition of the Prophet (PBUH), who said, “the right of Shaffa holds in a partner who has not divided off and taken separately his share.” Prophet said, Shafa relates to a thing held in joint property, and which has not been divided off, when therefore, the property has undergone a division, and the boundary of each partner is particularly demarcated, and a separate road assigned to each, the right of Shaffa can no longer exist. Allama Kazimuddin said that until the partners; sharers are divided in metes and bounds by boundary, the right of shafa remains. But when it happens, right ceased. As per provision of Mejelle, to become of this category, the pre-emptor shall have to be a part owner of the thing sold itself. Like two persons having undivided shares in mulk (ownership of the pre-emptor) immovable property. Kanj gave commentary on his book on Muhammadan jurisprudence namely ‘Aini’ that – “A coparcener is one whose share has not been divided in the property sold”.
From these discussions it is clear that shafi-e sharik means a coparcener who has also a share in the property sold itself and who has not taken his share separating from the disputed land in question by partition.
(ii) shafi-e khalit: Means a person who is entitled to such easements as a right of way, or discharge of water i.e. a participator in immunities and appendages. For example, Pre-emptor’s house and house in dispute originally common houses, entrance of two houses is common or water of pre-empotr’s house discharging on house in dispute – such facts and evidence, provide that the plaintiff is shafi-e khalit of house in dispute, PLD 1978 Kar 732.
(iii) shafi-e jar: i.e. the neighbour, the owner of an adjoining property. The Prophet (PBUH) also said, “The neighbour of a house has a superior right to that house; and the neighbour of lands has superior right to those lands; and if he be absent, the seller must wait his return; provided however, that they both participate in the same road. The Hedaya 548. Vendor was owner of plot no. 31, who constructed a godown therein which overlapped some portion of the plaintiff’s land of plot no. 30. Plaintiff claimed himself to be shafi khalit and shafi jar. The court treated him to be a shafi-jar, 11 BLC 329 = 14 BLT 76.
Whether a co-sharer tenant in the record (khatian/holding) shall be treated a shafi-i-sharik in Muslim law as a matter of course: Due to curtailing rights of pre-emption of co-sharers by purchase and contiguous land holders u/s. 96 of SAT Act and non-availability of right of pre-emption of contiguous land holder u/s. 24 NAT Act importance of exercising right of pre-emption under Muslim law has been significantly increased now. In such circumstance, a considerable number of cases claiming pre-emption under Muslim law, particularly in the categories of co-sharer by purchase and contiguous land holder, are being filed in the whole country. Under the situation, another topic that “whether co-sharers in the record-of-rights (i.e. Khatian/holding) as visualized in the statutory laws of the Land, i.e. u/s. 96 of SAT Act and sec. 24 of NAT Act, are ‘shaf’i sharik’ as well under Muslim law as a matter of course or not”, has become a burning issue to be clarified.
This is a very much a complex question to answer. In Shariah Law, as we have already discussed above, a ‘shaf’i-sharik’ is a person who owns an undivided share in the property sought to be pre-empted; that is to say for pre-emption under Muslim Law the pre-emptor must be joint owner of the land sold itself.
An instance such as –‘A’ died leaving behind 2 sons namely ‘B’ & ‘C’ and he also left 5 bighas lands. Then B & C have joint ownership in whole 5 bighas lands until they take those lands separately by partition. But whenever, the co-sharers of joint properties take their shares separately by amicable partition, they cease to be joint owners and at that time their right to pre-empt over the other co-sharers’ portion also ceases.
But under the statutory laws prevailing in Bangladesh, i.e. u/s. 96 of SAT Act and u/s. 24 of NAT Act – “any co-sharer tenant in the tenancy (khatian/holding) who has subsisting interest can pre-empt the land sold to a third party purchaser” irrespective of co-sharership in the property sold, 1 ADC 310, 2 ADC 365, 13 MLR (AD) 143, 7 ADC 568, 11 BLT 189, 7 MLR 46, 10 BLT 318. What means that though the co-sharers of a khatian take their shares separately by amicable partition since long, but until and unless they separate their holding as per law, i.e. various provisions of SAT Act, they also shall continue to be co-sharers in the holding and their right to pre-empt of that khatina’s land shall remain intact.
