JUDGMENT 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. 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 consideration, it (Trial Court) held that infirmity alleged in the plaint for seeking cancellation of sale-deed has not been proved. Accordingly he decided issue No. 1 against plaintiff and dismissed the suit vide judgment and decree dated 14.5.1979. Aggrieved thereto, plaintiff came in Civil Appeal No. 184 of 1979, which has been allowed by learned lower Appellate Court i.e. IV Additional District Judge, Basti vide judgment and decree dated 29th October, 1981. 9. Before him (Appellant Court) validity of sale-deed has been examined only on the anvil of undue influence. Aggrieved thereto, plaintiff came in Civil Appeal No. 184 of 1979, which has been allowed by learned lower Appellate Court i.e. IV Additional District Judge, Basti vide judgment and decree dated 29th October, 1981. 9. Before him (Appellant Court) validity of sale-deed has been examined only on the anvil of undue influence. The plaint case is that defendant Haridwar being nephew, enjoyed full confidence with her husband. He misused said confidence, which amounts to undue influence and sale-deed in question was result of such undue influence. The lower Appellate Court held that age of Bansi stood proved being 100 years at the time of execution of deed. His ailment was also proved though nature of ailment was not very clear. The lower Appellate Court held that an aged, infirmed person, who totally depended upon defendant-appellant No. 1 Haridwar, who was cultivating the land of Bansi, was clearly in a position to exercise undue influence upon him unless defendant No. 1 shows that sale-deed was not obtained by undue influence. The defendant having failed to prove otherwise, lower Appellate Court after discussing the matter at great length, allowed the appeal and set aside Trial Court’s judgment. The plaintiff’s suit was allowed and sale-deed dated 17.9.1974 was cancelled. 10. The following substantial question of law was formulated at the time of hearing under Order XLI, Rule 11 C.P.C. read with order XLI, Rule 1 C.P.C. : “Whether on the facts found by the lower appellate Court, it was right in taking the view that the burden to prove that the sale-deed in question was a real and genuine action was on the defendant-appellant ?” 11. Learned counsel for the appellant vehemently contended that lower Appellate Court has wrongly placed burden upon defendant-appellant and therefore impugned judgment is wholly vitiated in law and liable to be set aside. He drew my attention to the following observations made by lower Appellate Court wherefrom the question, formulated above, has arisen: “Thus it is for the defendant to show that deed dated 17.9.1974 has not been obtained by undue influence.” 12. In my view, learned counsel for the appellant is misconstruing the concept of term “burden of proof” and “onus” by identifying the two as synonymous. The onus probandi i.e. “Burden of proof” lies upon a person who is bound to prove the fact and it never shifts. 13. In my view, learned counsel for the appellant is misconstruing the concept of term “burden of proof” and “onus” by identifying the two as synonymous. The onus probandi i.e. “Burden of proof” lies upon a person who is bound to prove the fact and it never shifts. 13. Section 101 of Indian Evidence Act, 1872 (hereinafter referred to as “Act, 1872”) talks of burden of proof, and says: “Burden of proof.—Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 14. The burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative is usually incapable of proof. The provision is based on the rule, ie incumbit probatio qui dicit, non qui negat. In Constantine Line v. I S Corpn, (1941) 2 All ER 165, Lord Maugham said; “It is an ancient rule founded on consideration on good sense and should not be departed from without strong reasons.” 15. A person who asserts a particular fact has to prove the same. Until such burden is discharged, the other party is not required to be called upon to prove his case. Whoever desires a Court to give judgment, dependent on the existence of facts which he asserts, must prove that those facts exist. The distinction between “burden of proof” and “onus” is that the former lies upon the person and never shifts but the “onus” shifts. Shifting of onus is a continuous process in the evaluation of evidence. For example, in a suit for possession, based on title once the plaintiff is able to create a high degree of probability so as to shift the onus on the defendant, it is then for the defendant to discharge his onus and in absence of such discharge by defendant, burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of plaintiff’s title. 16. 16. The above distinction between “burden of proof” and “onus” of proof has been explained in A.Raghavamma v. A. Chenchamma, AIR 1964 SC 136 , followed in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and another, (2003) 8 SCC 752 . 17. Section 102 of Act, 1872 says that burden of proof in a suit would lie on a person who would fail if no evidence at all were given on either side. Here it is not degree of proof but the onus to lead evidence i.e. obligation to begin to prove a fact. The burden of proof as such has not been defined in the Act but looking to the substance and the context and spirit, it can be said that burden to establish case, loosely, can be said to be burden of proof. 