JUDGMENT Misra, J. - This second appeal arises out of a suit instituted by Ram Samujh to set aside a registered deed of gift which he executed on 20th September, 1938, in favor of two persons, namely Bansi Dhar and his nephew Tula Ram. The suit was decreed by the trial Court but dismissed by the lower appellate Court. Ram Samujh came up in appeal. During its pendency he died and has been replaced by Ram Kalp. 2. The case as alleged in the plaint was founded on two distinct grounds, In the first place certain facts were set out which were apparently intended as a basis for a plea of undue influence. It was stated that the Plaintiff was an old man, that he had lost his mental vigor, had weak eyesight and was hard of hearing, that Bansi Dhar used to look after bis property and thus secured his confidence, that he pressed the Plaintiff occasionally for gift of some property and eventually prevailed upon him to execute a will. The next set of facts related to the execution of the document which the Plaintiff thought was a will but which eventually turned out to be a deed of gift. It was asserted that Bansi Dhar took the Plaintiff to Kaoipur, got a deed made out there, obtained the Plaintiff's thumb-impression and acknowledgment of the execution before the Sub-Registrar and that he also got the Plaintiff to make a statement before the mutation Court. Upon these facts, it was said in paragraph 13 that the deed of gift, dated 20th September, 1938, having been obtained by. fraud, misrepresentation and by taking advantage of the Plaintiff's simple nature and the confidence which he reposed in Defendant No. 1 was illegal and fit for cancellation. 3. The Defendants admitted that Bansi Dhar was looking after the Plaintiff's estate for some time prior to the deed of gift. They maintained that the Plaintiff had been wanting to give them some property for the last 10 years as a recompense for Defendant No. 1's services and expenditure which he incurred for the Plaintiff and he eventually prevailed upon them to accept it. The story regarding the alleged deception and misrepresentation was denied, and it was urged that the Plaintiffs action in executing the deed of gift was voluntary and deliberate, and that he fully understood what he was doing. 4. The story regarding the alleged deception and misrepresentation was denied, and it was urged that the Plaintiffs action in executing the deed of gift was voluntary and deliberate, and that he fully understood what he was doing. 4. The trial Court framed two issues. They were 1. Was the deed of gift in suit executed under fraud and misrepresentation as alleged? 2. To writ relief is the Plaintiff entitled? 5. The conclusion of the learned Munsif on the first issue may be given in his own words the present case Defendant No. 1 was admittedly in a" position of active confidence towards the Plaintiff, Defendants' own witness Ram Nali (D.W. 2) has stated that Plaintiff had full confidence on Defendant No 1, so the burden of proving the good faith of the transaction was on Defendant No. 1 and he has failed to discharge that burden. It has been laid down in Qamar Ara Begatn v. Sultan Begam, (6 O.W.N., 1112) that when there is an elderly person even an intelligent elderly person, who is found to have divested himself of the mass of property for the benefit of persons in close communion with the transferor, Courts will protect and in some cases will protect jealously the interests of such persons and will always demand explanations; in the present case Plaintiff being illiterate the need or protection is still greater. In view of the circumstances and law stated above Plaintiff should succeed in the suit and believing Plaintiff evidence I decide the issue in the affirmative. 6. It accordingly declared that the deed of gift, Ex. 1, was invalid and void. 7. The learned Civil Judge, Sultanpur, who heard the appeal took the same view of the evidence as the trial Court had done. It held that Defendant No. 1 had gained the full confidence of the Plaintiff. It disbelieved Bansi Dhar's version about the Plaintiff's insistence in giving him the properties, and about taking advantage of his position in obtaining the deed of gift from him. It held that Defendant No. 1 had gained the full confidence of the Plaintiff. It disbelieved Bansi Dhar's version about the Plaintiff's insistence in giving him the properties, and about taking advantage of his position in obtaining the deed of gift from him. In his opinion, however, the evidence left no doubt that the Plaintiff knew the nature of the deed and was fully aware that it was not a will but a deed of gift, and with this consciousness in his mind he made a statement in Revenue Court praying that mutation be effected in favor of the donees at once, He observed Thus the only ground on which the deed can be assailed as also appears from the judgment of the Court below is that of undue influence. 8. The learned lower Court referred to a decision of their Lordships of the Privy Council-Someshwar Dutt v. Tirbhawan Dutt 1 (1934) 61 I.A. 224: (1934) 3 A.W.R. 865 and expressed himself as follows: In the Privy Council case also the pleadings disclosed that while fraudulent misrepresentation was the basts of the claim made, the weakness of mind of the Plaintiff on the one hand, and the commanding position of the Defendant on the other hand were alleged to render the fraud feasible. These allegations in their Lordships' opinion, were "merely ancillary to the main charge and do not present a substantive case of undue influence". But their Lordships considered this point also, an ancillary to the main charge resulting in the fraud of misrepresentation, and assuming that a substantive case of undue influence was open to the Plaintiff on the pleadings held that such a case was not made out as there was no evidence of coercion or pressure having been exercised by the Defendant over the Plaintiff, nor these were even alleged. The same is the case with the Plaintiff of this case, and the allegations in the plaint do not amount to be a substantive case of undue influence. (Vide observations at page 133 of the ruling in 1934 PC 130). These remarks show that mere saying that the deed was signed at the instance of the donee is not sufficient to show that the Defendant, taking advantage of his superior position, impetrated the deed from the Plaintiff. 9. (Vide observations at page 133 of the ruling in 1934 PC 130). These remarks show that mere saying that the deed was signed at the instance of the donee is not sufficient to show that the Defendant, taking advantage of his superior position, impetrated the deed from the Plaintiff. 9. The lower appellate Court therefore, set aside the judgment and decree of the trial Court and dismissed the Plaintiff's suit with costs. 