Judgement This appeal is from the judgment and decree in Civil Appeal No. 49 of 1971 passed by the District Judge, Manipur, reversing the judgment and decree passed by the Court of Munsiff, Manipur, in O. S. No. 3 of 1970. 2. The plaintiffs suit is for declaration that the sale deed dated 22-5-1968 purporting to transfer her ingkhol measuring 67 acre of land to the defendant is void on the ground of fraud, misrepresentation and undue influence. The material facts of her case may be stated. She is an illiterate Pardanashin widow. The defendant is her son-in-law. She, being alone has been living on the aforesaid land with the defendant and his wife Sherajan Bibi, daughter of the plaintiff, she reposed complete confidence in the defendant. The plaintiff agreed to make a gift of the land to her daughter. Accordingly, on 22-5-1968 the defendant took her to Thoubal, where, she was told, the gift would be effected but there, instead, he managed to draw up the impugned sale deed and obtain her thumb impression on it on the representation that that document would be necessary for mutating the name of her daughter, Sherajan, in respect of the land as a gift by her. The document was registered the same day. Later on, the plaintiff came to know that the deed was a sale deed at a price of Rs. 1,000/- in favour of the defendant himself. The defendant got his name mutated. She filed an application in revision against the order of mutation but that was rejected. Hence, she has filed the present suit. 3. The defendant has filed a written statement and contested the suit. His case is that the plaintiff really sold the land to him, executed the impugned sale deed and delivered possession of the land and that since the date of purchase he has been in exclusive possession of it. He has denied the plaintiffs allegation that she wanted to make a gift of the property to her daughter. 4. The learned Munsiff framed, inter alia, the following material issues. "(1) Was the sale transaction of the suit land under the registered sale deed dated 22-5-1968 void? (2) Is the plaintiff in possession of the land? (3) Is the suit to be dismissed for want of consequential relief? xx xx xx (6) Is the plaintiff entitled to the reliefs as claimed?". "(1) Was the sale transaction of the suit land under the registered sale deed dated 22-5-1968 void? (2) Is the plaintiff in possession of the land? (3) Is the suit to be dismissed for want of consequential relief? xx xx xx (6) Is the plaintiff entitled to the reliefs as claimed?". and after trial, he decreed the plaintiffs suit. 5. The learned Munsiff has found that the plaintiff is an illiterate and ignorant village woman, she lived with defendent under the same roof. The defendant deposed in his evidence that he never lived with the plaintiff, but his father D. W. 1 has given a lie to his evidence saying that the defendant has been living with the plantiff on the land in question for three years. The learned Munsiff has rejected the evidence of the defendant and accepted that of D. W. 1. The learned Munsiff also has found that the defendant took her to Thoubal to effect a gift of the land. She did not know that she was taken to the office of the Registering Officer. The learned Munsiff also has found that the plaintiff did not allow the attesting witness. D. W. 3 to accompany them. D. W. 3 arrived at Thoubal after the execution of the deed had been completed. He has also found that the plaintiff told D. W. 3 in presence of the defendant that she had gifted the land to her daughter but the defendant was silent. According to the learned Munsiff his silence amounted to an active concealment of the truth that the transaction was not intended to be a sale. The learned Munsiff has also found that the nature of the deed was not made known to the plaintiff and that there was no consideration to the purported sale. He has found that the defendant did not lead any evidence to prove the payment of the consideration. The defendant has neither deposed that he paid the consideration. He is silent on it. It was D. W. 4. the scribe, who deposed to the effect that the document was read over to the plaintiff and that the consideration was received by her. But, he has been disbelieved by the learned Munsiff on the ground that he was not a reliable witness as, being a professional scribe, he had no other alternative but to support the contents of the document he wrote. But, he has been disbelieved by the learned Munsiff on the ground that he was not a reliable witness as, being a professional scribe, he had no other alternative but to support the contents of the document he wrote. The document, inter alia, contained the recitals that she received the consideration of Rs. 1,000.00 and that she attentively heard the contents of the deed having been read over to her and that she consciously put her left thumb impression on the deed "to-day".. The scribe, therefore, according to the learned Munsiff had to depose in terms of the deed he wrote. 6. On a consideration of all the materials on record the learned Munsiff decreed the suit as stated above. 7. On appeal, the learned District Judge has reversed the judgment and decree as stated above. The learned District Judge also, however, has found that the defendant was living with the plaintiff at the relevant time; that the defendant was managing the property of the plaintiff; that the plaintiff decided to "part with the suit land in favour of her daughter" meaning thereby that the plaintiff decided to make a gift of the suit land in favour of her daughter; and that the plaintiff was taken to the Registration Office to make a gift. He has however found that the transaction in question was really a sale and the transaction was genuine and disbelieved the plaintiffs story of intended gift on the ground that the defendant had no reason to have a deed of sale executed by the plaintiff rather than the deed of gift as according to the learned Judge, in either case, the property would have come to the same family and