JUDGMENT Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 31.12.2004 rendered by the learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No. 16-N/ 13 of 2004. 2. Key facts necessary for the adjudication of this Regular Second Appeal are that the predecessor-in interest of the respondents-plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) Sh. Baru Ram claimed himself to be the owner in possession of 2/3rd share in the land bearing Khata No.46, Khasra No. 236/58/2 corresponding to Khasra No. 502/236/58 measuring 4 bighas 13 biswas, Khasra No. 352/235/2 corresponding to Khasra No. 500/352/235 measuring 2 bighas 8 biswas and Khasra No. 357/234/4 measuring 5 biswas, kita 3 total measuring 7 bighas 6 biswas on the basis of mutation No. 375 of the partition of Khata No. 46, which was later on incorporated in the jamabandi for the year 1999-2000 in Khata Khatauni No. 58/70 situated in Mauza Parduni, Tehsil Paonta Sahib, District Sirmaur, H.P. (hereinafter referred to as the “suit land”). According to him, about 20 years ago, the appellants-defendants (hereinafter referred to as the “defendants” for convenience sake), namely, Ram Pal and Joginder requested him to give them some land near road side of their house as they had no land near the road. He was more than 80 years. Defendants expressed their apprehension to him that on account of his illness, he may become mentally weak and hard of hearing and after his death, they would not be safe on the land given to them for construction of their house, therefore, a request was made to him to transfer the ownership of the land to them. Since the relations between the parties were cordial, predecessor-in-interest of the plaintiffs agreed to transfer the land measuring 11 biswas to the defendants over which their houses were standing. Therefore, defendants collected the papers from the Halqua Patwari and brought Sh. Baru Ram to Paonta Sahib for transferring the land over which their houses were standing on 11.1.2000. He was merely asked to put his thumb impression on the document disclosing that the same is a transfer deed in respect of 11 biswas of land in their favour. He believed the defendants and put his thumb impression on the document that he was just transferring the land measuring 11 biswas in favour of the defendants. He was merely asked to put his thumb impression on the document disclosing that the same is a transfer deed in respect of 11 biswas of land in their favour. He believed the defendants and put his thumb impression on the document that he was just transferring the land measuring 11 biswas in favour of the defendants. According to him, he had no occasion to gift away his entire share in the suit land as he had two sons and two grand sons of predeceased sons alive. He claimed himself to be an old man suffering from hard of hearing. Defendants taking advantage of his being illiterate and rustic misrepresented him that he was merely going to transfer 11 biswa of land, whereas they got his thumb impression on a document, which was a gift deed where the entire share measuring 7 bighas 6 biswas was transferred in their favour by way of that document. The true nature and the contents of the documents were not disclosed to him. According to him, the possession of the entire suit land was never handed over to the defendants; therefore, the gift deed was not complete. The cause of action accrued to him on 9.10.2001 when the defendants interfered in his possession. It is in these circumstances, the predecessor-in-interest of the plaintiffs have filed the suit for permanent prohibitory injunction and also prayed for restraining the defendants from forcibly ejecting him from the suit land or causing any interference in his possession. 3. Suit was contested by the defendants. Defendants admitted that the plaintiff was co-owner in possession of the suit land to the extent of his share but denied that he had become physically weak. According to them, the suit has been filed at the instance of one Mula, who had inimical relations with them. According to them, the land has been gifted to them by Sh. Baru Ram. The gift deed was duly registered by the plaintiff in favour of the defendants out of love and affection. It was executed by the plaintiff Baru Ram in the presence of marginal witnesses and the plaintiff was identified before the Sub- Registrar, Paonta Sahib by Sh. Bihari Lal, Numberdar. The gift deed was prepared by the document writer. The contents of the same were read over and explained to Baru Ram in the presence of marginal witnesses. It was executed by the plaintiff Baru Ram in the presence of marginal witnesses and the plaintiff was identified before the Sub- Registrar, Paonta Sahib by Sh. Bihari Lal, Numberdar. The gift deed was prepared by the document writer. The contents of the same were read over and explained to Baru Ram in the presence of marginal witnesses. He put his thumb mark in the presence of marginal witnesses.Thereafter, it was presented before the Sub-Registrar. He also read over the same to the plaintiff. He also put his thumb mark and gave his consent to the Sub-Registrar. According to them, the suit land was in their possession. No mis-representation or fraud has been committed upon the plaintiff by the defendants. 4. The replication was filed by the plaintiff. On the pleadings of the parties, learned Civil Judge (Junior Division) framed the issues on 13.6.2002. Learned Civil Judge (Junior Division) dismissed the suit on 22.5.2004. Sh. Baru Ram, predecessor-in-interest, who had instituted the suit, died during the pendency of the civil suit before the trial court. His legal heirs were brought on record by the trial court. The plaintiffs filed an appeal before the learned Additional District Judge, Sirmaur at Nahan. He allowed the same on 31.12.2004 and declared the plaintiff to be the owner in possession to the extent of 2/3rd share in the land comprised in Khasra No. 502/236/58/2 measuring 4 bighas 2 biswas, Khasra No.500/352/235 measuring 2 bighas 8 biswas, Khasra No. 512/357/243 measuring 0-5 bigha and owner of Khasra No. 502/236/58/1, measuring 11 biswas, as shown in the tatima, kita 3 measuring 7 bighas 6 biswas situated in Mauza