1. This is a defendant's appeal arising out of a suit for preemption. A number of grounds are taken in appeal which I proceed to consider seriatim. The first point is that the Court below has erred in applying the provisions of the Agra Pre-emption Act. This contention is well-founded. The sale-deed was executed on the 23rd June 1922, long before the new Act came into force. As held in the case of Sarju Prasad v. Bhagwati Prasad : AIR1925All542 the Agra Pre-emption Act came into force on the 17th February 1923. Section 12, C1s. 1, 2 and 3, relied upon by the Court below in its finding on issue 1, have therefore, no application. The second ground of appeal challenges the finding as to the existence of custom and is intended to deny the preferential right of the present plaintiff, Mt. Mohan Kunwar. The third ground asserts that the entry in the wajib-ul-arz of 1872 was a record of contract which has ceased to have any binding effect after the expiry of that settlement.
2. The evidence in support of the custom of pre-emption consists of entries in the wajib-ul-arzes of 1269 and 1281 F. Under para. 22 of the first wajib-ul-arz an offer has first to be made to a near brother, and if he refuses to take it then to the lambardar of the other thok, and, if he refuses to take it, to anyone else. Under para. 18 of the second wajib-ul-arz the first offer has to be made to jaddi co-sharers, and if they refuse to take the property then to the proprietors of the village and if they also refuse to take it then to anyone else. Though there are slight differences in the two categories I do not think that these two records are contradictory. Under the first wajib-ul-arz it might not have been intended that a near brother would have the first right even though he was not a co-sharer. In any case there was nothing strange if subsequently the right of relations was limited and made conditional on their being co-sharers. I therefore think that the presumption of custom raised by the entry in the wajib-ul-arz of 1281F has not been rebutted by anything in the earlier wajib-ul-arz, and that a custom exists.
3. In this connexion I should like to dispose of the contention raised on behalf of the respondents, that even if the record were not one of custom it would, under the Full Bench case of Aulad Ali v. Ali Athar : AIR1927All170 , bind the present parties. Even if we assume that the original parties to the contract of 1281 F were dead, and their representatives were Sheobaran Singh, the original plaintiff, and Bhup Singh, the vendor, the contract would not be subsisting after the expiry of the settlement. No doubt in the Full Bench case the agreement had provided that the executants can transfer the properties among themselves, that is, one executant can transfer it to the other and that in case of transfer to another person the other executant will acquire it by pre-emption, and yet the Pull Bench held that the offer had to be made, not only to the executant, but to their representatives also. Even though Shah Nasiruddin, the vendor in that case, was himself a party to the contract, and the pre-emptor was a representative of the other party, the Bench have not laid any stress on this fact but have laid down that such a contract of pre-emption binds the parties and their representatives. No contention appears to have been at all advanced that on a true interpretation of the document in dispute in that case it was the intention to confine the right to the parties only. It was assumed that it did not. In cases where the contract is for a fixed period of settlement the ordinary intention is that the agreement would last during that period only, and I am unable to hold that the Full Bench case is any authority for the proposition that even when on a true interpretation of an agreement, the contract is limited to a fixed period of time, it will bind the representatives of the parties for all time to come. The point considered by the Full Bench was the question of law whether the agreement bound the representatives, and not the interpretation of the deed of agreement. In the case of Mirza Muhammad Jan v. Sheikh Fazl-ud-din A.I.R. 1924 All. 657 I had expressed the dissenting view that a contract of pre-emption was a contract in personam which would bind the parties thereto, and though in case of a breach by either of them it could be enforced against his representatives, neither party had any power to contract on behalf of his descendants that they should make an offer to the descendants of the other party before transferring the property to a stranger. In my opinion there was a difference between a contract entered into by the parties for themselves and one entered into on behalf of their descendants, as the breach in the latter case would be a breach committed not by any party himself but by his descendants. I had thought that such a contract could not bind an indefinite class of descendants, generation after generation, and to bind them for an indefinite length of time. It is that view which has been overruled by the Full Bench. Where however the intention of the parties that the contract should remain in force between themselves only, or only for a fixed period of time, is quite clear from the language of the document itself and the attending circumstances, it cannot be held that the contract nevertheless remains in force for all time to come and for all generations.
4. According to the admitted pedigree the original plaintiff Sheobaran Singh and the vendor Bhup Singh ware the grandsons of Bhim Singh, whereas the vendee is descended not from Bhup Singh but from Bhim Singh's great grand-father Nazib Singh. It is therefore obvious that the plaintiff Sheobaram Singh could claim to be the jaddi (descended from a common ancestor) co-sharer with the vendor Bhup Singh within the meaning of para. 18 of the wajib-ul-arz of 1281F. It could never have been the intention that persons descended from a much remoter common ancestor are to be placed on the same footing as those from a nearer common ancestor. If such a view were accepted then in many cases persons of the same caste living in a village would all become of the same status if they can trace descent from some common ancestor however remote,. I am therefore of opinion that Sheobaran Singh should be treated as a jaddi co-sharer with Bhup Singh as against the vendee who is descended from a much remoter ancestor.
