BHARGAVA, J—.This civil second appeal arises out of a suit for preemption. 2. The suit property was sold by Naraindas on his own behalf and as guardian of his minor sons Nandkishore and Satnarain for a sum of Rs. 600/- on 19th December, 1956 by means of a registered sale deed in favour of Madanmohan respondent No. 3. Shrinarain and Samrathmal filed a suit for pre-emption on the ground that they were co-sharers in the chowk, staircase and entrance of the suit house. Naraindas and his minor son Nandkishore were also impleaded as defendants in the suit. 3. The suit| was contested by all the defendants. One of the pleas raised by Nandkishore in his written statement was that the sale of the suit property by his father Naraindas was without any legal necessity and was not binding on his share. Madanmohan vendee stated that after purchasing the property he had spent Rs. 656/11/- in its improvement which he was entitled to get in case the plaintiffs were allowed to pre-empt the property. In reply to the plaintiffs allegation that the real price for which the property was purchased was Rs. 400/-. He stated that actually Rs. 600/- the price entered in the sale deed was paid. 4. Before the institution of the suit for pre-emption by Shrinath and Samrith Mal, the minor sons of Naraindas had instituted suit No. 220 of 1957 for cancellation of sale for want of legal necessity the property being ancestral. In the alternative they claimed a right of preemption of the share of Naraindas. This suit was contested by Madanmohan vendee. Plaintiffs to the pre-emption suit also applied though at a very late stage when even the arguments in the case had been heard, to be made parties in the suit. But their application was rejected. The suit resulted in the decree in favour of Nandkishore and Naraindas. The sale was set aside to the extent of their shares in the property and further a decree for preemption was granted as regards the share of Naraindas. The vendee did not prefer an appeal against the decree. After this decree was passed, further objection was taken on behalf of Nandkishore that the sale having been set aside in suit No. 220 of 1957 by a decree of the court, there was nothing left to be pre-empted. The vendee did not prefer an appeal against the decree. After this decree was passed, further objection was taken on behalf of Nandkishore that the sale having been set aside in suit No. 220 of 1957 by a decree of the court, there was nothing left to be pre-empted. In the alternative it was stated that they had a preferential right of preemption as compared to the plaintiffs in the preemption suit. Previously it was also pleaded that the suit for preemption and suit No. 220 of 1957 should be consolidated but no orders were passed in this regard. 5. The trial court framed necessary issues and evidence had been led and the parties were heard. It dismissed the plaintiffs suit holding that the sale had been set aside and there remained nothing to be pre-empted. Plaintiffs went in appeal and the learned Senior Civil Judge set aside the decree and remanded the case directing the plaintiffs to implead Satnarain another minor son of Naraindas in the suit because after the decree in suit No. 220 of 1957, he was to be regarded as a rival pre-emptor. accordingly Satnarain was also impleaded as defendant in the plaintiffs suit. He also filed a separate written statement and took up the same pleas which were taken by Nandkishore namely that there was no subsisting sale and as such the suit for preemption must fail and alternatively that he had a preferential right of preemption. Some more issues were framed and the parties adduced their evidence. The trial court eventually decreed the plaintiffs suit. Vendees claimed with regard to the money spent by him in making improvements after the sale was also disallowed. Two appeals were preferred against this decree one by Nandkishore and Satnarain and the other by the vendee Madanmohan. The learned Senior Civil Judge affirmed the decree of the trial court holding that the decree passed in suit No. 220 of 1957 had no binding effect upon the plaintiffs as they were not parties to that suit. The learned Judge also agreed with the trial court so far as the vendees claim was concerned. Now being aggrieved by this decree Nandkishore and Sat Narain on the one hand and vendees on the other have come to this Court in second appeal. 6. The learned Judge also agreed with the trial court so far as the vendees claim was concerned. Now being aggrieved by this decree Nandkishore and Sat Narain on the one hand and vendees on the other have come to this Court in second appeal. 