LECTURE because they are more specially intermixed with it than XVIII. the people of the other street. But if a house in the outer street be sold, the right of preemption belongs to the people of the inner as well as to those of the outer street, for the intermixture of both in the right of way is equal. If the street were open with a passage through, and a mansion in it were sold, there would be no right of preemption except for the adjoining neighbour. In like manner when there is a thoroughfare, which is not private property between two mansions (that is when they are situate on opposite sides of the way), and one of them is sold, there is no preemption, except for the adjoining neighbour. If the road be private property, it is the same as if it were no thoroughfare. A thoroughfare which does not give the right of preemption is a street that the people residing in it have no right to shut. In like manner as to a small channel from which several lands or several vineyards are watered, and some of the lands or some of the vineyards watered by it are sold: all the partners are preemptors without any distinction between those who are and those who are not adjoining. But if the channel be large, the right of preemption belongs to the adjoining neighbour. There is some difference of opinion as to the distinction between a small and a large channel.-Fatáwá Alamgírí, vol. v, page 259.-B. Dig., pages 476 & 477.

Principle.

Principle.

Illustration.

DCXXXVII. If one of the parties (having equal rights) relinquish his own right, it devolves on the others, and is participated equally among them (n).— Vide Hidayah, vol. iii, page 567.

(n.) If one of them should cause his right to drop, the whole belongs, per capita, to those that remain. B.-Dig., P. 494.

DCXXXVIII. Several individuals claiming upon equal ground have equal claims without regard to the extent of their several properties or rights.

When there is a plurality of persons entitled to the privilege of shufá, the right of all is equal, and no regard is paid to the extent of their several properties.-Hidayah, vol. iii, page 566.

Preemption according to 'us' is per capita, or by heads. When a mansion is owned by three persons, one of

whom has a half, another a third, and another a sixth, and LECTURE the owner of the half having sold his share, it is claimed XVIII. by the other two under their right of preemption, it is to be decreed between them in halves. Or if the owner of the sixth should sell his share, it is to be divided between the other two in halves.*

DCXXXIX. If any of the parties possessing the Principle. right of preemption happen to be absent, then the entire right of preemption can be claimed and exercised by those who are present: should the absentees afterwards appear and claim their shares they are entitled to the same (o).

(0.) If one is absent, decree is to be given, per capita, to those who are present. But if after decree of the whole to one who is present, a second should appear, half is to be decreed to him; and if a third should appear, decree is to be given to him for a third of what is in the hands of each of the other two.*

(o.) If some of the partners happen to be absent, the whole of the shufá is to be decreed equally amongst those who are present; for it is a matter of uncertainty whether those who are absent would be inclined to demand their right; and the rights of those who are present must not be prejudiced on a mere uncertainty. If, however, the Kází should have decreed the whole of the shufá to one who is present, and an absentee afterwards appear and claim his right, the Kází must decree him the half; and so likewise if a third appear, he must decree him one-third of the shares respectively held by the other two, in order that thus an equality may be established amongst them.Hidayah, vol. iii, page 567.

DCXL. The right of preemption does not Principle. operate until the conclusion of the sale of the pro

ANNOTATIONS.

dexl. The right of shufa is not established until demand has been regularly made in the presence of witnesses; and it is requisite that

* Fatáwá Alamgirí, vol. v, page 276.—B. Dig., page 494.

LECTURE perty, nor till after a regular demand has been XVIII. made for it in the presence of witnesses.

The privilege of shufá is established after the sale, for it cannot take place until it be manifest that the proprietor is no longer inclined to keep his house, and this is manifested by the sale of it. It is therefore sufficient, in order to prove the sale and establish the privilege of shufá, that the seller acknowledge the sale, although the person said to be the buyer deny it.-Hidayah, vol. iii, page 568.

Principle. DCXLI.

Different kinds of demands or

claims to shufa.

Property claimed by right of preemption does not go to the claimant except by the surrender of the purchaser, or under a decree of a judge.

When the demand has been regularly made in the presence of witnesses, still the Shaft does not become proprietor of the house until the purchaser surrender it to him, or until the magistrate pass a decree, because the purchaser's property was complete, and cannot be transferred to the Shafi but by his own consent, or by a decree of a magistrate.-Hidayah, vol. iii, pages 568 & 569.

