1.

INTRODUCTION

A pre-emption right, or right of pre-emption, is a contractual right to acquire certain property newly coming
into existence before it can be offered to any other person or entity. Also called a "first option to buy". It
comes from the Latin verb emo, emere, emi, emptum, to buy or purchase, plus the inseparable
preposition pre, before. A right to acquire existing property in preference to any other person is usually
referred to as a right of first refusal.

The right of Pre-emption also known as "Shufaa" is a right which the owner of an immovable property
possesses to acquire by purchase another immovable property which has been sold to another person.
Basically this right is available to one so that a stranger is not introduced in neighbour or the family which
may cause a hindrance to ones privacy.

pg. 1
 2. HISTORICAL MEANING

In earlier time, "pre-emption right" has had a separate and distinct meaning to that given to it today. Under
international law, the right of pre-emption formerly referred to the right of a nation to detain merchandise
passing through its territories or seas, in order to afford to its subjects the preference of purchase. This form
of right was sometimes regulated by treaty. A treaty between the United States and Great Britain in 1794
agreed that: whereas the difficulty of agreeing on precise cases in which alone provisions and other articles
not generally contraband may be regarded as such, renders it expedient to provide against the
inconveniences and misunderstandings which might thence arise. It is further agreed that whenever any such
articles so being contraband according to the existing laws of nations, shall for that reason be seized, the
same shall not be confiscated, but the owners thereof shall be speedily and completely indemnified; and the
captors, or in their default-the government under whose authority they act, shall pay to the masters or owners
of such vessel the full value of all articles, with a reasonable mercantile profit thereon, together with the
freight, and also the damages incident to such detention.

The history of pre-emption in India has been given by Sir John Edge in Digamhar Singh v. Ahmad Sayeed
Khan[(1915) 17 BOMLR 393]. Pre-emption in village communities in British India had its origin in the
Mohammedan law. In some cases the sharers in a village adopted or followed the rules of the
Mohammedan law of the pre-emption, and in such cases the custom of the village follows the rules of the
Mohammedan law of pre-emption. In other cases, where customs of pre-emption exists, each village
community has a custom of pre-emption which varies from the Mohammedan law of pre-emption and is
peculiar to the village in its provisions and its incidents. A custom of pre-emption was doubtless in all
cases the result of agreement amongst the share-holders of the particular village, and may have been
adopted in modern times and in villages which were first constituted in modern times. Right of pre-
emption has in some provinces been given by Acts of the Indian Legislature. Right of pre-emption has also
been created by contract between the sharers in a village. But in all cases the object is as far as possible to
prevent strangers to a village from becoming sharers in the village.

Right of pre-emption when they exist are valuable rights, and they depend upon a custom or upon a
contract, the custom or the contract, as the case may be, must, if disputed, be proved.

pg. 2
 3. OBJECT OF PRE-EMPTION

In the words of Mulla," The right of shufaa or pre-emption is a right which the owner of an immoveable
property possesses to acquire by purchase another immoveable property which has been sold to another
person". The foundation of the right of pre-emption is the human desire to avoid the inconvenience and
disturbance which is likely to be caused by the introduction of a stranger into the land. The Muslim law of
pre-emption is to be looked at the light of the Muslim law of succession. Under Muslim law, death of a
person results in the division of his property into fractions. If any heir is allowed to dispose of his share
without offering it to other co-heirs, then it is likely to lead to the introduction of strangers into a part of
the estate with resultant difficulties and inconveniences. In view of this, the law of pre-emption imposes a
limitation or disability upon the ownership of property to the extent that it restricts the owner's unfettered
right of transfer of property and compels him to sell it to his co-heir or neighbour, as the case may be. The
person, who is a co-sharer in the property, or owes property in the vicinity, gets an advantage
corresponding to the burden with which the owner of the property is saddled, even though it does not
amount to an actual interest in the property sold. It is now an established view that the right of pre-emption
is not a mere right to re-purchase; it is akin to legal servitude running with the land. The right exists in the
owner of the pre-emption tenement for the time being which entitled him to have an offer of sale made to
him whenever the owner of pre-emptional property desires to sell it. It is a right of substitution entitling the
pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the
vendee in respect of all the rights and obligations arising from the sale under which he has derived his title.
It is, in effect, as if in a sale-deed the vendee's name was rubbed out and the pre-emptor's name substituted.
Or, in the words of Mahmood J."....... a right, which the owner of certain immoveable property possesses,
as such, for the quiet enjoyment of that immoveable property, to obtain, in substitution for the buyer,
proprietary possession of certain other immoveable property, not his own, on such terms as those on which
such latter immoveable property, is sold to another person". Mukerjee, J. very aptly says that the crux of
the whole thing is that the benefit as well as the burden of the right of pre-emption runs with the land and
can be enforced by or against the owner of the land for the time being although the right of pre-emption
does not amount to an interest in the land itself. The law of pre-emption creates a right which attaches to
the property and on that footing only it can be enforced against the purchaser. Thus, the right of pre-
emption in that sense is right in rem, its exercise, from the time it arise up to the time of the decree, is
restricted as a personal right.