18. For applying above provision in the case in hand, there can be no manner of doubt in holding that burden of proof lies upon the plaintiff. In the case in hand, to prove that sale-deed in question suffers an infirmity, justifying its cancellation, as pleaded in the plaint and to prove those facts, burden lies upon plaintiff. But then it has to be understood that there is a distinction between “burden of proof” as a matter of law and pleading and as a matter of adducing evidence. In the first sense, the burden is always constant but burden in the sense of adducing evidence shifts from time to time, having regard to evidence adduced or the presumption of fact or law raised in favour of one or the other. On this aspect, more light emanates when we go through Sections 103 and 104 of Act, 1872, which read as under: “S. 103. Burden of proof as to particular fact.—The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” S. 104. Burden of proving fact to be proved to make evidence admissible.—The burden of proving any fact necessary to be provided in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.” 19. Burden of proving fact to be proved to make evidence admissible.—The burden of proving any fact necessary to be provided in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.” 19. Looking to both these provisions, it can be said, that, when a person alleges mala fide on the part of an authority, burden to establish mala fide lie upon him. He has to adduce evidence to discharge aforesaid burden but then burden in the process of adducing evidence may shift when, prima facie, mala fide is shown, inasmuch as, then onus will shift and the other party has to establish that existence of facts constituting mala fide, in fact, did not exist and the action was not taken mala fide. 20. In the context of undue influence, how burden of proof and onus will work, will have to be considered in the context as to what undue influence is, what are its necessary ingredient and what is required by law to be proved. 21. The term “undue influence” is defined in Section 16 of Indian Contract Act, 1872 (hereinafter referred to as “ICA, 1987”), which read as under: “Undue influence” defined.—(1) 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. (2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another : (a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; or (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. (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. Nothing in this sub-section shall affect the provisions of section 111 of the Indian Evidence Act, 1872.” 22. An “influence” will turn and become “undue” when a person, in a dominant position uses that position to obtain unfair advantage for himself at the cost of a person relying upon his authority or aid or position. Broadly speaking, in order to bring an act satisfying the term “undue influence”, there are three ingredients, vide Section 16 of ICA, 1872, which are: (i) that the relation subsisting between the parties should be such that one of the parties is in a position to dominate the will of the other; (ii) that the dominant party obtains an unfair advantage over the other, and (iii) that the dominant party uses his position to obtain unfair advantage. 23. In other words, undue influence means domination of a weak mind by strong mind to an extent which causes the behaviour of the weaker person to assume an unnatural character. Undue influence is any influence brought to bear upon a person entering into an agreement or consenting to a disposal of property which in normal circumstances one would not have done or agreed to do. The essence of “undue influence” is that a person is constrained to do against his will, but for the influence he would have refused to do it left to exercise his own judgment. It is an influence which acts to the injury of a person who is swayed by it and which compels that person to do something which he would not have done, if he had been a free person. 24. Undue influence does not connote excessive, inordinate or disproportionate influence but something wrongful. Acts of undue influence sometime range themselves under either coercion or fraud. Person having influence over another and by that influence induces the will of the other to his subjection, then it is such coercion as is sufficient to constitute undue influence. It is an influence whereby control is obtained over the mind of the victim by insidious approaches and seductive artifices. It may arise where parties stand to one another in a relation of confidence which puts one of them in a position to exercise over the other, an influence, which may be perfectly natural and proper in itself, but, is capable of being unfairly used. It may arise where parties stand to one another in a relation of confidence which puts one of them in a position to exercise over the other, an influence, which may be perfectly natural and proper in itself, but, is capable of being unfairly used. The question whether a party is in a position to dominate other is broadly a question of fact. No general law can be laid down as to when one would be in a position to dominate over the will of the other owing to complexities of human nature and relations. It may arise due to personal relationship or as a result of circumstances, in which the contract was entered into. In Inchenoriah Binte Mohamed Tahir v. Shaik Allie bin Omar bin Abdullah Bahashuan, AIR 1929 PC 3, it was held, where the donor is not only an old lady of feeble health but is also entirely dependant upon the donee, her nephew, even for food and clothes, there is sufficient relation between them to presume undue influence being responsible for bringing about the gift. 25. A person of hundred years of age, indebted to third parties and for the purpose of managing his own livelihood, dependent upon another, can be said to be in a position to be influenced and dominated by the will of such person on whom he relies and depends. 