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2014 DIGILAW 1145 (MAD)

Saroja v. Madanagopal

2014-06-05

PUSHPA SATHYANARAYANA

body2014
Judgment : 1. This Second Appeal is filed against the judgment and decree dated 29/2/2008 passed in A.S.No.71 of 2007 on the file of the I Additional Subordinate Court, Tiruchirapalli, as confirming the judgment and decree dated 8/1/2007 passed in O.S.No.163 of 2004 on the file of the District Munsif Court, Lalgudi. 2. The defendants 2, 4 to 6 are the appellants in a suit for declaration and consequential relief of permanent injunction with respect to 'A' and 'B' schedule properties or with an alternative for recovery of possession. 3. The brief facts which are relevant for the appeal are as follows:- The plaintiffs are the sons of the first defendant. The second defendant is the daughter of the first defendant. The third defendant is the husband of the second defendant and defendants 4 to 6 are the children born to them. Admittedly, the properties belonged to the first defendant Angappa Nadar. Both the defendants are residing at different places. Hence the first defendant used to reside with both the plaintiffs. While so the first defendant had executed a settlement deed on 6/6/1997 in favour of the first plaintiff settling the properties described in 'A' schedule and another settlement on the same date settling the properties described in 'B' schedule in favour of the second plaintiff. Accordingly, both the plaintiffs are in possession of the suit properties. 4. It was the further case of the plaintiffs that on 3/6/1997 when the second plaintiff met the first defendant, he expressed his desire to settle the properties in the names of the plaintiffs, as the daughter viz., the second defendant and her husband/third defendant were trying to get the properties written in their names. After the execution of the settlement deeds on 6/6/1997, the second and third defendants, who got knowledge about the same along with other children had come to the residence of the second plaintiff and attempted to assault the first defendant. The second and third defendants also compelled the first defendant to cancel the settlement deeds dated 6/6/1997 and accordingly, the deeds of cancellation of settlements on 10/6/1997 under Exs.A.7 and A.8 were executed. 5. The plaintiffs further alleged that as the first defendant was too old and not able to assert, he was over powered by the defendants and got the cancellation deed executed. 5. The plaintiffs further alleged that as the first defendant was too old and not able to assert, he was over powered by the defendants and got the cancellation deed executed. According to the plaintiffs, the possession of the suit properties were given to them pursuant to the settlement deeds and that none of the defendants have got any right or title over the same. Therefore, the plaintiffs have filed the suit for declaration of their title and for consequential injunction or for recovery of possession. 6. The suit was resisted by the defendants by filing written statement individually. The first defendant, who is the father had filed the written statement, denied that he resided with the plaintiffs. The first defendant had been residing only with the second defendant at Parapangudi Village. The first defendant as executor of two settlement deed dated 6/6/1997 had denied the execution according to the first defendant, the settlement deeds were fraudulent documents as the signature of the first defendant was obtained by the plaintiffs by coercion after kidnapping him on 4/6/1997 at about 6 a.m. At that time, the daughter of the second defendant was available in the house and immediately, one of the sons of the second defendant had filed a Police complaint. 7. The first defendant also denied that the defendants 2 and 3 compelled him to cancel the settlement deeds on 10/6/1997. Only on account of the fraud committed by the plaintiffs, the first defendant cancelled the settlement deed dated 6/6/1997 in their favour. According to the first defendant, the settlement deeds executed on 6/6/1997 were not acted upon. 8. The first defendant had further stated that he had cancelled the earlier settlement deeds by way of cancellation deeds on 10/6/1997 on his own volition. As the settlement deeds dated 6/6/1997 were obtained by compulsion, it was cancelled by the first defendant without anybody's intervention. The suit properties according to the first defendant are in possession of the third defendant as the cultivating tenant. The plaintiffs were never in possession of the property. Even the alleged settlement deeds dated 6/6/1997 were not handed over to the plaintiffs. As the first defendant had sent a complaint to the Sub-Registrar, Lalgudi not to handover the documents to the plaintiffs. However, by exercising influence, the