JUDGMENT N. N. Mithal, J. 1. These are two connected appeals arising out of the cross suits one of which was filed by the appellant in the court of Munsif for cancellation of agreement of sale dated 16-2-1981 and the other suit was filed by the respondent in the court of Civil Judge for specific performance of the aforesaid agreement. 2. The suit filed by the appellant was later got transferred to the court of Civil Judge and the two suits were thereafter decided together. The suit for specific performance was made the leading case. The trial court dismissed the appellant's suit and decreed the one filed by the respondent giving rise to two separate appeals one of which was filed in the High Court and the other one before the District Judge as the original suit in that case has been filed in the Manciples court. The appellant then moved Civil Misc. Application No. 10461 of 1987 and prayed that the High Court should recall the appeal filed in the court of District Judge and it may be decided along with First Appeal No. 639 of 1986 filed against the decree for specific performance. The aforesaid application was allowed on 7-4-1988 and consequently the appeal was withdrawn from the court of the District Judge and registered here as First Appeal No. 232 of 1988. The appeal was connected with First Appeal No. 539 of 1986. This is how the two appeals have come up before us. Stated in brief the facts are; the appellant is bhumidhar of plot No. 99 having an area of 10 Bigha 8 Biswas 12 Biswansi. A registered agreement of sale is alleged to have been executed by him on 16-12-1981 for sale of his land to the respondent for a consideration of Rs. 30,000/-. Out of this a sum of Rs. 29,000/- is said to have been paid in advance while a further sum of Rs. 1000/- was paid to appellant at the time of registration of the agreement. The remaining consideration of Rs. 32,000/- was to be paid at the time of registration of the sale deed for which two years period had been agreed upon. 3. According to the appellant he used to get his land cultivated on Batai and tbe respondent was cultivating it on the basis of an agreement. The remaining consideration of Rs. 32,000/- was to be paid at the time of registration of the sale deed for which two years period had been agreed upon. 3. According to the appellant he used to get his land cultivated on Batai and tbe respondent was cultivating it on the basis of an agreement. It was represented to him that the agreement being unregistered the same was not legally effective. The appellant was, therefore, persuaded to execute another agreement of Batai which should be registered. It was on the basis of this representation that he had agreed to execute the agreement. His case further is that he had never agreed nor intended to sell his land but the respondent taking undue advantage of his blindness and without reading over the same took his thumb impression by mis-representation. The appellant never intended to execute an agreement for the sale of his land in favour of - the defendant. He also denied having ever received Rs. 29,000/- from the respondent. 4. On the respective pleadings of the parties the main points that arose for determination were as follows ; 1. Whether the appellant had conciously agreed to transfer the disputed land to the respondent, as alleged by the respondent ? 2. Whether the document dated 16-2-1981 had been obtained by fraud and misrepresentation and in the manner alleged by the appellant ? Both the parties have adduced documentary and oral evidence. Both of them examined four witnesses in support of their respective stands. The trial court has held that the agreement dated 16-2-1981 had been validly executed and that no fraud had been committed by the respondent. On these findings the trial court dismissed the appellant's suit and decreed the one filed by the respondent. 5. The findings are challenged inter alia on the ground that the court ignored vital and relevant evidence on the question that the plaintiff was labouring under physical disability due to blindnees; that because of the faulty finding on that question the burden of proof has been wrongly cast on the appellant; that there were abundent circumstances besides proved or admitted facts from which it was fully established that the document had been obtained by mis-representation, fraud and lastly that the findings are not based on correct and proper appreciation of the relevant and material evidence on record which had been misconstrued. 6. 6. Before we set out to consider the evidence we may first examine the legal effect of appellant's alleged blindness on the question of burden of proof and consequently on the validity of the agreement in question. We may also consider whether any special consideration which is normally extended to pardanashin women can also be extend to the plaintiff in view of the physical and other incapacity. Cases abound which lay down the principles governing transactions entered into by pardanasheen women, who on account of being illiterate and unexposed to outside world are unaware of its affairs and also those persons who, though not pardanasheen in the technical sense, yet, on account of their illiteracy, ill-health, ignorance or a some physical infirmity, suffer from some handicap and need to be protected. The courts have always been forthcoming in extending its helping hand to those who are less equal than others in their dealings with them. The court of law must remain awake to the realities of life and should not permit any one to ride rough shod ever another merely because he was handicapped in some way In Parakunnan Veetill Joseph's son Mathew v. Nadumbara Kuruvilla's son, 1987 SC 2328, it was observed by the Supreme Court that the court is under a duty to see that a party does not take undue advantage in seeking specific performance when parties to a transaction are ill-matched or they are not evenly placed the court must bend to see that the interest of the under privileged is not prejudiced and is duly protected. Such cases fall in two broad categories j (i) Where the person entering into a transaction with one suffering from any of these handicaps stands in some special relationship i.e. in fiduciary capacity or of personal confidence; and (ii) Where the person is an utter stranger and enters into transaction with such disabled person at arms length. 