1. This is a pre-emption appeal and the pre-emptor, who is the appellant before us, is a minor; The pedigree given in the written statement of the vendee, defendant 1, is accepted by the learned Counsel for the appellant. It shows that the elder brother of the appellant, Ram Singh, and the own paternal uncles of Ram Singh, namely, Jang Bahadur Singh, Jagdeo Singh and Udant Singh together with Bisheshar Singh, a distantly related collateral, sold the property in suit to the respondent, Deo Narain. Ram Singh claims pre-emption and his suit failed, because it was held that as a member of the joint Hindu family he had no right to maintain the suit.
2. In this Court it has been contended that Ram Singh, being a minor, is entitled to pre-empt and in the alternative he is at least entitled to pre-empt the share of Bisheshar Singh.
3. On the question whether Ram Singh as a minor member of the family is entitled to pre-empt it has been urged that no consent could be given on behalf of Ram Singh by the members of his family. We are not prepared to accept this argument as sound. In a joint Hindu family the karta can always act and does always act in the interest of the entire family. In this particular case it has been found as a fact that Ram Singh is joint with his elder brothers and his uncles. Ram Singh has challenged the validity of the transaction as a sale but had to give up the contention and we presume, because he found that the sale was a good one. If the sale was binding on Ram Singh, certainly it cannot be said that Ram Singh is entitled to pre-empt the property, although he cannot challenge the validity of the sale in a suit for pre-emption. The validity of the sale cannot be challenged. It has to be taken as a valid and good sale, because the suit for pre-emption is a suit for substitution only. Ram Singh has to accept all the risk, if any, which Deo Narain took in making a purchase with Ram Singh as a minor member of the family. We are of opinion that the principle of estoppel as enunciated in the case of Mohammad Najaf v. Badri Narain Prasad : AIR1929All658 , holds good.
4. The next point is that Bisheshar Singh's share may be pre-empted by Ram Singh, it being an admitted fact on the part of Deo Narain, the vendee, that Bisheshar Singh was separate from the other vendors. The plea could have some force but for the fact that we have not got sufficient material on the record to enable us to give the plaintiff the relief he now asks for. He never claimed this right to claim Bisheshar Singh's share alone either in the Court of first instance or in the Court of appeal. The result is that we do not know what is the share of Bisheshar Singh and what is the proportionate price which the vendee is to get for the share sold by Bisheshar Singh. In the circumstances, we cannot allow a new point to be taken.
5. The result is that the appeal fails and is hereby dismissed with costs