plaintiffs managed to get the documents from the Sub-Registrar and filed the suit. 9. Even the alleged settlement deeds dated 6/6/1997 were not handed over to the plaintiffs. As the first defendant had sent a complaint to the Sub-Registrar, Lalgudi not to handover the documents to the plaintiffs. However, by exercising influence, the plaintiffs managed to get the documents from the Sub-Registrar and filed the suit. 9. The third defendant had contended that the suit properties were leased out to him and he has been in possession of the same for the last twenty years. The third defendant has been in possession of the property in the capacity of a cultivating tenant. Hence he was also entitled to the benefits of the Cultivating Tenants Protection Act. When the first defendant, who is the father of the second defendant wanted to settle certain properties, the plaintiffs, who are the sons of the first defendant did not like that idea. Hence started creating troubles and forced the first defendant to execute the settlement deed. 10. The third defendant also had filed a suit in O.S.No.137 of 1997 on the file of the District Munsif Court, Lalgudi for permanent injunction. Hence the defendants prayed that the suit has to be dismissed as the plaintiffs have got no right or title in the interest of the suit properties and it was only to harass the first defendant, the suit has been filed. 11. Before the trial Court, on the side of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A.1 to A.22 had been marked. On the side of the defendants, D.Ws.1 to 5 had been examined and Ex.B.1 to B.39 had been marked and Exs.X.1 to X.13 had been marked as Court documents. 12. The trial Court, after elaborate consideration of the facts, evidence and documents held that only the defendants 3 and 4 are in possession of the properties and that the plaintiffs were not entitled to the relief of permanent injunction and so far as regarding Exs.A.1 and A.2 are concerned, the trial Court had held that it was not obtained by force or by coercion and the documents Exs.B.2 and B.3 were not proved. Hence decreed the suit in favour of the plaintiff. Aggrieved by the same, the defendants 2 to 6 had filed A.S.No.71 of 2007 on the file of the Additional Sub-Court, Tiruchirapalli. Hence decreed the suit in favour of the plaintiff. Aggrieved by the same, the defendants 2 to 6 had filed A.S.No.71 of 2007 on the file of the Additional Sub-Court, Tiruchirapalli. The lower Appellate Court also held that the factum of coercion and influence had not been proved by the defendants and therefore, confirmed the decree granted by the trial Court. Feeling aggrieved, the defendants 2, 4 to 6 have preferred the above Second Appeal. 13. At the time of admission, the following substantial questions of law were formulated. “1. Are the Courts below correct and justified in granting a decree in favour of the plaintiffs on the basis of exhibit when the executor of the said documents himself has filed a written statement that the said alleged documents are obtained by fraud, undue influence and coercion? 2. Are the Courts below correct and justified in granting the decree in favour of the plaintiffs merely because the defendants claim on the basis of a Will is not proved, will not in any way automatically entitled the plaintiff for a decree on the basis of the alleged settlement deeds obtained by undue influence, coercion and fraud? 3. Are the Courts below correct and justified in non-suiting the defendants when it is for the plaintiff to prove their case especially when the father of the plaintiffs has stated about the execution of the Will in favour of the defendants, there is no need or necessity to prove the same?” 14. Heard Mr.T.V.Sivakumar for the appellants, Mr.R.Nandakumar for the respondents 1 and 2 and there is no representation for the third respondent. 15. The dispute is among the children of the first defendant. The dispute revolves around the execution of Exs.A.1 and A.2 and the cancellation of the same under Exs.A.7 and 8 and also Ex.B.39 which is the Will executed by the first defendant in favour of the defendants 2, 4 to 6. Exs.A.1 and 2 are the two settlement deeds executed by the first defendant in favour of the plaintiffs, who are his sons. As per the said deeds, the schedule 'A' and 'B' properties were settled in favour of the plaintiffs 1 and 2 respectively. The defendants 2 to 6 are making rival claim over the same properties based on Exs.B.2 and B.3 and also Ex.B.9 Will. 16. As per the said deeds, the schedule 'A' and 'B' properties were settled in favour of the plaintiffs 1 and 2 respectively. The defendants 2 to 6 are making rival claim over the same properties based on Exs.B.2 and B.3 and also Ex.B.9 Will. 16. It is the case of the second defendant, who is the daughter of the first defendant that the father was neglected by the sons who are the plaintiffs and he was living only with the daughter and it was the second defendant who was taking care of him and the suit properties were under cultivation by the third defendant who is the husband of the second defendant. The plaintiffs have clandestinely taken the father to the Sub-Registrar Office and got the settlement deeds Exs.A.1 and A.2 executed in their favour on 6/6/1997. Subsequent to Exs.A.1, A.2, B.2 and B.3 have been executed by the very same executant cancelling those documents. 