1. This is a defendants' second appeal arising out of a suit for cancellation an a possession.

2. The suit giving rise to this appeal was filed by one Chhotey Lal and his wife Smt. Tulsa. The defendants in the suit, who are appellants, are Debi Prasad and his wife Smt. Bitti. Debi Prasad is admittedly a grandson of the own brother of Chhotey Lal. During the pendency of this appeal both Chhotey Lal and Smt. Tulsa died. Smt. Tulsa died leaving Chhotey Lal as her sole heir and on the death of Chhotey Lal respondents Nos. 1 to 4 have been impleaded as his heirs. The suit was filed on the allegation that in November 1954 when Smt. Tulsa fell ill appellant No. 1 offered his help to the plaintiffs who were old, infirm and weak and had none to look after them. They accordingly welcomed the help of Debi Prasad appellant No. 1 and sometime thereafter they agreed to execute a will in respect of their only property, namely the house in dispute, with the result that on 17th December, 1954, they actually executed a deed under the belief that it was a deed of will. Subsequently when appellant No. 1 ill-treated them they discovered on getting the deed read out to them that the suit was filed praying for the cancellation of the deed on the ground that the plaintiffs had been defrauded to execute it. There was also a prayer for possession on the allegation that a portion of the house in suit was in occupation of the appellants.

3. The claim was contested by the appellants mainly on the ground that out of natural affection and love the plaintiffs executed the deed of their free will knowing it full well that it was a deed of gift. According to the allegations in the written statement appellant No. 1 who is a grandson of the own brother of Chhotey Lal, lived with the plaintiffs since his childhood and that is why the plaintiffs, who had no issue, executed a deed of gift of their own volition in favour of appellant No. 1

4. The trial Court held that the plaintiffs had failed to prove the case of fraud set up by them and accordingly dismissed the suit. On appeal by the plaintiffs the first appellate court came to the conclusion that even though there was no satisfactory evidence to prove fraud it was clear from the evidence on the record that the plaintiffs never intended to execute a deed of gift and as such they were entitled to the relief of cancellation asked for. The relief for possession was not pressed in appeal on the ground that the appellants had already vacated the house Accordingly the first appellate court allowed the appeal and decreed the claim for the cancellation of the deed of gift referred to above. It is in these circumstances that the defendants have come up in second appeal.

5. I have heard learned counsel for the parties at some length. The main contention of the learned counsel for the appellants is that in view’ of the finding recorded by the first appellate court that the plaintiffs had failed to prove their case of fraud the decree for cancellation passed by it cannot be justified. Elaborating his argument learned counsel proceeds to urge that as required by O. VI, R. 4 of the CPC the party pleading fraud, coercion or undue influence has to give particulars thereof and has to be confined to the proof of those very particulars. He urges that a perusal of the plaint would show that it fails to furnish particulars of the alleged fraud and does not raise any case of undue influence or misrepresentation. In support of his contention that particulars must be given whenever fraud, undue influence or coercion is pleaded learned counsel places reliance on the case of Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280. In this connection he places reliance on the observations made in paragraphs 24 and 25 appearing on p. 283 of the report.

6. Having considered the points urged by the learned counsel I have come to the conclusion that his contentions are not sound and do not deserve to be accepted. As already mentioned it is not in dispute that Chhotey Lal and his wife, who filed the suit giving rise to this appeal, were old, weak and infirm in 1954 when the deed in question came to be executed. It has further been found by the first appellate court that Chhotey Lal was deaf and incapable of appreciating the nature of the deed he executed in December 1954. It is again not in dispute that appellant No. 1, who is a grandson of the own brother of Chhotey Lal, lived with the plaintiffs since sometime before with the result that the plaintiffs had come to place reliance in him in so far as they had no issue nor any one else to look after them. These facts alleged in the plaint are not controverted. Further allegation in the plaint is that on the request of appellant No. 1 the plaintiffs agreed to execute a deed of will in his favour and that they never intended to execute a deed of gift nor had known that the deed executed by them was a deed of gift till they got it read over to them when appellant No. 1 started ill-treating them sometime after the execution of the deed. It may be that the plaint does not use the expression “undue influence” or the expression “misrepresentation” but simply uses the expression “fraud”. That fact by itself would not stand in the way of the court's giving effect to the pleas actually constituted by the facts alleged in the plaint and not controverted in defence.

