JUDGMENT Hon’ble Aditya Nath Mittal, J.—This second appeal has been filed against the judgment and decree dated 12.4.1979, passed by the then learned District Judge, Kheri in Civil Appeal No. 17 of 1978, who has allowed the appeal and has decreed the suit by reversing the judgment and decree dated 23.12.1977 passed by the Civil Judge, Kheri, who had dismissed the Original Suit No. 13 of 1970. 2. The brief facts of the case are that the plaintiff-Bal Govind had filed a suit for cancellation of sale-deed dated 2.9.1968 and Mukhtarnama dated 29.8.1968 regarding the property of Smt. Ram Kali on the ground that after the death of Smt. Ram Kali on 31.8.1968, he is the successor of Smt. Ram Kali. It was also alleged that Smt. Ram Kali had received this property from her husband and she had died issue-less. She was under the influence of Madho Ram which was in distant relative of Smt. Ram Kali. Madho Ram had brought Smt. Ram Kali in connection with the treatment but got executed the Power of Attorney, which was registered on 29.8.1968. The mental condition of Smt. Ram Kali was not good at the time of execution of Power of Attorney and she was unable to understand its contents. In the garb of the said Power of Attorney, the defendant No. 1 had executed the sale-deed in favour of the defendant No. 2 on 2.9.1968, on which date, Smt. Ram Kali had already died. The defendant No. 1 had no right to sell the property. Smt. Ram Kali had not received any sale consideration. He has also come to know that Madho Ram had wrongly got recorded the wrong date of death of Smt. Ram Kali. The said Power of Attorney as well as sale-deed are liable to be cancelled, therefore, the suit was filed. 3. The defendants had contested the suit by filing their joint written statement. It was admitted that Smt. Ram Kali was owner of the said house and was a Bhumidhar of the land in dispute. It has also been admitted that Madho Ram was relative of Smt. Ram Kali. Smt. Ram Kali had executed the Power of Attorney of her own free will and as per her wishes, the defendant No. 1 had executed the sale-deed in favour of defendant No. 2. It has also been admitted that Madho Ram was relative of Smt. Ram Kali. Smt. Ram Kali had executed the Power of Attorney of her own free will and as per her wishes, the defendant No. 1 had executed the sale-deed in favour of defendant No. 2. Denying the other allegations, it has been stated that the defendant No. 2 has got the sale-deed executed after paying the sale consideration. Smt. Ram Kali had died on 30.11.1968 and the defendant No. 2 was in possession of the property in dispute during life time of Smt. Ram Kali. Because the said Power of Attorney was not cancelled during the life time of Smt. Ram Kali, therefore, the defendant No. 1 was having right to execute the sale-deed. The sale consideration was received by Smt. Ram Kali herself. The suit of the plaintiff is misconceived. 4. Learned trial Court framed the following issues. (1) Whether the pedigree as pleaded in para-1 of the plaint is correct ? Whether the plaintiff has got right to sue ? (2) Whether the Power of Attorney dated 29.8.1968 was obtained by fraud and undue influence ? (3) Whether Smt. Ram Kali was not able to understand the contents and implication of the Mukhtarnama at the time of its execution ? (4) Whether the sale-deed dated 2.9.1968 was executed without the instruction of Smt. Ram Kali ? If so, its effect ? (5) Whether the defendant No. 1 had authority to execute the sale-deed in respect of the house and trees ? (6) Whether Smt. Ram Kali died on 31.8.1978 or she died on 30.11.1968 ? (7) Whether Sri Rama Shanker was bona fide purchaser for consideration ? If so, its effect ? (8) To what relief, if any, is the plaintiff entitled ? 5. After considering the evidences of both the parties, learned Civil Judge, Lakhimpur dismissed the suit by judgment and order dated 23.12.1977. Learned Civil Judge came to the conclusion that Smt. Ram Kali had not died on 31.8.1968, but had died subsequent to 2.9.1968. Learned trial Court has also come to the conclusion that Madho Ram was not in such a position so that he might have dominated the will of Smt. Ram Kali and that he had not gained any unfair advantage by using that position. Learned trial Court has also come to the conclusion that Madho Ram was not in such a position so that he might have dominated the will of Smt. Ram Kali and that he had not gained any unfair advantage by using that position. Learned trial Court has also come to the conclusion that the impugned sale-deed is not unconscionable and unreasonable. It was burden upon the plaintiff to have prove that the sale-deed was obtained by undue influence. The property in dispute was sold for consideration of Rs. 2000/-. The plaintiff has failed to prove the grounds of undue influence and deception. Pedigree given by the plaintiff is also not proved that he was the nephew of Smt. Ram Kali, therefore, he has no right to sue. 6. The judgment of Civil Judge, Lakhimpur was challenged in Civil Appeal No. 17 of 1978 before the District Judge, Kheri who has reversed the findings of learned Civil Judge, Lakhimpur and has held that Mukhtarnama was not executed by Smt. Ram Kali after understanding its contents and she was under the influence of Madho Ram, who played his own role throughout. Madho Ram was moving like his shadow till he grabbed the property in favour of Rama Shanker. Smt. Ram Kali was believed to Madho Ram, therefore, Mukhtarnama was a result of undue influence upon her. The sale-deed was also not the creation of Smt. Ram Kali. Accordingly, reversing the judgment of trial Court, appeal was allowed and the plaintiff’s suit for cancellation of sale-deed dated 2.9.1968 and Mukhtarnama dated 29.8.1968 were decreed. 