17. The learned counsel for the appellants contended that the entire episode had happened within a span of three weeks. On 6/6/1997, the settlement deeds were executed. On 10/6/1997, the settlement deeds were cancelled. On 10/6/1997, the first defendant Thangappa Nadar sent a letter to the Sub-Registrar, Lalgudi under Ex.X.2 requesting the Registrar not to hand over the documents to the plaintiffs and deliver the same only to him and he had also intimated that the settlement deeds were cancelled. On 11/6/1997, under Ex.A.9, the first defendant had effected a notice to the plaintiffs. In the said notice, it has been specifically stated by the first defendant that the plaintiffs had by force and coercion and threat, obtained the settlement deeds dated 6/6/1997 under Document N0s.33 and 34 of 1997 in their favour. 18. He had further contended that immediately after coming to know of the intention of the plaintiffs, he had cancelled the settlement deeds by way of registered cancellation deeds on 10/6/1997 under Document Nos.1075 and 1076 of 1997. Thus stating the first defendant called upon the plaintiffs to return to authorisation letter he had given to collect the settlement deeds from the Registrar Office. The first defendant also had sent a legal notice on 19/6/1997 to the District Collector and other Revenue officials including the electricity authorities not to effect mutation of documents from his name to the plaintiff's name. The first defendant also had sent a legal notice on 19/6/1997 to the District Collector and other Revenue officials including the electricity authorities not to effect mutation of documents from his name to the plaintiff's name. In the said notice also, it has been categorically stated by the first defendant that he was kidnapped on 4/6/1997 and his signatures were obtained forcibly on blank stamp papers. He was further forced to go the Sub-Registrar's Office and only sign wherever require and not to utter a word before the Sub-Registrar. The first defendant had also requested the electricity authorities not to change the electricity service connection to the name of the plaintiffs. Even in this legal notice, it has been categorically stated that the first defendant was forcefully kidnapped by the plaintiffs and got the settlement deed executed in favour of the plaintiffs. The first defendant also had filed O.S.No.196 of 1997, the copy of the plaint which is marked as Ex.B.38 i.e., the suit filed on the file of the District Munsif, Lalgudi by the first defendant in July 1997 for the declaration that the alleged settlement deeds dated 6/6/1997 are illegal, void and not given effect to and for permanent injunction restraining the defendants 6 and 7 from in any manner interfering with the peaceful possession and enjoyment of the properties. In the said plaint marked as Ex.B.38, the defendant has categorically explained in paragraphs 8 and 9 that he was forcibly taken to the Sub-Registrar's office and got the settlement deed executed. “8. On 4/6/1997 at about 6.00 a.m., the sixth defendant with a group of people of desperate character came to Perappankudi village and kidnapped the plaintiff to an unknown place. At that time, the plaintiff's daughter Saroja and his grand son Senthil Kumar and others were available in the house. Senthilkumar and Saroja resisted the attempts of the 6th defendant and his people of kidnapping the plaintiff but in vain. Immediately Senthilkumar gave a complaint to Samayapuram Police about the kidnapping of the plaintiff. After receiving the complaint the Police authority issued a receipt dated 4/6/1997. The true copy of the Police complaint and the receipt issued by the Police are herewith filed as documents 6 and 7. 9. Immediately Senthilkumar gave a complaint to Samayapuram Police about the kidnapping of the plaintiff. After receiving the complaint the Police authority issued a receipt dated 4/6/1997. The true copy of the Police complaint and the receipt issued by the Police are herewith filed as documents 6 and 7. 