pg. 3
It is a right which is neither heritable nor transferable. In this context, the following passage in the Hedaya
is also instructive: "The right of shufaa is but a feeble right, as it is the disseizing another of his property
merely in order to prevent apprehended inconvenience". The right of pre-emption is a very weak right and
can be defeated by a defendant by all lawful means.

In Indira Bai v. Nandkishore[1991 AIR 1055], the Supreme Court observed that the right of pre-emption is
a weak right and it can be defeated by estoppels. Even in Muslim law, which is the genesis of this right, as
it was unknown to Hindu Law and was brought in the wake of Mohammedan Rule, it is settled that the
right of pre-emption is lost by estoppel and acquiescence. Estoppel is a rule of equity flowing out of
fairness striking on behaviour efficient in good faith. It operates as a check on spurious conduct by
preventing the inducer from taking advantage and assailing forfeiture already accomplished. It is invoked
and applied to aid the law in administration of justice. But for it great many injustices may have been
perpetrated.

pg. 4
 4. WHO CAN PRE-EMPT

The right of pre-emption may be classified on the basis of the persons who can claim the right.

(i) The Shafi Sharik or co-owner in the property. This is a right f pre-emption of a co-sharer of the
property. Obviously, no right of pre-emption arises on the sale of leasehold. The right of pre-emption can
be claimed only by a full owner.

(ii) The Shafi Sharik or a participator in the appendages. This is a right of pre-emption of a participator in
immunities and appendages, such as a right of way, or right to discharge water. On the basis that that the
branches of his tree project over the land of a neighbour of the owner of the tree cannot claim the right of
pre-emption as Shafii Khalit on the sale of that land. Similarly, the mere fact that the owners of lands have
the any right to draw water from government water-course does not give them any right of pre-emption.
The right of pre-emption as Shafii Khalit cannot be claimed as Shafii Khalit cannot be claimed on the basis
of easement of light and air. The right of pre-emption as shafii khalit exists only in respect of right of way
and right to water and in respect of no other easement.

(iii) The Shafi-i-jar or owner of an adjoining property. This is a right of pre-emption on the basis of
neighbourhood, or the right of the owner of the adjoining immoveable property. This right does not belong
to a tenant or to a person, who is in possession of property without having ownership in it. Thus, a wakif of
mutawali has no right of pre-emption on the basis a shafi-i-jar did not extend to larger estates, such as
zamindars and jagirs, but was restricted to houses, gardens and small parcels of land.

Under the Hanafi law, the pre-emptor of the same class has the right to pre-empt in equal proportions, even
though they own unequal sharers. But under the Shafii law, even the right of pre-emption of the same class
is in proportion to their share in the property. Among the pre-emption of the same class, no distinction is
made. Nearness may be recognized by customs. The right of pre-emption arises from full ownership, and it
is immaterial that a pre-emptor is not in possession of his property. It is ownership and not possession
which gives rise to the right of pre-emption. There is no right of pre-emption on the sale of leasehold,
whether of house or land.

pg. 5
 5. WHEN DOES THE RIGHT OF PRE-EMPTION
ARISE

The right of pre-emption arises only in two types of transfer of property, viz., sale and exchange. It does
not arise in respect of transfer of any other type. When it arises in respect of sale, then sale must be
complete, bona fide and valid. The Allahabad High Court held that the transfer of property by a husband to
his wife in lieu of dower is sale and, therefore, the right of pre-emption arises, while the Oudh Chief
Courts has held that it is a hiba-bil-iwaz, and therefore, the right of pre-emption does not exist. Similarly,
the right of pre-emption arises in respect of exchange when it is complete, bona fide and valid. Thus, the
right of pre-emption will not arise in respect of an exchange of property between two persons, if the
exchange is subject to an option at any time during their life time.

