VERMA, J. - (1.) THIS civil misc. appeal has been preferred against the order dated 28. 5. 1990 passed by the District Judge, Ajmer, whereby the probate has been granted to the respondent Smt. Shanti Devi under Section 299 of the Indian Succession Act, 1925.
(2.) ONE Smt. Dakha had died on 31. 12. 1977 leaving certain property. Application under Section 276 of the Indian Succession Act was filed by the respondent with the prayer that Smt. Dakha had executed a registered Will in her favour on 29. 9. 1977 and the probate letter be issued to her in connection with the property in question. Application was opposed by the present appellant with the prayer that he is relative of the deceased Dakha and no Will was executed on 29. 9. 1977. The application of probate was allowed on 28. 5. 1990 which is challenged in the present appeal. It is the contention that as per the statement of PW-1 Kanhaiya Lal, Smt. Dakha was not in senses when she had executed the Will and when she had put her thumb impression. It is also the contention that Umrao Singh had not been produ- ced. It is stated that Shanti Devi herself did not appear in the court. Her husband had appeared and, therefore, an adverse inference should have been drawn against her. The trial court had framed the required issues. On issue No. 1 it was held by the trial court that the Will Ex. 1 was proved by PW-1 Kanhaiya Lal, PW-2 Kailash Narain, PW-3 Gainda Lal which was registered on 29. 9. 1977 before the Sub- Registrar, witnessed by Umrao Singh and Kanhaiya Lal. Even though Umrao Singh had not been produced, but it has been proved by the witness Kanhaiya Lal and PW-2 Kailash Narain who had stated that at the direction of Smt. Dakha, Will Ex. 1 was executed by Kailash Narain which was entered into his register Ex. 2. Smt. Dakha was identified by Kanhaiya Lal and Gainda Lal and that Smt. Dakha had executed the Will which was got registered at the instance of Smt. Dakha. PW-3 Gainda Lal is the husband of Smt. Dakha who has confirmed these facts. The trial court had found that the Will had been proved to have been executed in favour of respondent Shanti Devi. Per contra, learned counsel for the respondent submits that the Will was executed a few months before the death of Smt. Dakha and she was at the time suffering from descentry and was not in senses. The defendant's version was supported by Ratan Singh DW 3 and Gokul Chand DW -2, however, it was admitted by the defence witnesses as well that even at the time of death Smt. Dakha was living with Shanti Devi where she was taking her meals as well.
(3.) ORIGINAL record has been seen. Only contention of the learned counsel for the appellant is that for the reason that Shanti Devi herself had not come in the witness box, but her husband Gainda Lal was produced as PW-3, therefore, it is to be presumed that there was no evidence at all as the husband even if he may be having power of attorney in his favour by Shanti Devi, but he can only be treated as witness and not a party. The only question being raised is that in the circumstances if a party does not appear in the witness box, his power of attorney appears, in such situation, whether it is a case of no evidence. ;