7. This second appeal has been admitted on the following substantial questions of law : (i) Whether the findings recorded by the learned first appellate Court are perverse or against the evidence on record ? (ii) Whether the plaintiff succeeded in proving the requisites of Section 16 of Indian Contract Act and if and whether the plaintiff’s case comes within the purview of Section 16 of Indian Contract Act ? (iii) Whether the Court below was right in applying the provisions of Section 111 of Indian Evidence Act against the defendants while decreeing the suit filed by the plaintiff ? 8. Heard learned counsel for the appellants, learned counsel for the respondent and perused the record. 9. (iii) Whether the Court below was right in applying the provisions of Section 111 of Indian Evidence Act against the defendants while decreeing the suit filed by the plaintiff ? 8. Heard learned counsel for the appellants, learned counsel for the respondent and perused the record. 9. Learned counsel for the appellants has submitted that the suit was filed by Bal Govind as plaintiff alleging himself to be the successor of Smt. Ram Kali but he had never appeared in the witness box to prove his case. It has also been submitted that Bal Govind has executed the Power of Attorney in favour of Babu Ram, but the contents of the plaint could not have been proved by Babu Ram. It has also been submitted that the appellants had proved the Mukhtarnama as well as the sale-deed and the appellants are the bona fide purchaser for consideration, but the learned first appellate Court has wrongly come to the conclusion that it was executed under the influence of Madho Ram. It has also been submitted that the plaintiff had not appeared before the trial Court for proving his case. Therefore, the Power of Attorney holder was not competent to prove the contents of the plaint and the adverse inference has to be drawn against the plaintiff. 10. In support of his submission, learned counsel for the appellants has placed reliance on the case Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, AIR 2005 SC 439 , in which Hon’ble Supreme Court in paras-13, 15 and 18 has held as under : “13. Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. 15. Apart from what has been stated, this Court in the case of Vidhyadhar v. Manikrao and another, (1999) 3 SCC 573 , observed at page 583 SCC that “where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct”. 18. The aforesaid judgment was quoted with the approval in the case of Ram Prasad v. Hari Narain and others, AIR 1998 Raj 185 . It was held that the word “acts” used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the Court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.” 11. Learned counsel for the appellants has also placed reliance on the case Vidhyadhar v. Mankikrao and another, AIR 1999 SC 1441 , in which Hon’ble the Supreme Court in para-16 has held as under : “16. Learned counsel for the appellants has also placed reliance on the case Vidhyadhar v. Mankikrao and another, AIR 1999 SC 1441 , in which Hon’ble the Supreme Court in para-16 has held as under : “16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbaksh Singh v. Gurdial Singh, AIR 1927 PC 230 . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and others, AIR 1930 Lah 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bom 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 MP 225 , also followed the Privy Council decision in Sardar Gurbakhsh Singh’s case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and another, AIR 1971 All 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and others, AIR 1974 P&H 7 , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.” 12. Learned counsel for the appellants has also placed reliance on the case Afsar Shaikh and another v. Soleman Bibi and others, AIR 1976 SC 163 , in which Hon’ble the Apex Court in paras 21, 22, 23 and 24 has held as under : “21. The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. It is embodied in s. 16 of the Indian Contract Act. Sub-section (1) of Section 16 defines ‘undue influence’ in general terms. It provides that to constitute ‘undue influence’ two basic elements must be cumulatively present. First, the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other. Sub-section (1) of Section 16 defines ‘undue influence’ in general terms. It provides that to constitute ‘undue influence’ two basic elements must be cumulatively present. First, the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other. Second, the party in dominant position uses that position to obtain an unfair advantage over the other. Both these conditions must be pleaded with particularity and proved by the person seeking to avoid the transaction. 