1. This is a plaintiff s appeal arising out of a suit for pre-emption The lower appellate Court has found that the plaintiff is a member of a joint Hindu family with Raja Ram who is the head and with Jagat and Vishnu Nath, his nephews. Under the sale-deed in question part of the property was transferred by the vendor to Jagat and Vishnu Nath and another part to two other persons. The sale-deed was contested by the head of the joint family Raja Ram. The learned Judge has referred to further circumstantial evidence indicating that the relations between the appellant and the vendees were cordial and the appellant took an active part in other connected transactions. From all this he has inferred that the appellant consented to this transfer and is therefore estopped from claiming the right of pre-emption. His suit has been dismissed. The rival suit for pre-emption has however been decreed. Both the plaintiff and the rival pre-emptor were impleaded in each other's suit as pro forma defendants.
2. The learned advocate for the appellant contends that even if the plaintiff is estopped as against the vendor and the vendees he is not estopped as against the rival pre-emptor who was no party to the transaction. In our opinion this contention cannot prevail. By having consented to the transfer the plaintiff disqualified himself from pre-empting and lost his right of pre-emption altogether. At that time the rival pre-emptor could not have come on the scene. Having lost his right he cannot now assert it as against the rival pre-emptor. The plaintiff's right of preemption entitled him to an offer being made before the transfer was effected. If he chose not to object to the transfer his right of pre-emption was gone. This plea is certainly open to the rival pre-emptor also who was impleaded in the suit. The finding of the Court below is a finding of fact and must be accepted in second appeal. The appeal is dismissed with costs.