26. Undue influence was read alongwith fraud and coercion and in Bishundeo Narain and another v. Seogeni Rai & Jagernath, AIR 1951 SC 280 , it was held that in cases of fraud, ‘undue influence’ and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.” 27. In Poosathurai v. Kannappa Chettiar, AIR 1920 PC 65, it was held that it is a mistake to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it. Up to that point “influence” alone has been made out. Such influence may be used wisely, judiciously and helpfully. But one has to thereafter go further and, more than mere influence must be proved so as to render influence, in the language of the law, ‘undue’. 28. In Ladli Prashad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and others, AIR 1963 SC 1279 , the Court observed that doctrine of ‘’undue influence’ is 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. Referring to sub-rule 3, the Court said that reason for this provision is that a person who has obtained an advantage over another by dominating his will may also remain in a position to suppress the requisite evidence in support of the plea of undue influence. 29. Very recently, all these authorities have also been considered by Court in Joseph John Peter Sandy v. Veronica Thomas Rajkumar and another, JT 2013(4) SC 9. 30. I do not intend to multiply authorities on the subject but suffice it to mention that a case of undue influence may have thousands of shades and therefore in every matter, the facts thereof have to be examined individually. It cannot be doubted that the Courts, while dealing in the cases of undue influence, have to consider among other the following aspects: (i) Whether transaction is such which a ripe minded person could have entered into or could be expected to enter into? (ii) Whether it shows so much improvidence as to suggest that dominant was not in a state of mind to weigh what he was doing? (iii) Whether it was a matter which required legal advice? (iv) Whether intention of making transfer originated with the transferor? 31. It would now be prudent to peep into the facts of this case in the light of broad principles discussed above. The facts of this case in respect whereto widely there is no dispute are that, Bansi and defendant No. 1 Haridwar, both were co-owners of property, inasmuch, to the extent of half of the share to each one of them. The facts of this case in respect whereto widely there is no dispute are that, Bansi and defendant No. 1 Haridwar, both were co-owners of property, inasmuch, to the extent of half of the share to each one of them. The total agricultural land being about 20 bigha khas, the share of Bansi came to 10 bigha khas besides the residential house. Bansi had only one daughter who had married and was living with her husband elsewhere. Bansi was elder brother of father of defendant No. 1 i.e. Haridwar. Bansi died on 25.7.1975. These facts constitute concurrent findings by both the Courts below. Further that transaction of sale of disputed property was not in knowledge of plaintiff i.e. wife of Bansi. Here also both the Courts have recorded concurrent findings. 32. The sale of immovable property and, that too, an agricultural property of a person, living in rural area is an important event and in normal course, it is believed that if husband intends to sell some immovable property, the wife or other heirs, namely at least sons must have been consulted and they must have and possess knowledge and information about such transaction. Lack of information of execution of sale-deed when it was so executed to plaintiff, was specifically pleaded. The defendant though specifically pleaded otherwise but failed to prove. It is thus evident that plaintiff had no knowledge of execution of sale-deed at the time when it was so executed. This is one important aspect, which adds weight to the claim set up by plaintiff for seeking cancellation of sale-deed on the ground of undue influence. 33. The next is the age of Bansi i.e. the vendor. The plaintiff stated that age of Bansi at the time of execution of sale-deed i.e. September, 1974 was about 100 years. DW-1 Haridwar in his oral deposition before Trial Court said that age of Bansi was 60-70 years. However, he was confronted with his own statement made in mutation cae No. 379 before Naib Tehsildar, Basti, recorded on 21.1.1976 wherein he had said that age of Bansi was 100 years and he was very old. This is paper No. 39-C. During cross-examination, he admitted to have made the said statement but then further said that his statement made now i.e. before Trial Court in the suit in question is correct. This is paper No. 39-C. During cross-examination, he admitted to have made the said statement but then further said that his statement made now i.e. before Trial Court in the suit in question is correct. Since the statement on the basis whereof appellant got his name mutated in revenue records constitutes his admission, therefore, Court below, in absence of anything otherwise, have rightly held that age of Bansi is proved to be 100 years, at the time of execution of sale-deed. I find no legal or otherwise infirmity in such finding recorded by Lower appellate Court. Admittedly, Bansi had died almost within 11 months from the date of execution of sale-deed. This fact in some way support age factor and ailment. 