22. In view of this sub-section, the Court trying a case of undue influence of the kind before us, must, to start with, consider two things, namely, (1) 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 (2) has the donee used that position to obtain an unfair advantage over the donor ? 23. Sub-section (2) of Section 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 benefitting 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.” 13. 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.” 13. Learned counsel for the appellant has also placed reliance on the case Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib and others, AIR 1967 SC 878 , in which Hon’ble the Apex Court in paras-8, 9, and 10 has held as under : “8. It must also be noted that merely because the parties were nearly related to each other no presumption of undue influene can arise. As was pointed out by the Judicial Committee of the Privy Council in Poosathurai v. Kannappa Chettiar and others, 47 Ind App 1 at page No. 3: “It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Up to that point “influence” alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, “undue”. 9. The law in India as to undue influence as embodied in Section 16 of the Contract Act is based on the English Common Law as noted in the judgments of this Court in Ladli Prasad Jaiswal v. Karna Distillery Co. Ltd., (1964) 1 SCR 270 at page No. 300. According to Halsbury’s Laws of England, Third Edition, Vol. 17, p. 673, Art. 1298, “where there is no relationship shown to exist from which undue influence is presumed, that influence must be proved”. Article 1299, p. 674 of the same volume shows that “there is no presumption of imposition or fraud merely because a donor is old or of weak character” The nature of relations from the existence of which undue influence is presumed is considered at pages 678 to 681 of the same volume. Article 1299, p. 674 of the same volume shows that “there is no presumption of imposition or fraud merely because a donor is old or of weak character” The nature of relations from the existence of which undue influence is presumed is considered at pages 678 to 681 of the same volume. The learned author notes at p. 679 that “there is no presumption of undue influence in the case of a gift to a son, grandson, or sonin-law, although made during the donor’s illness and a few days before his death”. Generally speaking the relation of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises. Section 16(2) of the Contract Act shows that such a situation can arise wherever the donee stands in a fiduciary relationship to the donor or holds a real or apparent authority over him. 10. Before, however, a Court is called upon to examine whether undue influence was exercised or not, it must scrutinize the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6, Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal, (1964) 1 SCR 270 , above referred to. In that case it was observed (at page No. 295) of SCR:” “A vague or general plea can never serve this purpose; 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.” 14. On the other hand, learned counsel for the respondent has submitted that Smt. Ram Kali had never executed the alleged Mukhtarnama and she has not received any consideration. It has also been submitted that in the said Mukhtarnama, the right to transfer the property was not given. It has also been submitted that the original Mukhtarnama was not produced in the Court. It has also been submitted that within two days of executing the Mukhtarnama the sale -deed has been executed, which creates doubt. It has also been submitted that in the said Mukhtarnama, the right to transfer the property was not given. It has also been submitted that the original Mukhtarnama was not produced in the Court. It has also been submitted that within two days of executing the Mukhtarnama the sale -deed has been executed, which creates doubt. It has also been submitted that the said Mukhtarnama was only for doing pairavi and it was not for selling the property. It has also been submitted that the appellants had wrongly obtained mutation by playing fraud and wrong date of death of Smt. Ram Kali was got entered in the Municipal records. It has also been submitted that the said Mukhtarnama was got executed by undue influence and it was the duty of the defendants-appellants to have prove that the said Mukhtarnama was not obtained by undue influence. 15. In support of his submission, learned counsel for the respondents has placed reliance upon the case Thiagaraja and others v. Sri Venugopalaswamy B. Koli and others, 2005 (23) LCD 73, in which Hon’ble the Apex Court in para-23 has held as under : “23. To say the least the approach of the High Court was not proper. It is the obligation of the Courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible”. 16. Learned counsel for the respondent has also placed reliance upon the case Manicka Poosali (Dead) by LRS. and others v. Anialaiammal and another, 2006 (24) LCD 1689, in which Hon’ble Apex Court in paras-16 and 17 has held as under : “16. In Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 , a three-Judge Bench of this Court after examining the provision of Section 100 exhaustively has concluded that the scope of hearing of the second appeal by the High Court is circumscribed by the questions formulated by the High Court at the time of the admission of the appeal and that the High Court has to hear the appeal on the substantial questions of law so framed. That the High Court would be at liberty to hear the appeal on any other substantial question of law, not earlier formulated by it, if the Court is satisfied of two conditions i.e. (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction. 