Ashok B. Hinchigeri, J:

The petitioners have called into question the order, dated 25.05.2009 (Annexure-M), passed by the Court of the Principal City Civil and Sessions Judge, Bangalore in P&SC No.190/2006. By the impugned order, P&SC No.190/2006 is directed to be registered as original suit.

2. Sri B.K. Manjunath, the learned Counsel for the petitioners submits that the order converting the petition proceedings into suit proceedings is passed without affording the petitioner’s side the opportunity of being heard in the matter. He further submits that the learned City Civil Judge has committed an error by holding that the petitioners’ application for amendment filed invoking Section 229 of the Indian Succession Act, 1925 is allowed. He submits that in Writ Petition Nos.1005/2009 and 1678/2009, the said application was given up.

3. Sri B.K. Manjunath submits that the conversion of the petition proceedings into the suit proceedings is impermissible, as no party has raised any cloud over the validity of the Will as such. The only question that falls for the consideration of the probate Court is whether the executor has distributed the properties as per the wish of the testator. He submits that in the instant case, the executor has distributed a portion of the properties; the beneficiaries under the Will are yet to get their full respective shares. The petitioners were constrained to approach the Court below, as the executor had not discharged the obligations specified under the Will.

4. Sri B.K.Manjunath has relied on the Full Bench decision of this Court in the case of Smt. Severine D’souza and Another Vs. Felix Ambrose D’Souza, reported in ILR 2003 Kar 194. While disposing of the Reference, the Full Bench has expressly disapproved of the Division Bench decision in the case of Mariabai and another Vs. Jayamma in M.F.A.No.2353 of 1990 that once a probate application is converted into a civil suit, the Court gets jurisdiction to determine the question of title to the property and the compentency of testator to execute a Will or not.

5. Sri B.K.Manjunath has also relied on the Hon’ble Supreme Court’s decision in the case of Chiranjilal Shrilal Goenka (Deceased) through LRs. Vs. Jasjit Singh and Others, reported in (1993) 2 SCC 507, wherein it is held that the probate Court alone has the exclusive jurisdiction and the Civil Court on the original side or the Arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executor/executrix/applicant.

6. Nextly, Sri B.K.Manjunath also brings to my notice the Apex Court judgment in the case of Clarence Pais and Others Vs. Union of India, reported in (2001) 4 SCC 325, to support his contention that unless the probate Court grants the probate, a party cannot even file a suit for declaration. He further submits that the scope of the original suit and of the petition under Indian Succession Act is entirely different.

7. Per contra, Sri D.N.Manjunath, the learned Counsel appearing for the respondent Nos.1 to 4 submits that the impugned order does not suffer from any infirmity. As the respondents have filed an elaborate statement of objections running into 40 pages raising the complicated questions of law, the Court below has rightly converted the petition proceedings into the suit proceedings.

8. Sri D.N. Manjunath further submits that the Will is executed amongst the beneficiaries of the Will with their consent. As the executor-cum-beneficiary of the Will has done his job, nothing survives for any consideration of the request for the issuance of any direction to the executor.

9. In support of his submission, Sri D.N. Manjunath brings to my notice the Gujarat High Court’s judgment in the case of Chandravadan Manubhai alias Manwantrai Mehta Vs. Nalini Navain Bhagwati and Others reported in AIR 1996 Gujarat 123, wherein it is held that provisions of consultation and conversion are meant for advan