6. The main contention of the learned counsel for Nandkishore and Satnarain is that no decree for pre-emption could have been passed in view of the sale having been set aside by a decree of the court in suit No. 220 of 1957. It is contended that the suit property was ancestral and Nandkishore and Satnarain had an existing right in that property and after a decree was passed in their favour they could lay a preferential claim of pre-emption as against the plaintiffs. Learned counsel contends that the right of pre-emption is a right of substitution only in place of the vendee and that right must subsist until a decree is passed in favour of the plaintiffs. But in the present suit, the sale which is the basis of the suit for pre-emption was itself set aside before the decree in the suit for preemption. Learned counsel relies upon the following observations made by Mahmood, J. in Janki Vs. Girajdat (1) (F.B.) which were quoted with approval at page 1371 in Radhakishan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi (2) "If a valid and perfect sale were not a condition precedent to the exercise of the pre-emptive right consequences would follow which the law of pre-emption does not contemplate or provide for. In this very case, supposing the so-called vendor, notwithstanding the application of the 15th August, 1882 (which cannot amount to an estoppel under the circumstances) continues or re-enters into possession of the property, it is clear that the so-called vendee would have no title under the so called sale, to enable him to recover possession the transaction being, by reason of sec. 54 of the Transfer of Property Act ineffectual as transfer of ownership. 54 of the Transfer of Property Act ineffectual as transfer of ownership. The right of pre-emption being only a right of substitution, the successful pre-emptors title is necessarily the same as that of the vendee and if the vendee took nothing under the sale the pre-emptor can take nothing either; and it follows that if the vendee could not oust the vendor, the pre-emptor could not do so either; because in both cases the question would necessarily arise whether the sale was valid in the sense of transferring ownership. Again, if notwithstanding a pre-emptive suit such as this, the so-called vendor, who has executed an invalid sale which does not in law divest him of the proprietary right, subsequently executes a valid and registered sale-deed in favour of a co-sharer other than the pre-emptor or in favour of a purchaser for value without notice of the so-called contract for sale it is difficult to conceive how the pre-emptor, who has succeeded in a suit like the present, could resist the claim of such purchaser for possession of the property." 7. Learned counsel for the pre-emptors on the other hand urges that the decree passed in suit No. 220 of 1957, does not affect the rights of the premptors at all because they were not parties to the suit. In support he relies on a decision of this Court in Shrimati Durga Devi vs. Shrimati Jamna Devi(3). As regards the preferential claim of Nandkishore and Satnarain to pre-empt the share of Naraindas, it is urged that they are parties to the sale as vendors and cannot institute a suit for preemption. In support learned counsel relies upon Shri Krishan vs. Bansidhar(4). He further urges that in a suit for pre-emption an enquiry about the validity of the sale cannot be made because he preemptor takes whatever is conveyed by the|sale subject to all the rights and infirmities. 8. Now so far as to the principles laid down in the two cases of this Court relied upon by the learned counsel for the respondents are concerned, there cannot be any dispute. The pre-emptor is not a representative in interest of the vendee and a decree which has been passed in his absence against the vendee, would not affect his rights. The pre-emptor is not a representative in interest of the vendee and a decree which has been passed in his absence against the vendee, would not affect his rights. It was held by Bhandari, J. in that case :— "The contract of purchase and sale having been completed, the right of pre-emption accrued and no subsequent dissolution of the contract between the parties injuries or dissolves the right of pre-emption. Even if the sale is cancelled or declared ineffective by a court of law in a suit to which the pre-emptor is not a party, such declaration would not affect the right of the pre-emptor. If any person has any claim in respect of the property, that claim in order to bind the pre-emptor must be adjudicated in his presence." With respect I agree with the above proposition of law and hold that the pre-emptors in this case are not bound by the decree passed in suit No. 220 of 1957 and their rights are not affected by the said decree. Similarly it cannot be disputed that a father in alienating the ancestral property for legal necessity, acts on behalf of the members of the joint Hindu family