Honble AGRAWAL, C.J. - This second appeal has been preferred against the judgment and decree dated 12.11.82 passed by Additional District Judge No. 2, Alwar in Civil Appeal No. 82/77 whereby he allowed the appeal of the defendant Madan Lal and set aside the judgment and decree dated 4.9.76 passed by Munsiff, Thanagazi passed in civil suit No. 18/70. (2) Brief facts of this case are that Nathu Ram was the husband of Smt. Soni, resident of village Garhbasi Tehsil Thanagazi District Alwar. Soni was the second wife of Nathu Ram, who died in 1958 leaving behind him Soni as his sole heir and legal representative. Her house was situated very near to the house of Jagannath for management of her property. Madan Lal, father of Madan Lal, the defendant. As Soni was a widow, she used to depend on the advise of Jagannath and his father Jagannath intended to grab the property of plaintiff Soni. They hatched a conspiracy, in pursuance of which they represented to Soni that for her looking after it was essential that she adopts some one as her son. On adoption taking place, the responsibility of looking after the properties as well as that of her would be that of the adoptive son. Jagannath offered to give his own son Madan Lal in adoption to Smt. Soni. Prompted by a desire to be looked after properly, Soni, being illiterate, was persuaded by Jagannath to adopt Madan Lal, who was about 26 years of age and was married. She did not know that a married person aged about 26 years could not be taken in adoption. She became prepared to execute the necessary documents for the adoption purposes, which was represented to her by Jagannath. On 26.05.1969, Madan Lal, the defendant and his father Jagannath came to Alwar and got her signatures. She was so illiterate that she did not know that a written document was required before adoption and as such she signed the papers on that day. Her thumb impression was also obtained on a blank paper on that very day. She thereafter went to her brother in village Papadi where Madan Lal and Jagannath approached her and represented that some defects had crept into first document as such for the purpose of removing the defects, she would have to execute another document at Thanagazi. Her thumb impression was also obtained on a blank paper on that very day. She thereafter went to her brother in village Papadi where Madan Lal and Jagannath approached her and represented that some defects had crept into first document as such for the purpose of removing the defects, she would have to execute another document at Thanagazi. Making that representation, she was taken on 1.8.69 to Thanagazi and another document on 1-8- 69 was prepared on representation that the same was an adoption deed. After ten days, on 4.8.69, the defendant and his father came to her demanding possession of the properties, which had been gifted by her to Madan Lal. It was then that she felt that a fraud was played on her and documents aforesaid had been procured. She further learnt that on the two dates i.e. on 26.5.1969 and 1.8.1969, three documents had been got executed from her, two of them were the gift deeds and the other was a will. Two gift-deeds were of different properties belonging to the plaintiff. Taking advantage of her illiteracy and ignorance, the plaintiff was duped into fraud and the documents aforesaid were obtained. These documents, according to her case, were liable to be cancelled having been obtained by exercise of fraud and undue influence. Therefore, she filed the suit for that purpose and also for injunction restraining Madan Lal from interfering with her possession. (3) The suit was contested by defendant Madan Lal and the allegations of the plaintiff were controverted alleging that the gift- deeds and the will were got registered by the plaintiff herself on 4.8.69. On these allegations, the defendant pleaded that he did not exercise any undue influence nor did he play any fraud. (4) On the pleadings of the parties, several issues were framed. The trial court decided all the issues in favour of plaintiff and finding that the documents were executed because of undue influence exercised by Madan Lal and his father Jagannath, he cancelled the two gift deeds dated 26.05.1969 and 1.08.1969 as also the will of the former date. (5) I have heard learned counsel for the parties and have perused the record. (6) Before dealing with the arguments of the parties, I may mention some striking features of this case herein below. (5) I have heard learned counsel for the parties and have perused the record. (6) Before dealing with the arguments of the parties, I may mention some striking features of this case herein below. (7) Had Soni executed a gift willingly and voluntarily, as was the case of the defendant Madan Lal, there could be no occasion for her to execute the will on the same day. That showed that Soni was so ignorant and illiterate that she did not know the difference between the two documents and signed the same and that seeing her