JUDGMENT : N.K. BALAKRISHNAN, J. 1. Defendants 1 to 6 in a suit for partition are the appellants. The plaint schedule properties originally belonged to Sreedharan Vaidhyan. Sreedharan Vaidhyan died intestate on 4-9-1986. Defendants 1 to 6 are his wife and children. At the time of the death of Sreedharan Vaidhyan his mother Parvathy was alive. Therefore, defendants 1 to 6 and Parvathy were the legal heirs of deceased Sreedharan Vaidhyan and as such Parvathy had 1/7 share in the property left behind by Sreedharan Vaidhyan. The plaintiff is one of the sons of Parvathy. He relied upon Ext. A1 gift deed alleged to have been executed in his favour by his mother Parvathy on 4-12-1986. Parvathy was aged 95 years on the date of Ext. A1. It is also the admitted fact that Parvathy was an illiterate woman. Even before execution of Ext. A1 gift deed a lawyer notice was sent to the first defendant claiming partition of the property. According to the defendants, it was actually sent by the plaintiff though Ext. A1 would show that it was sent by Smt Parvathy, Ext. A2 is that notice and postal receipt. The defendants contend that Ext. A1 is vitiated by fraud and undue influence and it is void and non est since Parvathy was illiterate and was not in a sound and disposing state of mind at the time of execution of Ext. A1 as she was suffering from serious physical and mental ailments. Ext. A3 is a document which was stated to have been executed by Parvathy as a correction deed. The plaintiff, relying upon Ext. A1 sued for partition contending that he is entitled to get 1/7 share over the property left behind by Sreedharan Vaidhyan. The appellants herein filed written statement inter alia contending that Ext. A1 is a void document having been executed without the free consent of the mother and as such it is a nonest factum and thus it is invalid and inoperative. Thus, they denied the plaintiff's entitlement to any share in the plaint schedule property. At the first instance, the suit was-dismissed. The plaintiff, thereupon filed appeal before the District Court. The appellate Court remanded the matter to the trial Court for fresh disposal. Earlier P.W. 1 alone was examined. After remand P.Ws 2 to 4 were also examined. Exts. A1 to A3 are the documents relied upon by the plaintiffs. At the first instance, the suit was-dismissed. The plaintiff, thereupon filed appeal before the District Court. The appellate Court remanded the matter to the trial Court for fresh disposal. Earlier P.W. 1 alone was examined. After remand P.Ws 2 to 4 were also examined. Exts. A1 to A3 are the documents relied upon by the plaintiffs. The first defendant was examined as DW1. 2. The learned Sub Judge after thoroughly scrutinising the entire evidence found that Parvathy was aged 95 years at the time of execution of Ext. A1 and that she was not proved to be of sound and disposing state of mind. It was also found that P.W. 1 the son who is projecting Ext. A1 gift deed as a true and valid gift deed himself was the person who furnished the information and instructed P.W. 2 the scribe to prepare Ext. A1 and that he had an active role in bringing about Ext. A1. P.W. 3 who is the nephew of P.W. 1 is one of the attestors to Ext. A1. P.W. 4, another brother of P.W. 1 is a witness to Ext. A3 correction deed. Parvathy was not made a party to the suit. She was alive at the time of filing of the suit. Despite the contentions raised by the defendants that Parvathy was not in a sound and disposing state of mind and that she was incapable of giving free consent to execute Ext. A1 gift deed. She was not produced by the plaintiff before Court so as to enable the Court to ascertain her mental capacity to execute the document. 3. It was also found that the evidence given by P. Ws 2 to 4 was contradictory to the evidence given by P.W. 1 and that the witnesses, P.Ws. 2 to 4, gave evidence only as designed and dictated by P.W. 1. Thus, on a totality of the evidence and circumstances, the trial Court found that Ext. A1 is not proved to have been executed by Parvathy out of her free will and volition and as such it is invalid and inoperative. 4. In the appeal filed by the plaintiff the lower appellate Court found that Ext. Thus, on a totality of the evidence and circumstances, the trial Court found that Ext. A1 is not proved to have been executed by Parvathy out of her free will and volition and as such it is invalid and inoperative. 4. In the appeal filed by the plaintiff the lower appellate Court found that Ext. A1 is challenged on the ground that it is vitiated by fraud and undue influence and as such in view of Sec. 19 of the Indian Contract Act it is only a voidable contract and it should have been avoided by filing a suit by Parvathy herself. Since Parvathy herself was available at the time of filing of the suit and since Parvathy did not come forward to challenge Ext. A1 contending that it is vitiated by any of the vitiating circumstances tike fraud; undue influence etc., the plaintiffs are not entitled to question the validity of Ext. A1, the lower appellate court held. 5. The further fact that P.W. 3, the grandson, of deceased Parvathy, and P.W. 4 the brother of P.W. 1 who was also otherwise entitled to get share in the property did not raise any objection regarding the validity of Ext. A1 was also projected by the lower appellate Court to hold that the case put forward by the appellants herein is not worthy of acceptance. In other words, it was found that since Ext. A1 was not challenged by Parvathy, the appellants are not entitled to challenge the validity of the same and thus in reversal of the decree and judgment of the trial Court, the lower appellate Court passed a decree as prayed for by the plaintiff/respondent. 