JUDGMENT
1. This is a plaintiff's appeal arising out of a suit for pre-emption. The sale deed was taken by the plaintiff's elder brother, Ramraj, and two of his nephews along with certain strangers. The plaintiff's allegation was that he was separate from the other members of his family, inasmuch as partition had taken place four or five years earlier. The defence was that the plaintiff had given his consent to the sale, and also that the property had been purchased by the family on behalf of all the members including the plaintiff. Both the Courts below have dismissed the plaintiff's suit. The lower appellate Court has found that the oral evidence to prove that the. plaintiff gave his express consent personally to the sale is not satisfactory, and has accordingly not had that the suit is liable to be dismissed on that ground. It has however found that the plaintiff's case that there was a partition of the family property shortly before the case and that the plaintiff was separate, was not true. It has recorded a definite finding that:
the plaintiff is joint in estate with defendant-vendees Ramraj, Basdeo and Ram Naudan.
2. It then concluded that:
the plaintiff himself stands in the position of a vendee with reference to the properties in I dispute and he cannot therefore be allowed to I claim the right of pre-emption merely on the I ground that his name is not specifically mentioned as a vendee in the sale-deed in question.
3. His conclusion obviously is that the family being joint, the presumption of law is that the property which has been I acquired under the sale-deed has been J acquired in the interest of all, and the plaintiff himself has a share in it and that therefore ha is not entitled to preempt this property.
4. In the converse case it has been held in two cases in this Court - Partab Narain Singh v. Shiam Lal [1920] 42 All. 264 and Muhammad Najaf v. Badri Narain Prasad A.I.R. 1929 All. 658 that if the karta of a joint Hindu family transfers a part of the joint property, it is not open to a junior co-parcener to pre-empt the sale. We think that, on the findings arrived at by the lower appellate Court, the principle underlying those decisions would apply to this case also. The lower 1 appellate Court has presumed that the plaintiff had an interest in the property acquired by his brother and his nephews I under the sale-dead. That being so, he I cannot be allowed to preempt it. The I appeal is accordingly dismissed with I costs, including fees in this Court on the higher scale.