Judgment 1. This is defendants" appeal against the judgment of reversal. The substantial question of law framed at the time of admission of the appeal is, "Whether the court of appeal below has committed any error of law in writing the judgment of reversal without meeting the circumstances taken into account by the trial court in favour of the defendants". 2. The plaintiffs instituted a suit for declaration that the deed of gift executed by Khublal Rai in favour of defendant 2, Birendra Narain Rai, is void, fraudulent and the plaintiffs" title to the land gifted is not affected. One Kewaldut died leaving behind three sons, Khublal, Jublal and Thakur. Thakur"s (plaintiff) two sons are named Lakshmi (plaintiff 2) and Debendra (Plaintiff 3). Jublal"s son is Sukhdeo (defendant 1) and Sukhdeo"s son is Birendra (defendant 2). The deed of gift was executed by Khublal on 6-4-1976. Khublal died on 13-4-1976 and the suit was instituted in November 1976. It is stated that without the knowledge and consent of Khublal the deed of gift was brought into existence purporting it to be so by playing fraud on the Registration Department by another man. Undue influence has also been pleaded. 3. The defendants" case, on the other hand, is that the suit is hit by S.34, Specific Relief Act, in absence of any prayer for consequential relief. The three branches of Khublal, Jublal and Thakur separated long ago and partitioned their properties by metes and bounds. The illness of Khublal Rai was denied and it was averred that because of love and affection Khublal out of his own accord, before his death, gifted away the properties that fell in his share in favour of his grandson. It is further stated that it was Khublal who got purchased the stamp, got the deed scribed and it was he who presented on being properly identified before the registration officer and it bears his thumb impression, taken both at the time of execution as well as at the time of registration before the Registrar. Khublal Rai liked defendant 2 and he intended from before to make gift of his property in his favour and pursuant thereto the deed of gift was executed with full knowledge of the contents of the document, that it is a deed of gift. 4. Khublal Rai liked defendant 2 and he intended from before to make gift of his property in his favour and pursuant thereto the deed of gift was executed with full knowledge of the contents of the document, that it is a deed of gift. 4. The trial court on consideration of the evidence of D.W. 7 the attesting witness, D.W. 11 the scribe, D.W. 12 the identifier and Ext. A the registered deed of gift concluded that Khublal Rai executed the said deed of gift fully understanding the contents and after being so satisfied put his left thumb impression thereupon and asked D.W. 12 to identify his left thumb impression. The trial court negatived the theory of undue influence. It further held on the basis of evidence of D.Ws. 3, 4, 5, 6, 9 and 10 that Khublal Rai was hale and hearty before his death. It further held on the basis of evidence of D.W. 4 that on the occasion of Holi Khublal Rai had declared his desire to make gift of his property in favour of defendant 2 and there is abundant evidence that after the death of Khuublal"s wife the defendant and his wife used to look after Khublal and there was mutual love for each other. After having considered the evidence the trial court answered issue 4 by concluding, "Under the circumstances and evidence discussed above I find and hold that the deed of gift (Ext. A) was executed by Khublal Rai willingly and by way of affection in favour of defendant 2 and not under undue influence as alleged by the plaintiffs. Thus, this issue is decided against the plaintiffs." 5. The lower appellate court on the contrary held that Khublal Rai was mentally and bodily weak and in view of the relationship of the parties, the onus was upon the defendants to show that the deed of gift was executed voluntarily by Khublal and that the defendants were not in a position to dominate the will of Khublal at the time of execution of the deed of gift. Taking the circumstance that Khublal Rai was being looked after by defendant 2 and his wife as a circumstance which might provide a dominant influence upon Khublal and throwing the onus, as indicated above, concluded that Khublal was not in a proper sense due to old age and also while he was under the pressure and undue influence of defendant 1, the deed of gift (Ext. A) was executed. One further reason assigned by the lower appellate court is to the execution of Ext. A, the deed of gift, is that Khublal was a literate man but on this occasion he has put his thumb impression which casts suspicion regarding the genuineness of the deed of gift as it does not contain the signature of Khublal even though he was literate. In para 14 of the judgment, the lower appellate court observed that no circumstance has been assigned why Khublal Rai, who had no enmity with Thakur Rai, will execute a deed of gift in favour of Birendra, minor son of Sukhdeo ignoring the claim of the plaintiffs. After having held so, the judgment of the trial court was upset and the suit was allowed to be decreed. I may state here that the question of S.34, Specific Relief Act, has not been gone into by any of the two courts below. 