Parduni, Tehsil Paonta Sahib, District Sirmaur, and the gift deed No. 27 dated 11.1.2000 Ex.DW-2/A was declared null and void and not biding on the rights of the plaintiffs and mutation No. 378 and the revenue entries in the jamabandi for the year 1999-2000 on the basis of gift deed were also declared illegal and void. The defendants were permanently restrained from interfering in the possession of the plaintiffs. Hence, the present Regular Second Appeal. It was deemed to have been admitted on 27.2.20 13 on the following substantial questions of law: 1. The defendants were permanently restrained from interfering in the possession of the plaintiffs. Hence, the present Regular Second Appeal. It was deemed to have been admitted on 27.2.20 13 on the following substantial questions of law: 1. “What is the effect of section 60 of he Registration Act, 1908 on the validity of gift deed dated 11.1.2000 Ex.DW­2/A in view of endorsement of registration by Sub Registrar on gift deed, more particularly, when the plaintiff has attributed nothing to the Sub Registrar, who registered the gift deed? 2. Whether the learned Additional District Judge is justified in declaring whole of the gift deed Ex.DW-2/A wrong, illegal including land measuring 11 Biswas comprised in Khasra No. 502/236/58/1, which is under the houses of the defendants? 5. Mr. Karan Singh Kanwar has vehemently argued that the learned Additional District Judge has failed to take into consideration the effect of section 60 of the Registration Act, 1908 on the validity of the gift deed Ex.DW-2/A. He then contended that the learned Additional District Judge was not justified in declaring the whole of the gift deed wrong and illegal, including land measuring 11 biswas comprised in Khasra No. 502/236/58/1. In other words, his submission is that the defendants are entitled at least to be declared owner of Khasra No. 502/236/58/1 on which they have constructed their houses. 6. Ms. Jyotsna Rewal Dua has supported the judgment and decree passed by the first appellate court. 7. I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 8. Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. The gift deed produced on record vide Ex.DW­2/A is dated 11.1.2000. PW- 1 Pritam Singh has deposed that his father Baru Ram was owner of the land measuring 4-17 bighas adjoining the road. Defendants had requested them to give them land by the side of road 20 years ago. They have given 11 biswas of land to them for the construction of their house. The house was constructed by the defendants. Defendants used to work in their house in lieu of the land given to them. Defendants had approached them for giving them land by way of gift. His father was 90 years old. They have given 11 biswas of land to them for the construction of their house. The house was constructed by the defendants. Defendants used to work in their house in lieu of the land given to them. Defendants had approached them for giving them land by way of gift. His father was 90 years old. His eye sight was weak and he was hard of hearing. He was not mentally alert. They trusted the defendants. They sent their father to Paonta Sahib with the defendants for specifically giving them 11 biswas of land, which was under their houses. The papers were obtained by the defendants from the Patwari. However, the defendants have got the entire land measuring 4-17 bighas in their name by way of gift. 10. One of the defendants Ram Pal has appeared as DW- 1. According to him, the suit land measuring 4-17 bighas is situated in Parduni. The owner of this land was Baru Ram. It was in their possession. They have constructed their houses on this land. They used to help Baru Ram in agriculture pursuit. Baru Ram has given this land to them by way of gift. The documents were obtained by Baru Ram from the Patwari. Baru Ram had taken them to Paonta Sahib. He had asked the Document Writer to scribe the gift deed. The Document Writer prepared the document. He read over the contents of the gift deed to Baru Ram. He after admitting the same to be correct put his thumb impression. Marginal witnesses put their signatures. Thereafter, Baru Ram took them to Tehsildar. Tehsildar also read over the contents to Baru Ram. Baru Ram put his thumb impression on the document. He was mentally alert. According to him, they have also put their signatures on the gift deed. They accepted the gift. In his cross-examination, he has admitted that the age of Baru Ram at the time of execution of gift deed was 80 years. He has also admitted that they had told Baru Ram that the land under their houses be transferred to them. He has categorically admitted that the gift deed was dictated by him. Baru Ram was illiterate. He has also admitted that one of the marginal witnesses DW-3 Ram Sarup is his brother-in- law. He has also admitted that they had told Baru Ram that the land under their houses be transferred to them. He has categorically admitted that the gift deed was dictated by him. Baru Ram was illiterate. He has also admitted that one of the marginal witnesses DW-3 Ram Sarup is his brother-in- law. In his examination-in-chief, he has deposed that they have put their signatures on the gift deed but in his cross- examination, he has admitted that defendant Joginder has not put his signatures on the gift deed. 11. DW-2 Nathu Ram is one of the marginal witnesses. According to him, the gift deed was executed at Paonta Sahib. It was scribed by the Document Writer. He has read over the contents of the gift deed to him. Baru Ram after admitting the gift deed to be correct put his thumb impression. Thereafter, Baru Ram took them to Tehsildar. He did not remember the name of the second witness. In his cross-examination, he has admitted that Baru Ram had gifted only 11 biswas of land. According to him, it was dictated by defendant Ram Pal. He has also admitted that he has contested elections against Pritam Chand and lost the same. 12. DW-3 Ram Sarup is the brother-in-law of DW- 1. According to him, the gift deed was scribed by the Document Writer. The Document Writer confirmed from Baru Ram about the contents of the gift deed. Baru Ram put his thumb impression on the same and thereafter he and Nathu