7. In the former case the court ought to act with great care and caution and will presume acting in confidence or exertion of influence. But in this latter class of cases there is no such presumption and the court will seek proof of these. 8. 7. In the former case the court ought to act with great care and caution and will presume acting in confidence or exertion of influence. But in this latter class of cases there is no such presumption and the court will seek proof of these. 8. Thus what is necessary is that the court should, in a given case, examine having regard to the proved personality of the transferor, the nature of transaction, the circumstances under which the transaction was born and the whole history of the parties whether or not the transaction was free and Intelligent act of the executant. If the answer to this comes in the affirmative, the onus of those who rely upon the deed stands discharged. The real point to be seen first in such cases is whether the executant bad substantially understood the deed as to its nature and effect and whether it was his free mental act, the execution of the deed being only the physical act of the person. The absence of independent advice also has an important bearing on such transactions. The entire personality of the executant has to be understood to judge whether any undue advantage of his physical or mental infirmity has been taken by the other side. The second important question requiring attention is whether the executant could be taken advantage of by the other party to the contract by virtue of his position, relationship or because he enjoyed the confidence of the executant in some way. 9. No transaction can stand in a court of law if it had been induced by fraud or misrepresentation. Where consent to an agreement has been obtained by practicing fraud or through misrepresentation it is voidable at the instance of the party defrauded. But if the deed was executed believing that a deed of different kind was being executed then there was, in law no execution of the deed at all and the deed would be void, See Sanni Bibi v. Siddiq Hussain, AIR 1919 Cal. 728. 10. A similar view was expressed in Ninqawwa v. Byrappa Siddappa Hireknrabar, AIR 1968 SC 956 . In that case four plots instead of two were included in the document. The case was that the document was not read over and the additional two plots were never intended to be included in the deed. The executant was an illiterate and ignorant woman. In that case four plots instead of two were included in the document. The case was that the document was not read over and the additional two plots were never intended to be included in the deed. The executant was an illiterate and ignorant woman. There was no apparent reason why the additional two plots were agreed to be transferred. The court had this to say : "The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as, to the contents thereof with reference to the former, it has been held that the transaction is void while in the case latter it is merely voidable. Thus for a valid contract to come into existence what is necessary is that the minds of the two contracting parties should be at one both as to the character of document as also its contents. If that is not so then it cannot be said that the document is binding as a contract. 11. From the very nature things, persons who are incapable on account of any disability in entering into transactions in the normal manner the law always intervenes and an effort is made to consider that the transaction which apparently appears to be above board was in fact so and had been fairly entered into without any surrounding suspicious circumstance, to ensure that no undue advantage has been taken by one against the other. In AIR 1972 HP. 33 , a deed of gift was executed by an old man of 70 years which was impeached on the ground of undue influence, fraud and misrepresentation. Necessary particulars as required by law were not given but the defendant pleaded that the plaintiff had been turned out by his sons and that he was ailing and helpless and he had looked after him, got him treated and on account of these obligations, the plaintiff had executed the gift deed voluntarily and validly. Necessary particulars as required by law were not given but the defendant pleaded that the plaintiff had been turned out by his sons and that he was ailing and helpless and he had looked after him, got him treated and on account of these obligations, the plaintiff had executed the gift deed voluntarily and validly. In this state of pleadings, the court presumed that the defendant was in a position to dominate the will of the plaintiff as the plaintiff was under their obligation and, therefore, the burden lay heavily on him to prove that the document and been properly read out and explained before it was executed by the plaintiff. Similarly in AIR 1981 Alld. 222, a similar matter came up before the Lucknow Bench of this court. It was observed that law throws its protection around a Pardanashin lady as also against those who on account of old age, infirmity, ignorance, illiteracy, mental deficiency; in experience or dependence on others are incapable of understanding the true nature of the transactions entered into by the plaintiff. Then in proper case where the court is of the view that the person executing an instrument or entering into transaction was labouring under any of these disabilities, the burden of proof will shift to the person who stands by the transaction. To the same effect is the case reported in 1965 ALJ 1080. 