7. A reference to Section 16 of the Contract Act would show that a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. Then we have sub-section (2) of S. 16 to say that a person is deemed to be in a position to dominate the will of the other where he makes a contract with a person whose mental capacity as temporarily or permanently affected by treason of age, illness, or mental or bodily distress. Lastly sub-section (8) of S. 16 provides that where a person who is in a position to dominate the will of another enters into a contract with him and the transaction appears on the face of it or on the evidence adduced to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. In the instant case it is obvious from the facts not in controversy (as mentioned above) that appellant No. 1 was in a position to dominate the will of Chhotey Lal and his wife and further that the deed of gift relied on by the appellants was her unconscionable transaction in so far as the executant thereof deprived themselves thereby of the only immovable property they possessed and for no consideration whatsoever. It shall thus appear to be a case of unconscionable transaction on the face of it. In these circumstances the burden lay on the appellants to prove that the transaction was not induced by undue influence.

8. We may further refer to Section III of the Evidence Act in this connection. It provides that where there is a question as to the good faith of transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. So there is no escape from the conclusion that once the material facts alleged in the plaint were not controverted in defence it lay heavily on the appellants to establish that the deed relied on by them was not induced by undue influence but was executed by the plaintiffs in good faith out of their free volition.

9. The evidence adduced by the appellants has been fully discussed by the first appellate court. It has discarded their evidence given in an attempt to show that the plaintiffs fully appreciated the import of the deed in question when they executed it. I am unable to find any fault with this conclusion of the first appellate court or to take a different view of the oral evidence adduced by the appellants in support of their version. The principle involved in such cases is explained in (1888) 36 Ch. D 145 by Lindley, L.J in the following words:

“The principle must be examined. What then is the principle? Is it that it is right and expedient to save persons from the consequences of their own folly? or is it that it is right and expedient to save them from being victimized by other people? In my opinion the doctrine of undue influence is founded upon the second of these principles. Courts of Equity have never set aside gifts on the ground of the folly, imprudence, or want of foresight on the part of donors. The Courts have always repudiated any such jurisdiction. (1807) 14 Ves 273 is itself a clear authority to this effect. It would obviously be to encourage folly, recklessness, extravagance and vice if persons could get back property which they foolishly made away with…… On the other hand to protect people from being forced, tricked or misled in any way by others into parting with their property is one of the most legitimate objects of all laws.”

Again in the same case Cotton, L.J observes:

“In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.”

Lord Halsbury summarizing the English law on the point says:

“There are two classes of cases in which gifts are set aside by Courts of Equity on the ground of undue influence; first where the Court has been satisfied that the gift is the result of influence expressly used by the donee for the purpose; secondly where the relations between the doner and the donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor in such a case the Court sets aside the gift unless it is proved that it was in fact the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justify the Court in holding that the gift was the result of the free exercise of the donor's will

In case where such relationship is shown to exist, the party seeking relief has not to prove that actual fraud or coercion or even direct persuasion was employed; he has but to prove the existence of the confidential relation, and then the onus falls upon the party seeking to uphold the conveyance of proving that the power conferred by the relation was not abused.” (Vol. 15 Halsbury's Laws of England, para 491).

10. Having in view the legal position as discussed above the finding arrived at by the first appellate court appears to be perfectly correct and does not call for any interference. I, therefore, see no substance in this appeal and dismiss it with costs.

CJ/RSK/D.V.C

11. Appeal dismissed.