The right of pre-emption does not exist in respect of Gift, Sadaqah, Wakf, Inheritance, Bequest or Lease. It
does not apply to a mortgage also, but if a mortgage is foreclosed, then the right of pre-emption arises. The
right of pre-emption does not arise in respect of a lease even when it in perpetuity. It is established rule
that the right of pre-emption arises out of a valid and completed sale. The question that has caused some
controversy is:

Whether a sale should be treated as completed sale under Muslim law or under the Transfer of Property
Act?

In Begum v. Muhammad[1985 SCR (3) 844], a full Bench of Allahabad High Court held that if the sale is
complete in the Muslim law sense, then the right of pre-emption will arise. In this case, Bannerji, J.
Expressed the opinion that it arises only when the sale is complete in the Transfer of Property Act sense. In
Jadulal v. Janki Koer[(1912) 14 BOMLR 436], the Calcutta High Court pronounced the test of intention of
parties. In other words, the sale will be deemed to be complete when parties intended it to be completed.
This test of shafi-i-jar, since the title of property does not vest in either of them but in God, and God, too,
has no right of pre-emption. Even before Supreme Court decision holding the right of pre-emption on the
basis of vicinage as unconstitutional, the right of pre-emption of

pg. 6
 6. GROUNDS UNDER WHICH THE LAW OF PRE-
EMPTION IS APPLICABLE TO ANY PERSON IN
INDIA
Any person, on whom the law of pre-emption is applicable, can claim this right. In India, the right of pre-
emption may exist or, be applicable to a person on any of the following grounds:

(A) Equity and Justice:

On the ground of equity and justice, the law of pre-emption is applicable to all the Muslims in India except
in the State of Tamil Nadu. Pre-emption is essentially a part of Muslim personal law therefore, equity and
justice requires that this right must be available to every Muslim.

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[32 Cal. 988] 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.

pg. 7
The Calcutta High Court held that a necessary condition for application of the law of pre-emption 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.

(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; pre-emption, 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.

(C) 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.

(D) 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:

pg. 8
(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; pre-emption, 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.

pg. 9
 CASE STUDY
BASANTI BALA VS. RAMKRISHNA (1985) 2 CHN 232

FACTS

1. One banamali sold in 1968 the suit of land to Suresh opposite party no. 2 with an agreement
for repurchase and in 1970, Suresh resold the land to Banamali.
2. Subsequently, Banamali sold the same land to Basanti, the petitioner who was a co-sharer in
the holding.
3. Ramkrishna, opposite party no.1 filed an application for pre emption under sec 8 of this Act
in respect of the sale in 1968.
4. The first Court dismissed the application being of the view that the transaction in question
was not an out and out sale. On appeal, the application for pre emption was allowed.
5. The transferee has come up in revision. It was inter alia submitted that the title acquired by
Suresh by the sale in 1868, was extinguished when Suresh re-sold the land to the transfero
1970, and therefore, the sale of 1968 could no longer be subject to pre- emption.
6. The contention on behalf of the opposite party was that the consistent view of this court is
that on a sale to a stranger, right of pre emption accrues, all subsequent transfers are subject
to this right of pre emption.

pg. 10
 ISSUE

1. Whether the title of transferee by re purchase comes within the interest of the co
sharer otherwise within the meaning of S. 9(2)?
2. Whether the part of land holding can be sold to stranger who re transfers to
transferee who again sold it to a co sharer?
3. Whether the right of pre emption of first sale is a subsequent transfer?

pg. 11
 RATIO

Learned counsel for the opposite party submitted that the consistent view of this court is that on sale
to a stranger, right of pre emption accrues. All subsequent transfers are subject to this right of pre
emption.

