The burden of proving undue influence lies on the party pleading it, and once the party has established that the relations between the parties were such that one of them was in a position to dominate the will of the other and that the transaction secured unfair advantage to the person in a position to dominate the will of the other, it will be presumed that the transaction was induced by undue influence unless the other party proves that it was not.

JUDGMENT :- This is a second appeal by the plaintiff, Mst. Reshmi, whose suit for cancellation of a sale-deed, dated 5-7-1948, and registered the following day, in respect of zamindari and house property for the ostensible consideration of Rs. 1,400/- in favour of the defendant-respondent Ghungaria was decreed by the trial Court, but dismissed on the defendants appeal by the District Judge of Mahasu and Sirmur. The suit was filed on the ground that the sale had been brought about by the defendant by the exercise of undue influence and fraud.

2. The recital in the sale-deed and the Sub-Registrars endorsement show that out of the said consideration Rs. 400/- went to the discharge of a debt owed by the vendor to the vendee and Rs. 1,000/- were paid in cash to the former by the latter at the time of registration. There is a further recital that out of the Rs. 1,000/- paid in cash at registration Rs. 600/- were needed by the vendor in order to repay a debt due by her to one Behari Lal. The plaintiffs allegation was that she owed no debt to the vendee or to Behari Lal, and that the said sum of Rs. 1,000/- was taken back by the vendee from her outside the registration office.

3. Mutation on foot of the sale-deed was attested by the Naib-Tehsildar on 4-8-1948, but with regard to that the appellant denied having made any statement which she is shown as having made before the Naib-Tehsildar regarding the execution and consideration of the sale-deed and delivery of possession of the property sold.

4. A certain objection in respect of the sale appears to have been made in the Court of the Tehsildar by certain persons describing themselves as zamindars of the village to which the appellant belongs, and in that case also the appellant purports to have made a statement on 6-8-1948 before the said Naib-Tehsildar (to whom inquiry had been entrusted by the Tehsildar) supporting the execution and consideration of the sale-deed and delivery of possession of the property to the vendee and characterising the objection of the said objectors as unfounded. With regard to this statement also the appellant deposed that she had not made it.

5. A preliminary objection raised on behalf of the defendant-respondent that no second appeal lay had no force. The value of the property in suit being admittedly above Rs. 250/-, this is a good second appeal under paragraph 32 (1) (b) (i) of the Himachal Pradesh (Courts) Order, 1948. Under the same paragraph all grounds open in a first appeal are entertainable in this second appeal.

6. The entire law with regard to undue influence is contained in S. 16 of the Contract Act. In order that a transaction may be held as having been induced by undue influence three things are necessary: (1) that the relations subsisting between the parties were such that one of them was in a position to dominate the will of the other, (2) that the transaction secured unfair advantage to the person in a position to dominate the will of the other and (3) that this unfair advantage resulted from the use of that position. The burden of proving the first two ingredients lies on the party pleading undue influence, and as soon as he has done so it will be presumed that the third ingredient was also satisfied, unless the other party proves that the transaction was not induced by undue influence. That this is a correct interpretation of the section will appear from the Privy Council decisions reported as Posathurai v. Kannappa Chettiar, AIR (7) 1920 PC 65, and Raghunath Prasad v. Sarju Prasad, AIR (11) 1924 PC 60. The former was a case where it was not proved that the transaction of sale sought to be impugned was unconscionable, and in the latter, which was a case of mortgage, it was not proved that the lender was in a position to dominate the will of the borrower. It follows therefore that it was incumbent in the first instance upon the plaintiff-appellant to prove, firstly, that the defendant-respondent was in a position to dominate her will and, seco

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