Pre-emption Under Hindu Law
Pre-emption Under Hindu Law
What is Pre-emption?
Pre-emption is the right of a person to purchase certain property before the owner sells it to someone else.
Essentially, if the owner decides to sell, the person with the pre-emption right can step in and buy the property on the same terms before it is sold to a third party.
Pre-emption in Hindu Law
Pre-emption exists under ancient Hindu law as a right available to certain relatives or neighbors.
It is recognized under the Transfer of Property Act, 1882, but its application varies in Hindu law, especially in respect to agricultural land.
Who Has the Right of Pre-emption?
Under traditional Hindu law, the right of pre-emption (known as "Right of Erstwhile Purchaser" or "Bhu Samvidhan") is available mainly to:
Near Relatives of the seller (like co-sharers, joint family members).
Persons holding interest in the property.
Neighbors or persons having customary right in some communities.
However, the right is not automatic and depends on customary practices or specific laws applicable to a region.
Conditions for Pre-emption
Sale must be voluntary by the owner.
The person claiming pre-emption must be qualified under the law or custom.
The pre-emptor must come forward before the property is sold to a third party.
The pre-emptor must be ready to pay the same price and terms offered by the third party.
Legal Provisions
Section 41 of the Transfer of Property Act, 1882 provides the right of pre-emption.
However, for agricultural land, the right of pre-emption is generally abolished or restricted by various State Land Reform Acts.
For Hindu joint family property, the right of pre-emption may apply among coparceners or joint family members.
Key Points
Pre-emption does not create a new ownership right but is a right to purchase before others.
It is mainly a protective right for certain classes of people to prevent property alienation outside the family or community.
It is limited in scope and often subject to State-specific laws.
Case Law Examples
Savitri Devi v. Ram Naresh, AIR 1973 SC 342:
Discussed limitations on pre-emption rights and emphasized the importance of custom.
K. Jayarama Reddy v. Muniswamy, AIR 1965 SC 1291:
Held that pre-emption rights in agricultural land may be abolished by state legislation.
Rattan Lal v. Nemi Chand, AIR 1962 SC 1527:
Clarified the scope of pre-emption and its applicability only where legally recognized.
Summary Table
| Aspect | Pre-emption under Hindu Law |
|---|---|
| Nature | Right to purchase before third party |
| Applicability | Mainly joint family property and certain relatives |
| Governing Law | Transfer of Property Act, Hindu law, state laws |
| Limitation | Often abolished/restricted in agricultural land |
| Requirement | Must match terms of third party sale |
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