A person in a position of dominance over another has the burden of proof to rebut the presumption of undue influence and establish that the transaction was not procured by undue influence.

JUDGMENT :- The suit giving rise to the present appeal was filed by the plaintiff respondent Pirthi Singh (deceased) for cancellation of a deed of gift dated 12-12-1967 executed by him in favour of the defendants in respect of his agricultural Bhumidhari and other immovable properties detailed at the foot of the plaint. It was alleged that the plaintiff was an old illiterate person, weak in intellect and physically infirm. He was ailing for the last ten years and had lost his capacity to understand anything; that he had no male issue to look after him and his cultivation and had only two married daughters. His wife had died long time back. The defendants were the grandsons of his uncle Harnam.

They colluded with a view to usurp his properties and taking advantage of the plaintiff's weakness and the absence of his daughters got the gift deed in suit executed by him on the representation that it was a deed of will in favour of his daughters. The plaintiff fell a victim to their persuasion and deceit and put his thumb impression on the document which was not read over or explained to him. When the plaintiff came to know of the defendants' fraud, he called upon the defendants through his daughter Smt. Phoolwati to get the deed cancelled but the defendants paid no heed to it. It was further asserted that the plaintiff was still in possession of the properties. The document was sought to be avoided on the ground that it was not the outcome of the free will of the plaintiff and had been obtained by fraud and deceit taking undue advantage of the physical and mental infirmities of the plaintiff.

2. The suit was contested on the ground that the gift deed in suit was not the result of any fraud or misrepresentation on part of the defendants. It was alleged that since the death of his wife the plaintiff was looked after by the defendants; his cultivation was also done by the defendants; the gift deed was executed after it had been read over and explained to him and he had fully understood the disposition. It was further alleged that some persons instigated the plaintiff's daughters and son-in-laws who started pressing the plaintiff to get the deed cancelled. These very persons compelled the plaintiff to file the present suit against his wishes.

3. The learned trial Judge dismissed the suit holding that no fraud had been practised by the defendants and that the deed in question was executed by the plaintiff after it had been read over and explained to him. It was the outcome of his own free will as he was being looked after by the defendants since after the death of his wife. The court negatived the plaintiff's case of undue influence on the reasoning that requisite details regarding undue influence were not set out in the plaint and it was, therefore, not open to the plaintiff to plead that undue influence vitiated the transaction. The court appears to have been impressed by the statement of the plaintiff recorded under Order X, Rule 2, Civil P. C. The lower appellate court set aside the decree of the trial court on the finding that the deed had been obtained by fraud and that it was procured due to undue influence. The appellate court also took the view that it was incumbent on the defendants to prove due attestation of the document and as they had failed to do so, the gift deed could not be considered valid.

4. Learned counsel for the appellants assailed the reasoning of the lower appellate court with regard to the attestation of the document. The suit for cancellation of the gift deed was based primarily on the allegation of fraud. It was not even whispered during the trial that the document was not proved and was invalid as the defendants had failed to establish due attestation of the document. It may be noted that the plaintiff himself filed a certified copy of the gift deed and it was admitted by the defendants' counsel. The defendants were not required to prove due execution and attestation of the document. The plaintiff had