the defendant would have got the property free. He has also held that there was no evidence to show that the relation between the defendant and his wife was strained. The learned District Judge has accepted defendants story of sale and rejected the plaintiffs case with the following observations : "So the only misrepresentation which is said to have been made by the appellant is that the deed was got executed in the form of a gift deed, as she had intended to do and that it was not got executed in favour of the wife of the appellant. There is no evidence that the relation between the appellant and his wife are strained. There is no evidence that the relation between the appellant and his wife are strained. In the absence of such evidence it cannot be imagined for a minute that the appellant would have been put to any loss if the deed had been executed in the nature of the gift and in the name of his wife. In that case too the property in suit would have been in his family if the respondent really had intended to execute the gift deed. So in the present case there appears no reason for the appellants to have practised the fraud upon his mother-in-law when she had already agreed to part with the suit land and had gone to the Registration Office for this purpose. Once when it is admitted by the respondent that she wanted to part with the suit land and she executed the deed with the said intention and that the suit land was to go to the wife of the appellant, it is difficult to presume bad faith on the part of the appellant. It would not have mattered much to the appellant if the property was going to his family by way of gift. If that was so he would have preferred to get the gift executed as in that case he was not to spend any money for it". 8. This finding of the learned District Judge is, in my opinion, perverse. He had lost sight of the real purpose of the defendant in having a deed of sale executed in his favour rather than a deed of gift in favour of his wife. If the deed of gift be executed in favour of his wife the property becomes hers and on her death before the plaintiff, the latter gets a share of the property. In case of a sale in his favour, he becomes the sole owner of it. In case she be divorced by him, or he is left by her on his marrying a second or a third or a fourth wife, (parties being Muslims) the land remains with him. In case of sale, his wife remains under his economic control. The finding of the learned lower appellate Court is based on no valid reasons. 9. In case she be divorced by him, or he is left by her on his marrying a second or a third or a fourth wife, (parties being Muslims) the land remains with him. In case of sale, his wife remains under his economic control. The finding of the learned lower appellate Court is based on no valid reasons. 9. Another important thing which has been lost sight of by the learned District Judge is that the defendant failed to prove the necessity of the plaintiff to sell the land at such a high price of Rupees 1,000.00. There is no evidence to show that the plaintiff had any need of money at all. The defendant living with the plaintiff was the best person to know of the need, if any, but he is silent on it. 10. Shri A. Nilamani Singh, learned counsel appearing for the respondent very strenuously submits that this appeal is concluded by findings of facts. His submission is whether in the present case the transaction in question is a real sale or not is a question of fact and cannot be upset in a second appeal. The law is well settled that a finding of fact however erroneous it may be cannot be upset in a second appeal. But the legal effect of proved facts, as well the application of the correct principles of law to a set of proved facts, is a question of law. A finding of fact arrived at on an erroneous application of the correct principles of law is a mixed question of law and fact and can be interfered with in a second appeal. Similarly, a perverse finding of fact can also be upset in a second appeal. 11. In the case of Sree Meenakshi Mills Ltd. Madurai v. Commr of Incometax, Madras, AIR 1957 SC 49 , their Lordships of the Supreme Court have illustrated what is a question of fact and what is the question of law. Their Lordships, have observed as follows: "In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming, so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. Their Lordships, have observed as follows: "In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming, so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. XXX XXX XXX XXX XXX XXX The ultimate finding on the issue must, therefore, be an inference to be drawn from the facts found, on the application of the proper principles of law and it will be correct to say in such cases that an inference from facts is a question of law. XXX XXX XXX XXX XXX XXX The proposition that an inference from facts is one of law will be correct in its application to mixed questions of law and fact but not to pure questions of fact". Their Lordships have further observed: "The result of the authorities then is that inference from facts would be a question of fact or of law according as the point for determination is one of pure fact or mixed question of law and fact". 12. In the instant case, the finding has been arrived at by the learned District Judge on a wrong application of the law as well as on invalid reasons. 13. Shri A. Nilamani Singh submits that the finding of the learned District Judge that Section 111 of the Evidence Act applies to the case is erroneous; he submits that Section 111 does not apply to the facts of this case as, he submits, the defendant was not in a dominating position, on the contrary the reverse was the case. Alternatively he submits, if Section 111 applies, the defendant has discharged his burden. Although the learned District Judge has found, and in my opinion correctly, that the plaintiff is not a pardanashin woman, both the Courts below have concurrently found that the plaintiff is an illiterate, ignorant village widow, she was under the care and protection of the defendant and that the latter was under her active confidence. 