17. This judgment was followed by this Court in Govindaraja v. Mariamman, (2005) 2 SCC 500 , decided on 4.2.2005. In Govindaraja case (supra) it has been held that the High Court while exercising its powers under Section 100 of the Code of Civil Procedure on reappreciation of the evidence cannot set aside the findings of fact recorded by the first appellate Court unless the High Court comes to the conclusion that the findings recorded by the first appellate Courts were perverse i.e. based on misreading of evidence or based on no evidence.” 17. Learned counsel for the respondent has also placed reliance upon the case Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana and another, 2011 (29) LCD 2083, in which Hon’ble the Apex Court in para-13 has held as under : “13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan v. Basant Nehata, 2005 (12) SCC 77, this Court held: “A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.” An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.” 18. Learned counsel for the respondent has also placed reliance upon the case Joseph John Peter Sandy v. Veronica Thomas Rajkumar and another, 2013 (120) RD 548, in which Hon’ble the Apex Court in paras-10, 11, 12, 13, 14, 15 and 21 has held as under : “10. Section 16 of the Contract Act provides that 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. 11. Section 16 of the Contract Act provides that 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. 11. In Bishundeo Narain and another v. Seogeni Rai & Jagernath, AIR 1951 SC 280 , while dealing with the issue, this Court held: “....in cases of fraud, ‘’undue influence’ and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.” 12. The Privy Council in Poosathurai v. Kannappa Chettiar, AIR 1920 PC 65 , reasoned that it is a mistake to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it. Up to that point “influence” alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, ‘undue’. 13. In Ladli Prashad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and others, AIR 1963 SC 1279 , this Court held: “The doctrine of ‘’undue influence’ under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of Section 16 lays down the principle in general terms. The doctrine applies to acts of bounty as well as to other transactions in which one party by exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rules of English common law. The first sub-section of Section 16 lays down the principle in general terms. By sub-section (2) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third sub-section is that a person who has obtained an advantage over another by dominating his will may also remain in a position to suppress the requisite evidence in support of the plea of undue influence.” 14. In Subhash Chandra Das Mushib v. Ganga Prasad Das Mushib and others, AIR 1967 SC 878 , this Court held that the Court trying the case of undue influence must consider two things to start with, namely, (1) 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 (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these two 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 lies upon the person who is in a position to dominate the Will of the other. It was further said that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. Generally speaking the relations of solicitor and client, trustee and cestui que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises. 15. In Afsar Shaikh and another v. Soleman Bibi and others, AIR 1976 SC 163 , this Court held: “The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. 15. In Afsar Shaikh and another v. Soleman Bibi and others, AIR 1976 SC 163 , this Court held: “The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. Sub-section (3) of Section 16 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. The Privy Council in Raghunath Prasad v. Sarju Prasad, AIR 1924 PC 60 , expounded three stages for consideration of a case of undue influence. It was pointed out that the first thing to be considered is, whether the plaintiff or the party seeking relief on the ground of undue influence has proved that the relations between the parties to each other are such that one is in a position to dominate the will of the other. Upto this point, ‘influence’ alone has been made out. Once that position is substantiated, the second stage has been reached - namely, the issue whether the transaction has been induced by undue influence. That is to say, it is not sufficient for the person seeking the relief to show that the relations of the parties have been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it. Upon a determination of the issue at the second stage, a third point emerges, which is of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that it was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions be changed. If the transaction appears to be unconscionable, then the burden of proving that it was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relation of the parties. Were they such as to put one in a position to dominate the will of the other.” 