6. "Undue influence" has been defined under S.16, Contract Act. For proof of undue influence one has to show that the party exercising the said influence was in a position to dominate the will of the other and that the donee used that position to obtain unfair advantage. More than mere influence is undue influence. An influence of coercive nature, devoid of willingness, some acts of overreaching, is known as undue influence. To establish undue influence there must not only be an atmosphere of suspicion, but definite and clear evidence of the same. Fraud, on the other hand, suggests concealment of real fact, misrepresentation of facts and some other camouflage resorted to obtain certain gain. The charge of undue influence and/or fraud is in the nature of criminal charge which must be pleaded clearly and proved by cogent and reliable evidence. Fraud, on the other hand, suggests concealment of real fact, misrepresentation of facts and some other camouflage resorted to obtain certain gain. The charge of undue influence and/or fraud is in the nature of criminal charge which must be pleaded clearly and proved by cogent and reliable evidence. In the case of Subhas Chandra Das Mushib V/s. Ganga Prasad AIR 1967 SC 878 it was held that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. It was further held that the court trying a case of undue influence must consider two things to start with, namely, (i) the relations between the donor and the donee is such that the donee is in a position to dominate the will of the donor, and (ii) has the donee used that position to obtain an unfair advantage. Upon the determination of these issues 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. In the said case a para from Volume 17 of Halsbury"s Laws of England, Third Edition, Page 678 has been referred, where the learned author notes, "there is no presumption of undue influence in the case of gift to a son, grandson, or son-in-law, although made during the donor"s illness and a few days before his death." Before a court is called upon to examine the question of undue influence it must scrutinise the pleadings to find out if such a case has been made out and that full particulars have been given as in the case of fraud, and this aspect has been critically stressed in the case of Ladli Prasad Jaiswal V/s. Karnal Distillery Co. Ltd. AIR 1963 SC 1279 . 7. Bearing the law aforesaid in mind when I peruse the plaint I do not find the particulars of undue influence pleaded. On the contrary, some time the plaint speaks about undue influence, some time it speaks about fraud, and, as a matter of fact, there is a pleading of impersonation before the Registrar as well as a faint denial of the thumb impression of the executant. On the contrary, some time the plaint speaks about undue influence, some time it speaks about fraud, and, as a matter of fact, there is a pleading of impersonation before the Registrar as well as a faint denial of the thumb impression of the executant. Along with that, it has been said that because of his ailment Khublal was not in a position to give a proper thought over any matter and under the undue influence and pressure without any talk with anybody, the document was brought into existence. Mr. Shreenath Singh contended that the appellate court has acted as the first court almost ignoring the trial court"s judgment and not as a court of appeal. According to the learned counsel the duty of the appellate court was to consider the reasons as given by the trial court as also the evidence relied upon by the trial court and then after distinguishing it or disagreeing with it, can record its own opinion on those circumstances and evidence. For instance, learned counsel submitted that on the question of undue influence the evidence of D.W. 7, the attesting witness, the evidence of D.W. 11, the scribe, and the evidence of D.W. 12, the identifying witness, was relied upon by the trial court to negative the contention of the plaintiffs. They were the most relevant witnesses according to the learned counsel, who could have thrown light on the question of undue influence, but while considering the question of undue influence the lower appellate court did not even refer to their evidence. 8. I find force in the above argument. Learned counsel for the respondents could not show to me consideration of these witnesses which could have indicated whether the executant conscientiously and voluntarily executed the document of gift. This is completely absent from the consideration of the lower appellate court. Further the lower appellate court took it a circumstance of undue influence because Khublal was being looked after by the wife of Birendra towards last phase of his life, whereas, according to the learned counsel for the appellants, this is a circumstance which generates love and affection for execution of the deed of gift. This circumstance cannot be taken to be a circumstance of undue influence at all. I find force in the argument of Mr. This circumstance cannot be taken to be a circumstance of undue influence at all. I find force in the argument of Mr. Shreenath Singh because looking after Khublal may result some influence, both for generating love and affection as well as some amount of dominion over the executant, but this circumstance cannot be a circumstance for undue influence. 9. In the case of Brocklhurst V/s. Roberts (1978 (1) All ER 767) it has been held that if a gift is not spontaneous and independent act of donor there may be a question of undue influence, but the presumption of undue influence will appear only when the gift is unconscionable, particularly keeping in view the relationship of the parties. The Court of appeal below has not given any reason as to why the gift was unconscionable. The property exclusively belonged to Khublal. The evidence brought on record show that after the death of Khublal"s wife, defendant 2 and his wife were looking after him in every regard and Khublal openely declared during the Holi festival, a time of merriment for Hindus in the village that he has taken a decision to gift away the property to defendant 2. The evidence of D. W. 4, referred to by the trial Court and a very important piece of evidence has been completely overlooked by the lower appellate Court while observing at para 14 of the judgment that there is no circumstance why the deed of gift was executed in favour of defendant 2. 10. I need not point out that other defects in the judgment of the lower appellate Court, but I am convinced that it has completely misdirected itself in law while reversing the judgment of the trial Court. It has further not borne in mind the requirement of law both with respect to the pleadings and proof of undue influence, and this being in the nature of criminal charge it must be proved by cogent and reliable evidence to the extent of reasonable certainty. 11. In the result, the appeal is allowed, the judgment of the lower appellate Court is set aside and the matter is sent back to the lower appellate Court to consider the case afresh in the light of the observations made in this judgment. There will, however, be no order as to costs.