In Audh Rehari Singh v. Gajadhar Jaipuria [AIR 1954 SC 417] it was ruled that the right of pre
emption runs attaches to the property. The benefit and burden of the right of pre emption runs with
the land and can be enforced by or against the owner of the land for the time being. It was not a
mere personal right. There are several other decisions of this court proceeding on the same view.

In Sheikh Lokeman v. Abdul Motalib [(1946) 50 CWN 807]it was held that as soon as a transfer of
a share in a non occupancy holding is made, a right to pre emption immediately accrues to the co
sharer tenants. Any subsequent transfree of the holding takes it subject to that right, whether the
transfer is made before or after the institution of an application for pre emption. This view was re
affirmed in NishiKanta Das v. Jnanendra Nath Mondal and Ors. [57 CWN 253] and Tarapada
Karati v. Sudhamoy Dolui and Ors. [53 CWN 678]

In the case of Nishikanta Das v. Jnanendra Nath Mondal and Ors. [57 CWN 253] a co sharer on
19th July, 1949 sold some land to a stranger. The stranger transferee on May 15, 1950 re sold the
same land to the co sharer. The application for pre emption filed by another co sharer was
allowed. It was held by a division bench of this court that by the initial transfer the entire right, title
and interest in the property passed to the transferee, and the moment such transfer of interest took
place, the right of co sharers to apply for pre emption arose. All subsequent transfers by the
transferee of an occupancy holding were subject to the right of the pre emption under Sec 26F of
the Bengal Tenancy Act.

This was a case where on date of application for pre emption the property had become vested in the
original co sharer, yet pre- emption was allowed.

The West Bengal Land Reforms Act has given Statutory recognition to the view expressed in the
aforesaid decision.

pg. 12
Section 9(2) of the Act provides: When any person acquires the right, title and interest of the
transferee in such holding by succession or otherwise, the right, title and interest acquired by him
shall be subject to the right conferred by sub section (1) of S. 8 on a co sharer raiyat or a raiyat
possessing land adjoining the holding.

pg. 13
 JUDGEMENT

This provision applies to any person who acquires the interest of the transferee irrespective of the
fact whether they do so by succession or otherwise. In the absence of any limiting factor, the term
otherwise will include a co sharer who acquires the title of the transferee by re purchase. His
subsequent transferee will be in no better position. The petitioner is clearly within the purview of S.
9(2) of the act. His acquisition of title was, therefore, subject to the right of pre emption. The
application for pre emption was validly allowed. The revision fails. The Rule is accordingly
discharged. No order as to costs.

pg. 14
 7. SECTION RELATED
8. Right of purchase by co-share or contiguous tenant.

(1) If a portion or share of a holding of raiyat is transferred to any person other than a co-sharer in the
holding, the bargadar in the holding may, within three months of the date of such transfer, or] any co-sharer
raiyat of the holding may, within three months of the service of the notice given under sub-section (5) of
section 5, or any raiyat possessing land adjoining such holding may, within four months of the date of such
transfer, apply to the Munsif having territorial jurisdiction, for transfer of the said portion or share of the
holding to him, subject to the limit mentioned in section 14-M on deposit of the consideration money
together with a further sum of ten per cent, of that amount:

Provided that if the bargadar in the holding, a co-sharer raiyat and a raiyat possessing land adjoining such
holding apply for such transfer, the bargadar shall have the prior right to have such portion or share of the
holding transferred to hi, and in such a case, the deposit made by other shall be refunded to them:

Provided further that where the bargadar does not apply for such transfer and] a co-sharer raiyat and raiyat
possessing land adjoining such holding both apply for such transfer, the former shall have the prior right to
have such portion or share of the holding transferred to him, and in such a case, the deposit made by the
latter shall be refunded to him:

Provided also that as amongst raiyats possessing lands adjoining such holding preference shall be given to
the raiyat having the longest common boundary with the land transferred.