Ram put their signatures. Baru Ram thereafter took them to Tehsildar. Tehsildar also confirmed about the contents of the gift deed. Baru Ram admitted the contents of the gift deed to be true. He has also admitted in his cross-examination that he is brother- in-law of defendant Ram Pal. 13. What emerges from the evidence discussed hereinabove is that Baru Ram was aged person. He was hard of hearing and his eye sight was weak. He only intended to gift 11 biswas of land to the defendants on which they had constructed their houses. He never intended to gift entire suit land to the defendants. The gift deed was dictated by one of the defendants Ram Pal. He has also admitted that they have requested Baru Ram to transfer the land beneath their houses. He only intended to gift 11 biswas of land to the defendants on which they had constructed their houses. He never intended to gift entire suit land to the defendants. The gift deed was dictated by one of the defendants Ram Pal. He has also admitted that they have requested Baru Ram to transfer the land beneath their houses. One of the marginal witnesses, Ram Sarup is the brother in law of DW- 1. DW-2 Nathu Ram has contested the elections against one of the plaintiffs Pritam Chand. He has also admitted categorically in his cross-examination that Baru Ram has gifted only 11 biswas of land and the gift deed was dictated by Ram Pal. The defendants have not produced the scribe of the gift deed and no reasons have been assigned why he could not be produced. It is also not believable that late Sh. Baru Ram would gift the suit land by excluding his two sons and grand-sons. Defendants were helping Baru Ram in his agriculture pursuits and in lieu thereof, he intended to give them 11 biswas of land. It has also come in the evidence that Baru Ram was illiterate. One of the defendants Sh. Joginder has not signed the gift deed. DW-2 Nathu Ram could not disclose the name of other attesting witness. Defendants have failed to prove that Baru Ram had executed gift deed Ex.DW-2/A voluntarily and has put his thumb impression after understanding the contents of the same. 14. Learned Single Judge of this Court in Ballo versus Paras Ram, AIR 1972 HP 33 has held that the burden of proving the absence of undue influence will rest upon the defendant if it is established by the evidence in the case that the defendant was in a position to dominate his will and that the transaction was unconscionable. Learned Single Judge has held as under: 16. Learned counsel for the plaintiff-appellant has stated that the plea of fraud in the execution of the gift-deed is given up in view of findings of the two Courts below. This issue will, therefore, not be tried now. The only issue that will be tried now will be the whether the gift-deed was executed as a result of undue influence as explained above. This issue will, therefore, not be tried now. The only issue that will be tried now will be the whether the gift-deed was executed as a result of undue influence as explained above. As already explained, the burden of proving the absence of undue influence will rest upon the defendant if it is established by the evidence in the case that the defendant was in a position to dominate his will and that the transaction was unconscionable. Each party can, of course, rely upon admissions made by its adversary which are better than other kinds of evidence. It follows that even if the plaintiff willingly executed the gift-deed, the deed must be set aside if it was shown to have been induced either by the actually proved or presumed exercise of undue influence upon the plaintiff. The exercise of undue influence could be presumed, until the presumption is rebutted by the proof of requirements found in Section 16 of the Contract Act for raising the presumption. 15. Learned Single Judge of this Court in Smt. Kartari versus Kewal Krishan and others, AIR 1972 HP 117 has held that if the transaction of gift appears to be unconscionable, the burden of proving that the contract was not induced by undue influence lies upon the person who was in a position to dominate the will of the donor. Learned Single Judge has further held that rules regarding transactions by “pardanashin’” women are equally applicable to the illiterate and ignorant women though not “pardanashin’”. Learned Single Judge has laid down the followings tests to determine whether the execution of gift was under influence: “4. There is a specific allegation in the plaint that undue influence was exercised and in the absence of the plaintiff, the defendants, had taken the lady who was ailing, to Una under the pretext that she was to be given a treatment by some doctor. She was, thus, brought under the influence of the defendants and the gift-deed was obtained. The Court trying a case of undue influence must consider two things to start with, namely:- (i) Are the relations between the donor and the donee 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 over the donor? The Court trying a case of undue influence must consider two things to start with, namely:- (i) Are the relations between the donor and the donee 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 over the donor? 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 sominate the will of the other. See AIR 1967 SC 878 , Subhash Chandra V. Ganga Prosad. It was thus to be ascertained if the defendants were in a position to dominate the will of Shrimati Basanti and have they used their position to obtain an unfair advantage over her. Certain circumstances were established by evidence and these circumstances need be reiterated. As to the age of the lady, according to plaint case, she was 90 years old. In the gift deed itself the age is mentioned as 60 years. Madho Ram (PW. 3), however, stated that her age was 75 years. Shero (DW3) assessed her age to be 70, while Kewal Krishan defendant (DW 4) stated that her age was 60 or 65 years. It is, therefore, abundantly clear that the age of the lady was near about 70 years which was sufficiently an advanced age, specially when she was ailing. According to Shero (DW 3) the defendants had brought her for treatment by some doctor. The plaintiff herself, of course, stated