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.
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:
(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.
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.