( 1 ) THE appellant has filed this appeal assailing the order of the learned Single Judge dismissing the probate civil petition filed under Section 263 of the Indian Succession Act for revocation of the Will executed by late Smt. Gangarama in favour of her sister's son Govindaraja, respondent herein.

( 2 ) THE brief facts of the case are, that one Huchaiah was owning a house property in Bangalore which is a disputed property. Appellant is the brother of Huchaiah. Huchaiah has got a wife by name Gangamma. Huchaiah died in the year 1982 leaving behind him Smt. Gangamma as his sole legal heir. After the death of Huchaiah, Smt. Gangamma succeeded to the property of her husband. She has a sister by name Shan-thamma. Before her death, Smt. Gangamma was suffering from cancer. She executed a Will on 10-8-1990, and died on 5-9-1990. After her death, a probate civil petition was filed in this Court under Section 263 of the Indian Succession Act, for probate of the Will. This Court after elaborately considering the contentions, granted a probate vide order dated 19-9-1991. Thereafterwards, a probate civil petition was filed under section 263 of the Indian Succession Act, for revocation of probate, on the ground that, the appellant was not impleaded to the probate petition and no notice was issued to him. Late Smt. Gangamma was not in a fit condition to execute a Will. Will is a forged one. Under law, the appellant is the legal heir as per Section 15 read with Section 16 of the Hindu Succession Act. Therefore, to deprive the appellant, the Will is concocted. Objection statement is filed by the respondent denying the allegations made therein. Appellant examined himself as P. W. 1 and no document is marked on behalf of the appellant. Respondent examined himself as R. W. 1 and other witnesses as R. Ws. 2 and 3. R. W. 2-A. Ganesh who drafted the Will and R. W. 3-B. G. Narayana is the attesting witness.

( 3 ) THE learned Single Judge after considering the rival contentions and the material evidence on record, dismissed the probate civil petition. Against that, the present appeal is filed.

( 4 ) LEARNED Counsel for the appellant firstly contended that Ex. R. 1 is not a Will and it is gift or settlement. Therefore, no probate can be granted, under the provisions of the Indian Succession act. On the other hand, learned Counsel for the respondent contended that, by reading the document itself, it is manifest that the document is a Will.

( 5 ) TO appreciate the above contention, it is relevant to refer the contents of Ex. R. 1.

( 6 ) THIS Will was executed on 10-8-1990 and in the preamble of the document, it is stated that the testator is aged about 58 years and stated that she has not made any Will or testamentary writing before and declared this Will to be her last Will and testament. It is stated that she executed this will out of her free will and on her own volition without the influence of anyone. It is further stated that, she was suffering from cancer and due to uncertain future, she felt, it is necessary to make proper arrangements for the disposal of her property after her death. It is further stated that she is the owner of house property at No. 684, 6th Main Road, Vijayanagar, Bangalore-560 040, wherein, she resides at present, and which is more fully described in the schedule to the Will, which is occupied by her with one Govindaraju and that the schedule property has been mortgaged to the Co-operative Bank, Rajajinagar, Bangalore, to borrow a loan of Rs. 50,000/and that the said Govin-daraja has been residing with her and has been looking after her for the last 4-5 years and that the said Govindaraja has been managing her affairs including providing her medical treatment etc. , and in consideration of the services done by Sri Govindaraja and out of natural love and affection, she bequeathed the schedule property in favour of the said govindaraja who shall enjoy the schedule property as the absolute owner of the same after her dea

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