To establish undue influence, there must be evidence that one party is in a position to dominate the will of the other and uses that position to obtain an unfair advantage. Mere influence or the presence of a fiduciary relationship is not sufficient to prove undue influence. The burden of proof is on the party alleging undue influence to provide specific evidence that the transaction in question was brought about by undue influence.

Devadoss, J.

1. The plaintiffs suit is for the possession of her husbands property and for a declaration that a gift deed and a settlement deed executed by him in favour of Defendants 1 and 2 were invalid as they were executed under undue influence. The District Munsif granted decree to the plaintiff in respect of Ex. IV, the gift deed, and dismissed the suit as regards the settlement deed in favour of the 2nd defendant. The plaintiff appealed against the judgment of the District Munsif and the Subordinate Judge dismissed the appeal agreeing with the District Munsif that Ex. IV was executed under undue influence. The defendants have preferred this second appeal. Mr. T.V. Venkatrama Aiyar for the appellants contends that there is no evidence of undue influence in the case and the lower Courts were wrong in recording a finding on the point without evidence.

2. Mr. Subramania Aiyar, on the other hand, contends that the question of undue influence is one of fact; and both the Courts having found that there was undue influence when Ex. IV was executed it is not open to this Court to go behind the finding. No doubt the question, whether there was undue influence or not, and whether the document was executed under undue influence or not is a question of fact. But it is open to this Court to examine the evidence to see whether there is any evidence to support the finding. If there is no evidence then this Court would surely interfere with the finding of fact.

3. The facts proved in evidence are these: The plaintiffs husband, an old and feeble man, was unable to manage his own affairs for a number of years. The 1st defendant and Venkaji Ammal, his wife, lived with the deceased and looked after him and his affairs. The plaintiff being said to be congenitally deaf was unable to manage the affairs of her husband. Subbier executed a deed of settlement, Ex. B, on 21st May 1909 settling some property upon the 2nd defendant, the son of the 1st defendant and Venkaji Ammal. He also executed a Will, Ex.C, on 24th September 1909, bequeathing his property to his wife, the plaintiff, and to Venkaji Ammal, the wife of the 1st defendant. There is evidence to show that some years afterwards the 1st defendant removed his wife from the house of Subbier and went and lived in his own village which is at some distance from the village of Subbier. Subbier was helpless and finding that the 1st defendant and Venkaji Ammal had disappointed him after getting the settlement deed and the will executed, he executed Ex. D dated 2nd October 1913 revoking or cancelling the settlement deed Ex. B, dated 21st May 1909. He also executed Ex. D/, on 3rd 3-10-1913 revoking or cancelling the will dated 24th May 1909, Ex. C. He executed Ex. E on 3-10-1913 in favour of one Chinaswami Aiyar alias Veeraraghava Aiyar stipulating for Chinnaswami Aiyar looking after him and his wife and in consideration of his protecting him and his wife he should on his demise enjoy the ancestral and self-acquired properties mentioned in A Schedule, worth Rs. 500 and after the demise of his wife he should enjoy some more properties mentioned in B Schedule thereto worth Rs. 500. Subbier was evidently anxious to have the 1st defendant and his wife to look after him and the evidence is that they went back to his house about the end of 1913 or the beginning of 1914. On the 17th April 1914 Subbier executed the settlement deed Ex. III in favour of the 2nd defendant and Ex. IV, the gift deed, in favour of the 1st defendant. The 1st defendant and his wife lived in Subbiers house and looked after him till his death about four years afterwards. Besides evidence that Subbier was an old man and was in need of assistance to look, after him, his wife and his affairs there is no evidence to show that the 1st defendant or his wife Venkaji Ammal had so much influence over Subbier as to be in a position to exercise undue influence over him. Subbier had to get the help of the 1st defendant to look after his aff