21. In Krishna Mohan Kul @ Nani Charan Kul and another v. Pratima Maity and others, AIR 2003 SC 4351 , it was held that when fraud, mis-representation 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.” 19. Learned counsel for the respondent has also placed reliance upon the case Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Maity and others, AIR 2003 SC 4351 , in which Hon’ble the Apex Court in paras-12 and 17 has 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. 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. 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, 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, 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 has been ingrained 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 transaction is not necessarily void ipso facto nor is it necessary for 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 others 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 voluntary 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. 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. 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. In the present case, the plaintiff-Bal Govind had filed the suit for cancellation of sale-deed dated 2.9.1968 on the ground that the Power of Attorney dated 29.8.1968 was obtained by undue influence and Smt. Ram Kali, who was owner of the property in dispute, had died on 31.8.1968. Therefore, the sale-deed could not have been executed on 2.9.2008 in exercising the rights under Power of Attorney. The plaintiff has also given the pedigree in para-1 of the plaint, in which he has stated that he is the only successor of Smt. Ram Kali being her nephew. It was also alleged in the plaint that Madho Ram had brought Smt. Ram Kali with regard to her treatment to Lakhimpur Kheri and with intention to usurp her property, had got executed the Power of Attorney in favour of defendant No. 1, who was his real Samdhi, who had executed the sale-deed in favour of the defendant No. 2. It has also been alleged that the said sale-deed is without consideration. Admittedly, the plaintiff was alive at the time of filing the suit as well as at the time of evidence, but he had executed a Power of Attorney in favour of Babu Ram, who was maternal-brother of Bal Govind for contesting the suit. Admittedly, Bal Govind had not appeared before the trial Court as witness and he has not proved the contents of plaint. While Babu Ram had appeared as Power of Attorney holder, who has deposed on behalf of Bal Govind. Another witnesses Gomti Prasad has been examined on behalf of the plaintiff who has stated that Smt. Ram Kali was ill and her death was entered into death and birth register. This witness Gomti Prasad had not stated anything about the said Power of Attorney in favour of defendant No. 1 or the sale-deed in favour of the defendant No. 2. Therefore, he is a formal witness regarding the death of Smt. Ram Kali but even in his statement he has not stated any date of death of Smt. Ram Kali, which is also disputed. Therefore, he is a formal witness regarding the death of Smt. Ram Kali but even in his statement he has not stated any date of death of Smt. Ram Kali, which is also disputed. In these circumstances, the only witness is Babu Ram to prove the averments of plaint. 21. Learned counsel for the appellants has submitted that if the plaintiff himself has not appeared before the trial Court for his evidence then a presumption would arise that the said case set-up by himself is not correct. It has also been submitted that Order III Rule 1 & 2 C.P.C. do not include deposing in place and instead of plaintiff and the Power of Attorney holder cannot depose for the plaintiff in respect of the matter which only the plaintiff can have a personal knowledge. 22. Now the question arises as to whether Babu Ram, who was the Power of Attorney holder, was a competent witness while Bal Govind who had executed the Power of Attorney for prosecuting the case was alive. Learned counsel for the appellants has drawn my attention towards the cases Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others (supra) and Vidhyadhar v. Mankikrao and another (supra), the Hon’ble Apex Court in both the above judgments has held that Order III Rule 1 & 2 C.P.C. do not empower the Power of Attorney holder to depose for the plaintiff and where a party of the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. In Vidhyadhar’s case (supra), the Hon’ble Apex Court has considered various judgments of different High Courts as well as Privy Council and has held that presumption under Section 114 of the Evidence Act shall be taken against a party who did not enter the witness box. A defence has been taken that Bal Govind was seriously ill during pendency of the suit, but that defence is also not tenable in view of the fact that if the plaintiff, as alleged by him, was not able to attend the Court then he should have applied for recording the evidence through commission but no such application has been moved. Therefore in these circumstances, the judgments of the Hon’ble Apex Court in Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others (supra) and Vidhyadhar v. Mankikrao and another (supra) are fully applicable and accordingly presumption has to be drawn against the plaintiff under Section 114 of the Evidence Act that the case set up by him is not correct. 