1. It is contended that the lower courts erred in giving plaintiff relief on grounds not alleged in the plaint. The lower courts have decided that the defendant, the adopted son of one Narayanasami Aiyar is bound to pay to plaintiff Rs. 600 devised by the deceased Narayanasami Aiyar in his Will for a silver Vrishabhavahanam. It appears from the plaint that the plaintiff rested his case on two grounds, the direction in the Will and the liability of the deceased to repay a loan. The latter cause of action however was relinquished and the plaintiff relied on the devise alone.
2. It is then contended that the legacy is void and that the defendant is not bound to carry out the promise made by his father. The District Judge upheld the legacy on the ground that it was a gift to religious uses which the son can be compelled to carry out. There is no Madras case in support of this contention. So long ago as 1874 it was decided, Vitla Butten v. Yamenamma 8 M. H. C. R 6, that a member of an undivided family cannot bequeath even his own share of the joint property because at the moment of death the right by survivorship is in conflict with the right by devise, and the title by survivorship being the prior title takes precedence to the exclusion of that by devise. This principle has been recognised by the Privy Council, Suraj Bunsi Koer v. Sheo Proshad Singh L. R 6 I. A 88 and Lakshman Dada Naik v. Ramchandm Dada Naik I. L. R 5 B 62. In the case of Baba v. Timma I. L. R 7 M 357, it was decided by the Full Bench that a Hindu father, if unseparated, has not power except for purposes warranted by special texts, to make a gift to a stranger of ancestral estate movable or immovable. No special text has been cited in support of the gift of a silver Vrishabhavahanam to a kovil. It certainly was not an indispensable act of duty, nor a gift through affection or for support of the family or relief from distress which are specified in the Mitakshara, Ch. I S. I Sl. 27, as gifts which a father has power to make. I am not prepared to say that the gift of Rs. 600 for a silver Vrishabhavahanam was a gift for a religious purpose. It is evident from the form of the plaint and from Exh. B that the Rs. 600 had been received by the testator in the year yuva on a promise to repay it in four months' time and that the bequest was in truth made with the intention of repaying a barred debt.
3. The decrees of the lower courts must be reversed and the plaintiff's suit dismissed with costs throughout.
Muthusami Aiyar, J.
4. I am also of the same opinion. The averment in the plaint that the money sought to be recovered was a debt due by defendant's adoptive father has since been abandoned. The claim that it was a legacy to the temple is untenable. For the reasons and on the authorities mentioned by my learned colleague, the defendant's father had no testamentary power over family property common to himself and his adopted son for any purpose. The contention that the legacy can be treated as an executory gift made for religious uses is not tenable inasmuch as the defendant's father had no testamentary power at all either to give legacies or make gifts out of joint property.