9. Defendants 6 and 7 and their henchmen took signatures of the plaintiff in blank papers and stamp papers forcibly from the kidnapped place and in the Sub-Registrar's office, Lalgudi by threatening the plaintiff not to talk anything with the Sub-Registrar in the Sub-Registrar's Office at Lalgudi or enquire anything with anybody in the Sub-registrar's Office at Lalgudi. The defendants 6 to 7 further threatened the plaintiff that they would kill the plaintiff is he does not act according to their instructions. Then the plaintiff was taken to the Sub-Registrar's office at Lalgudi by the defendants 6 and 7 and their henchmen for registration and the plaintiff's signatures were forcibly taken in several documents and in blank papers. The plaintiff was forced to sign all the papers under the threat and coercion. After elaborate enquiries Saroja and her husband came to know the whereabouts of the plaintiff's confinement and she and her husband with the help of Panchayatdars located the plaintiff's confined place and made arrangements to get the release of the plaintiff from the illegal custody of defendants 6 and 7.” 19. The above said paragraphs of the plaint signed by the first defendant, the father of the plaintiffs would make it clear that the first defendant was forced to execute the settlement deed and it was not executed voluntarily by him. No doubt, the said suit was not pursued. However, the plaint has been marked by the defendants for the limited purpose of proving the intention of the executant viz., the first defendant. Though the executant himself was a party to the suit, he could not be examined before his death. It was contended by the learned counsel for the appellants Mr.Sivakumar that an application in I.A.No.46 of 1998 was filed for appointing a Commissioner to examine the first defendant who was more than 85 years old. Though the said application was filed on 28/10/1997, the petition could not be ordered till the death of the first defendant i.e., on 1/8/1998. 20. Though the said application was filed on 28/10/1997, the petition could not be ordered till the death of the first defendant i.e., on 1/8/1998. 20. It was alleged by the learned counsel for the appellants that the deliberate intention of the plaintiffs resulted in non-examination of the first defendant who would have been the best person to speak about the dispute now involved. 21. From the above said discussions and the legal notice and the plaint signed by the first defendant, it can be presumed that Exs.A.1 and 2 were obtained by coercion and influence. 22. On the other hand, Mr.Nandakumar, the learned counsel for the respondents 1 and 2 contended that the settlement deeds were executed by the first defendant voluntarily in favour of the plaintiffs. The second plaintiff Durairaj who has deposed as P.W.1 has stated that “LANGUAGE” 23. P.W.1 had further contended that their father the first defendant had executed the settlement deed willfully and voluntarily without any influence. However, P.W.1 has further admitted in his evidence as follows:- “LANGUAGE’ 24. From the above evidence of P.W.1, one can understand that the father who had written the settlement deed had himself cancelled the same. Therefore, he was made a party in the suit. It is also admitted by the plaintiff that the settlement deeds were cancelled within the next four days. 25. From the above, it can be seen that the execution of Exs.A.1 and 2 are not disputed. The execution of Exs.B.2 and 3 are also not disputed. The only question that has to be seen is whether Exs.A.1 and 2 are in force after the same are cancelled. When the defendants/appellants have specifically pleaded that Exs.A.1 and A.2 were obtained by undue influence the burden is on them to establish the same. But in this case, when admittedly the earlier settlement deeds were cancelled by the registered instruments, the burden is discharged. However, whether the settlement deeds once executed can be cancelled by a subsequent document has to be seen. The plaintiffs had examined himself only to speak about the execution of the settlement to discharge the burden of proving the absence of undue influence. 26. In the present case, in Ex.B.38 it has been clearly stated the manner in which Exs.A.1 and A.2 got executed. The plaintiffs had examined himself only to speak about the execution of the settlement to discharge the burden of proving the absence of undue influence. 26. In the present case, in Ex.B.38 it has been clearly stated the manner in which Exs.A.1 and A.2 got executed. Further, it has been stated by the defendant that the plaintiffs had been making hectic attempts to get the properties transferred to their names for several years. This pleadings show that there was specific pleading regarding undue influence and coercion played upon the first defendant. The act of the first defendant cancelling Exs.A.1 and A.2 by registered cancellation deeds under Exs.A.7 and A.8 go to prove that the settlement deeds were obtained by coercion and there was no intention on the part of the first defendant. The first defendant also sent notice to revenue authorities and electricity department requesting them not to effect name transfer. All these acts have been done within a period of 20 days. After the execution of Exs.A.1 and A.2, on the fourth day the same are cancelled. Therefore, the learned counsel for the appellants contended that the burden is upon the plaintiffs to prove the absence of undue influence in execution of Exs.A.1 and A.2. 