This appeal is directed against the order dated 04.09.2007 passed by the Principal District Judge, Belagavi in P & SC No.5/2002 ordering probate of the Will dated 20.06.2001 in favour of the respondents.

2. The facts leading to the appeal are as follows:

(i) The respondent Nos.1 & 2 (hereinafter referred to as petitioner Nos.1 & 2) propounded a Will said to have been executed by their father late Satteppa Hanchinamani on 20.06.2001 bequeathing to them half share each in the house property bearing No.563 and open space bearing No.351 situated at Yamakanamaradi in Hukkeri taluk. In the petition, the appellant herein was arrayed as the sole respondent. He opposed the petition inter alia contending that the petition was bad for non-joinder of necessary parties; the deceased Satteppa was not in sound state of mind to do any transaction much less to execute the alleged Will. The Will propounded by the petitioners is a created document in collusion with the witnesses and the doctor who has falsely certified that the deceased was in sound state of mind. It is a created and concocted document. The respondent also denied that the deceased Satteppa was the exclusive owner in actual and physical possession of the properties involved in the Will.

(ii) The Trial Court recorded the evidence of the GPA of the petitioners, as well as the evidence of the medical officer and the attesting witnesses and the scribe to the Will. The original Will was marked as Ex.P-8. Rebutting the above evidence, the appellant herein examined himself as RW-1 and produced in evidence 10 documents in support of his contention. Upon hearing the parties and considering the material produced by the parties by the impugned order, the Probate Court directed issuance of the probate to the petitioners in accordance with law.

(iii) Feeling aggrieved by the impugned order, the sole respondent before the Court below has preferred this appeal.

3. I have heard the learned counsel appearing for the parties and have scrutinized the original Will, as well as the oral and documentary evidence on record.

4. The main contention urged by the learned counsel for the appellant is that, PW-1 was the Power Of Attorney of the petitioners. He was not competent to speak about the due execution of the Will and hence his evidence could not have been taken into consideration in proof of the Will propounded by the petitioners. He has further contended that, the deceased was aged 86 years at the time of his death. The Will in question is stated to have been executed by him 25 days earlier to his death. He was not in a fit physical and mental condition to execute the said Will. He further contended that the appellant/respondent had specifically disputed the execution of the Will, as well as the mental capacity of the testator to execute the said Will. In view of the said contentions, the proceedings had become contentious and therefore, it was incumbent on the Court below to convert the petition into a regular suit as prescribed in Sec. 295 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Act’, for brevity); but the Trial Court proceeded to dispose of the petition in a summary way contrary to the provisions of the Act; therefore, the entire proceedings are vitiated and are liable to be set aside. With regard to the findings recorded by the Trial Court, the learned Counsel would contend that the petitioners have failed to prove the due execution of the Will. The doctor examined by them is an interested witness and hence he pleads that the impugned Judgment be set-aside and the probate ordered to the petitioners be cancelled.

5. Refuting the above contentions, the learned counsel appearing for the petitioners would submit that, merely because the deceased was advanced in age cannot be a reason to hold that he was not in a fit condition to execute the Will or that the Will is shrouded with suspicion. The execution of the Will is duly proved by examining the attesting witnesses a