23. The plaintiff has come with the definite allegation that Smt. Ram Kali, who was owner of the property in suit, had died on 31.8.1968, therefore, the alleged Power of Attorney stood lapsed and the sale-deed after the death of Smt. Ram Kali could not have been executed under Power of Attorney. 24. Learned trial Court after discussing the evidence on record came to the conclusion that there were entries about the death of Smt. Ram Kali in the Municipal record, which seem to be more genuine. Learned trial Court has also come to the conclusion that Smt. Ram Kali had not died on 31.8.1968, but has died subsequent to 2.9.1968. (the date of execution of sale-deed). 25. As mentioned above, the plaintiff himself has not appeared before the trial Court for proving the averments of the plaint as well as the date of death of Smt. Ram Kali. As far as the statement of Babu Ram PW-1 is concerned, he has not stated that what was the basis upon which he is deposing that Smt. Ram Kali has died on 31.8.1968. This witness has failed to tell about the various material facts regarding other family members including the return of Badri from America. This witness has admitted that Bal Govind has lost the case in the matter of mutation as well as consolidation. This witness has also failed to tell the date of death of other family members. Therefore, learned trial Court has rightly come to the conclusion that Smt. Ram Kali had not died on 31.8.1968, but had died subsequent to the execution of sale-deed. Learned first appellate Court has also touched this aspect and has come to the conclusion that Smt. Ram Kali had not died on 31.8.1968, but had died subsequent to 2.9.1968. In this way, the case set up by the plaintiff is also found to be incorrect. 26. Learned first appellate Court has also touched this aspect and has come to the conclusion that Smt. Ram Kali had not died on 31.8.1968, but had died subsequent to 2.9.1968. In this way, the case set up by the plaintiff is also found to be incorrect. 26. Learned trial Court has come to the conclusion that Bal Govind was not the legal heir of Smt. Ram Kali, therefore he was not entitled to sue. The first appellate Court has come to the conclusion that none of the defence witnesses had stated anything about the counter pedigree. Therefore, the findings of learned civil judge were not justified. I do not agree with the findings of learned first appellate Court because it is the duty of plaintiff to prove the averments of the plaint. In para-1 of the plaint, the pedigree has been given and the plaintiff has stated himself to be the nephew of Smt. Ram Kali. The said pedigree has been denied in the written statement. Therefore, it was the duty of plaintiff to have prove the said pedigree. As stated earlier, the plaintiff had not appeared before the Court below to prove the averments of the plaint. Learned first appellate Court was at error of law that because none of the defence witnesses have stated anything about the counter pedigree, therefore, the pedigree stated by the plaintiff in the plant is correct. In case of specific denial, it is the duty of plaintiff to have proved the averments of the plaint. The weakness of the evidence of defendant cannot make strong the case of plaintiff. The plaintiff has to stand on his own legs. 27. Much emphasis has been given on the point of undue influence and learned counsel for the respondent has submitted that because Mukhtarnama was not produced in original and just after two days of the said Mukhtarnama, the said sale-deed has been executed. Therefore, the said sale-deed is doubtful and the said Power of Attorney was obtained by undue influence. 28. While on the other hand, learned counsel for the appellants has stated that there was no undue influence upon Smt. Ram Kali, who had executed the Power of Attorney by her own will and the said sale-deed was for a consideration. Therefore, the said sale-deed is doubtful and the said Power of Attorney was obtained by undue influence. 28. While on the other hand, learned counsel for the appellants has stated that there was no undue influence upon Smt. Ram Kali, who had executed the Power of Attorney by her own will and the said sale-deed was for a consideration. For undue influence as defined under Section 16 (1) of the Indian Contract Act, there should be relations subsisting between the parties must be of such a nature that one of the parties is in a position to dominate the will of the other and secondly the party in dominating position should obtain an unfair advantage over the other. The undue influence must not only to leave it in the plaint, but it should be also be proved. In the plaint, the plaintiff has stated that Madho Ram and defendant No. 1 had got the said Power of Attorney in undue influence. Admittedly, the said Power of Attorney is a registered document. As stated earlier, the plaintiff has not entered into witness box to prove the averments of the plaint. Admittedly, neither the plaintiff nor