In Indira Bai V. Nand Kishore, the Supreme Court observed that pre-emptor is a weak right and in Muslim law it is settled law that the right of pre-emption is lost by estoppel and acquiescence.
The right of pre-emption is lost by waiver or acquiescence also when the pre- emptor enters into a compromise with the original purchaser. For example, where the pre- emptor makes an offer for sale of pre-empted property to the original purchaser, he is said to have acquiesced and his right is lost.
Similarly, where a pre-emptor agrees to cultivate the pre-empted land with the original purchaser, his right is lost by his implied acquiescence.
(2) Misjoinder of Co-plaintiffs:
Where a. bona fide pre-emptor joins with himself such persons as claimants who are not entitled to pre-empt, the suit for pre-emption is dismissed and the pre-emptor’s right is extinguished.
However, where the co-plaintiffs, joined by the pre-emptor, who are otherwise competent pre-emptors but could not make the required demands properly, the suit is not dismissed and the pre-emptor’s right is not lost. But in such a situation the co-plaintiffs would not get the right of pre-emption.
The right of pre-emption is lost by forfeiture in the following circumstances:
(i) The right of pre-emption is lost by forfeiture if a pre-emptor releases the right in consideration of something paid to him by the seller. However, under Hanafi law a pre-emptor cannot lawfully claim payment of the consideration for any such release whereas, under the Shia law, he may lawfully claim die consideration amount.
(ii) The right of pre-emption is extinguished if a pre-emptor transfers his own property (the subject of pre-emption) to any stranger. Upon transfer of property, the pre-emptor ceases to be its owner whereas; a pre-emptor must be owner of some immovable property.
(iii) Where the original sale is avoided or, it is impossible for the pre-emptor to carry it out, the re-sale to pre-emptor cannot take place and the right is lost. It may be noted that in the original sale, there may be an option (either with the seller or with the purchaser) to dissolve the contract of sale.
Where the original sale itself has been dissolved under such option, the pre-emptor has no right to claim repurchase from the vendee. Similarly, if the price cannot be determined or in the case of exchange, if the consideration has perished, the pre-emptor cannot carry it out, therefore, his right is automatically extinguished.
(iv) Where the right of pre-emption may be claimed only by co-larceners’, the right is forfeited upon partition amongst them.
(v) Lastly, the right of pre-emption may be forfeited if there is any statutory disability on the part of pre-emptor to repurchase the pre-empted property. In such a circumstance a pre-emptor who may otherwise be competent to enforce the right, is unable to claim the right because of statutory disability.
(4) Death of Pre-emptor:
As discussed earlier, if a pre-emptor dies after the first demand or, after the second demand or, during the pendency of the suit for pre-emption, his right is extinguished. However, under the Shia and Shafi laws, if a pre-emptor dies during pendency of the suit, the right is not lost.
Legal Devices for Evading Pre-emption:
The right of pre-emption affects the rights’ of ownership of a person on flimsy ground namely, the apprehended inconvenience of another person. Therefore, the right of pre-emption may not be generally favoured.
Any legal method may be adopted by a seller for defeating pre-emptor’s claim. Thus, when a vendor apprehends that a neighbour may claim pre-emption, he may sell whole of his property except a very narrow strip of land bordering the neighbour’s property.
In this manner, the neighbour’s property would not be adjacent to the property sold, and he would not be entitled to claim pre-emption. Similarly, in order to avoid the claim of pre-emption a transferor may make a gift but take the price secretly from the donee.
Several other methods of evading pre-emption may be suggested. But, it is to be noted that Muslim jurists, especially Imam Muhammad, discouraged the invention of new methods for defeating this right. Fabrication is not permissible under Muslim law for defeating the right of pre-emption.