6. The learned counsel for the appellants would submit that the lower appellate court has thoroughly gone wrong in reversing the judgment of the trial Court. The trial Judge had the opportunity to assess the evidence given by P.W. 1 to P.W. 4 in the correct perspective. The evidence given by P.Ws. 3 and 4 that though Parvathy was aged 95 years she was hail and healthy and she used to go to the temple and other places by walking was found to be contradictory to the evidence given by P.W. 1 who deposed before Court that Parvathy was not in the habit, of walking. The evidence given by P.Ws. 3 and 4 that though Parvathy was aged 95 years she was hail and healthy and she used to go to the temple and other places by walking was found to be contradictory to the evidence given by P.W. 1 who deposed before Court that Parvathy was not in the habit, of walking. The further fact that Parvathy was aged 95 years and was having ailments as spoken to by DW1 was not acceptable to the appellate court since DW1 has admitted that she did not go to the house, where deceased Parvathy was staying after the death of Sreedharan. But at the same time, the evidence would show that Parvathy had some physical and mental ailment at the time of execution of the document and even thereafter. 7. The following substantial questions of law arise for consideration: (i) When it is proved that the executant of Ext. A1 was an illiterate lady aged 95 years who is the mother of the executee (plaintiff), is it not for the plaintiff to prove that Ext. A1 is a genuine transaction and is not vitiated by undue influence or fraud? (ii) Was not the plaintiff in a position to dominate the Will of Parvathy the executant? (iii) Has the lower appellate Court gone wrong in interpreting Secs. 16, 19 and 19A of the Contract Act? 8. The learned counsel for the appellants would submit that in the peculiar nature and circumstance of the case the burden is on the propounder of the document (Ext. A1), since the executant was admittedly aged 95 years at the relevant time, to prove that the execution of Ext. A1 is not surrounded by suspicious circumstances. The fact that she lived for two or three years even thereafter and that she was alive even at the time of filing of the suit and thereafter; is no reason to say that Parvathy was in a sound and disposing state of mind. If as a matter of fact, Parvathy was hale and healthy and was not afflicted by any sort of illness, either physical or mental, it was all the more possible for P.W. 1 who was the propounder of the document to bring Parvathy to the Court and to convince Court of her mental capability or soundness of mind to execute the document. But that was not done. But that was not done. Viewed in that background the fact that Parvathy was not made party to the suit also assumes relevance, the learned counsel submits. 9. It is true that if there are no vitiating circumstances, then the fact that Parvathy was not made a party to the suit would assume no relevance since it can be contended that Ext. A1 gift deed was accepted by the plaintiff and so there was divestiture of Parvathy's title in the plaintiff by virtue of Ext. A1 document. The fact that a correction deed was subsequently executed as Ext. A3 will not salvage the position if the evidence and circumstances would show that the execution of Ext. A1 is surrounded by suspicious circumstances. Though it can be seen that Ext. A1 was executed or signed by Parvathy it can only be said that there was only the physical act of executing the document by Parvathy, but there was no mental act which also should accompany the physical act of executing the document. 10. Learned counsel for the appellant would submit that it was not at all possible for the appellants to bring Parvathy to the Court since the very case advanced by the appellants is that Parvathy was almost senile because of her physical and mental ailments and so the counsel who was appearing for the parties did not think it wise to take the risk of producing Parvathy before Court only to get insensible answers. Not only that it was for the plaintiff to prove the positive fact that Parvathy was hale and hearty and was in a sound and disposing state of mind. That has to be proved by the plaintiff who propounds the document and not by the opposite group since what is required to be proved by the defendants is only of a negative character. It was possible and easy for the plaintiff to produce Parvathy before Court to appraise the Court of her mental capability to execute the document and also to prove her sound and disposing state of mind. The contention that the document is only a voidable one and so if at all it was for the defendants to produce Parvathy before Court is rather unsound and untenable. 11. The contention that the document is only a voidable one and so if at all it was for the defendants to produce Parvathy before Court is rather unsound and untenable. 11. Much has been argued by the learned counsel or the respondents stating that going by the written statement and as stated by the lower appellate Court the plea is that the execution of the document is vitiated by fraud or undue influence and if that be so going by the provisions contained in Sec. 19 of the Contract Act, it is a voidable one and so it should have been avoided by the party who executed the same within three years. Since she was alive at the time of the filing of the suit and since she did not Come forward to challenge the validity of the document the appellants cannot question the validity of that document, it is further argued. 