27. In this regard, it is relevant to place reliance on 2004 (9) SCC 468 KRISHNAMOHAN KUL ALIAS NANI CHARAN KUL AND ANOTHER Vs. PRATIMA MAITY AND OTHERS, wherein it is held as follows:- 16. Nextly, the legal issue involved is the applicability of Section 16 of the Indian Contract Act. The contention of the learned counsel for the appellants is that under Section 16(3) of the Indian Contract Act, the burden is upon the plaintiff to prove the absence of undue influence on his part in the matter of execution of Ex.A.1 sale agreement. To the contra, it is the contention of the learned counsel for the respondent that the burden is only upon the appellants/defendants to prove the same. For this proposition, the learned counsel for the respondent relied on a judgment of the Hon'ble Supreme Court in Krishnamohan Kul alias Nani Charan kul and another Vs Pratima Maity and others reported in (2004) 9 Supreme Court Cases 468. For this proposition, the learned counsel for the respondent relied on a judgment of the Hon'ble Supreme Court in Krishnamohan Kul alias Nani Charan kul and another Vs Pratima Maity and others reported in (2004) 9 Supreme Court Cases 468. The learned counsel placed reliance on paragraph 12 of the said judgment wherein the Hon'ble Supreme Court has held as follows: "The onus to prove the validity of the deed of settlement was on Defendant 1. When fraud, mis-representation or undue influence is alleged by a party to the suit, normally, the burden is on him to prove such fraud, undue influence or mis-representation. 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, mis-representation 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. 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 ingrained in Section 111 of the Indian Evidence Act." 28. Following the same, this Court in 2012 (1) CTC- 53, this Court has held in para 18 as follows:- 18. A close reading of Section 16 would go to show that sub-section (2) creates a fiction of domination on the part of certain persons on the will of others. Following the same, this Court in 2012 (1) CTC- 53, this Court has held in para 18 as follows:- 18. A close reading of Section 16 would go to show that sub-section (2) creates a fiction of domination on the part of certain persons on the will of others. Sub-Section 2 (a) states that where a person holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other, it shall be deemed that such person is in a position to dominate the will of the other. Therefore, what is required of for the defendants in this case is to prima facie prove the real or apparent authority of the plaintiff over the defendants. It needs to be underlined that it is not required in all cases that in order to presume domination the authority should be proved to be real. Instead, according to sub-Section 2(a) of the Indian Contract Act, it would be suffice if an "apparent authority" over the other is proved.” 29. In the case on hand, though there may be presumption of Execution of Exs.A.1 and A.2, the plaintiff has to independently prove that the said deeds were true and genuine. The defendant/appellants have proved the position of the plaintiffs to dominate the mind of the first defendant, the burden to prove any absence of undue influence is very heavy upon them. The attesting witness examined as P.W.2 also could not speak about the absence of coercion. The Sub-Registrar has been examined as P.W.3 who has deposed as follows:- “LANGUAGE” 30. In view of the discussion above, I hold that Exs.A.1 and A.2 are not true and genuine as the said documents suffer from defects of undue influence and coercion. 31. The appellants counsel also relied on AIR 2000 SC 1203 {SUBHRA MUKHERJEE AND ANOTHER Vs. BHARAT COOKING COAL LTD., AND OTHERS) for the proposition that party alleging a document to be sham and bogus need not take burden of proof until the transaction is proved to be bona fide by opposite party. “Evidence Act (1 of 1872), S.101-Burden of proof – Issue whether a transaction is bona fide and genuine one or is sham and bogus – Party alleging it to be sham need not take burden of proof until transaction is proved to be bona fide by opposite party.” 32. “Evidence Act (1 of 1872), S.101-Burden of proof – Issue whether a transaction is bona fide and genuine one or is sham and bogus – Party alleging it to be sham need not take burden of proof until transaction is proved to be bona fide by opposite party.” 