1. This is a defendants' appeal arising out of a suit for preemption. On the date when the defendants filed their written statement they filed the original deed of exchange under which they had become cosharers in both the khatas Nos. 2 and 5 in which the property sold was situate. The plea taken in the written statement was that the plaintiff had not a preferential right of pre-emption as against the defendants. One of. the issues framed by the first Court also was:
Whether the plaintiff has a preferential right of purchase.
2. The Munsif held that the plaintiff was a cosharer in khata No. 5, but not in khata No. 2. He decreed the claim as regards khata No. 5 and dismissed it as regards khata No. 2. Both parties appealed. The lower appellate Court has decreed the claim in respect of both these khatas. One of the grounds of appeal taken before the lower appellate Court by the defendants was that the plaintiff had no preferential right in khata No. 5 and could not pre-empt the defendants-appellants. When the counsel for the defendants wanted to rely upon the deed of exchange, the learned Judge did not allow him to urge that plea on the ground that no such plea had been raised in the Court below or in the memorandum of appeal before him. We think that the learned Judge took a too strict and technical view of the pleadings. The deed of exchange was not only filed by the defendants, but was formally proved and was accepted by the trial Court. There is no reason to imagine that the plea based on it was not included within the scope of the issue and the grounds of appeal mentioned above. We therefore think that the lower appellate Court ought to have allowed the defendants to urge this plea.
3. The learned advocate for the respondents however urges that this deed of exchange is of joint family property executed by only a few members of a joint Hindu family and therefore does not confer an indefeasible right on the defendants.
4. It seems to us that it is impossible to say that every deed of exchange executed by a manager of a joint Hindu family is necessarily defeasible. Whether it can or cannot be avoided by the other members of the family will depend on its special circumstances. Even if the other members of the family are not parties to the suit, it is open to the defendant vendees to lead evidence in order to satisfy the Court that circumstances exist which make this document binding on the family, and it therefore confers an indefeasible interest on them. That finding would bind the parties to the suit and would be sufficient for the purpose of disposing of this appeal. We accordingly send down the following three issues for determination by the Court below:
1. Whether the property transferred under the deed of exchange was the joint or separate property of Kamta Rao.
2. If the property is joint family property, whether Kamta Rao has other members of his joint family alive who have not consented to this transfer.
3. Whether in view of all the circumstances this deed of exchange is binding; on the family?
5. As the case has not been approached from the right standpoint we would allow the parties to produce further evidence on the issues remitted.
6. We allow two months time for the return of the findings and the usual ten days will be allowed for objections.