12. It is true that Parvathy was alive at the time of filing of the suit and even thereafter for some time. She died only on 24-11-1990. Ext. A1 is dated 4-12-1986. Learned counsel for the respondents would submit that if as a matter of fact Ext. A1 was brought about by the plaintiff (P.W. 1) then certainly it would have been challenged by his other brothers arid sisters who were also entitled to a share in the property of their mother Parvathy. The fact that P.W. 4, one of the brothers of P.W. 1, is an attestor to Ext. A3 the rectification deed and the further fact that the son of P.W. 1's sister was a witness to Ext. A1 are strong circumstances to show that Parvathy was in a sound and disposing state of mind at the time of execution of Ext. A1 and that was the reason why other sisters and brothers did not claim any right over the plaint schedule property challenging Ext. A1, the respondent's counsel further submits. That circumstance has been projected by the appellate Court to hold that the contention put forward by the appellants herein is bereft of any merit. 13. On going through the evidence of P.W. 1 it can be seen that the document was brought about by or at the behest of P.W. 1. According to P.W. 1, it took about two months to get the document prepared. 13. On going through the evidence of P.W. 1 it can be seen that the document was brought about by or at the behest of P.W. 1. According to P.W. 1, it took about two months to get the document prepared. That means, immediately after the death of Sreedharan Vaidhyan, P.W. 1 started making attempts or preparations to get the document executed. It was also admitted by P.W. 1 that it was he who furnished all the materials for preparation of the draft of Ext. A1 and after the draft was prepared it was read over to P.W. 1. That means, at the time when the draft was prepared the executant Parvathy was not there. It was not she who furnished the materials and relevant particulars for preparation of the document. The draft was not read over to Parvathy, the executant. These circumstances are projected by the appellants to contend that the document was brought about by the plaintiff (P.W. 1) himself and there was no mental act which accompanied the physical act of signing the document by Parvathy and if so the document was non est factum in which case the document can be treated as void and not voidable. 14. P.W. 1 has admitted that the document was read over to him and he admitted the contents as correct and thereafter the fair document was written up. All these circumstances would clearly show that the document was brought about by P.W. 1 and no mental act of Parvathy was involved in the preparation or execution of the document. It was not done with the free consent and volition of Parvathy, the executant. The fact whether the other brothers and sisters had challenged the document 01 not would assume no relevance at all. P.W. 3 the grandson of Parvathy who claims to have attested Ext. A1 was not prepared to admit that the executant was illiterate but at the same time he says that she may be illiterate. It was admitted by him that Parvathy was under the treatment of one Dr. Gopakumar. But he says that he was not aware how long she was undergoing treatment. Though there was no case for P.W. 1 that the stamp paper was purchased by Parvathy, PW3 went a step further and stated that the papers were purchased by P.W. 1 and his grandmother. Gopakumar. But he says that he was not aware how long she was undergoing treatment. Though there was no case for P.W. 1 that the stamp paper was purchased by Parvathy, PW3 went a step further and stated that the papers were purchased by P.W. 1 and his grandmother. The evidence given by P.W. 3 that at the time of execution of Ext. A1 Parvathy had gone to his house (the house of P.W. 3) is actually against the evidence given by P.W. 1 that P.W. 1 was not able to walk at the relevant time. The evidence given by P.W. 4 also, according to the appellants, does not radiate confidence since his evidence is also against the evidence given by P.W. 1. It was admitted by P.W. 1 that Parvathy had no predilection, any special love or affection towards any particular son and if that be so, it is inconceivable how or, why Parvathy should execute a document in favour of one of her sons alone. 15. There was no case for P.W. 1 that all the persons went to the house of the executant but P.W. 4 says that all persons went to the house of Parvathy, the executant and there was a discussion and it was thereafter the document was executed. The admission made by P.W. 1 would make it indubitably clear that he had been making preparations for executing the document for about two months and it was he who collected materials, the copies of the documents, for the purpose of executing the document and it was he who entrusted all those materials to P.W. 2, the scribe and thereafter the draft was read over to P.W. 1 and as she was satisfied of the correctness of the document the original or fair deed was written up. There was no case that during these days the executant appeared before the scribe or she had instructed the scribe to write the document. It was also admitted by P.W. 4 (brother of P.W. 1) that whenever Parvathy had ailments, P.W. 4 and others used to take her to the hospital. It was also admitted that they used to take Parvathy to the hospital at Kallara. There was no case for P.W. 1 that the particulars required for writing the documents were furnished by P.W. 4. It was also admitted that they used to take Parvathy to the hospital at Kallara. There was no case for P.W. 1 that the particulars required for writing the documents were furnished by P.W. 4. P.W. 4 even went to the extent of saying the he had also furnished certain materials for the purpose of preparing the document. That itself would show that P.W. 4 was hand in glove with P.W. 1 with the sole object of defeating the defendants (appellants), the learned counsel for the appellants submits. P.W. 1 had no case that the stamp papers and other papers were made available by Parvathy for executing the document but P.W. 2 states with adroitness if not with adamantine audacity that it was Parvathy who purchased the stamp papers from the stamp vendor. But at the same time, he says that he did not know who the stamp vendor was. These aspects have also been highlighted by