32. Strong reliance was also placed on KRISHNA MOHAN KUL @ NANI CHARAN KUL & ANR Vs. PRATIMA MAITY & ORS reported in AIR 2003 SC 4351 which was later followed in ANIL RISHI Vs. FURBAKSH SINGH reported in {2006 (4) CTC 524 (SC)} “Strong reliance has been placed by the High Court in the decision of this Court in Krishna Mohan Kul @ Nani Charan Kul & Anr. v. Pratima Maity & Ors.,[ AIR 2003 SC 4351 ]. In that case, the question of burden of proof was gone into after the parties had adduced evidence. It was brought on record that the witnesses whose names appeared in the impugned deed and which was said to have been created to grab the property of the plaintiffs were not in existence. The question as regards oblique motive in execution of the deed of settlement was gone into by the Court. The executant was more than 100 years of age at the time of alleged registration of the deed in question. He was paralytic and furthermore his mental and physical condition was not in order. He was also completely bed-ridden and though his left thumb impression was taken, there was no witness who could substantiate that he had put his thumb impression. It was on the aforementioned facts, this Court opined:- "12. The onus to prove the validity of the deed of settlement was on the 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" 33. In this case, the factum of fiduciary relationship is not in dispute. Hence the presumption of undue influence against a person in position of active confidence is drawn. The evidence of P.Ws.1 to 3 clearly establishes the active confidence. The plaintiffs being the sons of the first defendant the relationship is such that one is bound to protect the interest of the other. When the fiduciary relationship and the active confidence is admitted, the burden is on the plaintiffs to establish. No doubt, it is difficult to prove the negative that there was no undue influence in execution of Exs.A.1 and A.2. 34. The learned appellate Judge ought to have considered the question of burden of proof. Mere reliance on P.Ws.1 to 3 will not discharge the burden of proof. It may not be out of place to refer to the law stated in 2004 (1) LAW WEEKLY 728 (SC) A.RAGHAVARMA VS. A.CHANCHAMMA. “The burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title. 35. 35. So far as the Will under Ex.B.39 executed by the first defendant is concerned, it has to be seen whether the same is proved as required under Section 68 of the Evidence Act. Though the defendants have examined D.W.5 in this regard the same had been disbelieved by the Courts below. The defendants also did not make any other effort to establish the execution and genuineness of the Will in the manner known to law. Therefore, the findings of the Courts below in this regard are correct and no interference is warranted. 36. In 2006 (4) CTC 524, the Supreme Court has held that pleadings is not evidence. Issues are raised on the basis of pleadings. 37. Admittedly, in the present case, the plaintiffs have acknowledged the fiduciary relationship. Whileso, the defendants have proved that the plaintiffs were in a dominant position. It is relevant to refer to Section 111 of the Indian Evidence Act and the same is extracted hereunder:- “111. Proof of good faith in transactions where one party is in relation of active confidence – Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.” 38. As per the above Section, before a finding is arrived at the fiduciary relationship must be established. Once the fiduciary relationship is established, presumption of undue influence against a person in position of active confidence can be drawn. The words 'active confidence' indicate that the relationship between the parties must be such that one is bound to protect the interest of the other. 39. If the defendant had failed to prove the existence of the fiduciary relationship or the position of active confidence held by the plaintiff/respondent, the burden would be on her as she had alleged fraud. 40. For the reasons above mentioned, the questions of law are answered in favour of the appellants and the impugned judgment cannot be sustained. 41. 39. If the defendant had failed to prove the existence of the fiduciary relationship or the position of active confidence held by the plaintiff/respondent, the burden would be on her as she had alleged fraud. 40. For the reasons above mentioned, the questions of law are answered in favour of the appellants and the impugned judgment cannot be sustained. 41. In the result, the Second Appeal is allowed, reversing the judgment and decree dated 29/2/2008 passed in A.S.No.71 of 2007 on the file of the I Additional Subordinate Court, Tiruchirapalli and the judgment and decree dated 8/1/2007 passed in O.S.No.163 of 2004 on the file of the District Munsif Court, Lalgudi. No costs. Consequently, the connected Miscellaneous Petitions are also dismissed.