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6.1 Rajamani's branch is represented by Defendant Nos.4 to 10 and Soundaram Sundarersan's branch, who died on 10.11.1986, is represented by Defendant Nos.11 to 14. Defendant No.3 has purchased the properties in dispute by registered sale deeds dated 10.3.1996 from Defendant Nos.4 to 14.

6.2. Plaintiff No.2 is the son of Plaintiff No.1. They are not related to J.G. Devasahayam.

6.3 The property at Door Nos.79 and 80, Millers Road, Kilpauk, was handed over to the Accommodation Controller, the first defendant. Subsequently, the first plaintiff, who was working as a steno-typist under the Tamil Nadu Transport Department, was inducted by the Accommodation Controller as a tenant in respect of Door No.80 ('A' schedule property) with condition regarding payment of rent directly to Daisy. It is claimed by the plaintiffs that Daisy, who was staying in the same house, had executed a Will on 1.7.1978 in favour of the second plaintiff in respect of A to D schedule properties, 'A' schedule is 50% of undivided share over land and building in premises bearing Door No.80, Millers Road, Kilpauk, 'B' schedule is 50% of undivided share over land and building in premises bearing Door No.79, Millers Road, Kilpauk and 'C' schedule is 50% of undivided share over land and building in premises bearing Door No.34, Balfour Road, Kilpauk and 'D' scheule is 50% of undivided share over land and building in premises bearing Door No.9, Vinayagar Koil Street, Purasawalkam. Daisy expired on 11.11.1979. Defendant No.8 had filed O.P.No.59/1981 to declare Padmini as a lunatic and to appoint him as her guardian. The High Court by order dated 22.6.1983 declared Padmini as lunatic. Subsequently, Padmini expired on 11.8.1985. The first defendant subsequently sent a letter dated 12.8.1993 to the first plaintiff to vacate 'A' schedule property on the ground that the first plaintiff had retired from Government service, even though the first plaintiff had informed the 1st defendant regarding existence of the Will executed by Daisy. The first defendant again sent a letter dated 24.3.1995 threatening to evict the plaintiffs without considering the request of the second plaintiff to release such property in favour of him. At that stage, the plaintiffs filed O.S.No.2902 of 1995 against the first defendant for injunction, but the suit was withdrawn. The plaintiffs had filed appeal against the order of the first defendant before the Secretary to the Government and, at the time of filing of the present suit, such appeal was stated to be pending and stay had been granted. One R. Gnanadhikkam had filed O.P.No.41 of 1991 claiming that a Will, dated 8.8.1986 had been executed in his favour by Mrs. Soundaram Sundaresan in respect of the assets previously belonging to Daisy Devasahayam. Thereafter the children of Soundaram Sundaresan had filed Application Nos.2902 and 2903 of 1987 to set aside the order made in O.P.No.59 of 1981 regarding lunancy proceedings, but in such application there has been no whisper about the Will dated 8.8.1986 by Soundaram Sundaresan. By order dated 3.10.1988, the High Court had passed an order in Application No.1127/87, 2902 and 2903 of 1987 directing all the persons claiming under J.G. Deivasahayam to file appropriate suit and establish their rights over the properties of Padmini Devasahayam, which they claimed to have succeeded after the death of Daisy. Defendant Nos.11 to 14 subsequently filed W.P.No.15660 of 1989 for issuing a Writ of Mandamus to implement G.O.Ms.No.1338 dated 10.5.1988, whereunder the Government had directed that the rent for 'C' schedule property should be paid to them. Though initially by order dated 22.12.1989 such writ petition was allowed, subsequently, 11th defendant, the father of Defendants 5 to 7, had filed an application for recalling such order and ultimately the High Court recalled the earlier order and dismissed the writ petition filed by Defendant Nos.11 to 14 on the ground that they had suppressed the material facts and directed that criminal proceedings should be initiated. Even though initially the High Court granted probate in respect of O.P.No.41 of 1991, subsequently, the second plaintiff had filed Appln.No.704 of 1991 to revoke the probate and Appln.No.748 of 1991 for restraining Gnanathikkam from putting up any construction. In the said application it was claimed by the second plaintiff that Daisy had executed a Will dated 1.7.1978. Subsequently, the second plaintiff had filed O.P. for grant of probate on 26.8.1991, but the same was numbered as O.P.No.210/1995. The second plaintiff also issued notice to the Accommodation Controller not to handover possession of the disputed property to anyone. Defendant Nos.4 to 7 jointly executed a sale deed on 10.6.1996 in favour of Defendant No.3 in respect of 1/4th share in the property in Door No.80, Millers Road. On the very same, Defendant Nos.8, 9 and 10 jointly executed another sale deed in favour of the very same Defendant No.3 in respect of 1/4th share in the very same property and Defendant Nos.11 to 14 had executed a sale deed in favour of Defendant No.3 in respect of 1/2 share in the very same property. The first defendant once again sent a notice dated 22.2.2000 directing the first plaintiff to vacate and deliver possession of 'A' schedule property. At that stage, the plaintiffs filed O.S.No.2411 of 2000 against the first defendant for permanent injunction. While such suit was pending, the second defendant filed a petition for being impleaded on the ground that he had purchased 'A' and 'B' schedule property from 3rd defendant, who in turn had purchased the properties from Defendant Nos.4 to 14. The second defendant produced the sale deeds only on 13.1.2005 before the trial court in O.S.No.2411 of 2000, which was marked as Exs.B-1 to B-3 and claimed title. From the documents filed by Defendant No.2 in course of cross-examination, the plaintiffs came to know that suppressing the orders of the High Court in W.P.No.15660 of 1989 and O.A.Nos.704 of 1991 and 741 of 1991, Defendant Nos.4 to 14 had colluded together and created sale deeds in favour of Defendant No.3 and such sale deeds in favour of Defendant No.3 are sham and nominal. The defendants had also suppressed the pendency of probate petition numbered as O.P.No.210 of 1995. Validity of such sale deeds dated 10.6.1996 had been impugned by raising several contentions. Three sale deeds in favour of Defendant No.2 were also assailed on similar grounds. Plaintiff No.2 claims title by virtue of the Will. It is claimed that because of the subsequent sale deeds and the stand of the defendants, the plaintiffs have filed the comprehensive suit for title in respect of 'A' schedule property with liberty to file appropriate suit against 'B' 'C' and 'D' schedule properties and it has been stated that they undertake to withdraw O.S.No.2411 of 2000 pending before the City Civil Court as the only prayer in the said suit was for permanent injunction.

28. There are several decisions of various High Courts, which indicate that there may not be any necessity to wait for obtaining a probate for filing the suit and the probate can be obtained any time before the suit itself is decided on merits. The proper course is to file the suit for declaration and, if required, pray for stay of such proceedings in view of pendency of probate proceedings. As per Section 211 of the Indian Succession Act, title to the property vests on the Executor of the Will as soon as the Executant expires. This is because of the well known concept in jurisprudence that succession to a particular property never lies in vacuum be it on the basis of any Will or otherwise. The property passes on to the successor either on the basis of the Will or in the absence of any Will on the basis of law relating to succession. Section 213 only creates an embargo relating to establishing such title in a court of law.