the learned counsel for the appellants to submit that P.W. 2 was at the beck and call of P.W. 1 and it was with the help of P.W. 2 the document was brought about. The evidence given by P.W. 2 is diametrically opposite to the evidence given by P.W. 1. What more, P.W. 2 has even showed the temerity to depose in Court that the particulars for the purpose of preparing the document were furnished by Parvathy the executant whereas P.W. 1 says that it was he who furnished the materials. The fact that it was not at all possible for Parvathy, the woman aged 95 years, having so many ailments, physical and mental, to furnish the materials to prepare the document, cannot be lost sight of. It is clear that P.W. 2 wanted to outwit the Court presumably forgetting for a moment that it was not possible for Parvathy to furnish such materials. Therefore, the evidence given by P.W. 2 also has to be rejected as unworthy of acceptance. Of course, it is not disputed that the document was prepared by P.W. 2 the document writer and that he had also signed the document as the scribe but that does not mean that the document was executed with the free will, volition and consent of P.W. 1. 16. Of course, it is not disputed that the document was prepared by P.W. 2 the document writer and that he had also signed the document as the scribe but that does not mean that the document was executed with the free will, volition and consent of P.W. 1. 16. When the crucial question for consideration is whether Parvathy was in a sound and disposing state of mind at the time of execution of the document especially because she was aged 95 years, it is for the plaintiff to prove the due execution of the document; that the document was executed with her free consent. Unless the free and voluntary mental act of giving consent is proved, the other aspect would only be the physical act of executing the document. Therefore, the inconsistency or lack of knowledge regarding the actual state of affairs as could be seen from the evidence of DW1 will not tilt the balance in favour of the plaintiff, the learned counsel for the appellants rightly, submits. 17. The learned counsel for the appellants has relied upon the Privy Council decision in 1929 MWN 105 (Privy Council). That was a case where the donor was a feeble old woman unable to leave the house, relying entirely upon the donee, her nephew, for everything even for her food and clothes leaving the management of her affairs to him, so that she had no knowledge of her own affairs or as to the value of her properties, and so she was totally and completely at the donee's hands. In such circumstances, it was held that the relation between the donor and donee was sufficient to raise the presumption of influence of the donee over the donor and to render it incumbent upon him to prove that the gift was the spontaneous act of the donor and that the gift was the result of the free exercise of her will. Relying on this decision, the learned counsel for the appellants would submit that here Parvathy was not only a feeble woman but was aged 95 years who was not in the habit of walking out. Relying on this decision, the learned counsel for the appellants would submit that here Parvathy was not only a feeble woman but was aged 95 years who was not in the habit of walking out. She was undergoing treatment for various illness and as such the Court would be justified in holding that it was not possible for her to exercise an independent Will and in such circumstances, the burden is heavy on the propounder of the document to prove that the execution of the said document is free from such vitiating circumstances. 18. The learned counsel for the appellants has also relied upon the decision of the Apex Court in Krishna Mohan Kul @ Nani Charan Kul and Another Vs. Pratima Maity and Others, in support of his submission that the lower appellate court has wrongly placed the onus on the appellants to prove the validity of the deed. There the Apex Court held thus: It has been rightly noticed by the High Court that the courts below have wrongly placed the onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to the validity of the deed. The onus to prove the validity of the deed of settlement was on defendant 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, and 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. Here the trial Court dealt with the matter in detail. The appellate Court should have presumed against the transaction. It was for the plaintiff to show that the transaction is fair and reasonable. Here the trial Court dealt with the matter in detail. The appellate Court should have presumed against the transaction. It was for the plaintiff to show that the transaction is fair and reasonable. But ignoring all the vitiating circumstances, the appellate Court, chose to upset the finding holding that if the contract is vitiated by fraud or undue influence it has to be avoided by the person who was defrauded or who complains that the document was brought about by undue influence. 19. The scope of interference, while exercising jurisdiction under Sec. 100 of C.P.C. is very limited, but where the first appellate Court misdirected itself in appreciating the question of fact and law and wrongly placed the onus on the opposite party then certainly it would be a fit case for interference under Sec. 100 of C.P.C. The learned counsel for the appellants would submit that the finding entered by the lower appellate Court can be set aside if the finding is not founded on any legal evidence or is based on misconstruing of evidence or if it suffers from legal infirmity which materially prejudices the case of one of the parties. 