1. Both the lower Courts found 'that the othidar in this case was entitled to a right of pre-emption by paying a reasonable price to the mortgagor selling the properties and that the price need not be the price which is offered by a stranger.
2. In support of his contention that this raises a point of law and that the price which the mortgagor ought to receive is the price which is offered by a stranger, the learned Advocate for the appellant relied upon five decisions. The first decision is - 'Cheria Krishnan v. Vishnu', 5 Mad 198 (A), decided by Kernan and Kindersley JJ. In this decision it was held that
'an otti mortgagee, if he avails himself of his right of pre-emption, must pay whatever sum is bona fide offered to the jenmi for his equity of redemption; but the ottiholder is entitled to be fully informed as the circumstances and amount of the offer before electing to buy; public notice of, and the option of bidding at, a court-sale of the jenmi's right do not constitute a valid offer of pre-emption so as to deprive the ottiholder of his right of pre-emption, if he does not purchase the Jenmi's right.'
This is based on the principle that the ottiholder should not be driven to give any fancy price at an auction and that he is entitled to the advantage which his position gives him. In other words, the price contemplated under this decision is reasonable price and not competitive price.
3. The next decision is - 'Vasudevan v. Kesha-van', 7 Mad 309 (B). In this decision a Jenmi (mortgagor) having conveyed certain land upon tenure (mortgage, of which the right of pre-emption and the option of making further advances are incidents) created a further charge on the land, without giving the veppuholder the option of making the advance required. In execution of a decree against the Jenmi a judgment creditor brought to sale the right of the jenmi in the land subject to the further charge. In a suit brought by the veppuholder to set aside the auction sale on the ground that his right of pre-emption was injured thereby, it was held that the suit would not lie. There is no observation in the judgment of Turner C. J. throwing any light whether the veppuholder is entitled to pay a reasonable price or competitive price.
4. The third decision is - 'Amotti Haji v. Kunhayan Kutti', 15 Mad 480 (C), decided by Muttuswami Aiyar and Best JJ. In this decision an ottidar in Malabar was held to lose his rights of pre-emption if he refuses to bid at a court-sale of the land comprised in his otti, held in execution of a decree against the Karnavan and senior anandravan of the tarwad, in which the Jenmi right Is vested, after having been specially invited to attend and exercise that right, and makes no offer to take the property for a long time after the court-sale. The decision turned upon the simple point that the right of the othidar for pre-emption is a case of election and the court-sale created necessity for the appellant's election to buy or not to buy and after once electing not to buy he cannot be permitted to change his mind and assert his right for preemption. There is no decision regarding the othidar having to pay either a reasonable price or a competitive price.
5. The fourth decision - 'Bhairon Singh v. Lalman', 7 All 23 (D), is irrelevant for the purpose of this case apart from the fact that we do not know the scope of the right of pre-emption in the case which was under consideration in the Allahabad High Court. That was a case where the plaintiff in a suit to enforce the right of preemption alleged that the true consideration for the sale was less than the amount stated in the sale deed. It was found that he made no communication to the vendor after he became aware that a sale was being negotiated nor did he make it known to him that while he stood upon his pre-emptive right he declined to pay the price stated in the deed, because it was not the consideration agreed on between the vendor and the vendee (unreasonable as opposed to reasonable price). It was held that the plaintiff was bound, instead of remaining silent, to communicate to the vendor that he was prepared to purchase at the price within a reasonable time and not having done so he must be taken to have countenanced the completion of the bargain with the vendee and to have waived his right of pre-emption.
6. The fifth decision is - 'Mammali v. Kun-hipakki Haji', 38 Mad 67 (E), in which at p. 70 it is pointed out as follows: 'We mention that in some of the cases, viz., in 5 Mad 198 (A), 7 Mad 309 (B) & 15 Mad 480 (C), language is used which might imply that the right of pre-emption consists in a right to have an offer made by the owner of the property to sell the property to the othidar for the same price for which he has contracted to sell to a third person. We might have some hesitation in saying that this is an accurate definition of the nature of the right, because such a definition if strictly pursued to its logical conclusions might lead to difficulties and complications. We however refrain from pronouncing any definite opinion on that point as the learned Advocate-General says that if it be found that his client had knowledge of the sale more than six years before the Institution of the suit he would not be prepared to contend in the facts of this case that the suit would still be within time, because no offer was made to him by the owner of the property before the auction sale.' The decision also docs not support the contention of the appellant.
7. On the other hand, both the lower Courts have relied upon the observations of Sundara Aiyar J. in his commentary on Malabar and Aliyasanthana Law (1922 Edn.), para. 186, wherein it is stated:
'The point is left open whether the right of ottidar is to purchase at the same price as is offered by the stranger, or at a reasonable price, the inclination of their Lordships' opinion being in favour of the latter view. It was so laid down by Mr. Holloway as Sub-Judge in A. S. No. 64 of 1859 (Tellicherry.)'
There is no other decision contrary to the conclusion arrived at by both the lower Courts.
8. There is no point of law and this second appeal is dismissed.