ignorance, she was duped into a fraud played by Madan Lal, defendant and his father for the purpose of depriving of her properties. Whatever was left after 26.5.69, they were got by execution of another gift-deed on 1-8-1969. There could be no purpose for her to execute the gift-deeds or the will. She was 28 years of age in 1969. It is too much to believe that any woman of that age would think of executing gift-deeds bequeathing of her properties. The allurement given to Soni was that Madan Lal would look after her and properties. Madan Lal was aged about 26 years and was married. She did not know that a married could not be adopted and adoption of such a person could not be fulfil the object of the same. Had she ever thought of adoption, she must have done it by taking her brothers and relations into confidence. It was not a clandestine transaction which had to be hidden from all those known to her. No ceremony of adoption took place. She could be presumed to know. Even an illiterate knows as to how does an adoption take place. This was by representing to her something the facts of which could not be execution of gift deeds and will, established that she had been cheated and by exercise of undue influence on her that the documents were procured. (8) According to defendant, all the documents were her voluntary act. Had that been so, what was the need for her to execute a will on 26.5.69 when she had already gifted the entire property in favour of Madan Lal. (8) According to defendant, all the documents were her voluntary act. Had that been so, what was the need for her to execute a will on 26.5.69 when she had already gifted the entire property in favour of Madan Lal. Coming into existence of will was erroneously not considered by the lower appellate court and no importance to this had been given as a result of which the judgment suffers from substantial error of law. The judgment of the lower appellate Court appears to be perverse. The facts were neither appreciated nor understood and the trial court was wrongly criticised by the lower appellate court for the judgment, which to my mind, was a correct one. (9) The Supreme Court in Ladli Prashad Jaiswal vs. The Karnal Distillery Co., Ltd., Karnal and Others (1) has finalised Sec. 16 of the Contract Act. It was observed that the doctrine of undue influence under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. (10) In the present case, learned counsel for the defendant- respondent placed strong reliance on two circumstances viz., that there was no fiduciary relationship in between the plaintiff and defendant and as such Sec. 16 of the Contract Act did not apply. Consequently, plaintiff could succeed only if she would have brought positive evidence to prove that undue influence was exercised on her. Sub-section (3) of Sec. 16 reads as under: "16(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other." In the instant case the meaning of the word fiduciary as given in Websters Dictionary is that: 1. holding, held, or founded in trust or confidence; 2.of, having to do with, or involving a confidence or trust: of the nature of a trust. holding, held, or founded in trust or confidence; 2.of, having to do with, or involving a confidence or trust: of the nature of a trust. (11) Evidence led in the instant case was that respondent Madan Lal and his father were in a position to dominate Sonis will. Both of them were living very near to each other. Taking advantage of her loneliness, ignorance and illiteracy, Jagannath, in order to usurp her property represented to her to adopt Madan Lal as her son. The fact that Jagannath offered his son to be adopted by Soni and willingness of Madan Lal to be adapted are the strong grounds to hold that they were in a position to dominate Sonis will. As the Supreme Court in Ladli Prashad Jaiswals case (supra) has held that where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under sub-section (2) of Sec. 16) and he enters into a transaction with that other person, which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induce by undue influence lies upon the person in a position to dominate the will of the other. (12) Defendants counsel placed strong reliance on the statement of Richhpal (p.w.9), who was the brother of Soni to argue that he was a Patwari and could be presumed to know the nature of the documents and its consequences. Hence, the court below was right in finding that the documents had been executed by Smt. Soni. It is true that Richhpal (p.w.9) appeared in the witness box but that could not. understand the consequences of the execution of the documents, which have been stated by him above. Counsel also submitted that Soni was not Pardanashin lady, hence, she was not entitled to protection afforded by Sec. 16 of the Contract Act. (13) It is not merely by reason of Pardah itself that the law throws its protection around a pardanashin lady; rather it is by reason of those disabilities which arise out of the seclusion which the