20. It is submitted by the learned counsel for the appellants that the finding of the lower appellate Court was based on misinterpretation or on wrong consideration of inadmissible evidence and also by ignoring material evidence as to the possibility of the executant having a sound and disposing state of mind at the relevant time. Since the trial Court has found otherwise, the lower appellate Court should not have upset that finding since the finding was entered by the trial court based on legal evidence. 21. The contention raised by the respondent/plaintiff is that u/s 31 of the Specific Relief Act the plea for cancellation or avoidance of the instrument could be done only by the person who is a party to that instrument and not by third parties. Sec. 31 of the Specific Relief Act, reads as follows: 31. When cancellation may be ordered: (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the India Registration Act, 1908 (16 of 1908), the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation Here, the defendants/appellants did not file the suit for cancellation of the document. But when such a document was pressed into service by the plaintiff, certainly the defendants can put forward a defence that the said document is void and non est. A plain reading of the section makes it clear that any person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument, if left unchallenged may cause serious injury, can legitimately contend that the said document is void. Therefore, the contention advanced by the plaintiff/respondent and which was accepted by the lower appellate Court that since Parvathy was alive and since she did not choose to have the document set aside by filing a suit it is not open to the appellants herein to question the same gains no momentum in view of the fact that the appellants' interest in the said property is affected by Ext. A1 gift deed purportedly executed by Parvathy. 22. Section 31 of the Act speaks about both void and voidable instruments. Therefore, in the peculiar circumstances of the case, the appellants are legitimately entitled to urge that Ext. A1 gift deed was void since the executant Parvathy who was aged 95 years was almost senile and was not in a position to exercise her, free will and consent for the due execution of the document. In those circumstances, the contention that since Parvathy herself did not file a suit to set aside the document, when she was alive and as the suit was filed when she was alive and since she was, not brought to the court to say that Ext. A1 was not executed by her with her free consent, the plea raised by the appellants should be repelled, is found to be bereft of any merit. The contention that such a plea could be raised or a suit could be filed only by a person who is a party to the instrument, which is sought to be adjudged void and cancelled, cannot be accepted. The contention that such a plea could be raised or a suit could be filed only by a person who is a party to the instrument, which is sought to be adjudged void and cancelled, cannot be accepted. It was not possible for the executant, because of her age, ailments and other factors to execute the document. That person (executant) must be in a position to know that such a document was got executed. If he was too senile to know that such a document was executed then how could we expect such a person to file a suit to set aside the document. In such a case if the document so got executed is to remain in force, for the only reason that the executant did not file a suit to set it aside then we would be perpetrating such fraudulent acts. Therefore, such a plea cannot be sustained. In such circumstances a party whose interest would be affected, if the document is allowed to remain in force, can certainly agitate before the court that the said document is vitiated and non est. If Ext. A1 is proved to be void ab initio or that the document is non est then, certainly the appellants would be entitled to get 1/49 share of deceased Sreedharan Vaidhyan. 23. It is argued by the learned counsel for the respondent/plaintiff that since it is a registered document, certainly the executant has to appear before the Sub Registrar who will certainly enquire about the ability of the executant and the factum of execution and all other matters which are expected to be done by the Sub Registrar and since Ext. A1 was registered it has to be presumed that the Sub Registrar had asked and obtained information from the executant that the document was chilly executed and so the presumption should be in favour of due execution of the document. The decision in Ponnan Vs. Kuttipennu, has also been referred to. In that case it was contended that since the document was registered it should be deemed to be conclusive proof of even the execution but that plea was not accepted by this court. The decision in Ponnan Vs. Kuttipennu, has also been referred to. In that case it was contended that since the document was registered it should be deemed to be conclusive proof of even the execution but that plea was not accepted by this court. It was held that the Court can give weight to the factum of registration but when a party attacks the document contending that at the relevant time the executant was not in a sound and disposing state of mind or that she did not voluntarily execute the document, those are matters which can certainly be proved by the party challenging the document. Therefore, the fact that the document was registered does not mean that the document is conclusive and that it cannot be challenged at all. 24. The learned counsel for the appellants would also submit that as per Section 16(3) of the Indian Contract Act, 1872, the burden of proving that the contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. If there is evidence to show that the plaintiff was in a position to dominate the will of Smt. Parvathy and if the transaction appears on the face of it or on the evidence adduced to be unconscionable, then the appellants would be justified in contending that the document is non est. It was held by the Hon'ble Supreme Court in Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib and Others, thus: We may now proceed to consider what are the essential ingredients of undue influence and how a plaintiff who seeks relief on this ground should proceed to prove his case and when the defendant is called upon to show that the contract or gift was not induced by undue influence. The instant case is one of gift but it is well settled that the law as to undue influence is the same in the case of a gift inter vivos as in the case of a contract. Section 16(1) of the Indian Contract Act reads: 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. Section 16(1) of the Indian Contract Act reads: 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. It was held by the Apex Court that the Court trying the case of undue influence must consider two things to start with namely: (i) whether the relationship between the donor and donee is such that the donee is in a position to dominate the will of the donor and (ii) that the donee has used that position to obtain unfair advantage over the donor. 24. In the aforesaid decision, while dealing with Sec. 16(3) of the Contract Act, it was held by the Apex Court: Sub-section (3) of the section throws the burden of proving that a contract was not induced by undue influence on the person benefiting by it when two factors are found against him, namely that he is in a position to dominate the will of another and the transaction appears on the face of it or on the evidence adduced to be unconscionable. 25. The learned counsel for the appellants would submit that, here the executant was aged 95 years, she was having physical and mental ailments and was undergoing treatment. These are strong circumstances to hold that the plaintiff was in a position to dominate the will of the executants and the transaction appears on the face of it unconscionable because she has not chosen even to reserve her life interest in the property. It is contended by the plaintiff/respondent that merely because the parties are related to each other no presumption of undue influence can arise. True, it is not correct to treat influence, as established by proof of relations of the parties, as undue influence because one naturally relies upon the other for advice and the other was in a position to dominate the will of the person in giving it. That would only prove influence and not undue influence. 26. True, it is not correct to treat influence, as established by proof of relations of the parties, as undue influence because one naturally relies upon the other for advice and the other was in a position to dominate the will of the person in giving it. That would only prove influence and not undue influence. 26. A vague or general plea can never be treated as sufficient pleading as required under Order VI Rule 4 C.P.C. The party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other. The learned counsel for the appellants would submit that so far as in the case on hand is concerned there is sufficient pleading as required under Order VI Rule 4 C.P.C. The decision of this Court in Mathu Vs. Cherchi,has also been relied upon in this connection wherein it was held that the allegation and proof of existence of the relationship of "active confidence" or "fiduciary relationship" or "the dominating position" is a condition precedent to the shift of burden. With regard to, whether it is a void or voidable document which are the distinguishing features of the two transactions, the decision in R. v. Paddington Valuation Officer, 1965 (2) All ER 836 can also be referred to. There Lord Denning, M.R. laid down the law thus: It is necessary to distinguish between two kinds of invalidity. The one kind is where the invalidity is so grave that the list is a nullity altogether. In which case there is no need for an order to quash it. It is automatically null and void without more ado. The other kind is when the invalidity does not make the list void altogether, but only voidable. In that case it stands unless and until it is set aside. It was quoted with approval by the Hon'ble Supreme Court in the decision in Dhurandhar Prasad Singh Vs. Jai Prakash University and Others, where it was held by the apex court thus: One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. Jai Prakash University and Others, where it was held by the apex court thus: One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g. may be transaction against a minor without being represented by a next friend, Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g. if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable. 27. The question of 'onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways; (1) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (2) to make that of establishing a proposition as against all counter evidence and (3) an indiscriminate use in which it may mean either or both of the others, The elementary rule in Sec. 101 of Evidence Act is inflexible in terms of Sec. 102. The initial onus is always on the plaintiff and if he discharges that onus and makes out the case which entitles him to relieve, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the relief. Burden of proof lies upon a person who has to prove the fact and it never shifts but onus of proof shifts, such a shifting of onus is a continuous process in the evaluation of evidence. 