Hon’ble Sudhir Agarwal, J.—Heard Sri P.N.Tripathi, learned counsel for the appellant and Sri V.K.Dwivedi, learned counsel for the respondents.

2. This is defendant’s second appeal. The plaintiff Smt. Kulwant (now deceased and substituted by her legal heirs) instituted Original Suit No. 165 of 1976 for cancellation of sale-deed dated 17.9.1974. The sale-deed was executed by Bansi, husband of plaintiff in favour of defendant-appellant No. 1 Haridwar, who is the nephew of Bansi being son of Bansi’s brother Bheekha. Bansi and Bheekha were the two sons of one Durbali. They were co-bhumidhars of agricultural plots No. 83 measuring 4-19-1 and 129 measuring 0-7-14, situated at village Barkuiya, Pargana Basti (east of the district Basti). They were also joint owners of the house detailed under schedule B of the plaint. After the death of Bheekha, his son Haridwar defendant No. 1 became co-owner and co-bhumidhar with Bansi.

3. Sri P.N.Tripathi, Advocate stated at the Bar that Bansi was elder to Bheekha. Bansi had no male issue and Smt. Dhanpati is the sole daughter married with Ram Raj, resident of Village Paraspur Dubauli.

4. The plaintiff instituted original suit, as said above, alleging that Bansi was about 100 years old and on account of age and infirmity, lost his mental balance, not capable to understand what is good and bad for him and also addict to liquor, Ganja and Bhang. In September, 1974, Bansi fell seriously ill, and was brought for medical treatment to Basti. Defendant No. 1 Haridwar also accompanied them. Plaintiff ran short of money and went to her village so as to arrange money etc. Defendant No. 1, who was present, assured her that he would look after Bansi during absence. Plaintiff came back on 19th September, 1974 and after recovery of Bansi from ailment, brought him back to the village where he died on 25th July, 1975. After his death, plaintiff’s name was recorded in revenue records as co-bhumidhar of property, earlier owned by Bansi. Thereafter, she came to know that Haridwar had got a registered sale-deed, dated 17th September, 1974, executed with regard to the agricultural plot and house of Bansi, taking advantage of his condition and also confidence and influence he enjoyed upon Bansi. She sought a decree of cancellation of sale-deed on the ground of fraud and undue influence etc.

5. The suit was contested by defendant No. 1. He admitted pedigree handed down in the plaint. He further stated that Ram Raj, the son in law of Bansi used to extract money and in order to arrange money, Bansi used to take loans. In that connection he became highly indebted and when creditors pressed their demand, defendant No. 1 came forward to clear the debts and in furtherance thereof and also to meet other necessities, Bansi transferred some of his agricultural land and the house to defendant No. 1 vide sale-deed dated 17th September, 1974. He denied allegations of unsound mind of Bansi and also that of fraud and undue influence levelled by the plaintiff.

6. The Trial Court formulated three issues, as under:

(i) Whether the deed dated 17.9.1974 is liable to be cancelled on the basis of the grounds mentioned in the plaint ? If so, its effect.

(ii) Whether the suit is barred by the principle of estoppel?

(iii) To what relief, if any, is the plaintiff entitled ?

7. So far as issue relating to principle of estoppel is concerned, Trial Court found that it has no application, inasmuch as, defendant could not adduce any evidence to prove that sale-deed was executed with consent, knowledge and consultation of the plaintiff.

8. Now coming to issue No. 1, Trial Court held that ailment of Bansi was not proved, the soundness of mental capacity to understand was not proved, and, since registered sale-deed shows that consideration had passed, particularly looking to the statement dated 23rd June, 1975 of Bansi, said to have been recorded by Sub-Divisional Magistrate, Basti in mutation proceedings, wherein Bansi alleged to have received