Of

Claims to shufá or preemption are of three kinds. these the first is termed-" Talab-i mawásabat" (immediate claim), the second- Talab-i takrír wa ish-háď (claim by affirmation and by invoking witness), the third-" Talab-i tamlík (claim for possession) or Talab-i khasúmat (claim by litigation)."- Vide Hidayah, vol. iii, pages 569, 571 & 572. -Fatáwá Alamgírí, vol. v, page 276.-B. Dig., page 481.

ANNOTATIONS.

it be made as soon as possible after the sale is known; for the right of shufé is but a feeble right, as it is the disseizing another of his property merely in order to prevent apprehended inconveniences. It is therefore requisite that the Shafi without delay discover his intentions by making the demand, which must be done in the presence of witnesses, otherwise it cannot be afterwards proved before the Kází.—Hidáyab, vol. iii, page 568.

By Talab-i mowásabat,' or immediate demand, is meant LECTURE that

XVIII.

DCXLII. The person possessing the right of Principle. preemption should assert his claim the moment he is apprized of the sale being concluded, or else his right is invalidated (p).-Vide Hidayah, vol. iii, page 569.

(p.) And this it is necessary that he should do, insomuch that if he make any delay his right is thereby invalidated; for the right of shufá is but of a feeble nature as has been already observed; and the Prophet, moreover, has said "The right of shufá is established in him who prefers · his claim without delay."-Hidáyah, vol. iii, page 569.

DCXLIII. It is not material in what words the Principle. claim is preferred; it being sufficient that they imply a claim.-Ibid, page 570.

Thus if a person say "I have claimed my shufá," or Illustra"I shall claim my shufá," or "I do claim my shufá," all tion. these are good; for it is the meaning, and not the style or mode of expression, which is here considered.-Ibid.

There is some difference as to the words in which the demand should be expressed; but the correct opinion is that it is lawful in any words that intelligibly express the demand. So that if he should say "I have demanded," or "I take the mansion by preemption," or "do demand

ANNOTATIONS.

dexlii. By Talab-i Mowásabat' is meant that when a person who is entitled to preemption has heard of a sale, he ought to claim his right immediately on the instant (whether there is any one by him or not,*) and when he remains silent without claiming his right, it is lost.-' Fatáwá Alamgirí, vol. v, p. 267.-B. Dig., page 481.

dcxliij. It is necessary that the person claiming this right should declare his intention of becoming the purchaser immediately on hearing of the sale, and that he should, with the least practicable delay, make affirmation by witness of such-his intention, either in the presence' of the seller or of the purchaser, or on the premises.-Macn. M. L., Chap. ii, Princ. 7.

* Eháyah, vol. iv, page 249.

LECTURE preemption" it would be lawful. But if he were to say XVIII. to the purchaser "I am thy Shaft, or preemptor," it would be viod.*

Principle.

DCXLIV. If the Talab-i-takrir wa ish-hád, or demand by affirmation with invoking witness, could not be made immediately after Talab-i mowásabat (immediate demand), the former is to be made as soon after that as may be practicable (q).-Vide Hidayah, vol. iii, page 571.

q.) The second mode of claim to shufá is termed the "Talab-i takrir wa ish-hád,' or claim by affirmation and taking to witness, and this also is requisite; because evidence is wanted in order to establish proof before the magistrate; and it is probable that the claimant cannot have witnesses to the Talab-i mowásabat, as that is expressed immediately on intimation being received of the sale. It is therefore necessary afterwards to make the Talab-i ishhád wa takrir, which is done by the Shafi taking some person to witness,-either against the seller, if the ground sold be still in his possession, or against the purchaser, or upon the spot regarding which the dispute has arisen; and upon the Shafi thus taking some person to witness his right of shufa is fully established and confirmed. The reason of this is, that both the buyer and seller are opponents to the Shafi in regard to his claim of shufá; the one being the possessor, and the other the proprietor of the ground; and the taking evidence on the ground itself is also valid; because it is that to which the right relates. If the seller have delivered over the ground to the buyer, the taking evidence against him is not sufficient, he being no longer an opponent; for having neither the possession nor the property he is as a stranger. The manner of claim by affirmation and taking to witness is, the claimant saying-" Such a person has bought such a house, of which I am the Shafi; I have already claimed my privilege of shufá, and now again claim it: be there"fore witness thereof." (It is reported from Abú Yusuf that it is requisite the name of the thing sold, and its particular boundaries, be specified, because a claim is not

* Fatáwá Alamgirí, vol. v, page 267.-B.Dig., pp. 481 & 482.