BHARGAVA, J.—This appeal arises from the decree of the District Judge, Jaipur City dismissing the plaintiffs suit for declaration that the deed of gift dated 27th March, 1954 (Ex. A-l) executed by Kalu Khan father of the appellants in favour of respondent was void as it was obtained by undue influence, fraud and misrepresentation in order to defeat the claim of his rightful heirs i. e., son and daughters.

2. The suit was decreed by the trial court but the learned District Judge has reversed that decree. The suit was instituted by the donor Kalu Khan. He died during the pendency of the suit and thereafter, the suit was continued by his son and daughters.

3. It cannot be disputed that Kalu Khan who had executed the gift deed was an old man of 61 years, had no source of income, was illiterate, had three daughters to be married—his wife having already died, relying upon the respondent—his grand nephew, for everything even for his maintenance. His relations with his son who was living separately were strained. These facts are borne out from the contents of Ex. A-l as also from the statement of Kalu Khan and respondents own witnesses Wajid Bux (D. W. 3), Nazir Khan (D. W. 5) and Abdal Hamid (D. W. 6). It is also indisputable that Kalu Khan had no other property besides the house in dispute.

4. The trial court in view of the above circumstances came to the finding that there was clearly a fraud played upon Kalu Khan and the Hiba was obtained in pursuance thereof. The court however held that there was no evidence of undue pressure though fraud was established.

5. The learned District Judge did not take notice of the relationship of the donor and donee and the fact that the latter was in a position to dominate the will of the donor. The learned Judge held that there was no evidence on record to suggest that when the Hibanama was executed the donee intended to defraud the donor. He further observed that "Kalu Khan was advised by his friends at the material time that he should desist from making a gift of his property, but that advice fell on deafears vide depositions of Kamruddin (P.W. 4) and Karim Khan (P.W. 6)." Both the courts failed to take notice of the provisions of sec. 16 of the Indian Contract Act and sec. 111 of the Indian Evidence Act.

6. Undue influence is defined in sec. 16 of the Indian Contract Act. In the case of Poosathurai vs. Kannappa Chettiar (1) it was pointed out by the Judicial Committee that :

"It is a mistake to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point influence alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, undue. It must be established that the person in a position of domination has used that position to obtain unfair advantage for himself, and so to cause injury to the person relying upon his authority or aid.

And where the relation of influence, as above set forth, has been established, and the second thing is also made clear, viz., that the bargain is with the influencer and in itself unconscionable then the person in a position to use his dominating power has the burden thrown upon him, and it is a heavy burden, of establishing affirmatively that no domination was practised so as to bring about the transaction, but that the grantor of the deed was scrupulously kept separately advised in the independence of a free agent."

Again in the case of Raghunath Prasad Sahu Vs. Sarju Prasad Sahu (1) it was stated by the Judicial Committee that—

"By sub-sec. 3 of sec. 16 three matters are dealt with. In the first place the relations between the parties to each other must be such that one is in a position to dominate the wi

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