In such a situation the query is whether a co-sharer, who is only a co-sharer in the khatian but not a joint owner in the very land sold, rather by amicable partition he had been possessing his share separately than the land sought to be pre-empted, has right to pre-empt under the Muslim law?
Sometimes, we find that the co-sharers of a khatian possess their lands as per their shares separately by amicable partition. Significantly, when a person has become co-sharer in the khatian by purchase, i.e. being owner and possessor of the purchased land only and not of other portion of the khatian land. Burning question is that whether such kind of co-sharers, who are only co-sharers in the khatian but have no direct ownership in the property sole itself, deserve right of shaffa (pre-emption) in Muslim law? But, so far in the search for answer there have not been any instant point of law to be interpreted by the superior court in any manner.
In this regard we find that, in a case, the Pakistan High Court reached a decision concluding that – “therefore, a tenant having possession without having ownership in the property sold has no right of pre-emption in Muslim law.” PLD 1979 Pesh 104. However, the context of the referred case does not play the match which I am dealing here. Because, in Bangladesh, Zamindari system was abolished by SAT Act, 1950 having come in force in 1956 and thereby tenants have now been made the full owners of the lands.
In a Bangladeshi case the plaintiff filed the suit for pre-emption in the capacity as shafi-i-jar. The suit was filed in 1953, i.e., before abolishing the Zamindari system. The plaintiff as well as the vendor had tenancy right in the lands. Question arose that whether the tenants/raiyats had the ownership to pre-empt? Their Lordships with references to almost all the renowned books of Muslim jurists as well as various cases of this sub-continent held that – Under the B. T. Act a jote right, i.e, a raiyati right, is a permanent, heritable and transferable right and, therefore, both the vendor and the plaintiff, being raiyats, have got the ownership in their respective lands and so the plaintiff is entitled to exercise his right of pre-emption, 12 DLR 93. In a case reported in ILR Alah 472, the pre-emptor was a co-sharer out of possession of the property on account of which pre-emption was claimed. Her claim was resisted that she was not in possession of her own share. Mahmood, J, held the suit to be maintainable. However, these case decisions also do not conform the answer to the question which we are searching here.
In an Indian case it was held that – along with the share of the two touzis some mokarrari as well as raiyati land was sold. The co-sharer of the property claimed shaffa. The lower Appellate Court granted pre-emption in respect of two touzis sold but refused pre-emption to the mokarrari and the raiyati lands, relying on the cases reported in AIR 1921 Pat 164 & 25 WR 43 holding that the plaintiff was not entitled to pre-empt with regard to raiyati land (supporting the above findings as in Bangladesh Court). On appeal, the high Court not only agreed with the said decision on the view that there cannot be any right of pre-emption on the sale of raiyati land but also dismissed the entire suit holding that partial pre-emption cannot lie. AIR 1937 Pat 578. Also held – There was no right of pre-emption with regard to mokarrari land, ILR 8 Pat 251 & 10 Alah 472, AIR 1923 Pat 217.
Whatsoever, from the original texts we have found that “The right of Shaffa in a partner, is founded on various precept/tradition of the Prophet (PBUH), who said, Shafa relates to a thing held in joint property, and which has not been divided off. Therefore, where the property has undergone a division, and the boundary of each partner is particularly demarcated, and a separate road assigned to each, the right of Shaffa can no longer exist”, Hedaya 548. Imam Bukhari Hadith No. 2102/ 1548, which clearly states that right of shufa’a remains only in joint property and whenever the parties takes their shares by amicable partition separately in specific shares, the right of shufa’a ceases to exist.
Our observations: From all the decisions made herein above as well as the original tradition from Hadiths it may come to an inference that in Muslim law the co-sharers only in the khatian, who have no undivided ownership in the property sold itself, have no right to shufa (pre-empt).