JUDGMENT
1. This appeal arises out of a suit for pre-emption. The Court below decreed the suit. The defendants-vendees have appealed. They contend that no custom is proved; secondly, that the plaintiff pre-emptor refused to purchase; and, thirdly, that the Court below has erred in dealing with the question of consideration. There are some circumstances connected with the history of this village which might create some doubt as to the existence of a custom. In the view, however, that we take in the present case it is unnecessary for us to go into this question. It is an admitted fact that about a year before the sale, that is in September 1914, the vendor gave a written notice to the co-sharers including the plaintiff in the following words: "On account of heavy debt it is resolved that the ancestral property, i.e., a six-biswa share, i.e., 86 shares comprising 338 bighas 4 biswas of land and bearing a jama of Rs. 377-11-5, according to the present khewat, out of 144 shares in the 10 biswas 3 biswansis of kachwansi mahal in Mouza Kidhara, should be sold at 3 annas per cent. Hence this notice is sent to you the co-sharers severally, so that if any one wants to purchase the property he should do so within a month: Otherwise he will be debarred of his right of pre-emption."
2. Apparently the vendor was unable to find a purchaser for sometime, but it is an admitted fact that the plaintiff pre emptor never gave any answer to this notice or in any way proclaimed that he wished to purchase the property. Evan after the property was sold by a registered sale-deed on the 13th of October 1915, the present suit was not instituted until the 11th of November 1916, that is to say, more than a year after. The suit would even have been barred by limitation except for certain holidays in the Court below. The Court below in dealing with this matter says: The property was not clearly stated in the notice, and it was not unreasonable that the plaintiff waited until it was disclosed which property was to be sold and for what price. It was very necessary and reasonable that after the defendant had talked with the defendant vendee he should have informed the plaintiff of the proposed transaction stating the correct quantity of the property to be sold and the amount which the stranger was offering for it, If then the plaintiff refused, or remained silent, he should have been entitled to sell it to the stranger." It seems to us that this was a very unreasonable view to take, In the first place, the only difference so far as the description of the property is concerned is that the plaintiff mentioned 86 shares as being what he intended to sell while in point of fact he sold only 74. There is nothing to show that the rate, namely 3 annas, was not in or about the rate at which the property was actually sold. We cannot, of course, be quite certain what were the actual profits. The plaintiff gives one version as to the amount of profits, the defendant another. The Court below says that after the vendor had talked with the vendee and arranged the price, he should then have come back to the pre-emptor and offered the property to him. Surely this would be an unreasonable burden to cast on the vendor. How could a vendor be expected to find an outsider and arrange with him about the sale of the property, when all the time the outsider would know that before the bargain could be concluded the vendor must go back to all the co-sharers? The vendor in such case would be driven from pillar to post, first to his co-sharers, then to the outsider and then from the outsider back to the co-sharers. In connection with this let us see what the custom was as proved by the entry in the wajib-ul-arzes of 1856 and 1872. The entry in the wajib-ul-arz of 1856 is: "if a co-sharer wishes to mortgage or sell his share, he should do so first among the co-sharers, in case of their refusal, to others." In the wajibul arz of 1872 the record is: 'Every co-sharer has power to transfer his property. At first he will sell it to his near co-sharers and in case of their refusal to take it, then to other co-sharers in the village but if they also refused to take it, then he shall have power to transfer it to any person he may like." Assuming as we have said before that these entries referred to a custom of pre-emption, we tank that the vendor complied with that custom when he served the written notice on the plaintiff pre-emptor. It was a clear offer to sell to the co-sharer. The custom as proved is not that the vendor should first find an outsider ready to purchase and then go to the co-sharer. Such a custom, if it existed, would seem to be unreasonable and almost impossible to comply with. We think that under the circumstances of the present case, the plaintiff having ignored the notice that was served upon him and never having intimated to the vendor that he wished to buy and having waited even after the property was sold for more than a year, we should draw the inference that he refused to purchase the property.
3. With regard to the consideration it is not strictly necessary for us to say anything, but in case there may be any further litigation we think it right to make a few observations. It does not appear to have been in any way established that this property was not worth the price mentioned in the sale-deed. In other words, there was nothing to show that a fictitious price had been mentioned in order to prevent pre-emption.
4. The Court below has disallowed an item of Rs. 5,040 alleged to have been paid by the vendee in discharge of a promissory note due be the vendor. The vendee adduced evidence to show that this promissory note had been discharged and there was of course acknowledgment in the sale-deed of the receipt; of the full consideration by the vendor. This Court has always held that where the Court sees that the price has been inflated for the purpose of avoiding preemption, and that the price is clearly beyond the reasonable market-value of the property, the onus lies on the vendee to show the actual payment of the consideration and to explain why an abnormal price was given. But in cases where there is nothing to show that the sale price mentioned in the deed is exorbitant there is no such onus cast upon the vendee. If we had been granting a decree for pre-emption, we would have made the decree conditional upon payment of the fall price mentioned in the sale deed. We may mention in passing that the lower Court seems to have made a mistake in calculation of about Rs. 400 against the defendant. We allow the appeal, set aside the decree of the Court below and dismiss the plaintiff's suit with costs in both Courts. Costs in this Court will include fees on the higher scale.