JUDGMENT : In view of notice for final disposal issued on 04.01.2016 the learned counsel for the parties have been heard at length. 2. Admit. Taken up for final disposal with consent of parties. 3. This appeal has been filed under Section 299 of the Indian Succession Act, 1925 (for short, the said Act) challenging the order dated 27.07.2015 passed by the learned Joint Civil Judge, Senior Division, Nagpur in Probate Petition No. 6 of 2012 thereby dismissing the proceedings for issuance of probate and granting liberty to the appellant to have the claim adjudicated before the competent Civil Court. 4. Facts in brief are that the appellant claims entitlement to a plot of land alongwith property constructed thereon on the basis of will executed by Smt. Manoramabai Khobragade and Shri Marotrao Khobragade on 24.09.2003. According to the appellant he had been named as executor in the said will. The appellant therefore filed a petition under Section 276 of the said Act for grant of probate. The respondents herein were duly served. They filed their reply to the aforesaid proceedings. The respondent no.1 pleaded that the appellant had no right whatsoever under the said will and thus disputed his entitlement. The respondent no. 2 however also claimed entitlement on the basis of will dated 24.09.2003. 5. The appellant thereafter led his evidence in the probate proceedings. On 08.10.2013 as the respondent no.1 and his counsel were absent the right to cross-examine the appellant was forfeited. Thereafter on 18.09.2014 the respondent no.1 and his counsel was absent and hence the side of the respondent no.1 was closed. On 15.11.2014 the respondent no.1 filed an application below Ex. 66 for permission to lead evidence. He also filed an application below Ex. 67 in which a prayer for dismissal of the proceedings was made. In the said application it was stated that in view of the provisions of Section 213 of the said Act, the proceedings itself were not competent and that the requirements of Section 57 of the said Act were not satisfied. It was then stated that as the proceedings were being contested, the same ought to have been converted into a suit. 6. The aforesaid application was opposed by the appellant by filing reply at Ex. 69. It was then stated that as the proceedings were being contested, the same ought to have been converted into a suit. 6. The aforesaid application was opposed by the appellant by filing reply at Ex. 69. Reference was made to the provisions of Section 28A(1) of the Bombay Civil Courts Act, 1869 with regard to the manner in which contentious proceedings were required to be decided. It was also stated that the appellant had examined himself and one witness and had closed his side. The respondent no.2 had thereafter filed his evidence on affidavit and at that stage the respondent no.1 had filed the application for dismissal of the proceedings. It was therefore stated that the proceedings ought to be treated as contentious proceedings and decided on merits. By the impugned order dated 27.07.2015 the learned Judge of the trial Court held that in view of the provisions of Section 213 read with Section 57(c) of the said Act it was not necessary to obtain probate of the will. The application below Ex. 67 was therefore allowed and the proceedings came to be dismissed after granting liberty to the appellant to file appropriate proceedings for adjudication of his claim before the competent civil Court. 7. Shri C.F. Bhagwani, the learned counsel for the appellant submitted that the trial Court was not justified in dismissing the proceedings for grant of probate. He submitted that as the prayer for grant of probate was being contested by the respondent no. 1, the procedure as prescribed by Section 295 of the said Act was required to be followed. He submitted that in fact the appellant had led his evidence in support of the prayer for grant of probate and after the side of the respondent no.1 was closed, the application for dismissal of the proceedings was filed. It was then submitted that even if it was not necessary for executor to establish his right under Section 213 of the said Act, once the proceedings for grant of probate had been filed and the same became contentious the proceedings were required to be decided by following the procedure prescribed by Section 295 of the said Act. The learned counsel placed reliance upon the judgment of the Division Bench in Gajanan Chandrarao Sawant Vs. Mrs. The learned counsel placed reliance upon the judgment of the Division Bench in Gajanan Chandrarao Sawant Vs. Mrs. Chandrabhaga Chandrarao Sawant and others 2001(1) Civil LJ 332 and the judgment of learned Single Judge of the Gujrat High Court in Chandravadan Manubhai alias Manwantrai Mehta Vs. Nalini Navin Bhagwati and others AIR 1996 Gujarat 123. He therefore submitted that the present proceedings itself can be permitted to be converted into civil suit for being tried by the competent Court. 8. Shri M.R. Joharapurkar, the learned counsel for the respondent no.1 on the other hand supported the impugned order. He submitted that as the proceedings for grant of probate were not maintainable in view of provisions of Section 213 read with Section 57 of the said Act, there was no question of converting the proceedings for being tried as a suit. He referred to the provisions of Section 264(2) of the said Act and submitted that no Notification had been issued by the State Government conferring jurisdiction on the District Judge to grant or revoke probate in Nagpur district. It was submitted that as the proceedings itself were not maintainable there was no question of seeking its conversion for being tried as a civil suit. In support of his submissions the learned counsel placed reliance upon the judgments in Vishnu Ramchandra Undage Vs. Ganapati Ramchandra Undage & others 2005(4) Maharashtra Law Journal 1108 and Madhukar Rajanna Darbhe Vs. Union of India and others 2008(2) Bom. C. R. 418. He therefore submitted that the proceedings were rightly dismissed by the trial Court. 