In a case where an illiterate vendor alleges fraud, undue influence, and non-payment of consideration, the burden of proof shifts to the vendee to prove the genuineness of the transaction.

( 1 ) THIS Second Appeal has been preferred by the defendant-appellants against the judgement and decree dated 22-12-1980 passed by Sri G. S. Pandey, Additional Civil Judge, Gorakhpur, in Appeal No. 191 of 1978 by which the appeal preferred by the plaintiff-respondents was allowed and the judgement and decree dated 15-3-1978 passed by the 3rd Additional Munsif, Gorakhpur, in Original Suit No. 693 of 1968 dismissing the suit was set aside.

( 2 ) THE original plaintiff Smt. Rituraji brought a suit for the cancellation of the sale deed dated 24-1-1969 alleged to have been executed by her in favour of the defendants on the allegations that after the death of her husband she was left with one daughter alone; that one of the daughters of the plaintiff was married to defendant No. 1 while defendants Nos. 2 and 3 were the collaterals of defendant No. 1; that after the death of the plaintiffs husband defendant No. 1 was looking after her and he started living with the plaintiff; that defendant No. 1 proposed to the plaintiff for a medical check up of her eyes and ears on account of the old age and brought her to Gorakhpur; that defendant No. 1 impressed upon the plaintiff that some document be executed by her so that her property may be divided equally amongst her daughters; that on the said pretext the plaintiffs thumb impressions on several blank papers were obtained by defendant No. 1; that sometime in June, 1969 the plaintiff could over-hear about the execution of the sale deed and on inspection it was revealed that the alleged sale deed which was said to have been executed by the plaintiff was the outcome of fraud and undue influence; that the alleged sale deed was never executed by her nor it was ever read over or explained to her; that no consideration had ever passed; that the marginal witnesses of the sale deed were none else but the nephew of defendant No. 1 and the other one a resident of the village of defendant No. 1; and that the alleged sale deed covered the entire agricultural holdings of the plaintiff.

( 3 ) THE defendants contested the suit alleging that the plaintiff was burdened with loans and he required money to pay them off; that she herself offered and agreed to sell her holdings in favour of defendant No. 1; that defendant No. 1 purchased it for Rs. 6000/- out of which Rs. 4500/- were paid to the plaintiff at her residence while the remaining amount of Rs. 1500/- was paid to her before the Sub-Registrar, and that the allegations of fraud and undue influence made by the plaintiff were wrong.

( 4 ) ON a perusal of the pleadings of the parties the learned Munsif framed two issues which are to the following effect : 1. Whether the sale deed dated 24-1-969 was liable to cancellation in view of the allegations as contained in para 11 of the plaint ? 2. To what relief was the plaintiff entitled ?

( 5 ) THE learned Munsiff on the basis of the evidence on record held that the plaintiff had failed to establish the plaint allegations and had also failed to prove her contentions. The suit was accordingly dismissed as already indicated above.

( 6 ) AGGRIEVED by the judgement and decree dated 15-3-1978 passed by the trial Court the plaintiff preferred an appeal to the court of the District Judge, Gorakhpur, which was transferred to the court of the Additional Civil Judge for disposal.

( 7 ) THE lower appellate court found that admittedly the plaintiff was an illiterate lady and as such the burden of proving due execution of the sale deed and the passing of actual consideration was on the defendants (vendees) which they failed to discharge. It has also been held by the lower appellate court that the consideration of Rs. 6000/- being the price of the agricultural holdings never passed on to the plaintiff. The evidence of D. W. 2 Gauri Shankar, who was a marginal witness to the deed, is admittedly a relation of defendant No. 1. This witness admitted in his cross-examination that on being paid Rs. 4500/- the pla