28. It was proved that the executant was aged 95 years and was ailing at the relevant time. Because of the age factor and poor health it was most unlikely that she would have had the normal mental state to execute a document out of her free will and volition, certainly it was for the plaintiff who wanted to rely upon the document so executed by such a woman to prove that the document was executed by Parvathy the mother of the plaintiff out of her free will and volition and that she had voluntarily given consent for the execution of the document. That much evidence is wanting in this case so the learned counsel for the appellants is justified in his submission that there is no proof of due execution of the document, to mean that the executant had actually voluntarily given consent to execute the document and that the document was read over to her before it was signed by her. 29. It is also pointed out by the learned counsel for the appellants that within a period of about 30 days of the death of Sreedharan Vaidhyan, Ext. A2 a lawyer notice was sent, purportedly under the instructions given by the deceased Parvathy for partition and allotment of 1/7 share of Parvathy. The learned counsel would submit that it is most unlikely that such a notice would have been caused to be sent by the mother especially because her son died only about three weeks prior to that date. No mother would claim partition and for allotment of the share which she derived consequent to the death of her son. The learned counsel would submit that it is most unlikely that such a notice would have been caused to be sent by the mother especially because her son died only about three weeks prior to that date. No mother would claim partition and for allotment of the share which she derived consequent to the death of her son. There is every reason to believe that the said notice was also caused to be sent by the plaintiff, for it is unreasonable to think that the mother would have instructed the lawyer to send such a notice within about one month of the death of her own son. That fact also has to be borne in mind by the Court. 30. In support of the contention that if the contract is brought about by undue influence it is only voidable as provided u/s 19A of the Contract Act, the decision in Krishnan Nair v. Rayarappan Nair 1950 KLT 991 has been relied upon by the learned counsel for the plaintiff/respondent. That was a case where the 3rd respondent therein contended that he signed the partition deed as a result of the fraud practiced upon him by the first appellant/first defendant and by plaintiffs 1 and 2. The contention raised therein by the 3rd plaintiff was that the compromise entered into in that suit was vitiated by fraud, that it cannot be considered as a lawful agreement or compromise and so the compromise petition should be dismissed. The facts dealt with therein are entirely different and as such that decision is inapplicable to this case. 31. The learned counsel for the respondent/plaintiff would also rely upon the decision of the Division Bench in Krishnan Nair Vs. Rayarappan Nair and Others, in support of his submission that contract which is brought about either by misrepresentation or fraud would fall under Sec. 19(1) of the Contract Act which is only voidable and not absolutely illegal or unlawful. The learned counsel has also relied upon the decision in Raghavan Vs. Sarada Amma, where also it was held that under Sec. 19 of the Contract Act, a document vitiated by fraud is only voidable and not valid and the document is void till it is avoided. The learned counsel has also relied upon the decision in Raghavan Vs. Sarada Amma, where also it was held that under Sec. 19 of the Contract Act, a document vitiated by fraud is only voidable and not valid and the document is void till it is avoided. But the learned counsel for the appellants would submits that Sec. 19 has no application to the facts of the present case since it is purely governed by Section 16(3) of the Contract Act. 32. The decision of the Madras High Court in Rajamani Ammal Vs. Bhoorasami Padayachi and Another, has also been referred to by the learned counsel for the respondent in support of the contention that where the allegation is that the consent to the agreement was caused by undue influence that agreement is only voidable at the option of the parties and not void ab initio. It is contended by the plaintiff that a person who has neither executed the document nor bound in any circumstance by the person who executed the document could not seek relief under Sec. 31 of the Act of the Specific Relief Act. The remedy of such a person, if he thinks that the document may create a cloud on his own title, is to seek a declaration of his own title or that the impugned document does not affect his title. It is only the person, who executed the document can get that document set aside and not by any other person, is the plea raised by the respondent. The learned counsel for the respondent would submit that voidable act is that which is a good act unless avoided. For example, if a suit is filed for a declaration that the document is fraudulent or forged and fabricated and so it is voidable, the party who so alleges is obliged to prove it and if it is proved that the document is forged and fabricated and the declaration to that effect is given, the transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. It is further submitted by the learned counsel that where the legal effect of a document cannot be taken away without setting aside the same it cannot be said to be void but would be obviously voidable. 