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They also observed that Ladli Prasad was in the position to dominate the will of defendants 2 to 5 and had obtained unconscionable advantage over them, and it was for Ladli Prasad to establish that the resolution dated October 16, 1915 was not vitiated on account of undue influence and this Ladli Prasad has failed to establish. They summarised their conclusions on the issue of undue influence as follows :-

"To sum up, the conclusion of the District ..Judge on the first issue to the effect that the resolutions mentioned in para 6 of the plaint and passed at the Extraordinary General Meeting. dated the 16th October., 1945 were ineffective as having been passed under undue influence, was a finding of fact; and this conclusion had been arrived at after a review of the evidence placed on the record and after having surveyed the facts and circumstances of the case. This finding was not based either on misconception of evidence or by adopting a procedure contrary to law. Such evidence as there is on the record, the history of the business from its very inception till the final disputes between the parties, their relationship inter se, and the manner in which the plaintiff derived benefit for himself, and the circum-
(c) that the plaintiff in consequence of the resolutions passed on the 16th of October 1945 obtained for himself unfair advantage to their serious detriment by virtue of his position to dominance and the transactions entered into on 16th October 1945 appear to be unconscionable ; and
(d) that the burden of proof that the transactions were not induced by undue influence was upon the plaintiff, he being in a position to dominate the will of others which he failed to discharge."

A transaction may be vitiated on account of undue influence where the relations between the parties are such that one of them is in a position to dominate the will of the other and he uses his position to obtain an unfair advantage over the other.It is manifest that both the conditions have ordinarily to be established by the person seeking to avoid the transaction : he has to prove that the other party to a transaction was in a position to dominate his will and that the other party had obtained an unfair advantage by using that position. Clause (2) lays down a special presumption that a person is deemed to be in a position to dominate the will of another where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other or where he enters into a transaction with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress. Where it is proved that a person is in a position to dominate the will of another (such proof being furnished either by evidence or by the presumption arising under sub-section (2) and he enters into a transaction with that other person, which on the face of it or on the evidence adduced, appears to be unconscionable the burden of proving that the transaction was not induced by undue influence lies upon the person in a position to dominate the will of the other. But sub-section (3) has manifestly a limited application : the presumption will only arise if it is established by evidence that the party who had obtained the benefit of a transaction was in a position to dominate the will of the other and that the transaction is shown to be unconscionable. If either of these two conditions is not fulfilled the presumption of undue influence will not arise and burden will not shift. Assuming that in this case a plea of undue influence was attempted to be raised by paragraph 4 of the Company's written statement and paragraph 6 of the written statement of the other defendants, defendants 2 to 5 have not submitted themselves for examination before the Court. The burden of proving undue influence primarily lay upon the defendants who were setting up the plea. The manner in which the case on behalf of the defendants was conducted reflects little credit upon those in charge of the case. The primary issue on which the defendants sought to defend the suit raised the plea of undue influence and coercion in relation to the resolution dated October 16, 1945, and we should have expected the defendants to open the case and lead evidence in support of their plea. But on December 11, 1950 after the second defendant Shanti Prasad produced a number of documents which he was summoned to produce, the plaintiff for some reason not apparent on the record opened the case. Counsel for the plaintiff stated that the plaintiff was at that stage to be examined only on the issue of which the onus lay upon the plaintiff and that the plaintiff would be examined in rebuttal after the defendants closed their case and that he will examine the remaining witnesses mentioned in his list in rebuttal. Manifestly at that stage the evidence of the plaintiff led expressly on issues other than the first issue of undue influence could not be 'directed to rebutting any presumption of undue influence, for there was before the Court no evidence proving the facts on the proof of which alone the presumption under sub-s. (3) of s. 16 may arise and the burden of proof shift. After the plaintiff I concluded his evidence on the issues on which the plaintiff offered to lead evidence, on behalf of the dependents two witnesses Mohan Singh and Raghu Nandan were examined. Mohan Singh said nothing which might have a bearing on the plea of undue influence. Raghu Nandan made certain equivocal statements about examination of accounts 'at the meeting of October 16, 1945 and further stated that the compromise pursuant to which the resolutions were passed was arrived at about midnight of October 15, at the residence of the plaintiff Ladli Prasad, and that to his knowledge the defendants had no other source of income except the director's remuneration. Beyond this he appears to have said nothing which directly supported the defendant's case of undue influence. Thereafter followed a baffling series of applications made with a view to protract the proceeding in the suit, presumably to procure a situation in which the principal defendant Shanti Prasad may avoid going into the witness box. By diverse applications the proceeding was protracted till May 1953, but neither Shanti Prasad nor the other members of the family appeared before the Court for examination as witnesses in support of the defendants' case of undue influence. An application submitted on April 27, 1953 after the case was set down for judgment for the examination of Shanti Prasad was rightly rejected by the Subordinate Judge. A bare perusal of the statements and the course which the proceedings have taken leads to the only conclusion that the defendants did not desire to give evidence in support of their plea of undue influence and to subject themselves to cross-examination. There may arise cases in which even though the burden lies on the defendants to prove their case of undue influence they may establish it from admissions made by the plaintiff or his witnesses or from other evidence, and without giving their own testimony, but this, in our judgment, is not such a case.