with their implied consent and to such sale all the members constituting the joint Hindu family shall be regarded as parties. Being parties to the sale such members cannot maintain a suit for pre-emption. It is obvious that a vendor himself cannot be a pre-emptor. There can be no objection to the above principles so far as the legal necessity for the sale by the father is admitted or is established. But what Mr. Joshi urges is this that in a suit for pre-emption no enquiry can be made as to the validity of the sale when such objection is taken on behalf of the members of the joint Hindu family. Mr. Joshi has not been able to cite any decision having a direct bearing on this question. Generally speaking such enquiry may be foreign to the scope of a suit for preemption but neither on authority nor on principle I see any legal bar to such enquiry being made in appropriate cases. Undoubtedly after the pre-emption suit is decreed, the sons have got a right to institute a suit against the pre-emptors and get the sale set aside if they are able to establish that it was without any legal necessity. Undoubtedly after the pre-emption suit is decreed, the sons have got a right to institute a suit against the pre-emptors and get the sale set aside if they are able to establish that it was without any legal necessity. That being so I do not see why such enquiry cannot be made in a suit where the sons who are impleaded as defendants raise this question. If such enquiry is made in a suit for preemption it will avoid the multiplicity of suits and save the parties from further litigation. There are reported cases which show that enquiries have been made in suits for preemption regarding the validity of sale. Reference may be made to Mst. Dhan Devi vs. Balmokand(5) where a house belonging to a Hindu lady A, was sold by her husband B, during her absence. G brought a suit for pre-emption against B and his vendee D During the pendency of the pre-emption suit, A obtained a decree for cancellation of sale and possession of the house against B and D A was impleaded as a defendant in the preemption suit and it was proved that the house belonged to A, and B had no authority to sell the house on As behalf. Both B and D acknowledged that A was the real owner of the house and that they had no rights in the house. It was held that:— "(1) that the suit of the pre-emptor, C., should be dismissed. (2) that the doctrine of lis pendens did not apply to the decree obtained by A against B as to cheat and D" In Parsashth Nath Tewari Vs. Dhanai Ojha(6), it was held that :— "No right of pre-emption arises when the sale, upon the contingency of which the right is claimed, is a fictitious transaction arranged so as to cheat the pre-emptor." and so also in Badlu Vs. Hardeo Singh(7) In the present case Nandkishore was made a defendant from the beginning. He specifically pleaded that the sale made by his father being without legal necessity was not binding upon his share in the suit property. Satnarain was ordered to be made a party by the first appellate court after the decree in suit No. 220 of 1957 was passed and he also raised the same objections. Issues Nos. He specifically pleaded that the sale made by his father being without legal necessity was not binding upon his share in the suit property. Satnarain was ordered to be made a party by the first appellate court after the decree in suit No. 220 of 1957 was passed and he also raised the same objections. Issues Nos. 5 and 8 were vaguely worded and were not specific as to the question of validity of sale for want of legal necessity with the result that the parties"did not adduce any evidence on that point. In my view, the present case was an appropriate one where enquiry about the validity of the sale on the objections of Nandkishore and Satnarain ought to have been made particularly after the order of the first appellate court. In the absence of such enquiry I am unable to decide finally the question which has been urged in this appeal. It, therefore, seems just and proper that additional issues may be framed and tried. Following issues are therefore, framed : (1) Whether the sale of the suit property by Naraindas was for legal necessity and binding upon the shares of Nandkishore and Satnarain ? (2) In case the finding on the above issue is against the plaintiffs have Nand Kishore and Satnarain a preferential right of preemption in regard to the share of Naraindass. 9. The above issues are therefore, remitted to the court of Senior Civil Judge, Jodhpur for determination. Parties will be at liberty to adduce evidence both documentary and oral in regard to these issues. The learned Judge will return the record along with his findings within three months. The appeal will be put: up for hearing after the finding is received.