that she was not in a sound state of mind and that she was in a position to tell facts about the transaction only when she could collect her wits. It was, therefore, established that Shrimati Basanti was an aged lady who was ailing at the time of the execution of the gift-deed. Apparently she must have been attached to the plaintiff who was her only daughter. The gift deed was obtained while the daughter was absent and had gone to her husband’s place. In fact, the defendants avoided the presence of the plaintiff at all relevant time of the execution and registration of the deed. Apparently she must have been attached to the plaintiff who was her only daughter. The gift deed was obtained while the daughter was absent and had gone to her husband’s place. In fact, the defendants avoided the presence of the plaintiff at all relevant time of the execution and registration of the deed. The defendants were, no doubt, collaterals and being male members of the family of her husband, came to her and brought her to Una for treatment. In this manner they were in a position to dominate the will of the lady, at any rate during that short period of time when the plaintiff remained absent. In the plaint, however, it was stated that the defendants were not even on visiting terms with the lady. This assertion was obviously made as a counterblast to the defendants’ assertion in the gift deed itself that they were serving the lady since long and the gift was obtained in lieu of that service. There is no evidence worth the name to prove that any service was rendered by the defendants to the lady. It is obvious that she must have been attached to her only daughter and, as stated by her, it was she who was to serve her up till her death. The beneficiary Kewal Krishan defendant played a prominent part in execution and registration of the deed. He had taken witnesses from the village and according to Shero (D.W. 3), he was also one of the witnesses taken from the village, but only Jakha (D.W. 2) stood as witness and one more witness was taken from Una. For some reason, Shero (D.W. 3) was given up. However, he was produced in the Court and ti is he who admitted that the lady was taken by the defendants for treatment to Una. However, he was not in a position to tell us to whether any treatment was given to her at all. It appears therefore, that the lady was taken to Una under the pretext of giving her a treatment. That is the reason why the witness is not in a position to give out any detail regarding such treatment. It is, therefore, evident that Kewal Krishan defendant engaged his scribe for writing the deed. He presented the lady for registration of the document. That is the reason why the witness is not in a position to give out any detail regarding such treatment. It is, therefore, evident that Kewal Krishan defendant engaged his scribe for writing the deed. He presented the lady for registration of the document. In this connection, reference can be made to Vellaswamy Servai V. L. Sivaraman Servai, AIR 1930 PC 24 which was a case of will. But the ratio of the case is equally applicable to the circumstances of this case. Their Lordships made the following observation:- “Where the propounder of a Will is the principal beneficiary under it and has taken a leading part in giving instructions for the execution of the will and procuring its registration and execution, the circumstances are such as would excite the suspicion of any probate Court and require it to examine the evidence in support of the will with great vigilance and scrutiny. The propounder is not entitled to probate unless the evidence removes such suspicion and clearly proves that the testator approved of the will.” The defendant being the principal beneficiary thus took a leading part in execution and registration and this by itself is sufficient to prove that he dominated the will of the lady and exercised his influence in obtaining an unfair advantage inasmuch as he deprived the natural heir namely the plaintiff of the entire properties. The natural affection of the mother should have been for the daughter who was a widow and not under affluent circumstances. Admittedly she has no issues and according to her statement, she does not possess any landed property at her husband’s place. Amar Nath, Sarpanch, (P.W. 2) stated that the plaintiff has no male-member to look after her at her father-in-law’s place. She has no landed property, except half portion of a house of which compensation has been paid to her. Kewal Krishan (D.W. 4) the defendant himself admitted that the plaintiff does not have any relation of hers at her father-in-law’s place. The defendants asserted that the donor did not want to change the line of descent from her husband and that is why, she gifted the disputed property to them. If that was the reason for making the gift, why it was not mentioned in the deed itself? The defendants asserted that the donor did not want to change the line of descent from her husband and that is why, she gifted the disputed property to them. If that was the reason for making the gift, why it was not mentioned in the deed itself? There it was stated that the defendants were doing service for her and the gift was being executed in lieu of that service. Above all, the lady herself came to Una subsequently and questioned the deed of gift. She got a complaint written by Sant Ram Scribe (P.W. 1) on 25th April, 1961. This witness produced his register which contained the thumb impression of the lady. The substance of the complaint was written in the register which was, obviously, kept in the regular course of business. A copy of the register (Ex. P.W. 1/1) has been filed. The original complaint was not summoned from the office of the Superintendent of Polcie. There was some controversy as to the admissibility of this register entry. There can by itself a primary evidence of a document. In fact, two documents were brought into existence, one was the complaint sent to the Superintendent of Police and the other was the register entry made by the scribe. The plaintiff produced the register entry and could not produce the complaint itself. The register entry was thus primary evidence of the