Honble PALSHIKAR, J. - This appeal is directed against the judgment dated 17th May 94 passed by Honble Single Judge of this Court in S.B.Civil Misc. Appeal No. 2 of 1994, confirming the judgment dated 4.12.93 passed by the District Judge, Jodhpur, granting Probate of a will under the Indian Succession Act, 1925.

(2). The facts giving rise to the appeal, stated in brief, are that one shri Sohan Lal expired on 9.10.89 leaving a Will in respect of his properties. He was employed as a Mistry in the Rajasthan State Electricity Board and had retired from service months before his death. Proceedings were, therefore, initiated under the Indian Succession Act to obtain probate of this Sill. Grant of probate was opposed by the present appellant Smt. Suraj Devi, widow of Sohan Lal Mali on the allegation that the Will is a forged document . It has been created to deprive her of her succession rights, she being legally married wife of Sohanlal.

(3). In the proceedings, it was submitted by the respondent Sita Devi, in whose favour the Will is made, that Suraj Devi was divorced in 1948 and the deceased Sohanlal stayed with his brothers and sister and the sister used to look after him and, therefore, out of natural love and affection the Will was voluntarily executed by Sohanlal. Taking into consideration the entire evidence on record, the learned District Judge came to a conclusion that the Will was genuine, it was duty proved as requited by s. 63 of the Indian Succession Act. He, therefore, ordered grant of probate.

(4). This order was impugned in Misc. Appeal No.2/94 on several grounds mentioned in the memo of appeal.

(5). The learned single judge, on reappreciation of the evidence and evaluation of the submissions made at the Bar, came to the conclusion that the grant of Probate was legal and proper. He, therefore, dismissed the appeal. Hence, the present Dpecial Appeal.

(6). The learned counsel appearing on behalf of the appellant challenged concurrent orders on the following grounds: —

(i). That the learned Single Judge has gravely erred in observing that as the close relations have admitted about a custom of divorce, hence the same is proved by the so called compromise Ex.1. If may be relevant to mention that for proving the custom, the five points mentioned hereinabove in para 4 have to be proved, however,none of them has at all been proved, nor is there any finding of the courts below about proof of the said points the judgment of the learned Single Judge suffers from a substantial error of law.

(ii) That the statement of the witnesses of the respondents have not been properly scrutinised by both the courts below. As for the learned Single Judge, he has not even held that the appellant was minor in the year 1948, that cuts at the root of the authority of the father to enter into a compromise or settlement of the appellants divorce. The question of presumption etc. is only relevant to prove the execution of Ex. 1 by the appellants father, but so far as the authority is concerned the same cannot be proved by the circumstances relied on by the learned Single Judge. The judgment is thus suffering from substantial error of law.

(iii). That the learned single Judges obsevation that even if the appellant did not put her signature, the document having not been challenged for such a long time, cannot be ignored firstly, it is not alleged or proved that the appellant had knowledge of the document before these proceedings, hence the question of no challenge does not arise. Secondly, when the consent of the appellant is neither alleged nor proved, the document cannot be validated by the duration of its standing. The whole approach of the learned Single Judge is erroneous in law.

(iv). That though it is emphatically asserted that the appellant was major in 1948 and is supported by evidence of the respondents also. Not only this the copies of horoscope of the appellants daughter had been submitted with an application under 0.41. R.27. C.P.C. but it later t

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