14. Although the learned District Judge has found, and in my opinion correctly, that the plaintiff is not a pardanashin woman, both the Courts below have concurrently found that the plaintiff is an illiterate, ignorant village widow, she was under the care and protection of the defendant and that the latter was under her active confidence. 14. 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. The law presumes prima facie in favour of deeds duly executed. So, ordinarily a person who challenges the validity of a transaction on the ground of fraud, undue influence, etc. and charges his opponent with bad faith, has the burden of proof on him. But, where on account of the existence of fiduciary relationship one of them is in a position to exert undue influence or dominion over the other and takes any benefit from him, 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 jealousy 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 engrained in Section 111 of the Evidence Act and in my opinion the learned Courts below were right in holding that this section does apply to the facts of the instant case. 15. This principle has been engrained in Section 111 of the Evidence Act and in my opinion the learned Courts below were right in holding that this section does apply to the facts of the instant case. 15. Now the question is whether the defendant has discharged the burden. In addition to the concurrent findings of the Courts below that the plaintiff was an illiterate and ignorant rustic woman, that she was under the protection of the defendant and living with him under the same roof on the suit land, the District Judge has additionally found that he was managing the property of the plaintiff. The learned Munsiff has found that she was taken alone by the defendant to the Office of the Sub-Registrar, and that the woman did not know to what place she was taken; that the attesting witness, D. W. 3. was not allowed to accompany them, and that he arrived only after the completion of the execution of the deed and signed the deed. These findings of the learned Munsiff have not been reversed by the learned District Judge. The learned District Judge has not considered the fact that the defendant was a liar when he said that he had never lived with the plaintiff, inasmuch as, the learned District Judge himself discarded that evidence of the defendant and accepted the evidence of D. W. 1 and arrived at the finding that he was living with the plaintiff. He has also found that the plaintiff decided to make a gift of the property to her daughter, the wife of the defendant, and that she accompanied the defendant to Thoubal only to make a gift. He has not considered the fact as to why, how and when, she changed her mind from making a gift of the property to her daughter to selling it to her son-in-law. Who advised her to do so ? Why did the defendant keep silent when the plaintiff told D. W. 3 that she had gifted the land to her daughter. This silence amounts to active concealment of the fact of sale from the knowledge of the plaintiff. This is fraud. 16. "Undue influence" had been defined under Section 16 of the Contract Act. Why did the defendant keep silent when the plaintiff told D. W. 3 that she had gifted the land to her daughter. This silence amounts to active concealment of the fact of sale from the knowledge of the plaintiff. This is fraud. 16. "Undue influence" had been defined under Section 16 of the Contract Act. The relevant portion thereof may be quoted: "16 (1) 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. (2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another- (a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or (b) XXX XXX XXX (3) Where a person who is in a position to dominate the will of another, enters into a contract with him and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other". "Fraud" has been defined under Section 17 of the Contract Act. The relevant portion thereof may be quoted: "17. Fraud means and includes any of the following acts committed by a party to a contract, XXX XXX XXX XXX XXX with intent to deceive another party thereto XXX XXX XXX to induce him to enter the contract- (1) XXX XXX XXX (2) the active concealment of a fact by one having knowledge or belief of the fact; XXX XXX XXX Explanation- Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech". 17. 17. The learned District Judge failed to appreciate the law involved in the case and erroneously reversed the relevant finding of the learned Munsiff and came to the erroneous conclusion that the transaction in question was a genuine sale. It is clear from the facts and circumstances referred to above, and the learned trial Court was right in finding, that far less the defendant has proved fair play and bona fide in the transaction. The evidence shows that he took the plaintiff alone to Thoubal telling her that her proposed gift of the land to her daughter would be effected, and got a deed drawn and signed by the plaintiff; the fact was concealed even from D. W. 3, Defendants own witness. The learned Munsiff is right, in my opinion, in holding that the impugned sale deed was obtained by fraud and undue influence. 18. The only other submission of Shri Nilamani Singh is that the suit is barred under Section 34 of the Specific Relief Act, 1963. Though the Munsiff found on the issue in favour of the plaintiff holding that the suit was not barred as further relief was not necessary to be sought by the plaintiff, inasmuch as she herself was in possession of the suit land, this finding was not challenged before the District Judge by the respondent who was the appellant before him. The point therefore cannot be entertained in the second appeal. 19. In the result, the judgment and decree of the learned District Judge are set aside and those of the Munsiff restored. 20. The appeal is allowed with costs. Appeal allowed.