The burden of proof that a Will was validly executed and genuine is on the propounder, and suspicious circumstances surrounding the execution of the Will must be adequately addressed to discharge this burden.

JUDGMENT

S.B. Sinha, J.

Appellant is the son of Late Umeshchandra Madhav Joshi (hereinafter referred to as "the deceased"). He owned considerable properties. A Charitable Trust by the name of "Umesh Yoga Charitable Trust" was created by the deceased in his native village at Manor. For the said purpose, he donated 7 acres of land of his own. 4 acres of land was said to have been donated by the appellant herein. Deceased purchased a residential house at Dadar named "Umesh Dham" in 1949. The first floor of the said house was used for residence, which he also used for holding Yoga classes and also for manufacture of Hair Oil. Deceased started yoga classes. He also started manufacture of hair oil, namely, (Ramtirth Brahmi Hair Oil). Sometime thereafter, he along with his children shifted his residence to the ground floor of the said house. He had 7 sons and 3 daughters. Appellant herein is his second son. Respondent No. 2 allegedly eloped and married a Muslim boy. Respondent No. 1, however, had an arranged marriage. The relationship amongst the brothers and sisters, except respondent No. 2 was said to be cordial. Sudarshan, Jagdish and Pravin were allegedly helping the testator in management of the business of manufacture of hair oil. All his sons, namely, Sudarshan, Dr. Vishnu, Jagdish, Arvind, Sunil and Tarabai (respondent No. 2) lived together at the same house known as Umesh Dham. Appellant herein and another brother Sunil were not married.

Appellant is a doctor of repute. He is a Gynaeocologist and Obstreticist and his qualifications are M.D. (Obst. and Gyt.), FISC, FCPC, D.G.O.D.F.P. He started his practice in 1971. He opened a clinic and hospital at Parel.

From the records, it appears that the deceased was suffering from malignancy Liposercoma (sic). There are some evidences on record to show that he was also suffering from left ventricular failure with Ischemia heart disease. The deceased is said to have no faith in the allopathy system of medicine. He had developed some respiratory problem. He was investigated by Dr. Panikar, a student of Appellant. He was taken to ICU of Breach Candy Hospital on 13.11.1983 by Appellant and his wife.

On 14.11.1983, the deceased expressed his desire to execute a Power of Attorney as also a Will. On his purported instructions, Appellant contacted Mr. M.K. Mahimkar, Advocate, who was working with M/s Ramesh Shroff & Co. Mr. Mahimkar and Appellant visited the testator at Breach Candy Hospital. Deceased instructed Mr. Mahimkar to draft a Power of Attorney before drafting the Will as he expressed a desire to speak to his wife before executing the Will. He allegedly spoke to his wife. The Will was drafted the next day. While the Will was being drafted he asked Appellant and Pravin, his another son to wait outside the room. Appellant and Mr. Mahimkar visited the hospital during non-visiting hours for execution of the Will. It was drawn up in Mr. Mahimkars handwriting allegedly at the spot. They and one Mr. Phadke, classmate of Mr. Mahimkar entered the cubicle of ICU of the Hospital at 3.30 p.m. for execution of the Will. The deceased sent for Dr. Bhupender Gandhi, a friend of Appellant for attesting the Will. He reached the cubicle at about 4.30 p.m. The Will thereafter was executed.

Indisputably, the deceased was under the treatment of one Dr. Udwadia. of the said Hospital. Appellant neither treated him nor did he examine him at any point of time. He even did not know of the diseases he had been suffering from. On 21.11.1983, the deceased was discharged from the hospital. He received visitors on 22.11.1983. In the early morning of 23.11.1983, he allegedly asked his wife Tarabai to count the cash lying in the almirah. He died soon after having asked his wife for coffee.

After cremation of the dead body, the factum of execution of the Will by the deceased was disclosed. A meeting of the family members was arranged in the office of Mr. Mahimkar for ins