33. The decisions of the Apex Court in Vishwambhar and Others Vs. Laxminarayana (Dead) through L.Rs. and Another, Nagappan v. Ammasai Gounder and Others, (2004) 13 SCC 480 and Nangali Amma Bhavani Amma v. Gopalakrishnan Nair and Others, (2004) 8 SCC 785 have also been relied upon by the learned counsel for the respondent in support of his submission that Ext. A1 is only a voidable one and since that document was not avoided by the executant Parvathy Amma during her life time and within a period of three years, the document cannot be avoided. All the aforecited decisions were rendered, interpreting Secs. 8(2) and 8(3) of Hindu Minority and Guardianship Act, 1956. In all those cases the suits were filed by a minor within the period prescribed under Article 60 of the Limitation Act. The documents in question were voidable transactions and not void ab initio. The learned counsel for the appellants would submit that the specific case put forward by the appellants is that the document Ext. A1 is void ab initio in view of the fact that the document in question is non est factum and so the question of avoidance of the same by the executant does not arise at all. 34. There can be no doubt that if the transaction in question is non est factum then the question of filing a suit to set aside that document by the executant may not arise at all. Similarly, the contention that a person who is not a party to the transaction cannot attack the document stating that it is null and void also cannot be accepted in the peculiar circumstance of the case. Similarly, the contention that a person who is not a party to the transaction cannot attack the document stating that it is null and void also cannot be accepted in the peculiar circumstance of the case. There may be a case where a document was purported to have been executed by a person who was totally paralysed or who was totally bedridden, who was not in a position to exercise his free will and volition because he was lacking sound and disposing state of mind but at the same time he might have lived for more than three years. If the plea that since the executant was alive for three years and since the document was not got set aside by such a person by filing a suit the validity of that document cannot be questioned is accepted it would lead to a preposterous position because the court would be virtually perpetrating creation of such documents by fraud or other vitiating circumstances. It would depend upon the facts of each case. If there is sufficient material to show that the document could not have been executed by the executant in the manner stated therein/because of the physical and mental ailments, that it was not at all possible or probable that the executant could have consented to the execution of the document, then it has to be treated as non est. There should be free consent for the execution of the document. It is not the physical act alone that matters. The mental act must accompany the physical act. If the mental act of giving consent is absent it can be treated as non est and can be held that the document did not come into exists nee at all. If that be so, the question of setting aside that document does not arise. No doubt, there must be pleading, evidence and circumstance with regard to the plea of non est factum. The contention that it is only a contract voidable under Sec. 19(3) of the Contract Act and so long as that document is not avoided by filing a suit within three years, the document cannot be questioned at all is rather unsound and untenable. The contention that it is only a contract voidable under Sec. 19(3) of the Contract Act and so long as that document is not avoided by filing a suit within three years, the document cannot be questioned at all is rather unsound and untenable. There may be cases where even a person who is not a party to the document can contend that the document is non est factum even though the executant might have lived for more than three years after the date of execution of the document. It would depend upon the facts and circumstances of each case. 35. The factual position obtained in this case persuades me to hold that it was not at all reasonable, possible or probable that deceased Parvathy would have consented to the execution of the document since she was aged 95 years and was suffering from ailments and was not walking out of the house. In such circumstances, the burden is heavy on the propounder of the document to prove the due execution of the document. The further fact that even within a period of about thirty days of the death of Sreedharan Vaidhyan, a lawyer notice was caused to be sent would make it clear that the said notice was caused to be sent by the plaintiff in order to get at the 1/7 share of Sreedharan Vaidhyan in the whole of the properties. The cumulative effect of the facts and circumstances pointed out earlier would leave no doubt that the document was not voluntarily executed by deceased Parvathy with her free will, consent and volition. The view taken by the trial court is found to be more reasonable, probable and acceptable. The appellate court is of the view that it is only a voidable document and since it was not avoided by filing a suit by the executant within three years, the appellants who were not parties to the document cannot avoid that document. That finding is found to he unsustainable. The lower appellate has not property applied the legal principles in arriving at such a conclusion. The judgment and decree passed by the lower appellate court is to be hence set aside. That finding is found to he unsustainable. The lower appellate has not property applied the legal principles in arriving at such a conclusion. The judgment and decree passed by the lower appellate court is to be hence set aside. Since it has to be found that Parvathy died in testate, her 1/7 share should devolve upon all 7 legal heirs in which case the plaintiff would be entitled to get 1/49 share in the property left behind by Sreedharan Vaidhyan. 1/49 share would go to the appellants as the legal heirs of the pre-deceased Sreedharan Vaidhyan. Therefore, the total share of the appellants would come to 43/49 shares. 1/49 share each would go to the other legal heirs of deceased Parvathy. In the result this Regular Second Appeal is allowed. The judgment and decree of the lower appellate Court are set aside. A modified preliminary decree is passed directing division of the plaint schedule properties into 49 equal shares and to allot 43 such shares to the appellants; one such share to the plaintiff/respondent and one such share each to the other legal heirs of deceased Parvathy which would the allotted on payment of the requisite court fee.