Ewart Greaves, J.
1. This is an appeal by the defendants against a decision of the Additional District Judge of Sylhet modifying a decision of the Munsif of the Second Court at Habigunge. The suit out of which this appeal arises was brought by the plaintiffs for declaration of their title to and possession of certain property. He also claimed mesne profits which I understand were disallowed and in respect of which there is a cross-objection.
2. The case for the plaintiffs was that one Surjymani Sen was a jotedar that he made during his lifetime a gift of the lands in question to his widowed daughter. The plaintiffs claimed to have purchased the lands in suit after the widowed daughter's death from defendant No. 5 who, the plaintiffs alleged, was the heir of the widowed daughter being her sister's son. The defence of the defendant was this that the property was streedhan property and that on the death of the widowed daughter it descended not on the sister's son but on the step-brother or half brother of the widowed daughter as her preferential heir. Both the Courts below have decided in favour of the plaintiffs contention holding that on the death of the widowed delighters the property descended to her sister's son and not to her step-brother. The lower Appellate Court has relied on a decision of this Court in the case of Debi Prasanna Rai Chodhwury v. Harendra Nath Ghose 6 Ind. Cas. 534 : 15 C.W.N. 383 : 12 C.L.J. 385 : 37 C. 863 to which I shall have presently to refer.
3. Now four points have been urged before us by the learned Vakil for the appellant.
4. First of all he contends by a reference to Ch. IV, Section 3 of the Dayabhaga which relates to succession to separate property of a childless woman that his client entitled as the preferential heir of widowed daughter and lie seeks to establish this by a reference to sloka 37 of Ch. IV of Section 3. Now in Section 3 which, as I have already stated, deals with succession to separate property of a childless woman, sloka 10 relates to 3 kinds of streedhan. The translation is as follows: 'But wealth received by a woman after her marriage, from the family of her father, of her mother or of her husband goes to her brothers as Yajnavalkya declares that which has been given to her by her kindred, as well as her fee or grant it and anything bestowed after marriage her kinsman take if she dies without issue Then in the next sloka the properly give by her kindred is dealt with and so of until we come to sloka 19 which deals with sloka or what is denominated as a fee. The following slokas deal, with various, kinds of property of this nature, and their we come to sloka 29 which is as follows: 'Therefore, the property goes first to the whole brothers, if there be none to her mother, if she be dead, to the father but on failure of all three, it devolves on the husband.' This Katyayana says 'that which has been given to her by her kindred goes on failure of kindred to her husband. Now the difficulty that faced the appellants in this case was that it sloka 2 apple to all the slokas from 10 on ward he may be excluded from the inheritance by the fact that sloka 29 says that the properties referred to in the previous slokas descend to
5. The second point which was urged was that in any case even if sloka 29 governed all the kinds of properties referred to in sloka 10 even then a half brother came in before sister's son, as it was argued he could confer spiritual benefit on the lady and, therefore, he was entitled to inherit. This question was considered by this Court in the case in Debi Prasanna Rai Chowdhury v. Harendra NathGhose 6 Ind. Cas. 534 : 15 C.W.N. 383 : 12 C.L.J. 385 : 37 C. 863 to which I have already referred and the contention wasther negatived. As is pointed out in the judgment of the Court the word which is used in sloka 29 is 'sodara' which means a uterine brother and not the word 'bhrata' or brother which might be taken to cover a brother and a-half brother as well. As has been pointed out at page 386 Pages of 15 C.W.N.--Ed. in the judgment lift that case having, regard to the use of the word 'sodara' it cannot be contended that it can include a half brother. It is significant that if you examine the various slokas of the Dayabhaga you will find that in some of them the word 'bhrata' or brother is used. It seems from this that where the word sodaraox uterine brother is used: it must be intended to refer to uterine brother only, and not to include a half, brother is well. The use of the particular word sodara must be taken as an indication that for the purpose of inheritance a half brother is not entitled to succeed. Then, thirdly, it was argued that the real test so far as inheritance is concerned is the possibility of conferring spiritual benefit upon the deceased, and it is said that inasmuch as half brother is entitled by performing sradh and by offering funeral cakes to confer spiritual benefit upon the deceased, therefore, he should not be excluded from inheritance and we were referred to the 4th Edition of Babu Golap Chandra Sarcar's book on Hindu Law, page 464, as an authority for the proposition that in a property in this nature a half brother is entitled to inherit. But it is noticeable that although in dealing with succession to Ayautuka (other than father's gift) a half brother is included after a whole brother as the person possibly entitled to inherit the learned author states at the end of the paragraph that 'a half brother's true position in the order is not free from doubt and difficulty.' So at the most this can be taken as an authority for the proposition that possibly after the failure of a whole brother a half brother is entitled to inherit but I do not think that that can be taken as an authority for any further proposition. I may say here that although the learned author after dealing with succession to Ayautuka (other than father's gift) says at page 465 that the same rule of succession as is already laid down applies to father's gift in an ordinary case there is no separate rule of succession laid down in the Dayabhaga with regard to these gifts. Having regard, therefore, to the authorities to which I have already referred and notably on this point the authority in Debi Prasanna Rai Chow-dhury v. Harendra Nath Ghose 6 Ind. Cas. 534 : 15 C.W.N. 383 : 12 C.L.J. 385 : 37 C. 863, we do not think that this point is well founded and the more fact that a half brother can confer spiritual benefit as in a case of this kind does not necessarily mean that he is entitled to inherit.
6. The 4th point that was raised was with regard to a certain reading of sloka 10 and it was attempted to give a narrower interpretation to the word gifts mentioned in sloka 10 has meaning joint gifts by father and, mother as well, But the same point was raised in the case of Judoo Nath Sircar v. Bussunta Coomar Roy Chowdhury 19 W.R. 264 : 11 B.L.R. 286 to which I have already referred and was then negatived.
7. For the reasons, therefore, which I have indicated 1 think the decision of the Courts below is right, and the appeal must fail and is dismissed with costs.
8. In the cross-objection the respondents claim profits in respect of the lands in spit for the year 1326. They purchased in May 1920 from the heir of the previous owner who died in October 1919. By the conveyance the lands were sold to the respondents together with profits of any previous period. And that is what they are now suing for. It is urged before us that this claim does not fall within the purview of Section 6(e) of the Transfer of Property Act but is an actionable claim within the meaning of Section 3 of the Transfer of Property Act. I think this contention is clearly ill-founded. One has only got to state the fact as I have stated it to realize that this is a suit for past profits in respect of the lands and that it is a mere right to sue which cannot be transferred by the provisions of Section 6 Clause (e). An actionable claim is something entirely different and does not extend to claim for profits such as is now sought to be established by the respondents.
9. The result is that the cross-objection fails and is dismissed with costs.
10. I agree.