Kernan and Kindersley, JJ.
1. An otti mortgage is vested in the defendant. The interest of the jenmi subject to the mortgage was put up for sale by auction, and the plaintiff's vendor purchased it and sold it to plaintiff for 200 rupees.
2. The plaintiff sues now to redeem.
3. The defence of the defendant is that he is entitled to a right of preemption of the lands under mortgage. Plaintiff, however, says that as public notice of the intended sale of the jenmi's interest was given, and as the defendant might have come in and bid, no further option of pre-emption is necessary, and that as defendant neglected to buy, he must submit to be redeemed.
4. Both the Courts acting on the established custom of the country have ruled against plaintiff. The right of pre-emption is well understood. The otti mortgagee must pay for pre-emption whatever sum is bona fide offered to the jenmi for the purchase, if he has the. offer made to him by the jenmi and is rightly informed of the circumstances in reference to the offer. If he does not pay such sum, then his right of pre-emption is gone, and the jenmi may sell to another.
5. There is no precedent for a pre-emption offer in such shape as the present. It is quite a different thing that on the one hand the otti-holder is to pay a sum ascertained, and on the other hand that he may have to pay a sum unascertained. He should not be driven to give any fancy auction price at an auction He is entitled to the advantage which his position gives him, to be fully informed what price he is to pay before he makes up his mind to buy.
6. The proposition is an innovation which we do not feel justified in adopting.
7. We dismiss this appeal with costs.