K. J. SHETTY, J. ( 1 ) THE suit out of which the appeal arises was instituted by the first respondent for a declaration that the registered sale deed Ext. P-2 executed by kempayya Gowda in favour of the appellant was void and not binding on the plaintiff. The facts which are now found may briefly be stated: ( 2 ) ONE Laxmayya Gowda had three sons: Ninrayya Gowda, Devayya Gowda and Kempayya gowda ("kempayya" ). On January 25, 1955, the family properties were divided amongst the said three sons. Each of them got about 7 acres of wet land and 19 acres of Bane land. The plaintiff is the. son of Ningayya Gowda. The defendants are the sons of Devayya Gowda. Kempayya remained unmarried and was living in a portion of the house, assisted by the defendants who were living in the other portion of that house. On february 5, 1968, Kempayya sold to defendant-1 4 acres 57 cents of wet land and 15 acres 11 cents of Bane lands under a registered sale deed Ext. P-2 for Rs. 5,000. On February 15, 1968, kempayya died. On July 8, 1968, the plaintiff challenging the validity of the sale deed, instituted the suit mainly on the ground that the sale deed was vitiated by fraud, coercion and undue influence. The plaint, however, did not contain particulars of any fraud or coercion. ( 3 ) DEFENDANT-1 while resisting the suit, contended inter alia that the sale deed was executed by Kernpayya of his own free will and for a valid considertion; while defendant-2 contended that he was a tenant in possession of the B schedule properties and therefore, entitled to be in possession. ( 4 ) THE Courts below accepted the plea of the plaintiff and invalidated the sale deed by holding that defendant-1 was in a position to dominate the will of Kempayya. The trial Court recorded a finding in these terms:"now, as I have pointed out the evidence on record proves that Kempayya Gowda was old and was ill when the impeached sale deed was executed by him. The sale deed was executed only 10 days before the death of Kempayya Gowda. Kempayya Gowda and Defendant-1 used to reside in the same house under the same roof. It is defendant No. 1 who was looking after Kempayya Gowda during his last illness. The sale deed was executed only 10 days before the death of Kempayya Gowda. Kempayya Gowda and Defendant-1 used to reside in the same house under the same roof. It is defendant No. 1 who was looking after Kempayya Gowda during his last illness. It is he who had accompanied Kempayya Gowda to Virajpet and Ponnampet on the date on which sale deed wag executed. Admittedly defendant No. 1 was cultivating portion of the lands belonging to Kempayya Gowda and as per his claim he had advanced large sum of money amount Rs. 5,000. All these circumstances, in my opinion, clearly point out that defendant No. 1 was in postion to dominate the will of Kempayya Gowda. "the finding of the lower appellate court is also couched in similar terms. It reads: the oral evidence of P. W. 3 clearly goes to show that Kempayya gowda was old and very weak and he was suffering from illness and he was also taken to Virajpet where, his l. T. mrak was taken to some paper in some office. From their oral evidence, it is quite clear that Kempayya Gowda did not know to what paper he put his signature. Subsequently, he has also felt doubt about the conduct of the first defendant and has expressed such doubt before P. Ws. 2 and 3. From these facts, it is quite clear that the sale deed has come into existence under surreptitious circumstances. The first defendant who was in a dominant position at the time when deceased Kempayya Gowda was suffering from illness but also very old has created a sale deed in his favour without disclosing the, contents. Under these circumstances, one has to come to the conclusion that the sale deed was not executed by deceased Kempayya Gowda voluntarily. " ( 5 ) IT seems to me that there, was a lot of confusion in dealing and deciding the question of undue influence said to have been exerted by defendant 1. The court below has mixed up the alleged undue influence with the socalled mis representation. One has nothing to do with the other. We are not concerned in this case as to misrepresentation, if any, made to Kempayya for the purpose of procuring the sale deed. That was not the basis upon which the sale deed was sought to be invalidated. One has nothing to do with the other. We are not concerned in this case as to misrepresentation, if any, made to Kempayya for the purpose of procuring the sale deed. That was not the basis upon which the sale deed was sought to be invalidated. ( 6 ) THE principal point for consideration in this appeal is whether defendant-1 was in a position to dominate the will of Kempayya and- whether he had used that position to procure the sale deed in question. ( 7 ) S. 16 (1) of the Contract Act defines undue influence to mean:"a contract is said to be induced by 'undue influence' where the relations subsisting between the parties are such that one of the parties, is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. "s. 16 (2) provides that a person is deemed to be in a position to dominate the will of another- (a) (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. ( 8 ) IN a case in which the party relies upon undue-influence, his pleading is governed by Order VI Rule 4 CPC. He must state the particulars of the undue influence in the pleading itself. Let us first see whether this requirement has been complied with in the present case. The plaintiff states: " (a) The late Kempayya was very old, weak in body and mind at the time of the said sale deed. In spite of the fact that he was the pattadar of large properties, he was living in chill penury and after he became ill, he was dependent entirely upon the defendants for his maintenance. The defendants taking advantage of his illness, would allow nobody to have any access to him. . ' (c) Late Kempayya was at the time of the alleged sale deed, not capable of exercising free will because he was under the command of the defendants, being dependent upon them, in the circumstances in which they had put him. The defendants taking advantage of his illness, would allow nobody to have any access to him. . ' (c) Late Kempayya was at the time of the alleged sale deed, not capable of exercising free will because he