9. Shri Manke, the learned counsel appearing for respondent no.2 however supported the submissions made on behalf of the appellant. Relying upon the judgment of the Hon'ble Supreme Court in the case of Balbir Singh Wasu Vs. Lakhbir Singh and others (2005) 12 Supreme Court Cases 503, it was submitted that considering the observations made in para 5 of the said judgment it was open for the Court to entertain an application for grant of probate even if the matter was not covered by Section 213 of the said Act. 10. I have given due consideration to the respective submissions and I have also gone through the records of the case. The point that arises for determination is: Whether the trial Court instead of dismissing the proceedings ought to have converted the same for being tried as a civil suit? 10. I have given due consideration to the respective submissions and I have also gone through the records of the case. The point that arises for determination is: Whether the trial Court instead of dismissing the proceedings ought to have converted the same for being tried as a civil suit? 11. The facts on record indicate that the appellant is seeking probate with regard to the will executed on 24.09.2003 in which the appellant has been shown as an executor. In these proceedings the respondent no.1 by filing reply has opposed the prayer for grant of probate. In view of such opposition, the proceedings have become contentious in view of the provisions of Section 295 of the said Act. The question however is on such proceedings becoming contentious whether the same deserve to be dismissed by relying upon the provisions of Section 213 read with Section 57(b) of the said Act. 12. In Balbir Singh Wasu (supra) probate proceedings were filed before the Court which had no jurisdiction to entertain the same. In that context while considering the provisions of Section 213 of the said Act and the situation where probate proceedings have been filed at a place not covered by Section 213 of the said Act, in para 5 of the said judgment it was observed thus: “5. The appellant's counsel then contended that Section 213 of the Succession Act which requires an executor to obtain probate before establishing his claim under the Will was not applicable outside the Presidency Towns of Calcutta, Madras and Bombay. Assuming this to be correct, we do not read Section 213 as prohibiting the executor from applying for probate as a matter of prudence or convenience to the courts in other parts of the country not covered by Section 213. Those courts are competent to entertain such applications if made.” The aforesaid observations indicate that the proceedings for grant of probate were permitted to be continued despite the same having been filed in a Court which was not covered by Section 213 of the said Act. Thus if the probate is sought as a matter of prudence in a Court that is not covered by the provisions of Section 213 of the said Act, such Court would be competent to entertain the application for probate. Thus if the probate is sought as a matter of prudence in a Court that is not covered by the provisions of Section 213 of the said Act, such Court would be competent to entertain the application for probate. In the present case, though the provisions of Section 213 of the said Act would not apply to seek grant of probate, the proceedings would have to be entertained on merits. 13. Admittedly, the appellant had already led his evidence in support of the application as made. Though the right of the respondent no.1 to lead evidence was forfeited, an application for setting aside said order was also moved by the respondent no.1. In these facts therefore if the present proceedings are permitted to be converted into a suit as the same have become contentious, the same would result in avoiding multiplicity of proceedings. Similar course was followed in the case of Chandravadan Mehta (supra) by the Gujarat High Court. Similarly, the Division Bench in Gajanan Chandrarao (supra) permitted the proceedings to be tried as a suit after noticing the contest between the parties. 14. The judgment of learned Single Judge in the case of Vishnu Ramchandra Undage (supra) relied upon by the learned counsel for respondent no.1 refers to the proceedings for probate being filed in a city not covered by Section 213 of the said Act. It was held that the executing Court was not correct in holding that the will in question required probate. Said decision is on the aspect of requirement of obtaining probate which issue does not arise in the present case. Similarly, the decision in Madhukar Rajanna Darbhe (supra) considers challenge to the validity of the provisions of Section 57 of the said Act. Said provision has been held to be constitutionally valid. This decision also does not assist the case of the respondent No.1. Considering the observations of the Hon'ble Supreme Court in Balbir Singh Wasu (supra) as a matter of prudence if a party applies for grant of probate even in a Court not covered by Section 213 of the said Act, such proceedings can be entertained. 15. The trial Court relied upon the provisions of Section 213 read with Section 57(c) of the said Act while dismissing the proceedings. 15. The trial Court relied upon the provisions of Section 213 read with Section 57(c) of the said Act while dismissing the proceedings. Considering the observations of the Hon'ble Supreme Court in Balgir Singh Wasu (supra) in the facts of the present case if the present proceedings are permitted to be converted into a civil suit for adjudication as the same have become contentious, such course would serve the ends of justice. The point as framed is answered by holding that the trial Court ought to have itself converted the proceedings into a civil suit for being tried on merits instead of dismissing the same. 16. Accordingly following order is passed: 1. The order dated 27.07.2015 passed below Ex. 67 and the consequential order passed below Ex. 1 is quashed and set aside. 2. The probate proceedings are restored on the file of the trial Court. The trial Court shall pass appropriate order in terms of Section 295 of the said Act for treating the proceedings as contentious. The proceedings shall be decided on their own merits without being influenced by any observations in this order. It would be open for the parties to raise appropriate defences in accordance with law. The record of the proceedings be sent to the trial Court forthwith. 3. The First Appeal is allowed in aforesaid terms with no order as to costs.