(2) Nothing in this section shall apply to-

(a) a transfer by exchange or by partition, or,

(b) a transfer by bequest or gift 7[or heba-bil-ewaz], or,

(c) a 1[* * *] mortgage mentioned in section 7, or,

(d) a transfer for charitable or religious purposes or both without reservation of any pecuniary benefit for any
individual, or,

(e) a transfer of land in favour of a bargadar, inspect of such land if after such transfer, the transferee holds
as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate.

Explanation. - All orders passed and the consequences thereof under sections 8, 9 and 10 shall be subject to
the provisions of Chapter IIB.

(3) Every application pending before a Revenue Officer at the commencement of section 7 of the West
Bengal Land Reforms (Amendment) Act, 1972, shall, on such commencement, stand transferred to, and be
disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such
transfer every such application shall be dealt with from the stage at which it was so transferred and shall be
disposed of in accordance with the provisions of this Act, as amended by the West Bengal Land Reforms
(Amendment) Act, 1972.

pg. 15
9. [Munsif] to allow the application and apportion lands in certain case

(1) On the deposit mentioned in sub-section (1) of section 8 being made, the Munsif shall give notice of the
application to the transferee, and shall also cause a notice to be affixed on the land for the information or
persons interested. On such notice being served, the transferee or any person interested may appear within
the time specified in the notice and prove the consideration money paid for the transfer and other sums, if
any, properly paid by him in respect of the land including any sum paid for annulling encumbrances created
prior to the date of transfer, and rent or revenue, cesses or taxes for any period. The 6[Munsif] may after
such enquiry as he considers necessary direct the applicant to deposit such further sum, if any, within the
time specified by him and on such sum being deposited, he shall make an order that the amount of the
consideration money together with such other sums as are proved to have been paid by the transferee or the
person interested plus ten per cent of the consideration money be paid to the transferee or the person
interested out of the applicant. The Munsif shall then make a further order that the portion or share of the
holding be transferred to the applicant and on such order being made, the portion or share of the holding
shall vest in the applicant.

(2) When any person acquires the right, title and interest of the transferee in such holding by succession or
otherwise, the right, title and interest acquired by him shall be subject to the right conferred by sub-section
(1) of section 8 on a co-share raiyat or a raiyat possessing land adjoining the holding.

(3) In making an order under sub-section (1) in favour of more than one co-share raiyat or raiyat holding
adjoining land, the Munsif may apportion the portion or share of the holding in such manner and on such
terms as he deems equitable.

(4) Where any portion or share of a holding is transferred to the applicant under sub-section (1), such
applicant shall be liable to pay all arears of revenue in respect of such portion or share of the holding that
may be outstanding on the date of the order.

(5) The Munsif shall send a copy of his order as modified on appeal, if any, under sub-section (6) to the
prescribed authority for correction of the record-of-rights.

(6) Any person aggrieved by an order of the Munsif under this section may appeal to the District Judge
having jurisdiction over the area in which the land is situated, within thirty days from the date of such order
and the District Judge shall send a copy of his order to the Munsif. The fees to be paid by the parties and the
procedure to be followed by the District Judge shall be such as may be prescribed.

(7)Every appeal pending before an Additional District Magistrate at the commencement of section 8 of the
West Bengal Land Reforms (Amendment) Act, 1972, shall, on such commencement, stand transferred to,
and he disposed of by, the District Judge having jurisdiction in relation to the area in which the land is
situated and on such transfer, every such appeal shall be dealt with from the stage at which it was so
transferred and shall be disposed of in accordance with the provisions of this Act, as amended by the West
Bengal Land Reforms (Amendment) Act, 1972.

10. On an order under section 9 being made -

(a) the right, title and interest of the raiyat and on the transferee or of the person mentioned in sub-section (2)
of section 9 who acquires any right, title and interest in the holding shall vest in the raiyat whose application
for transfer has been allowed by the Revenue Officer or by the Munsif or, after the commencement of
section 8 of the West Bengal Land Reforms (amendment) Act, 1971, by the Additional District Magistrate,

pg. 16
or, after the commencement of the West Bengal Land Reforms (Amendment) Act, 1972, by the District
Judge, on appeal:

Provided that the transferee or the person mentioned in sub-section (2) of section 9 shall have the right to
take away the crops which he might have grown on the land before the date of the order ;

(b)the raiyat whose application has been so allowed shall be liable for any revenue accruing from the date of
the order.

