( 1 ) THE appellant being aggrieved of the Order of dismissal passed in prob. C. p. No. 16 of 1990 elated 31-10-1996 by the learned single judge has preferred this appeal.

( 2 ) THE brief facts are as follows : that a will and testament, dated 17-11-1987 was executed by Mrs. Hildred joyce faithful w/o late Mr. Joseph alexander faithful bequeathing her immovable property situated at No. 20, cubbon road, bangalore for charitable purpose by appointing her cousin Mrs. Certrude june dalby and Mrs. Cheryl margurite soggee as executors to carry out her last wishes as per the will. The testatrix Mrs. Hildred joyce faithful died on 31-10-1988. Thereafter, the first executrix under the will namely, Mrs. Certrude june dalby also died. Consequent to her death, the second executrix Mrs. Cheryl margurite soggee filed a petition in prob. C. p. No. 4 of 1989, for grant of probate. That by an Order dated 16-6-1989, this court granted probate of the said will in favour of Mrs. Cheryl margurite soggee after complying with the procedure laid down by issuing citation etc.

( 3 ) THE appellant being aggrieved of the grant of probate in prob. C. p. No. 4 of 1989 filed prob. C. p. No. 16 of 1990 under Section 263 of the Indian succession ACT for revocation of the probate granted firstly on the ground that he is the real brother of the first executrix Mrs. Certrude june dalby mentioned in the will who died subsequently and that he is nearer relative of the deceased testatrix Mrs. Hildred joyce faithful wherein she has described Mrs. Certrude june dalby as her cousin in the will. Secondly, on the ground that no citation was issued to him though he is the nephew of the deceased Mrs. Hildred joyce faithful and thirdly on the ground that the testator died within 12 months from the date of the execution of the will and the will was not deposited within 6 months.

( 4 ) THE learned single judge after hearing the counsel of both the parties held, that there lived no nephew, niece or nearer relative of the deceased testatrix Mrs. Hildred joyce faithful and dismissed the petition filed for revocation of the probate granted in favour of the respondent. The appellant being aggrieved of the said Order has presented this appeal.

( 5 ) LEARNED counsel for the appellant contended that the bequeath of the property under the will and testament, dated 17-11-1987 executed by the testatrix is not valid in view of the provisions of Section 118 of the Indian Succession Act. He further contended that this appellant is a nephew and therefore, on that ground itself that the probate granted in favour of respondent 1 is liable to be revoked and submitted that the learned single judge has not considered and appreciated the provisions of Section 118 of the Indian Succession Act. It is further contended that in the will, it is clearly mentioned that the first executrix Mrs. Certrude june dalby is the cousin of the testatrix wherein this appellant is the real brother of Mrs. Certrude june dalby and even otherwise that he becomes a nearer relative within the definition of Section 118 of the Indian Succession Act. Therefore, the testatrix Mrs. Hildred joyce faithful did not have power to bequeath the property to religious and charitable use. Accordingly, he prayed to set aside the impugned Order by allowing this appeal.

( 6 ) ON behalf of the respondents, it is contended that the appellant is neither a nephew nor a nearer relative within the definition of Section 118 of the Indian succession ACT and therefore, the appellant has no locus standi to seek for revocation of the probate granted and justified the orders passed by the learned single judge and prayed for dismissal of the appeal.

( 7 ) IN the light of the contentions raised, the important questions that arise for determination are : 1. Whether the appellant has any locus standi to question the will and testament, dated 17-11-1987 executed by Mrs. Hildred joyce faithful? 2. If so, whether the probate granted has to be revoked? 3.

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