JUDGMENT : P.T. ASHA, J. 1. This Second Appeal arises out of the judgment and decree dated 23.08.2016, on the file of the XVII Additional Judge, City Civil Court, Chennai, made in A.S. No. 22 of 2010, dated 23.0.2017, confirming the Judgment and Decree of the learned XVIII Assistant Judge, City Civil Court, Chennai dated 08.08.2008 made in O.S. No. 2812 of 2004. The Defendants are the Appellants before this Court. 2. The above suit was filed for partition originally by one M. Krishnaveni, as the Sole Plaintiff. Pending suit, the Plaintiff died and after her death, her children were brought on record as the plaintiffs 2 to 7 and the 7th plaintiff's son was brought on record as the 8th plaintiff. The defendants are the wife and the children of the said Krishnaveni's brother Krishnan. 3. It is the case of the plaintiff that the property, which is Schedule "A" of the suit schedule property belonged to her, having purchased the same under a Sale-Deed dated 29.05.1971. The "B" schedule property belonged to her mother M. Govindammal and she had purchased the said property out of her own funds under a Sale Deed dated 09.12.1933. The said Govindammal had died on 23.11.1994, leaving behind her, her daughter, the plaintiff and her son Krishnan, as her legal heirs thereafter, the plaintiff and her brother herein were in joint possession and enjoyment of the "B" schedule property. 4. It is the case of the plaintiff that when her parents were alive, she was living in a thatched house in the "B" schedule property and thereafter, since the family had grown, she had constructed a house in the "B" schedule property. She had vacated the "B" schedule property and shifted her residence in the year 1996. On 26.04.1991, her brother passed away leaving behind him the Defendants 1 to 13 as his legal heirs/survivors. The plaintiff further submitted that after the death of her mother and her vacating the B schedule property, the defendants were attempting to occupy the entire A-schedule property a portion of which the plaintiff had permitted them to occupy. In due course of time, the defendants started encroaching into the entire "A" schedule property, which were purchased by the plaintiff. This constrained the plaintiff to issue a legal notice dated 15.09.2003, which though received by the defendants was not replied to. In due course of time, the defendants started encroaching into the entire "A" schedule property, which were purchased by the plaintiff. This constrained the plaintiff to issue a legal notice dated 15.09.2003, which though received by the defendants was not replied to. Ultimately, the plaintiff had filed the above suit. 5. The defendants had filed a written statement inter-alia contending that the plaintiff had no right in the B schedule property and that the grandmother (Govindammal) had executed a Will bequeathing the B schedule property to the Defendants 2 to 5 and Paneer Selvam and Senthamarai Selvi. With reference to the A schedule property, there was no contest. The defendants had also contended that they were taking steps to Probate the said Will dated 11.12.1991. 6. The Trial Court by Judgment, dated 08.08.2008 decreed the suit as prayed for, directing delivery of possession of the A schedule and granting a partition with reference to the B-schedule property. In fact the Trial Court had rejected the plea of the defendants that they have been taking steps to probate the Will and rejected the Defendants' claim under the Will, by stating that probating the Will is a sine qua non for establishing a right under the Will. The said Judgment was taken up on appeal by the defendants in A.S. No. 22/2010 on the file of the learned XVII Additional Judge, City Civil Court, Chennai. The learned Judge concurred with the Judgment and Decree of the Trial Court. Hence, the defendants have filed the above Second Appeal. 7. This Court heard Mr. Chandrakanthan, learned counsel for defendants/appellants and also perused the papers. 8. The counsel would contend that the Courts below have not considered the fact that the defendants have taken steps to probate the Will and therefore, the dismissal was erroneous. 9. On perusal of the materials placed before this Court, it is seen that the testatrix Govindammal had died on 23.01.1994 and till the filing of the suit, no steps have been taken by the defendants to get the Will probated. Even after filing of the suit in O.S. No. 2818 of 2004 steps have not been taken by the defendants. On perusal of the materials placed before this Court, it is seen that the testatrix Govindammal had died on 23.01.1994 and till the filing of the suit, no steps have been taken by the defendants to get the Will probated. Even after filing of the suit in O.S. No. 2818 of 2004 steps have not been taken by the defendants. In this regard, as rightly pointed out by the Courts below, the defendants who claimed exclusive right to the B schedule property on the basis of the Will, have not taken steps to prove the Will in the manner known to law. "(i) In the Judgment reported in Ganshamdoss Narayanadoss vs. Gulab Bi Bai, AIR 1927 Madras 1054, a Full Bench of this Court was called upon to give an opinion as to whether the defendant therein can resist a claim made by the plaintiff therein as an heir-at-law by relying upon the Will executed in his favour at Madras in respect of a suit property in Madras when the Will is not probated or Letters of Administrations with Will annexed has been granted? The Full Bench opined that the defendant cannot use an un-probated Will as a defence to the suit. (ii) The Hon'ble Supreme Court in its decision reported Mrs. Hem Nolini Judah (Since Deceased) and After her Legal Rep. Mrs. Marlean Wilkinson vs. Mrs. Isolyne Sarojbashini Bose and Others, AIR 1962 SC 1471 (V 49 C 215), has relied upon this Full Bench Judgment and held that no right as the executor/legatee can be established in a Court of Justice unless probate or Letters of Administration have been obtained of the Will under which the right is claimed." 10. These Judgments have also been relied upon by a Division Bench of this Court in this case reported in M. Vaidurayamme vs. P.L. Luryanasayane and Others, 1997 (2) MLJ 2 . 11. In the light of the above cited Judgments and the defendants having not got the Will of late Govindammal probated, there is no infirmity in the Judgments and Decrees of the Courts below which are very much in order. 12. In these circumstances, the Second Appeal stands dismissed, as there is no question of law to be considered. No costs. Consequently, connected Civil Miscellaneous petition is close.