The burden of proof on the defendant to establish the validity of the Will, as per Section 58 of the Hindu Succession Act, 1956, influenced the Court's decision.

This is an appeal by the defendant against whom decree was passed by the Appellate Court by reversing the judgment and decree of the trial Court. The parties shall hereinafter be referred to as plaintiff and defendant.

2. A few facts necessary for the decision may be stated thus One Ganpat Peche owned the suit property. He died on 16-2-1987 leaving behind him the plaintiff as the only legal heir of Class-II, since the plaintiff is the son of Ganpat's real brother. The plaintiff contended that he is in possession of the suit property after the death of Ganpat. When Ganpat died he was more than 88 years of age. He was ailing for quite some time. He had lost his power of understanding since six months before his death. Once the plaintiff had sent deceased Ganpat with the defendant for medical treatment. Taking disadvantage of the same, it is alleged that Ganpat got executed a gift-deed as well as Will on 21-1-1987 in his favour. The defendant claims himself to be the adopted son even though he is not actually adopted by deceased Ganpat. The defendant has done this with an intention to grab the property of Ganpat. It is also the contention of the plaintiff that Ganpat had executed one Will in his favour on 19-1-1983 and the said document is also registered one. The plaintiff subsequently amended the plaint and claimed possession of the suit property alleging dispossession.

3. Defendant's contention is that the suit property was gifted and bequeathed to him by the deceased of his free will. He does not dispute the relationship between the plaintiff and the deceased. The defendant denies that the deceased was not mentally and physically fit. On the other hand, it is his contention that the deceased was mentally and physically fit and he voluntarily gifted and bequeathed the property in favour of the defendant. It is his contention that he is the adopted son of Ganpat and on that count also he is entitled to inherit that property. It is also contended by the defendant that he was taking care of deceased and the deceased was living with him. He also contends that deceased had actually put him in possession of the suit property. The defendant finally contends that since the property was gifted and bequeathed to him he has become the absolute owner of the suit property.

4. The learned Judge of the trial Court, upon consideration of the evidence, found that the deceased had gifted the property and had bequeathed the property to defendant and therefore, plaintiff was not entitled to any relief. Holding so, he dismissed the suit. The Appellate Court, however, found that the Will executed in favour of defendant is surrounded by suspicious circumstances and the defendant was unable to remove the suspicion. Holding so, the learned Judge allowed the appeal and decreed the suit. Being aggrieved by that, the defendant has come up in second appeal.

5. This appeal was admitted by Joshi, J. on the following substantial questions of law.

(i) Whether the judgment of the Appellate Court suffers from the defects of being perverse being passed on incorrect reading of the evidence on record?

(ii) When on the pleadings of the parties, the execution of Will was an admitted fact and the challenge thereto was on account of the testator not being in good state of mind to understand the effects of his acts, whether the Will can be faulted on the ground of suspicion etc.?

(iii) What is the effect of section 58 as to the burden on the defendant to prove the Will which was an admitted fact?

6. I have heard the learned counsel for the appellant and the respondent.

7. The undisputed facts can be stated thus:-

Deceased Ganpat was the real uncle of the plaintiff and the suit property exclusively belonged to Ganpat. It is also not disputed that the defendant is the distant nephew of deceased. The deceased Ganpat did not leave behind him his wife, daughter or natural son. The plaintiff, as stated, is the son of real brother of Ganpat. The plaintiff, therefore, falls i