In a case of undue influence, the burden of proving the absence of undue influence rests upon the defendant if it is established that the defendant was in a position to dominate the will of the plaintiff and that the transaction was unconscionable.

JUDGMENT:- This is a plaintiff's second appeal directed against the concurring judements of the Courts below dismissing his suit brought for setting aside a deed of gift dated 14th July, 1964 in favour of the defendant-respondent Paras Ram. The plaintiff's counsel had put forward a case for the cancellation of the gift-deed quite inartistically in paragraph 3 of the plaint as follows:-

"The defendant who is a cunning and mischievous person brought the plaintiff, who is a simple and old person aged 70 years, under his undue influence, for some time, and by making misrepresentations, deceived and defrauded him. The defendant told the plaintiff that he would manage his property, and that for this purpose, he should execute a general power of attorney (Mukhtiarnama), and, due to this deception he got a document executed and attested and registered, of which a copy is marked as Ex.D-1."

In paragraph 4 of the plaint he stated:-

"After some time, the plaintiff learnt that the document which had been executed was a gift-deed for the whole of his property, but this was executed by fraud, undue influence, and mis-representation and pressure which is entirely illegal and is liable to be set aside."

2. It is clear from these pleadings that the plaintiff had not given particulars of the undue influence although he alleged that there was some influence and pressure brought to bear noon him and that he was too old and simple an individual to be able to resist that pressure. After that, the plaintiff went on to allege that actually he was defrauded by misrepresentations made by the defendant.

3. The defendant, while denying these allegations, stated in para 5 of the written statement:-

"The defendant's sons had turned out the plaintiff from his house so that he was living in the house of the defendant and there he was being looked after during his ill-health and the defendant was serving the plaintiff in every respect and feeding him and clothing him and getting him treated so that, out of his own desire or free will, the plaintiff executed a gift-deed in favour of the defendant which is quite valid and correct and is not liable to be set aside. Moreover, the defendant has spent considerable amount on the illness of the plaintiff and is maintaining him and looking after him so that under the conditions of the gift, and according to the custom and law, the gift-deed is not revocable."

4. It is clear from the abovementioned paragraph that there was a gift-deed which was alleged to have been executed without pressure of any kind upon the plaintiff. The statement that the defendant's sons had driven out the plaintiff from his house could only be interpreted, in the light of the evidence on behalf of the defendant himself, as meaning that the sons of the plaintiff himself had done that. It was however, clear that the defendant alleged that the plaintiff was in an ailing and helpless condition and that he had been looked after and cared for by the defendant. The natural inference would be that the plaintiff would be highly obliged and would be under his influence. The result is that what the pleadings of the plaintiff lack in particulars about the undue influence was supplied by the pleadings of the defendant. Nevertheless, the Courts below seemed to have been misled by the confusing nature of the pleadings. The trial court framed the following common issue No.3 on the pleas of fraud and undue influence:- fraud and undue influence:-

"Issue No.3: Whether the gift-deed was obtained by the defendant by fraud and under undue influence, if so, its effect?" of undue influence also, did not consider its requirements at all. It did not determine whether the defendant was in a position to dominate the will of the plaintiff so as to be able to induce him to execute a gift-deed in accordance with his wishes if he had so desired. Although the plaintiff has alleged a pressure on his mind at the time of the executing of the gift-deed, the nature of this pressur