Wanchoo, C.J.—This is appeal by siremal and other against the judgment and decree of the Civil Judge, Pali.

2. A suit was brought by Kantilal plaintiff respondent against Siremal and others for pre-emption of a house sold by Takhatmal defendant respondent to Siremal and his three sons for Rs. 9,001/-. The plaintiff appellant is the minor son of Takhatmal vendor. The case of the plaintiff was that he was living separate from his father, and was not a member of the joint family with his father, and the house was not joint Hindu family property. The plaintiff, therefore, claimed pre-Wanchoo, C.J.—This is an appeal by Sire- eruption under the second clause to sec. 3 of mal and others against the judgment and the Marwar Pre-emption Act of 1922.

3. The suit was resisted by the vendees defendants, and their case was that the plain tiff was a member of the joint Hindu family along with his father, and that the house sold was joint family property belonging to the vendor and the plaintiff. As such the plaintiff was not entitled to pre-empt as the sale was made by the manager and Karta of the family on behalf of himself and his minor son.It was also urged that the plaintiff had filed this suit Mala fide for the benefit of another person and not for his own benefit, and the suit should be dismissed for this reason. Takhatmal vendor defendant also filed a written statement in which he practically supported the stand taken by the vendee defendants.

4. The trial court framed a number of issues, and came to the conclusion that the property was the joint Hindu family property of the plaintiff and his father Takhatmal. It held that even so, the plaintiff was entitled to pre-empt the property. It further held that no question of mala fides could be raised in a suit of this nature. It, therefore, decreed the suit.

5. The vendee defendants have come in appeal, and only three points have been urged on their behalf before us. They are :—

(1) As the plaintiff and his father were members of a joint Hindu family, and the property was joint Hindu family property, the plaintiff must be held to be a vendor along with his father who was the Karta and manager of joint Hindu family consisting of himself and his son, and therefore, being also a vendor could not pre-empt.

(2) As the plaintiff had really brought this suit for the benefit of a third person, he could not maintain it.

(3) The second clause of sec. 3 of the Marwar Pre-emption Act is Ultra vires, under Art. 14 and Art.19 of the Constitution, and therefore, the suit should fail.

This last is a new point urged in this Court, and was not raised in the court below. We have, however, heard learned counsel on this point also, as it raises a pure question of law.

6. The finding of the trial court that the plaintiff and his father Takhatmal are members of a joint Hindu family, and that the property sold was joint family property, and Takhatmal was the Karta and manager of the joint Hindu family has been assailed by the plaintiff respondent. We agree with the trial courts finding that the plaintiff and his father are members of a joint Hindu family of which Takhatmal is the Karta and manager. This is clear from the statement of Takhatmal himself and other evidence which we see no reason to disbelieve in this connection. As to the house being ancestral property, the facts are that the house was originally ancestral property, and on division it fell to the share of Takhatmals brother who sold it for Rs. 6,000/- to Bhuramal after the partition. Thereafter, Takhatmal wanted to pre-empt the property, and consequently, Bhuramal sold it to Takhatmal. As Takhatmal had no money, he borrowed Rs. 6,000/- from Hazari-mal, and mortgaged this house to him for the purpose. Thereafter, Takhatmal sold the house to Siremal in order to pay off the mortgage in favour of Hazarimal. It is admitted by Takhatmal that he has been doing nothing since about 1940. In these circumstances, the question is whether the house can be held to be join

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