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Judgment
Anand Byrareddy, J.—Heard the learned Counsel for the appellant and the respondents. The appellant was the plaintiff before the trial court. Defendant no. 1 was his mother. It transpires that the suit property was acquired by his father and had bequeathed the same by a will in favour of his mother, defendant no. 1 and had thereafter died. According to the plaintiff, under the will, the mother only had a life interest in the property and was not in a position to alienate the same to defendant no. 2 and it is that which was the cause of action.
According to the plaintiff, he had learnt of the mother''s intention to alienate the property, even though she did not have the right to alienate and had filed a civil suit seeking to restrain her from alienating the property, there was an order of temporary injunction restraining her from alienating the property. But notwithstanding the same, she had done so. Therefore, on two counts, namely, that there was no right in the mother to alienate the property and secondly, that there was a restraint order of the civil court from alienating the property and in violation of the same, she had alienated the suit schedule property and hence sought that the sale be set aside. The suit had been contested. It was contended that there was no such restriction on alienation insofar as defendant no. 1 was concerned and the alienation was made only to bail out the plaintiff, who had been embroiled in a case involving misappropriation, at his place of employment and it is to ensure that he got a clean chit, that the property had been sold and the proceeds were used for the purpose.
In any event, the contention that the first defendant did not have a right to alienate the property is incorrect. From a reading of the will, it is clear that the testator has specified that after his death, defendant no. 1 was referred with an absolute right over the property.
Though it is further contended that since the latter part of the will contains a recital that after the death of defendant no. 1, the plaintiff was entitled to the suit schedule property and the plaintiff was conferred with an absolute right to alienate the property, the bequest made in favour of defendant no. 1 is conditional and it is the intention disclosed in latter part of the will that would prevail.
It cannot be said that there is inconsistency in the intention of the testator. It is evident that he had clearly conferred an absolute right on defendant no. 1 and it is only in the event that she died, without alienating the property, that the plaintiff would succeed to the suit property. Therefore, the trial court was not in error in having dismissed the suit insofar as the interpretation of the testator''s intention under the will. Insofar as the alienation having been made by defendant no. 1 inspite of an order of injunction - This did attract the consequence of disobedience, even if the order could not have been passed against the true owner. However, since no such action was initiated. It is wholly irrelevant at this point of time. Reliance sought to be placed by the counsel for the appellant on Claude Pinto and Others Vs. M.V. Shankar Bhat and Another, and on Kaivelikkal Ambunhi (dead) by LRs. and others Vs. H. Ganesh Bhandary, would also not advance the case of the appellant, as the case would turn on the interpretation of the will in question in the present case on hand. And in view of the clear expression in the will, there can be no two views on the same. Therefore the appeal is dismissed.