Intention of testator is a most important factor while interpreting the Will.

This Second Appeal is directed against the judgment of the learned District Judge, Tirunelveli, in A.S. No. 119 of 1984 dated 13-3-1985 partly reversing the judgment of the learned Subordinate Judge, Tuticorin, in O. S. No. 217 of 1979. The plaintiff in the suit is the appellant in the above Second Appeal.

2. The following is the genealogy tree of the parties :-

3. Arunachala Reddiar, shown in the above genealogy tree, who died in January, 1962, executed a Will on 4-7-1958, in which suit properties described as Schedule I and Schedule II were dealt with in the following manner and the status and names of the parties in the present suit are given in brackets.

(Vernacular matter omitted.....Ed.) Regarding the plaint Schedule II properties the disposition in that Will is as follows :-

(Vernacular matter omitted......Ed.)

4. Valliammal, the first wife of the first defendant is still alive. But the first defendant married Guruvammal as his second wife and Ramasami, 5th defendant is the first defendant's son through Guruvammal. Under various sale deeds executed during the years 1978-79, the first defendant had sold both the properties to the second and fourth defendants.

5. According to the plaintiff/appellant, the first defendant's marriage with Valliammal was subsisting even though they were living separately and as such there was no valid marriage between the first defendant and Guruvammal. Therefore, the fifth defendant was not a legitimate son of the first defendant. Hence as per the terms of the Will, neither the first defendant was competent to sell either of the properties, nor can, fifth defendant succeed to any one of the properties. As far as the first schedule property is concerned, there being no legitimate male issue he was entitled to the property. As far as the second schedule property is concerned, as there was no possibility of Valliammal begetting any child, and thereafter Valliammal had also acknowledging that she cannot have any issue hereafter, had executed a release deed of her life interest in the schedule property in favour of the plaintiff. In the said circumstances, the plaintiff prayed for a decree declaring that the plaintiff was entitled to the first schedule property as vested remainder and for recovery of possession after the lifetime of the first defendant free from encumbrances and for a decree for declaration of the title of the plaintiff to the second schedule property and for a permanent injunction restraining the third and fourth defendants from interfering with the enjoyment of the second schedule property by the plaintiff.

6. The first defendant in his written statement, while denying the claims of the plaintiff, would contend that his marriage with Guruvammal was a legal marriage after valid divorce from Valliammal and hence, the fifth defendant was his legitimate son. The question of any heir to the first defendant would arise only after the death of the first defendant and hence the suit was premature. Male heir as indicated in the Will need not be a son actually born. The allegations against Guruvammal were denied. According to the first defendant, sales in favour of Defendants 2 to 4 cannot be questioned in any manner and they are bona fide purchasers. The recitals in the sale deed were true and the plaintiff was estopped from questioning the same. The plaintiff cannot claim to have any vested remainder, which if at all, is spes successionis. The plaintiff's interpretation of the Will was not correct. Valliammal could not be heard to say that she can have no children and hence she cannot execute any release deed. The plaintiff was not in possession of the property and hence not entitled to any injunction. A written statement was filed by Guruvammal representing the fifth defendant/minor. She claims to be a necessary party who should have been impleaded as a party, to the suit. She claims to be the legally married wife of the first defendant and that she was not aware of the marriage