10. I have heard the Learned Counsel for the parties and tried to follow the reasoning of the learned Civil Judge. The lower Court's judgment, in my opinion, is the result of confusion of thought. I have already analyzed the Plaintiff's allegations contained in his written pleadings and have come to the conclusion that he clearly intended to avoid the deed also on the ground of undue influence. In the Privy Council case cited by the Court below their Lordships expressed a disinclination to stress the structure of the pleadings in a suit too strictly after fair notice of the case to be made by the Plaintiff was given and an issue had been joined on an enquiry but faintly adumbrated in the pleadings. The pleadings in that case disclosed that the basis of the claim was fraudulent misrepresentation, the fraud being rendered feasible on account of the weakness of the Plaintiff's mind and the commanding position of the Defendant. The allegations with regard to the latter were thus ancillary to the main charge and did not present a substantive case of undue influence, nevertheless their Lordships proceeded to consider the case of undue influence on merits and came to the conclusion that the evidence did nut justify any finding of pressure or coercion or of mental weakness. Having disposed of this question of undue influence they went on to consider whether the evidence disclosed fraudulent representation and came to the conclusion that it did not. It is not possible to regard the observations of the Judicial Committee as in any manner supporting the Defendants' case. 11. When the parties to a transaction do not stand upon an equal footing, the law raises in a suitable case a presumption of fraud. It is not possible to regard the observations of the Judicial Committee as in any manner supporting the Defendants' case. 11. When the parties to a transaction do not stand upon an equal footing, the law raises in a suitable case a presumption of fraud. In order to bind persons who, by their acts or contracts, have divested themselves of bulk of their property, there must be a free and full consent, and in transactions in which one of the parties is not a free and voluntary agent and is unable to appreciate the import of what he does, the main elements which render the act his own are wanting. Accordingly when a person, who from his state of mind, age, weakness or other peculiar circumstances is incapable of exercising a free discretion, is Induced by another to do that which may tend to injure him, that other is not allowed to derive any benefit from his improper conduct. When in addition one of the two parties stands in fiduciary relationship to the other, confidence is naturally reposed by one and the influence which grows out of that confidence is possessed by the other. If this confidence is abused, and the influence is exercised to obtain an advantage at the expense of the confiding party the obtaining of property of any benefit through the unconscious abuse of influence constitutes fraud of the gravest character vide Kerr on Fraud, 6th Edition, pages 153 to 160. As Lord Kingsdown observed in Smit v. Kay (1859) H.L.C. 750 at 779. The principle applies to every case where influence is acquired and abused, where confidence is reposed and betrayed. 12. In Allcard v. Skinner 36 Chancery Division 145, Lindley, L.J., explained the principle thus The principle must be examined. What then is the principle is it that it is right and expedient to save persons from the consequences of their own folly? or is it that it is right and expedient save them from being victimized by other people ? In my opinion the doctrine of undue influence is founded upon the second of these two principles. Court of Equity have never set aside gilts on the ground of the folly, imprudence, or want of foresight on the part of donors. The Courts have always repudiated any such jurisdiction. Huguenin v. Baseley is itself a clear authority to this effect. In my opinion the doctrine of undue influence is founded upon the second of these two principles. Court of Equity have never set aside gilts on the ground of the folly, imprudence, or want of foresight on the part of donors. The Courts have always repudiated any such jurisdiction. Huguenin v. Baseley is itself a clear authority to this effect. It would obviously be to encourage folly, recklessness extravagance and vice if persons could get back property which they foolishly made away with, On the other hand to protect people from being forced tricked or misled in any way by others into parting with their property is one of the most legitimate objects of all laws. 13. Cotton L.J. in the same case said In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which existed between the parties and the influence arising there from being abused. 14. Lord Halsbury summarising the English Law on the point says There are two class of cases in which gifts are set aside by Courts of equity on the ground of undue influence; first where the Court has been satisfied that the gift is the result of influence expressly used by the donee for the purpose; secondly where the relations between the donor and the donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the gift unless it is proved that it was in fact the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justify the Court in holding that the gift was the result of the free exercise of the donor's will. 15. In cases where such a relationship is shown to exist, the party seeking relief has not to prove that actual fraud or coercion or even direct persuasion was employed; he has but to prove the existence of the confidential relation and then the ours falls upon the party seeking to uphold the conveyance of proving that the power conferred by the relation was not abused. (See Volume 15, Halsbury's Law of England, para. 491). 16. (See Volume 15, Halsbury's Law of England, para. 491). 16. In India Section 111 of the Indian Evidence Act lays down the rule that Where there is a question as to the good faith of a transaction between parties, one of whom stands to other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. 17. So far as the evidence is concerned, the Courts below agree in holding that Bansi Dhar was in a position to dominate the will of Ram Samujh, and that he used that position to obtain an unfair advantage over the Plaintiff. They also agree in holding that the case set up by the Defendants regarding voluntary and deliberate execution of the deed of 1938 was not satisfactorily proved. There can be no doubt, therefore, that the document cannot be allowed to operate as a transfer of the interest conveyed thereby. The view taken by the trial Court was correct. This appeal is accordingly allowed. The decree of the lower appellate Court is set aside and that of the learned Munsif restored. The Appellant shall be entitled to costs of this Court and of the Court below.