1. This Appeal is filed by the legal representatives of the defendant in O.S.4/2013 on the file of Principal District and Sessions Judge, Bagalkot. They have challenged the judgment and decree dated 1.4.2017 passed in the said suit granting probate of the Will dated 18.4.1996 executed by deceased Vimalabai Hanamantrao Gudur in favour of the plaintiff. Necessary facts may be stated briefly as below :

2. Property bearing TP 720 (old No.) and new No. 1006 in Ward No.II of Bilagi Town was allotted to the share of one Hanamantarao and his wife Vimalabai. In the year 1984, Hanamantarao died and his wife Vimalabai succeeded to the said property. The plaintiff and the defendant are the sons of Hanamantarao and Vimalabai. During the lifetime of Vimalabai, she had executed a Will on 18.4.1996 bequeathing the said property in favour of the plaintiff. She died on 4.12.2008. The plaintiff, after the death of his mother, made an application to Pattana Panchayath, Bilagi, for obtaining the transfer of records of the said property to his name. He was asked to obtain probate of the Will and therefore he filed a petition for probate, P & SC 2/2009 before the District Court, Bagalkot. The defendant contested the petition and therefore it was converted into suit. The District Court, after converting the petition into a suit, framed issues, examined the witnesses both on behalf of the plaintiff and the defendant and then granted probate of the Will in favour of the plaintiff by passing a decree. This judgment and decree is the subject matter of this appeal.

3. Learned counsel for the appellants argued two points that whenever a proceeding for probate is contested, it is not necessary that it must be converted into a suit. He argued that Section 295 of the Indian Succession Act, 1925 (for short ‘the Act’) does not contemplate conversion of a petition for probate into suit. What it states is that when a petition is contested, it must be decided as nearly as may be in the form of a suit. This does not mean that the petition must be converted into a suit.

4. His second limb of argument is that even if it is converted into a suit, decree cannot be drawn. The provisions of the Act relating to issuance of probate only say that if the due execution of the Will is established, probate has to be issued. Issuance of probate does not conclusively resolve the rights of the contesting parties. This cannot be brought within the meaning of the decree as found in Section 2 (2) of the Civil Procedure Code. Therefore, he argued that the District Court, Bagalkot has committed an error in passing a decree.

5. The learned counsel for the respondents argued that in view of the judgments of this Court in the case of PRESSY PINTO vs RONY MAXIM PINTO AND OTHERS [2009 (4) AIR Kar R 281] and H.N.CHINNA REDDY vs KRISHNAPPA REDDY [ LAWS (KAR) 2010 6 31], a contested probate proceeding must be converted into a suit and decree should be drawn. There is no illegality or infirmity in the impugned judgment.

6. From the above arguments, it is clear that the appellants do not question the issuance of probate to the plaintiff, what they question is the propriety of conversion of contested probate proceeding into a suit and drawingup of decree. These are the questions to be answered.

7. Section 295 of the Act states that when a probate proceeding goes contested, the procedure to be followed is as nearly as possible in the form of a regular suit. Only interpretation the phrase, ‘as nearly as may be’ takes is that all the procedures, to be followed while trying a suit, should be followed though in strict sense conversion into suit is not necessary. But, the procedure to convert a contested proceeding into a suit and treating the decision of the Court in such a case as a decree has evolved from the judicial pronouncements in this behalf. This Court in Miss. Pressy Pinto (supra) has held as below :

“From the reading of the above provisions of law and the decision of the division bench o