In our view the conclusions of the District .Judge could not be regarded as binding upon the High Court in second appeal, for he raised the inference of undue influence from facts which were never pleaded and proved, and he relied upon the presumption under s. 16 (3) without the conditions prescribed thereby being fulfilled. The only facts on which the defendants relied in support of their plea in their written statement were that the plaintiff was in possession of the books, and assets of the Company ; that he used the funds of the Company for litigation, and that taking full advantage of his position the plaintiff succeeded in coercing the defendants to submit to his dictation. The first averment was admitted and the other two were denied by the plaintiff. There is no plea and no evidence on the record to prove that there was no one to look after the interest of defendants 2 to 5 that all the jwellery of the defendants was Prior t October 16, 1945 in the possession of the plaintiff; that the plaintiff had made large profits from jagatjit Distilling and Allied Industries; that the plaintiff was interested in creating a deadlock with a view to secure benefit for his concern Jagatjit Distiller; that the financial position of the defendants was "helpless and miserable"; that the defendants were not in a position to defend their rights because of lack of financial resources, and the plaintiff on that account dictated terms of compromise which were not fair. Again the presumption under s. 16 (3) could not come to the aid of the "defendants. The two conditions on the proof of which alone the presumption arises are that the plaintiff was in a position to dominate the will of the defendants, and the transaction was unconscionable. It was not pleaded by the defendants that as the eldest male member of the family, the plaintiff was in position to dominate the will of the defendants; nor was there evidence to show that he held any real or apparent authority over the defendants on that account. Admittedly on February 20, 1945 the defendants had by a resolution of the Company removed the plaintiff from the post of Managing Director. It is true that the plaintiff refused 'to accept the validity of that resolution, and declined to hand over management of the affairs of the Company to Shanti Prasad; but that does not establish that he was in a position to dominate the will of the defendants. Again the transaction cannot be called unconscionable. The Plaintiff Ladli Prasad was under the original appointment drawing an allowance exceeding Rs. 300/- per, month and held the largest single block of shares and Occupied the office of Managing Director. By the resolution his remuneration was reduced to Rs. 900/-, he was deprived of his office of Managing Director and his share holding was also reduced and made equal to that of the other branches of the family. It is true that he became Chairman of the Board of Directors, but on that account lie acquired no superior rights. All resolutions of the Board of Directors had under the amended Articles to be unanimous and no member could be removed by the others. These resolutions operated as much to the benefit of the defendants 2 to 5 as of the plaintiff. It is true that by the resolutions passed at the meeting all previous dealings of the plaintiff were validated and he was absolved from-liability in respect of those transactions. The plaintiff has affirmed on oath that this was so because accounts were 'gone into' before the meeting, and the defendants have not entered the witness box to depose to the contrary, though the burden of proving that unfair advantage was obtained by the plaintiff lay upon the defendants. Undoubtedly a resolution which absolved the plaintiff from liability for all his past dealings, without settling accounts, may appear prima facie unfair, but the District judge did not hold that accounts were not scrutinised before the resolutions of October 16, 1945 were passed., In any event there is no evidence on the record that accounts were not scrutinised and accepted by the defendants 2 to 5 before the compromise which culminated in the impugned resolutions. The only evidence on behalf of the defendants was of Raghu Nandan-Works Manager of the Karnal Distillery. He stated "the compromise was finalised at about 12 and I A. M. at night. I stayed outside for some time, but at the time of finalising of the compromise, I was present at the place where the compromise had taken place. The accounts were gone into at that time. So far as I know accounts were never sent for during the talk of compromise. x x x x S. P. Jaiswal insisted on seeing the accounts, but abruptly he signed the compromise." In crossexamination he stated "I do not know if parties had been carrying on the negotiations about the compromise some 5 or 6 days before same was arrived at,but I know that they were there on the 15th s x x x I do not know when the compromise (talks) started. The compromise was finalised between the night of the 15th and 16th, and on the morning of the 16th, I was told to take office records to Karnal." The plaintiff Ladli Prasad has deposed that the accounts were scrutinised before the resolutions. It has to be remembered that in pursuance of the resolutions dated October 16, 1945 Shanti Prasad assumed the office of Manager of the Company, and it is common ground that the books of account were in his possession since that,date. The books were originally under the control of the plaintiff : since the resolutions they were with the defendants and the defendants have not led any evidence to show that in respect of his dealings for the period he was in management the plaintiff Ladli Prasad was liable to the Company.