The right of pre-emption under Mahommedan law is the right of a third person, in certain circumstances, to step in and take the place of a buyer, at the same price and on the same conditions as the buyer has purchased. It applies only to the purchase of real property, and it can only be exercised upon one of the three following grounds: (1) That the claimant is owner of property contiguous to that sold; (2) that he is a co-sharer in the property of which a share is being sold; (3) that he is a participator in some right over the property, such, for example, as a right of way over it. The claimant must announce his claim as soon as he hears of the sale, and he must follow up this announcement by a further claim in the presence of witnesses and of the seller, or, if possession has been transferred, of the buyer.
Mahommedan law, so far as it is administered by the courts of British India for Sunnites of the Hanafite school--that is, for the great bulk of Mahommedans--has attained a fair degree of precision, owing to the care bestowed on their decisions by the judges of those courts, and the assistance derived from Mahommedan lawyers. But much difficulty is experienced as soon as we come to deal with Mahommedans of any other description. No doubt in India any clearly-established custom prevalent amongst a well-defined body of persons would be recognized, or any rule of law founded upon texts which they accepted as authoritative. But it is not always easy to determine when these conditions have been satisfied. And to allow Mahommedans to set up a standard of rights and duties different from that of the bulk of their correligionists without this proof would lead not only to confusion but injustice. There is the further difficulty that Mahommedan law, as applied to any Mahommedans except those of the Hanafite school, has as yet been comparatively little studied by modern lawyers, so that very little that is certain can be said about it. There is, however, a considerable body of Shiites in India whose legal system undoubtedly differs in some material particulars from that of the Sunnites. The Mahommedans of Oudh are generally Shiites, and Shiah families, mostly of Persian descent, are to be found in other parts of India. The following points seem clear. A marriage which the parties agree shall last for a fixed time, even for a few hours only, is a valid marriage, and at the expiration of the time agreed on the marriage ceases to exist. The relatives of the deceased, whether male or female, and whether tracing their connexion through males or females, may be sharers or residuaries. Both as sharers and residuaries the children can claim to take the place of their parents in the succession upon the principle of what we call representation. If there are parents or descendants of the deceased, and the sharers do not exhaust the property, the surplus is distributed amongst the sharers of that class in proportion to their shares. If the property is not sufficient to pay in full the shares of all the sharers, the shares do not abate rateably; e.g. as between daughters and the parents, or the husband, or the wife of the deceased the whole deduction is made from the daughters' share.