document and could be taken into evidence. At any rate, this document proved that Shrimati Basanti had her own objection for the document which she was made to execute on 4th April, 1961 at the instance of the defendants. She did not know the details of that document, which is manifest from the register entry (Ex. P.W. 1/1) which specifies that all the four brothers including the two defendants had taken the transfer in their favour. In fact, the gift was executed in favour of only two brothers, namely, the defendants. This circumstance also proves that the lady was not aware of the details of the transaction of which she was made a party. According to Kewal Krishan (D.W. 4), she was an illiterate lady. 6. In fact, the gift was executed in favour of only two brothers, namely, the defendants. This circumstance also proves that the lady was not aware of the details of the transaction of which she was made a party. According to Kewal Krishan (D.W. 4), she was an illiterate lady. 6. As a result to all that I have stated above, inferences can be drawn to the effect that the defendants were in a position to dominate the will of the lady and that they exercised their influence and obtained an unfair advantage for themselves. The transaction of gift was itself unconscionable inasmuch as the mother deprived her dependent daughter of her entire share in the properties. Besides this, the donor herself never kept any land alive for some substantial period, she would have been entirely dependant for livelihood upon the defendants. She would not have agreed to such a transaction. The burden of proof thus lay upon the defendants to establish that undue influence was not exercised and this they failed to establish. The learned District Judge placed a wrong burden of proof upon the plaintiff which is clear from the reasoning that he has adopted in the judgment. It is, therefore, abundantly clear that the disputed gift-deed was obtained by undue influence and need be set aside. 7. Rules regarding transactions by ‘pardanashin’ women are equally applicable to illiterate and ignorant women though not ‘pardanashin’. Tis is so held in Chinta Dasya V. Bhalku Das, AIR 1930 Cal 591. There is no reason, say there Lordships, why a rule which is applicable to pardanashin ladies on the ground of their ignorance and illiteracy should be restricted to that class only and should not apply to the case of a poor woman who is equally ignorant and illiterate and is not pardanashin, simply because she does not belong to that class. If that view of the matter were adopted the effect clearly would be to confer an unfair advantage upon rich women as compared with poor women. The object of the rule of law is to protect the weak and helpless and it would not be restricted to a particular class of the community. In Mt. If that view of the matter were adopted the effect clearly would be to confer an unfair advantage upon rich women as compared with poor women. The object of the rule of law is to protect the weak and helpless and it would not be restricted to a particular class of the community. In Mt. Farid-un-nisa V. Mukhtar Ahmad, AIR 1925 PC 204 the following observation has been made which can be profitably understood in the case:- “The law of India contains well-known principles for the protection of persons, who transfer their property to their own disadvantage, when they have not the usual means of fully understanding the nature and effect of what they are doing. In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependant upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind. The real point is that the disposition made must be substantially understood and must really be the mental act, as its execution is the physical act, of the person who makes it. The parties to prove the state of the settlor’s mind are the parties who set up and rely on the deed. They must satisfy the Court that the deed has been explained to and understood by the party thus under disability, either before execution, or after it under circumstances which establish adoption of it with full knowledge and comprehension. Further, the whole doctrine involves the view that mere execution by such a person, although unaccompanied by duress, protest or obvious signs of misunderstanding or want of comprehension, is in itself no real proof of a true understanding mind in the executant. Evidence to establish such comprehension is most obviously found in proof that the deed was read over to the settler and, where necessary, explained. If it is in a language which she does not understand, it must, of course, be translated, and it is to be remembered that the clearness of the meaning of the deed will suffer in the process. If it is in a language which she does not understand, it must, of course, be translated, and it is to be remembered that the clearness of the meaning of the deed will suffer in the process. The extent and character of the explanation required must depend on the circumstances of each case.” In the instant case, it was the duty of the defendants to prove that the lady substantially understood the document and her physical act of signing such document coincided with the mental act of approval of its contents. This the defendants have failed to establish and hence the plaintiff must succeed. In Ram Kalap Pande V. Bansidhar, (AIR 1947 Oudh 89), the following observations was made which may be of some interest:- “When the parties to a transaction do not stand upon a 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 the 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.” The ratio of these cases equally applies to the circumstances made out in the instant case. 16. The same principles have been reiterated by the learned Single Judge of this Court in Smt. Takri Devi versus Smt. Rama Dogra and others, AIR 1984 HP 11 . Learned Single Judge has held as under: “20. To prove undue influence the plaintiff has to prove that (a) the relations subsisting between the parties are such that the defendant was in a position to dominate the will of the plaintiff and (b) the defendant used that position to obtain an unfair advantage from the plaintiff. 