34. Regarding the documents said to have been executed by Bansi, it is admitted by parties that the same contain his thumb impression. Who identified Bansi before Sub Registrar or before Revenue Authorities in the mutation proceedings, nothing has been explained and said by the appellant. The witnesses to the sale-deed were not examined and on the contrary, only scribe i.e. document writer appeared as DW-2, who said that he knew Bansi, who came on 17.9.1974 to get the document prepared and thereafter he put his thumb impressions on the said document in his presence. In his cross-examination, however, he admits that he had not seen the house of Bansi. 35. About the independent decision of Bansi, defendant-appellant himself had pleaded that he was not happy with son-in-law, the only male family member available to Bansi for advice etc. and thus depended and relied upon defendant No. 1. Both the parties have admitted that relations of Bansi and defendant No. 1 were cordial. 36. In para 5 of written statement, defendant No. 1 has specifically pleaded that on account of indebtedness, incurred due to continuous demand of money by son-in-law, Bansi having no other source of earning or availability of money, left with no option, felt helpless and decided to sell the property in dispute to him. 36. In para 5 of written statement, defendant No. 1 has specifically pleaded that on account of indebtedness, incurred due to continuous demand of money by son-in-law, Bansi having no other source of earning or availability of money, left with no option, felt helpless and decided to sell the property in dispute to him. The exact pleading in para 5 read as under: ^^;g fd djtk vnk;xh ds fy, vkSj viuh vU; vko’;drkvksa dh iwfrZ ds fy, vU; dksbZ lk/ku u gksus ds dkj.k foo’k gksdj ca’kh us vius dqN uEcjku fookfnr Hkwfe ds ckor oSukek jftLVjh ge izfroknh ds gd esa^^ “That being constrained by not having any other means for repayment of loan and fulfilment of his other needs, Bansi, ........sale-deed in respect of some of his plots out of the disputed land in favour of us, the defendants.” (English Translation by the Court) 37. Once defendant himself admits that Bansi was forced on account of lack of finance and other options and was helpless, it is clear that at such an age, Bansi could not have exercised his independent free decision with respect to conveyance of property in dispute. The entire agricultural property, which was in the share of Bansi and also residential house is said to have been sold to defendant-appellant on a total consideration of Rs. 8,000/-, out of which defendant claimed that Rs. 5,000/- was paid a few months back and Rs. 3,000/- was paid before the Sub-Registrar. The plaintiff, wife of Bansi has clearly denied receipt of any money. The defendant being the only male family member alongwith Bansi, who was illiterate, rustic centurion villager, obviously was physically infirm. As stated and admitted by defendant No. 1, in para 5 of his written statement, he was in great distress, mentally and financially, both. All these facts clearly demonstrate that defendant was in a positiion to dominate the will of Bansi. It is in these circumstances, onus was bound to shift upon defendant-appellant to establish to the satisfaction of the Court that sale-deed was obtained without exercising undue influence. 38. Here, I may also observe that law does not require plaintiff to establish positively, that, in fact, the deed had been obtained by exercising undue influence. It is in these circumstances, onus was bound to shift upon defendant-appellant to establish to the satisfaction of the Court that sale-deed was obtained without exercising undue influence. 38. Here, I may also observe that law does not require plaintiff to establish positively, that, in fact, the deed had been obtained by exercising undue influence. The plaintiff cannot be expected to set out in detail the element of undue influence in the plaint and to bring forth documentary or oral evidence to prove each and every aspect, much of which depends and originated from human behaviour, relation, etc.. It was enough to point out that defendant was in a position to dominate the will of vendor and he obtained an unfair advantage by using that position. I am fortified in expressing above view, by judgment of this Court in Sher Singh and others v. Pirthi Singh and others, 1975 All 259. 39. The plaintiff, in this regard, has led enough evidence and this is supported with the fact that entire transaction underwent clandestinely, and, those, who in normal course must have knowledge thereof, were kept in dark. The lower Appellate Court, therefore, while observing that it was for defendant to prove that instrument of sale-deed was not obtained by undue influence, has said so, at a stage when initial burden i.e. facts constituting element of undue element were found to exist, and thus he turned/shifted onus upon defendant to prove that document was not obtained by undue influence. This approach of lower Appellate Court can neither be said to be illegal nor contrary to law. 40. The question, formulated above, is answered accordingly and against the defendant-appellant. 41. Consequently, this appeal lacks merit. 42. Dismissed. 43. No costs. —————