JUDGMENT Henry Richards, C.J. and Tudball, J.
1. This appeal arises out of a suit for pre-emption. The alleged custom is that the co-sharer wishing to sell must first offer the property to his co-sharers. In the present case the court below has found that the vendor, wishing to sell first offered the property to the plaintiff and that the plaintiff offered only Rs. 160 and "refused to give more." The vendor then went to the vendee and sold the property for Rs. 235. The court below has found-under these circumstances that the plaintiff refused to purchase the property, and on that ground dismissed the suit. If this finding is justified it concludes the appeal. It seems to us that the court below was not only justified but was perfectly right in holding that the conduct of the plaintiff amounted to a refusal to purchase the property when it was offered to him. The vendor was entitled to assume that the plaintiff would not give Rs. 235 when he had refused to give more than Rs. 160.
2. Reliance is placed upon the case of Kanhai Lal v. Kalka Prasad (1905) I.L.R. 27 All. 670. In that case no doubt, the Court held that the vendor was bound, when he had concluded a definite arrangement with a stranger to offer the property to the person entitled to pre-empt although he had previously refused to purchase. It does not appear very clearly from the report what was the custom found to exist. We think it can hardly be contended that where the custom is that the first offer must be made to the co-sharers the vendor must, after offering the property to the co-sharers, find a stranger willing; to buy, conclude a bargain with him, and then return to his co-sharers and offer the property to them. Surely in a case like the present the vendor has complied with the custom if he has informed the pre-emptor of his desire to sell and ascertained from him either that he does not wish to buy or the price beyond which he is not willing to go. It would almost seem that a custom which required the vendor to do more than this would be an unreasonable custom. Of course the vendor must give clear information of his intention to sell, and we are very far, from saying that if the pre-emptor expressed his willingness to purchase at a specific price the vendor would be justified in selling the property for practically the same price to a stranger without first informing the pre-emptor. In other words the vendor must act bona fide and the pre-emptor must have a fair opportunity of purchasing the property. Under the circumstances of the present case we think the view taken by the court below was correct and dismiss the appeal.