5. The learned vakil for the appellant contends that even if Sheobaran Singh had a preferential right against the vendee his widow Mt. Mohan Kunwar has not, because she is not a jaddi co-sharer with the vendor and that inasmuch as a successful plaintiff must have a subsisting right of preference till the time of the passing of the first Court's decree that suit cannot succeed. If the effect of the Full Bench ruling in the case of Wajid Ali v. Shaban  31 All. 623 is that the right to sue survives it would mean that the heir of a deceased plaintiff can continue the suit and obtain a decree on the strength of the right of his deceased predecessor and not necessarily on the strength of his or her own right. In this view it would be immaterial whether Mt. Mohan Kunwar has herself a preferential right as against the vendee. But the learned vakil has invited our attention to the case of Pratap Singh v. Daulat  36 All. 63 where it was remarked that if the heir himself has no preferential right as against the vendee the suit could not succeed. The Judges who decided this last-mentioned case constituted the majority in the Pull Bench. One is therefore constrained to hold that the two cases were distinguishable. The result would then be that the present case would be governed by the principle underlying the subsequent Division Bench case and not by that underlying the Full Bench case.
6. I am however relieved from expressing any final opinion on this question because. I think that even Mt. Mohan Kunwar comes in the second category of pre-emptors and the vendee does not.
7. The wajib-ul-arz of 1281F gives the second right to the proprietors of the village. When this wajib-ul-arz was prepared the village was a single mahal. It has subsequently been partitioned and cosharers in one mahal have ceased to have any interest in the other mahal. No new wajib-ul-arz has been prepared, nor is there anything to show that at the time of the partition it was agreed that co-sharers in different mahals would, in spite of the partition, have a right of pre-emption in respect of the other mahal. The custom of pre-emption no doubt continues. But in the absence of any evidence to the contrary it must now be confined to each of the new mahals which have been formed, with the result that proprietors in one mahal cannot have any right of pre-emption as regards shares in the other mahals. The vendee, therefore, cannot claim to be on the same footing as Mt. Mohan Kunwar, who is a co-sharer in the very mahal in which the property sold is situate.
8. Sheobaran Singh died after the institution of the suit and before the first Court's decree. His widow, Mt. Mohan Kunwar, was brought on the record as the legal representative of the deceased. She became a co-sharer by succession to her deceased husband. Even though she was not a co-sharer at the time when the sale-deed was executed or when the suit was filed, she was entitled to continue the suit inasmuch as a right to sue survived. This point is settled by the view of the majority of the Full Bench case referred to above. The defendant vendee is not a co-sharer in the mahal in which the property sold is situated. Mt. Mohan Kunwar is a co-sharer. She has thus even in her own right, preference over the vendee. The case of Partab Singh v. Daulat  36 All. 63, even if it be assumed not to be in conflict with the Full Bench case, is, therefore, distinguishable.
9. The last two grounds deal with the question of consideration. The sale consideration was Rs. 6,690 out of which RSection 450 and Rs. 1017 were left in deposit with the vendee for payment to Sheobaran Singh, plaintiff. The vendee made payments after considerable delay, viz. of five months and two years, but he paid Rs. 38-11-11 more. It is obvious that the vendee cannot claim credit for the excess sum paid. It was his duty to make the payments at once and, if he withheld payments he benefited by the use of the money in his hands and was himself liable for any extra interest thai might accrue in the intervening period. The plaintiff is not bound to pay more than the true sale consideration mentioned in the sale-deed.
10. I would, therefore, dismiss the appeal with costs.
11. I agree in dismissing the appeal. It is clear that the Agra Preemption Act has no application as the sale-deed was executed on the 23rd June 1922. The real question in the case is whether there is a custom of preemption and whether Mt. Mohan Kunwar had a preferential right. I am of opinion that prima facie the wajib-ul-arz filed in the suit as evidence proves that there was a custom of pre-emption and nothing has been shown by the defendant to rebut the presumption raised by the wajib-ul-arz. It is unnecessary, in my opinion, to discuss the effect of the Pull Bench case of Aulad Ali v. Ali Athar : AIR1927All170 , as upon the finding of my learned brother with which I agree Mt. Mohan Kunwar comes in the second category of the pre-emptors and the vendee does not. The result of that would be that Mt. Mohan Kunwar would have a preferential right.
12. The last ground urged as to the claim put forward that the vendee had to pay Rs. 300 more which should be paid by the pre-emptor, has no force, as the pre-emptor cannot be asked to recoup the vendee because he had to pay interest on account of his own laches.