Prakash Tatia, J. - (1.) HEARD learned Counsel for the parties.
(2.) THE petitioner -defendant submitted an application under Section 90 of the Evidence Act for drawing presumption about the Will dt. 13.11.1948. Said application of the petitioner -defendant was dismissed by the trial Court only on the ground that the issues have already been framed and burden to prove the Will as per the issue No. 9 is upon the defendant, therefore, there is no justification for drawing presumption about the due execution of the Will under Section 90 of the Evidence Act. Learned Counsel for the petitioner submitted that the reason given by the Court below for rejecting the petitioner 's application filed under Section 90 of the Evidence Act by impugned order dt. 06.04.2005 is contrary to law as well as contrary to the law laid down by the Division Bench of this Court in the judgment delivered in Hazarilal and Anr. v. Sh. Shyamlal and Ors. reported in, 2007 (1) WLC (Raj) 789 wherein issue was referred to the Division Bench by this Court for considering of the law laid down by earlier judgments of this Court with respect to the time by which the presumption under Section 90 of the Evidence Act can be drawn.
(3.) ACCORDING to learned Counsel for the petitioner in view of the earlier judgments as well as Division Bench judgment of this Court, a party can claim drawing of presumption under Section 90 of the Evidence Act at any stage of the suit as well as even at the appellate stage also.;