23. The burden of proving that the gift deed Ex. To prove undue influence the plaintiff has to prove that (a) the relations subsisting between the parties are such that the defendant was in a position to dominate the will of the plaintiff and (b) the defendant used that position to obtain an unfair advantage from the plaintiff. 23. The burden of proving that the gift deed Ex. D-1 is a result of the free will of the plaintiff therefore shifts upon the defendant and it is now for the defendant to prove that the gift deed was not executed under undue influence. In taking this view I am supported by the observations made in Afsar Shaikh V. Soleman Bibi, AIR 1976 SC 163 . Paras 23 and 24 of this judgment are as follows:- “23. Sub-section(2) of S. 16 is illustrative as to when a person is considered to be in a position to dominate the will of the other. It gives three illustrations of such a position, which adapted to the facts of the present case, would be (a) whether the donee holds a real or apparent authority over the donor, (b) whether he stands in a fiduciary relation to the donor, or (c) whether he makes the transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. 24. Sub-section(3) contains a rule of evidence. According to this rule, if a person seeking to avoid a transaction on the ground of undue influence proves-(a) that the party who had obtained the benefit was, at the material time in a position to dominate the will of the other conferring the benefit, and (b) that the transaction is unconscionable, the burden shifts on the party benefiting by the transaction to show that it was not induced by undue influence. If either of these two conditions is not established the burden will not shift. As shall be discussed presently, in the instant case the first condition had not been established and consequently, the burden never shifted on the defendant. 43. From the various circumstances already narrated and discussed by me, I am of the view that the present transaction of gift deed evidenced by Ex. D-1 is the result of ‘undue influence’ exercised by the donee upon the plaintiff as the donee was in a position to dominate the will of the plaintiff. 43. From the various circumstances already narrated and discussed by me, I am of the view that the present transaction of gift deed evidenced by Ex. D-1 is the result of ‘undue influence’ exercised by the donee upon the plaintiff as the donee was in a position to dominate the will of the plaintiff. This issue is accordingly decided in plaintiff’s favour.” 17. The Division Bench of this Court in Smt. Kimtu versus Smt. Rama Dogra and others, 1997 (2) Sim. L.C. 409 has held that in the case of a person who is illiterate or who is not in a position to read the contents of a document, the contract cannot be imposed upon him simply because he has endorsed his signatures thereon unless further it is proved that he did that after understanding the contents of the same. The Division Bench has held as under: “27. It is well established rule of law that in the case of a person who is illiterate or who is not in a position to read the contents of a document, the contract cannot be imposed upon him simply because he has endorsed his signatures thereon unless further it is proved that he did that after understanding the contents of the same. In other words, the rule of law is that the pen must go with the mind and unless both elements are present it cannot be said that the document is his. (see: Smt. Benarasi Devi V. New India Assurance Co. Ltd., AIR 1959 Pat 540 ).” 18. Punjab and Haryana High Court in Harmesh Kumar and others versus Maya Bal and another, AIR 2006 Punjab and Haryana-1 where the plaintiff after the death of her husband executed power of attorney in favour of her brother-in-law authorizing him to pursue litigations against her, her intention was only to clothe her brother- in-law with special power of attorney, but she being illiterate lady executed general power of attorney, the brother-in-law taking undue advantage and playing fraud alienated her property in favour of his son, Learned Single Judge has applied the principle of ‘non est factum’. Learned Single Judge has held as under: “24. Learned Single Judge has held as under: “24. When the principles of non est factum are applied to the facts of the present case as is deducible from various judgments of the Courts in England and the view taken by the Supreme Court in Ningawwa ‘s case (supra) as well as Smt. Bismillah ‘s case (supra), it becomes evident that in the present case, the document envisaged by Maya Bai plaintiff-respondent is entirely different in character than the one she actually executed. Her intention and mind was only to clothe defendant-respondent 2 Gian Chand with a special power of attorney to prosecute the litigation against her or to pursue the litigation initiated by her. However, she ended up executing a general power of attorney conferring power on defendant-respondent 2 Gian Chand to alienate her landed property. By no stretch of imagination, it could be concluded that the document executed by her was her own document. She was fully competent to claim that the transaction was void ab initio and not merely voidable. The classical principle of ‘non est factum’ making distinction between the character of documents and then making them void as considered by the Supreme Court in Ningawwa’s case (supra) would be fully applicable to the facts of the present case. It is further appropriate to mention that these principles flow from Sections 17 and 18 of the Indian Contract Act, 1872. Therefore, the appeal is absolutely ill advised and is liable to be dismissed. 25. Mr. Chhabbra learned counsel has preferred to press Section 92 of the Act to argue that oral evidence is excluded when there is an agreement in writing. The parole evidence rule is well entrenched in Section 92 of the Act which has always been subject to a proviso that it does not exclude adducing of any evidence which may prove fraud,illegality, what of due execution and want of capacity etc. The argument raised by the learned counsel over looked proviso (1) of Section 92 of the Act. It is well settled that fraud transcends all presumptions. In the case of S.P.Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs and Ors., (1995-1)109 P.L.R. 293 (S.C), the Supreme Court has observed as under:- “Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is well settled that fraud transcends all presumptions. In the case of S.P.Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs and Ors., (1995-1)109 P.L.R. 293 (S.C), the Supreme Court has observed as under:- “Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court_has to be treated as a nullity by every court, whether superior or inferior. It cap be challenged in any court even in collateral proceedings.” In view of the above, the argument raised by the learned counsel is wholly superfluous and does not call for any further consideration and I have no hesitation to reject the same.” 19. Their Lordships of the Hon’ble Supreme Court in Krishan Mohan Kul alias Nani Charan and another versus Pratima Maity and others, AIR 2003 SC 4351 have held that where settlement deed was alleged to be executed by old, ailing, illiterate person aged 106 years, onus to prove execution of deed could not be placed on plaintiff and the burden of proving good faith of transaction would be on defendant, dominant party, i.e. the party who was in position of active confidence. Their Lordships have further held that it should be established that there was not mere physical act of the executant involved, but the mental act. Their Lordships have held as under: “12. As has been pointed out by the High Court, the first Appellate Court totally ignored the relevant materials and recorded a completely erroneous finding that there was no material regarding age of the executant when the document in question itself indicated the age. The Court was dealing with a case where an old, ailing illiterate person was stated to be the executant and no witness was examined to prove the execution of the deed or putting of the thumb impression. It has been rightly noticed by the High Court that the Courts below have wrongly placed onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to validity of the deed. It has been rightly noticed by the High Court that the Courts below have wrongly placed onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to validity of the deed. The onus to prove the validity of the deed of settlement was on defendant No. 1. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person, in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act’). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, nor is it necessary or those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, administrators, auctioneers, and other have been held to fall within the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open. Where an active, confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntay instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest. 13. In judging of the validity of transactions between persons standing in a confidential relation to each other, it is very material to see whether the person conferring a benefit on the other had competent and independent advice. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. The age or capacity of the person conferring the benefit and the nature of the benefit are of very great importance in such cases. It is always obligatory for the donor/beneficiary under a document to prove due execution of the document in accordance with law, even dehors the reasonableness or otherwise of the transaction, to avail of the benefit or claim rights under the document irrespective of the fact whether such party is the defendant or plaintiff before Court. 17. The logic is equally applicable to an old, illiterate, ailing person who is unable to comprehend the nature of the document or the contents thereof. It should be established that there was not mere physical act of the executant involved, but the mental act. Observations of this Court, though in the context of pardahnashin lady in Mst. Kharbuja Kuer v. Jang Bahadur Rai and others ( AIR 1963 SC 1203 ) are logically applicable to the case of the old, invalid, infirm (physically and mentally) and illiterate persons.” 20. The Apex Court in S.R. Srinivasa and others versus S. Padmavathamma, (2010) 5 SCC 274 has held that where the execution of the “will” was shrouded by suspicious circumstances, mere registration of “will” by itself was not sufficient to remove the suspicion. The Apex Court has held as under: “57. Since there were suspicious circumstances, it was necessary for the defendants to explain the same. The registration of the Will by itself was not sufficient to remove the suspicion. The first appellate court also notices that even in cases where the execution of the Will is admitted, at least one attesting witness of the Will has to be examined to receive the Will in evidence. DW2, who has been examined is the scribe of the Will, has given no plausible reasons as to why the Will was presented twice before the Sub Registrar for registration. Nor is it stated by this witness as to why the Will was not registered on the first occasion. 58. It is also held by the First Appellate Court that non- examination of the Sub Registrar creates suspicion about the genuineness of the Will. Even the attesting witnesses to the Will have not been examined. There is no evidence whether the Will was read over by the Sub Registrar or anybody else before it was registered. 58. It is also held by the First Appellate Court that non- examination of the Sub Registrar creates suspicion about the genuineness of the Will. Even the attesting witnesses to the Will have not been examined. There is no evidence whether the Will was read over by the Sub Registrar or anybody else before it was registered. It is not explained as to how the Will came into possession of defendant No.1. There is no evidence when he was put in proper custody of the Will. Considering the cumulative effect of all the circumstances, the First Appellate Court has held that execution of the Will is surrounded by suspicious circumstances. Consequently, the appeal was allowed and the judgment of the Trial Court was set aside. 