JUDGMENT Kamal Kishore, J.
1. This is the second civil appeal against the judgment and decree dated 8.8.1980 passed by Sri V.N. Mehrotra, the then learned Additional District Judge, Hardoi in Civil Appeal No. 9 of 1980 dismissing the appeal and confirming the judgment and decree dated 15.11.1979 passed by the then learned civil Judge in Regular Suit No. 59 of 1978 which was a suit for cancellation of sale deed.
2. The following question of law has been formulated in this appeal :
"Whether the courts below have erred in recording findings to the effect that the impugned sale deed was got executed by practising fraud and under undue influence, etc.?"
3. I have heard the arguments and have gone through the record.
4. The Court trying a case of undue influence must consider two things to start with, namely. (1) are the relations between the vendor and the vendee such that the vendee is in a position to dominate the will of the vendor, and (2) has the vendee used that position to obtain an unfair advantage over the vendor. Upon the determination of these issues, a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to be upon the person who was in a position to dominate the will of the other as has been held by the Hon'ble Supreme Court in the ruling in Subhas Chandra Das Mushib v. Ganga Prasad Das, AIR 1967 SC 878. Admittedly, the defendant-appellant is the maternal-uncle of the executant plaintiff-respondent. The law as to undue influence in the case of transfer is the same as in the case of contract. It is embodied in Section 16 of the Contract Act. On perusal of the evidence on record, I find that the relations between the vendor and the vendee is such that the vendee is in a position to dominate the will of the vendor, hence I have no hesitation in holding that the defendant-appellant obtained the sale deed under undue influence. The reliance can be placed in the ruling of Hon'ble Supreme Court in Afsar Sheikh and Ors. v. Soleman Bibi and Ors., AIR 1976 SC 16.
5. It is not sufficient for a 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. "More, that mere influence must be proved so as to render influence in the language of the law 'undue'." Upon the 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. It is question of fact whether a person is in position to dominate the will of another and procure certain deed by undue influence, I have discussed the facts of the case as above and in my view, the defendants were in a position to dominate the will of the plaintiff and to procure certain deed by undue influence as has been held in the ruling in AIR 1946 Mad 391.
6. Section 111 of Evidence Act reads as under :
"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 and of whom stands to the other in position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position to active confidence."
7. I have seen that the defendant-appellant is the real maternal-uncle of the plaintiff-respondent. If there is a relation which gives rise to confidence between the parties and if the person in fiduciary position obtains advantage where this alone is established and nothing further - the Court gives relief to the party conferring the benefit unless the other party shows that he did not avail himself of the confidence which subsisted between the parties. The burden is. therefore, upon him and if, he does not discharge the burden, the plaintiff succeeds. When there is a third party involved, the position is not dissimilar. If it is shown that he was aware of the existence of such confidential or fiduciary relation, he is under the same disability as the party who occupied the position of confidence, that is to say, the Court gives relief to the plaintiff without demanding proof of fraud. The defendant No. 1 in whose name the sale deed was executed has not entered the witness box to deny the allegations made by the plaintiff. The statements of the marginal witnesses were considered by the learned civil Judge. He has held that they appeared to be pocket witnesses of the defendant No. 1 and they were purposely set up to witness the alleged deed. I agree with these observations by learned civil Judge. The question of law formulated above is answered accordingly against the defendants-appellants.
8. Both the courts below have recorded concurrent findings of fact to the effect that the impugned sale deed dated 1.6.1978. was obtained under undue influence and misrepresentation. The impugned sale deed was obtained by the defendant-appellant by practising fraud on the plaintiff-respondent. These concurrent findings of fact of both courts below are based on evidence on record.
9. Thus, the findings of fact recorded by both the courts below are based on evidence on record. These concurrent findings of fact recorded by both the courts below are based on evidence on record, hence they do not call for any interference by this Court in view of the recent rulings of Hon'ble Supreme Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., 1999 (3) SCC 722 ; Hamida and Ors. v. Md. Khalil, 2001 AIR SCW 2057 ; Chandra Bhan v. Pamma Bai and Anr. 2O01 AIR SCW 2295 and Kaluram v. Shrinathdas and Ors., 2001 AIR SCW 2290.
10. The second civil appeal is devoid of merits and is hereby dismissed with costs.