his witness Babu Ram were present at the time of execution of the said Power of Attorney in favour of the defendant No. 1. Learned trial Court has come to the conclusion that it was the plaintiff’s burden to prove that Madho Ram was in a position to dominate will of Smt. Ram Kali and Madho Ram had obtained an unfair advantage. Accordingly after appreciating the evidence on record, learned trial Court has come to the conclusion that Madho Ram was a distant relative of Smt. Ram Kali and this relationship was not such relationship as innumerated sub-section 2 of Section 16 of Indian Contract Act so as to raise a presumption that he was in a position to dominate the will of Smt. Ram Kali. Learned trial Court has come to the conclusion that the story of undue influence of Madho Ram is concocted and because he was a witness to the sale-deed, therefore, it has been so alleged. 29. Learned trial Court has come to the conclusion that the story of undue influence of Madho Ram is concocted and because he was a witness to the sale-deed, therefore, it has been so alleged. 29. Learned first appellate Court has reversed the said findings and held that it was Madho Ram who had manipulated all the affairs and there was no occasion for Smt. Ram Kali to execute the Power of Attorney while Madho Ram has played an active role in getting the Power of Attorney. 30. In the present case, Madho Ram is not the beneficiary. The undue influence of defendants has not been alleged. It is also not proved that Madho Ram was in a position to dominate the will of Smt. Ram Kali and thereby received undue advantage. 31. It is settled position of law that the plaintiff has to be stand at his own legs. As stated earlier, the plaintiff has not come forward to depose before the trial Court while he was alive during pendency of the suit as well as during pendency of the first appeal. He had not tried even at the stage of first appeal to depose before the Court. Learned first appellate Court has drawn all the conclusions of undue influence upon the evidence of defendant witnesses. Madho Ram was not directly related to Smt. Ram Kali and he was a distant relative. The findings of learned trial Court are more close to the evidence on record while the findings of learned first appellate Court are based on presumptions and surmises. Mere presence of Madho Ram at the time of execution of sale-deed, it cannot be said that he was in a position to dominate the will of Smt. Ram Kali. Admittedly, Madho Ram is also not a beneficiary directly but it is alleged that the defendant No. 1 was his Samdhi though the said relationship of Samdhi has not been alleged in the plaint. Even the plaintiff in his plaint has stated that Madho Ram was a distant relative of Smt. Ram Kali, but the nature of relationship has not been stated. During the proceedings, a receipt of Paper No. K1/62, which has been marked as Ext.A-1 was also filed, in which Smt. Ram Kali had stated that she has received a sum of Rs. During the proceedings, a receipt of Paper No. K1/62, which has been marked as Ext.A-1 was also filed, in which Smt. Ram Kali had stated that she has received a sum of Rs. 2000/- regarding the sale of her property from Ram Shanker @ Ramu, who was the defendant No. 2. It has been mentioned in para-7 of the plaint that the defendant No. 1 is Samdhi of Madho Ram. Samdhi is a person who is father-in-law of the daughter or son. The said Power of Attorney was executed on 29.8.1968 and the suit was filed in the year 1970. The age of the defendant No. 1 has been shown as thirty years on the date of filing of the suit. Meaning thereby that the defendant No. 1 was about twenty eight years old at the time of execution of Power of Attorney. I do not think that any person who is aged about twenty eight years will be able to to marry his daughter or son thereby creating the relationship of Samdhi. 32. It has also come in the evidence that Smt. Ram Kali was hale and hearty at the time of execution of Power of Attorney. I do not agree with the findings of learned first appellate Court that Smt. Ram Kali had executed the said Power of Attorney under undue influence of Madho Ram because it is not proved that Madho Ram was in a position to dominate the will of Smt. Ram Kali and there was no such relationship between Smt. Ram Kali and Madho Ram that Madho Ram was in a position to dominate the will of Smt. Ram Kali. Moreover, when Smt. Ram Kali had executed a receipt alongwith revenue stamp on 8.8.1968, which is much prior to the date of execution of Power of Attorney as well as sale-deed in which she has specifically stated that she has received a sum of Rs. 2000/- the total consideration regarding the sale of her land in favour of Ram Shanker. This receipt has been proved as Ext. A-1 and there is no evidence contrary to it which goes to show that Smt. Ram Kali had sold her property of her own will to Ram Shanker defendant No. 2 and for executing the sale-deed, she had authorized to defendant No. 1. In the said transaction, the alleged undue influence of Madho Ram is not proved. 33. A-1 and there is no evidence contrary to it which goes to show that Smt. Ram Kali had sold her property of her own will to Ram Shanker defendant No. 2 and for executing the sale-deed, she had authorized to defendant No. 1. In the said transaction, the alleged undue influence of Madho Ram is not proved. 