14M. Ceiling Area :-

(1) The ceiling area shall be, -

(1) in the case of a raiyat, who is an adult unmarried person, 2.50 standard hectares;

(2) in the case of a raiyat, who is the sole surviving member of a family, 2.50 standard hectares ;

(3) in the case of a raiyat having a family consisting of two or more, but not more than five members, 5.00
standard hectares ;

(4) in the case of a raiyat having a family consisting of more than five members, 5.00 standard hectares, plus
0.50 standard hectare for each member in excess of five, so, however, that the aggregate of the ceiling area
for such raiyat shall not, in any case, exceed 7.00 standard hectares ;

(5) in the case of any other raiyat, 7.00 standard hectares.

(2) Notwithstanding anything contained in sub-section (1), where, in the family of a raiyat, there are more
raiyats than one, the ceiling area for the raiyat, together with the ceiling area of all the other raiyats in the
family shall not, in any case, exceed, -

(a) where the number of members of such family does not exceed five, 5.00 standard hectares :

(b) where such number exceeds five, 5.00 standard hectares, plus 0.50 standard hectare for each member in
excess of five, so, however, that the aggregate of the ceiling area shall not, in any case, exceed 7.00 standard
hectares.

(3) For the purposes of sub-section (2), all the lands owned individually by the members of a family or
jointly by some or all the member of such family shall be deemed to be owned by the raiyats in the family.

(4) In determining the extent of land owned by the raiyats in a family or the sole surviving member of a
family or an adult unmarried person, the share of such raiyat or raiyats, or such sole surviving member, or
such adult unmarried person, as the case may be, in the lands owned by a co-operative society, company, co-
operative farming society, Hindu undivided family or a firm shall be taken into account.

Explanation For the purposes of this sub-section, the share of a raiyat in a family or the sole surviving
member of a family or an adult unmarried person in the lands owned by a co-operative society or a joint
family shall be deemed to be the extent of land which would be allotted to such raiyat or person had such
lands been divided or partitioned, as the case may be.

(5) The lands owned by a trust or endowment other than that of a public nature, shall be deemed to be lands
owned by the author of the trust or endowment and such author shall be deemed to be a raiyat under this Act
to the extent of his share in the said lands, and the share of such author in the said lands shall be taken into

pg. 17
account for calculating the area of lands owned and retainable by such author of the trust or endowment, and
for determining his ceiling area for the purposes of this Chapter.

Explanation.- The expression $author of trust or endowment shall include the successors-in-interest of the
author of such trust or endowment.

(6) Notwithstanding anything contained in sub-section (1), a trust or an institution of public nature
exclusively for a charitable or religious purpose or both shall be deemed to be a raiyat under this Act and
shall be entitled to retain lands not exceeding 7.00 standard hectares, notwithstanding the number of its
centres or branches in the State

pg. 18
 8. CONCLUSION
Pre emption is a right to buy or purchase before or in preference to other persons. The right of pre
emption is not a right to the thing sold but a right to offer of a thing sold. Section 8 deals with the right of pre
emption of three classes of persons, i.e., bargadar, co sharer raiyat and raiyat as an adjoining owner.
When the claim is amongst these three classes, in that event a bargadars right shall supersede the right of
the other two classes of persons. When the claim is between co sharer and adjoining owner, the co
sharers right of pre emption shall supersede over the right of adjoining owner.

A right of pre emption arises as soon as portion of share of a plot of a land of a raiyat is transferred to a
person other than bargadar, co sharer raiyat or contiguous raiyat. But when the entire plot is transferred no
right of pre emption arises in favour of anyone. In case of transfer of a portion of a share of a plot of land
of a raiyat to any other person other than bargadar, co sharer raiyat or contiguous raiyat, then any person
from such class may apply to the Munsif having territorial jurisdiction for transfer of the said portion or
share of the plot of land to him.

Right of pre emption is a statutory right granted under Sec. 8 of the West Bengal Land Reforms Act,
which, however, provides a statutory condition that right of pre emption in respect of any holding would
accrue by co sharer or by the owner of the contiguous land.

pg. 19