However, The result is that application of

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.

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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.

(D) Contract:

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.