33. As far as ground of old age and illiteracy as well as ailing of Smt. Ram Kali are concerned, learned trial Court has rightly come to the conclusion that Smt. Ram Kali was not of a weak mind. The witness appeared for the plaintiff had stated that Smt. Ram Kali was being treated by some Muslim Doctor, but no such evidence was adduced by the plaintiff. The defendants have examined the witness of Mukhtarnama who has specifically stated that the said Mukhtarnama was executed by Smt. Ram Kali and she had affixed her thumb impression on the Mukhtarnama after well thought and understanding the same. Admittedly, the plaintiff or the Power of Attorney holder of the plaintiff were not present at the time of execution of Mukhtarnama. Therefore, there was no reason to disbelieve the evidence adduced by the witnesses of the defendants. The witnesses of defendants were cross-examined at length but nothing adverse was found in their cross-examination. Therefore, the findings recorded by learned first appellate Court are perverse and against the evidence on record. 34. In view of the law laid down by Hon’ble the Apex Court regarding undue influence, the findings have been recorded by the learned trial Court that Madho Ram and the defendant No. 1 were not under the influence of Smt. Ram Kali and Smt. Ram Kali had executed the Power of Attorney in favour of the defendant No. 1 after getting the sale consideration from defendant No. 2 regarding which she had also executed the receipt which has been proved as Ext. A-1. Therefore, the plaintiff had not succeeded in proving the requisites of Section 16 of Indian Contract Act. 35. As far as application of provisions of Section 111 of Indian Evidence Act are concerned, the burden of proving good faith of a transaction is on the party who is in a position of active confidence. In the present case, it is not proved that the said Power of Attorney was executed under undue influence or by fraud or misrepresentation. As far as application of provisions of Section 111 of Indian Evidence Act are concerned, the burden of proving good faith of a transaction is on the party who is in a position of active confidence. In the present case, it is not proved that the said Power of Attorney was executed under undue influence or by fraud or misrepresentation. The defendant by his evidence has proved the Power of Attorney as well as the sale-deed and it has been proved that the said Power of Attorney was executed by Smt. Ram Kali after understanding its contents and with her free will. The sale consideration of the said sale-deed has also been proved by Ext.A-1. Therefore in these circumstances, the defendant had succeeded in proving the good faith of transaction while on the other hand there is absolutely no credible evidence of the plaintiff in this regard as he had not appeared before the trial Court in the witness box. 36. In view of the above, I am of the view that the findings recorded by learned first appellate Court are perverse as well as against the evidence on record while the findings recorded by the trial Court are in accordance with the evidence on record as well as on law. The plaintiff had not succeeded in proving the requisites of Section 16 of the Indian Contract Act while on the other hand, it is fully proved that there was no undue influence upon Smt. Ram Kali either to execute the Power of Attorney or to execute the receipt of sale consideration (Ext. A-1) and the first appellate Court has committed mistake by applying the provisions of Section 111 of Indian Evidence Act against the defendants. 37. The findings recorded by the learned trial Court are more close to the evidence on record while the findings of learned first appellate Court are based on surmises and conjectures, which are far away from the evidence on record. The plaintiff has not dared to appear before the trial Court in the witness box for the best reasons known to him and his alleged illness is not proved. Even if the presumption that he was ill, his evidence could have been recorded upon the commission if he had so applied. In all the circumstances, the plaintiff has totally failed to prove his case. Even if the presumption that he was ill, his evidence could have been recorded upon the commission if he had so applied. In all the circumstances, the plaintiff has totally failed to prove his case. Moreover, he has also lost in the mutation proceedings as well as consolidation proceedings. Learned trial Court has rightly dismissed the suit of the plaintiff while learned first appellate Court has committed material illegality in allowing the appeal. The findings of learned first appellate Court are perverse for the aforesaid reasons. 38. The substantial question of law No. (i) is accordingly decided in affirmative while substantial question No. (ii) and (iii) are decided in negative and accordingly the appeal is liable to be allowed. 39. The appeal is allowed. The judgment of learned first appellate Court dated 12.4.1979 is set aside and the judgment of learned trial Court dated 23.12.1977 is upheld. The office is directed to send the lower Court record to the Court concerned, at an early date, alongwith copy of this judgment. ——————