paradanashin ladies suffer. Ignorance and illiteracy may be a cause. (13) It is not merely by reason of Pardah itself that the law throws its protection around a pardanashin lady; rather it is by reason of those disabilities which arise out of the seclusion which the paradanashin ladies suffer. Ignorance and illiteracy may be a cause. As to what did a pardanashin lady mean, has been considered by a Division Bench of the Allahabad High Court in P.N. Rai vs. Tileshra Kuar (2) and it was observed as under:- "Rules regarding transactions by pardanashin lady-Apply equally to illiterate and ignorant woman though she may not be pardanashin." The aforesaid decision was followed by a Single Bench of the same court in Ashok Kumar and another vs. Gaon Sabha, Tatauli and others (3) and it was observed as under: "It is not merely by reason of pardah itself that the law throws its protection around a pardanashin lady but by reason of hoe disabilities to which the life of a section of people living in seclusion gives rise to the disabilities and with which a pardanashin lady suffers. Thus, the protection necessarily arises from the causes such as old age, infirmity, ignorance, illiteracy, mental deficiency in experience and dependence upon others. I have therefore, no hesitation in holding that the learned trial court was in error in recording a contrary finding to the one recorded by the appellate Court." (14) About the onus of proof, another case, which is worthy of being noticed, is Bhola Ram Lieri and others vs. Peari Devi and others (4) in which it has been held as under : "Where a party challenges a deed of gift as bad on the ground of its having been executed under undue influence he must prove, firstly, that there was a special relationship between the donor and the donees on account of which the former relied upon the letter for advice and the latter were in a position to dominate the will of the former in giving the advice; and secondly, that the donees used that position to obtain an unfair advantage for themselves. But if the party proves that the donees were in a position to dominate the will of the donor and that the gift appeared to be unconscionable, the onus will be shifted on the donees to show that the donor was not induced to make the gift by undue influence and he had the opportunity to obtain independent advice before making the gift." I agree with the law laid down in the aforesaid case. (15) Another question that came up for consideration in the court below was about the validity of the Gift. Section 122 of the Transfer of Property Act defines gift. It must be made voluntarily and without consideration and accepted by or on behalf of donee. (16) The acceptance of gift is one of the essential requirement of a gift. In the instance case, the trial Court held it to be invalid. The lower appellate Court found that the gift deed was produced by the defendant, the acceptance could be presumed by their mere production. The lower appellate Court also found that as no issue had been framed on this controversy, the trial Court erred in going into the same. (17) In my opinion, both the grounds given by the lower appellate Court were erroneous. Issue No. 3 was wide enough to cover the validity of gift deed. Validity included acceptance. The transaction of gift in order to be complete, must be accepted by the donee during the life time of the donor. The fact of acceptance can be established by different circumstances. Within a week of the execution of the document, dispute arose between the parties. Hence, the lower appellate court found that the gift deeds had been handed over by the plaintiff to the defendant. From the mere fact that the documents had been produced by the defendant, it did not lead to the conclusion in the present case to hold that they had been handed over by the plaintiff and the acceptance of gift as required by law, should be deemed to to proved. The handing over of gift deeds by the donor may be in some cases considered as a sufficient evidence of acceptance but in the instant case, the lower appellate Court lost sight of the necessary back ground and erroneously held to the handing over of the gift deed to the defendant as a circumstance to prove acceptance. The handing over of gift deeds by the donor may be in some cases considered as a sufficient evidence of acceptance but in the instant case, the lower appellate Court lost sight of the necessary back ground and erroneously held to the handing over of the gift deed to the defendant as a circumstance to prove acceptance. As a matter of fact, when the trouble started between the parties, within a week of the execution, the finding of handing over of the gift deed by the plaintiff, could not be given. (18) In the result, the appeal succeeds and is allowed. The judgment and decree of the lower appellate Court is set aside and that of the trial Court is upheld. The appellant would be entitled to get costs of this appeal as well as that of the lower appellate Court.