59. The High Court in its judgment seems to have misread the entire evidence. Aforesaid findings recorded by the First Appellate Court have been brushed aside by dubbing them as conjectural. We are unable to appreciate the course adopted by the High Court. It was so influenced by the alleged admission made by the plaintiffs in the second suit, it did not deem it appropriate to examine the material which formed the basis of the findings recorded by the First Appellate Court. It appears that the pleadings, documents and the evidence was not read by the High Court yet it concluded that the findings of the Appellate Court were conjectural. We are unable to endorse the view expressed by the High Court.” 21.In the case in hand also, the defendants have not examined the Sub-Registrar. 22. Mr. Karan Singh Kanwar has relied upon Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165. Learned Single Judge has held that there is a presumption of correctness to the endorsement/certificate issued by the Sub-Registrar at the time or registration of gift deed, however, it is rebuttable. Learned Single Judge has held as under: “17. The plaintiff while appearing as PW-1 has admitted his signatures Ex.D-3 and D-4 on the endorsements Ex.DW-3/3 and Ex.DW-3/4 on Ex.D-2. It is not the case of the plaintiff that such signatures were obtained by either the scribe or the defendant on blank paper. Learned Single Judge has held as under: “17. The plaintiff while appearing as PW-1 has admitted his signatures Ex.D-3 and D-4 on the endorsements Ex.DW-3/3 and Ex.DW-3/4 on Ex.D-2. It is not the case of the plaintiff that such signatures were obtained by either the scribe or the defendant on blank paper. Admission of signatures on the endorsements made by the Sub-Registrar, in the absence of anything else to the contrary, would lead to the only inference that the plaintiff was present before the Sub-Registrar at the time when Ex.D-2 was presented for registration. The fact that the plaintiff did appear and was present before the Sub-Registrar is also evident from the suggestion given by him to the defendant that his signatures were obtained without the Sub- Registrar having read and explained the contents of Ex. D-2 to him. 18. Save and except the sole statement of the plaintiff himself as PW-1, no other evidence has come on the record to rebut the presumption attached to the endorsements made by the Sub-Registrar on Ex.D-2 under section 60(2), Registration Act, 1908. The onus to rebut the presumption was heavily on the plaintiff, which onus he has miserably failed to discharge. The scribe and the marginal witnesses of the gift deed has been able to prove the due execution of the gift deed Ex.D2 by the plaintiff and also the fact that he himself had presented the same to the Sub-Registrar and had admitted the correctness thereof after it was read over and explained to him.” 23. The same principles have been reiterated in Shri Satya Pal versus Shri Rama Nand and others, 1998 (2) Shim. L.C. 420 as under: “10. In the gift deed Ex.D-2, there is a recital that the appellant Rama Nand used to look after all the properties of Smt. Janki Devi and she wanted to make a gift of her land in his favour. The learned lower appellate court had found that this fact had been corroborated by the evidence of the defendant-appellant. In this connect, he had referred to the statement of DW-1 Sat Pal, who has stated that Rama Nand used to come to the house of Janki Devi and that it was Rama Nand who brought said Janki Devi to the Hospital when she was ill. In this connect, he had referred to the statement of DW-1 Sat Pal, who has stated that Rama Nand used to come to the house of Janki Devi and that it was Rama Nand who brought said Janki Devi to the Hospital when she was ill. In his statement, it has been clearly established that the gift was made by Smt. Janki Devi in favour of Rama Nand, i.e., the plaintiff.” 12. In view of the above evidence on record, there is no doubt about the execution of the gift and registration thereof. As rightly held by the learned lower appellate court that in view of the endorsement of the Sub-Registrar, a presumption that the gift deed was duly executed by the executant in a sound disposing mind would arise, unless the same is rebutted. As also further rightly held by him, there is no evidence to rebut this presumption.” 24.Learned Single Judge of this Court in Shri Kripa Ram and others versus Smt. Maina, 2002 (2) Shim. L.C. 213 has held that the presumption of correctness of endorsements on document, but in that case the plaintiffs had failed to rebut the presumption. 25.In the instant case, the plaintiffs have successfully rebutted the presumption of correctness of endorsement by Sub-Registrar, Paonta Sahib by leading cogent and convincing evidence. Defendants have taken undue advantage of the age and ill-health of Baru Ram for getting the gift deed executed in their favour. Defendants have not examined the Sub-Registrar to prove whether the contents of the document were read over to Baru Ram or not. 25. However, learned first appellate court has not taken into consideration that Baru Ram always intended to transfer 11 biswas of land to the defendants on which they have constructed their houses. It has also come in the statement of PW- 1 that they intended to give only 11 biswas of land to the defendants. In view of this, the first appellate court should not have declared the gift deed void in its entirety by including 11 biswas of land in the judgment and decree also. 26.Both the substantial questions of law are answered accordingly. 27. In view of the observations and discussions made hereinabove, the Regular Second Appeal is partly allowed. In view of this, the first appellate court should not have declared the gift deed void in its entirety by including 11 biswas of land in the judgment and decree also. 26.Both the substantial questions of law are answered accordingly. 27. In view of the observations and discussions made hereinabove, the Regular Second Appeal is partly allowed. Appellants are declared owner of land measuring 11 biswas bearing Khasra No. 502/236/58/1 and the Judgment and decree dated 31.12.2004 passed by the learned Additional District Judge is modified only to this extent. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.