was under the command of the defendants, being dependent upon them, in the circumstances in which they had put him. " it will be seen that there is no averment in the plaint stating that the mental capacity of Kempayya was impaired temporarily or permanently by reason of his old age or illness, nor there is any evidence adduced by the plaintiff that Kempayya was not in a position to understand what was goinr; around him. On the contrary the evidence of P. Ws. 2 and 3 indicate that kempayya was in a sound state of mind although he was suffering from asthmatic trouble. There is, therefore, no question in this case that defendant-1 was deemed to be in a position to dominate the will of Kempayya. ( 9 ) NOR this is a case where special relationship was proved to be existing as between the parties for the purpose of presuming the undue influence. The case falls clearly under the category in which the person who alleges undue influence must prove by cogent evidence that defendant-1 dominated the will of Kempayya and procured the document to his advantage. The following passage from Law of Contract (1) may be noticed. Here it must be affirmatively proved that one party in fact exerted influence over the other and thus procured a contract that would otherwise not have been made. ( 10 ) IN Raghunath Prasad v. Sarju prasad (2) the Privy Council laid down three propositions which are required to be considered in stages in a case where undue influence is pleaded. It was observed:"in the first place, the, relations between the parties to each. other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached, namely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached, namely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations these parties. Were they such as to put, one in a position to dominate the will of the other?"these proposition have been approved by the Supreme Court in Ladli Prasad v. Karnal Distillery (3), Subhas chandra Das v. Gauya Prasad (4) and reiterated in Afsar Shaik v. Soleman bibi (5 ). It is clear from these decisions that what is required to be substantiated in the first instance, was the relation of the parties and whether that relation was such as to put one party in a position to dominate the will of the other at the time of entering into the contract. If the determination of this issue is in the affirmative, the Court must then consider whether the contract was induced by undue influence, that is, whether that dominating party has exerted his influence so as to procure the contract or deed or document, and whether the transaction appears to be unconscionable. If this is also proved, then the burden shifts on the person who was in a position to dominate the will of the other, to prove that the contract was not an unconscionable bargain. If the first issue itself is not established, then there is no question of the Court considering the other said issues. ( 11 ) IN the present case even if we accept the entire testimony of P. Ws. 1 to 3, we do not get any indication that defendant-1 was in a position to dominate the will of kempayya,. The counsel for the plaintiff relied upon the poor financial position of Kempayya to prove that he was subservient to defendant-1. ( 11 ) IN the present case even if we accept the entire testimony of P. Ws. 1 to 3, we do not get any indication that defendant-1 was in a position to dominate the will of kempayya,. The counsel for the plaintiff relied upon the poor financial position of Kempayya to prove that he was subservient to defendant-1. May be Kempayya was indebted to defendant-1. He might have borrowed some amount for his personal necessities. But that by itself is no ground to infer that defendant-1 was in a position to dominate the will of Kempayya,. Kempayya was not in his teen age. He was an elders member in the family. He way then 62. He had as much properties is defendant-3. They were allotted equal shares in the family partition kempayya was not depending on any body, nor anybody was depending upon him. He was a bachelor with no family burden, whereas. defendant-1 had a large family to maintain. The courts hove failed to consider these circumstances. ( 12 ) BOTH the Courts, however, have proceeded on the ground that Kempayya was old and ill and defendant-1 took advantage of that situation and procured the sale deed. Here, the courts have committed an error. Even if we presume that K. empayya was old or sick, there is no warrant to presume that defendant-1 was in a dominating position. The mere proof of old age or sickness is not sufficient to hold that he was under the dominating position over defendant-1. It must further be established that the mental caparity of kempayya due to his old age or illness was also impaired temporarily or permanently. That is the requirement of clause (b) of sub-section (2) of S. 16. That proof is apparently lacking in this case. The material on record on the other hand, appears to indicate the other way about. P. Ws. 2 and. 3 have categorically stated that Kempayya was cultivating his lands through his servants and has harvested the crops a month before his death. It thus shows that Kempayya was attending to hi? occupation normally like defendant-1. ( 13 ) IN the result, the appeal is allowed, the judgments and decrees of both the Courts are set aside and the plaintiff's suit in regard to 'a' Schedule properties is dismissed. It thus shows that Kempayya was attending to hi? occupation normally like defendant-1. ( 13 ) IN the result, the appeal is allowed, the judgments and decrees of both the Courts are set aside and the plaintiff's suit in regard to 'a' Schedule properties is dismissed. Since the plaintiff has also claimed partition of all the suit properties, he may be given his share in the undisputed properties set out in the 'b' Schedule to the" plaint. ( 14 ) ORDINARILY, all the three parties are entitled to 1|3 share in each; but mr. Papanna, after consulting his client, made a generous submission that his client would not claim a share in the 'b Schedule properties. His submission is recorded. There shall, therefore, be a decree for partition of the, 'b' Schedule properties as between the plaintiff and dei'endant-2 in equal shares. ( 15 ) IN the circumstances of the case, i make no order as to costs. --- *** --- .