12. In the present case the appellant claimed to be blind since birth. He was alone and had been engaged in a long drawn litigation with his own uncle as regards his father's agricultural land since 1958. At long last he was able to wrest it from his uncle. The land in dispute is the only land which he owned and the entire land form subject of the agreement of sale in dispute. The impugned document is alleged to have been obtained by misrepresentation and fraud as he was told that he was executing a Batai deed with the respondent as the earlier deed being unregistered was ineffective. The document was neither read over to him nor the alleged consideration was paid to him. The respondents, on the other hand, denied that the appellant was blind since birth or that any fraud, misrepresentation or undue influence has taken place. The document was neither read over to him nor the alleged consideration was paid to him. The respondents, on the other hand, denied that the appellant was blind since birth or that any fraud, misrepresentation or undue influence has taken place. According to him, it was a plain and simple transaction of an agreement for sale which was validly and voluntarily executed with full knowledge and willingness. 13. The court below has confined its attention mainly to the question whether the agreement had been duly executed and registered. The transaction consists of two parts. The first part deals with settlement of terms by an oral agreement in the village before being reduced to writing and the second part concerns the execution and registration of the document. As for the former the parties have led oral evidence to prove it. According to the evidence Rs. 29,000/- was paid as advance towards the agreement in the village while a sum of Rs. 1,000/- was paid at registration. The appellant's case on the contrary is that no talks for sale of his land had taken place in the village nor was he paid any amount at that time. He only, admits having received Rs. 1000/- at registration but this had nothing to do with the alleged agreement of sale Before dealing with the oral and other evidence on these questions it must be seen whether plaintiff was blind and if so, did he suffer such physical disability as to require any special consideration by the court. 14. Though the appellant claims to be blind since birth the defendent denies this and is said to have developed weak eye sight for some time past only. No period is indicated since when plaintiff's eye sight had grown weak. The fact that the appellant's eye sight is not normal is recited in the disputed document itself wherein the Ragistrar had mentioned that the eye sight of the executant was weak. Appellant has a long history of litigation behind him and the question of his blindness was posed in earlier litigations also. In this regard certified copies of two judgments have been filed by the appellant. One relates to Suit No. 309 of 1958 which appellant had filed against his uncle Sukhan for cancellation of a sale deed dated 7-9-1953 by him in favour of his uncle regarding his Bhumidhari Plots Nos. In this regard certified copies of two judgments have been filed by the appellant. One relates to Suit No. 309 of 1958 which appellant had filed against his uncle Sukhan for cancellation of a sale deed dated 7-9-1953 by him in favour of his uncle regarding his Bhumidhari Plots Nos. 99 and 348-B and for partition. The sale deed was challenged on the ground that being blind the defendant betrayed his fiduciary capacity of a person of his confidence and had obtained the sale deed by misrepresentation and fraud. Accepting his plea the sale deed was cancelled and the suit for partition was decreed on 29-2-1960. The other judgment relates to a proceeding under section 209 of the Zamindari Abolition and Land Reforms Act initiated by the plaintiff against Sukkhan, for possession over land including the plot in question. In this suit the defendent's case was that he had brought up and natured the plaintiff since the age of five months. The plaintiff had granted a lease of his Sirdari land on 5-9-1953. While the Bhumidhari land had been sold to him on 7-9-1953. However, in view of decision in Suit No. 309 of 1958 the defendent's claim regarding bhumidhari land failed. Defendant's claim regarding lease of Sirdari land was also repelled on the ground that no Asami rights could be acquired by him since the plaintiff was blind and this disability prevented him from cultivating the land all by himself. Thus starting from 1952 at least the contention of the plaintiff has been that he was blind and this has been accepted at least in two court decisions. 15. Apart from this, the respondent himself filed a copy of a sale deed dated 1-3-1974 executed by the appellant. The Registrar's note in this document also mentions that the vendor Rahut was of weak eye sight. The defence plea that plaintiff's eye sight has become impaired only in recent past cannot stand scrutiny. Surprisingly the defendants witnesses in their oral testimony have gone a step further. The defendant has asserted that appellant can see. According to his witnesses he is neither blind since birth nor he is short of sight. This part of their statements does not inspire any confidence as it goes even against respondent's own pleadings. Surprisingly the defendants witnesses in their oral testimony have gone a step further. The defendant has asserted that appellant can see. According to his witnesses he is neither blind since birth nor he is short of sight. This part of their statements does not inspire any confidence as it goes even against respondent's own pleadings. We, therefore, have no hesitation in holding that the appellant suffered from blindness or at least substantial impairment for eye sight more or less since 1958. 16. Undisputedly, the appellant is an illiterate person who has no one in his family. Even his uncle Sukhan instead of coming to his help had his evil eye on his land since 1958. His other land had already been sold earlier and at the relevant time the only land available with him was Plot No. 99 on which he was entirely dependant for his sustenance. Of course he cannot be said to be innocent of court proceedings or registration procedure but on account of his blindness he could certainly be taken advantage of. There is one more aspect which needs consideration. According to the appellant prior to the alleged agreement he had given the land to the respondent on Batai on the basis of a document executed in 1980. This document is dated 21-3-1980 and is in the form of an affidavit filed before the Tehsildar, Mawana. This document was filed by the appellant on 29-7-1985 and has been proved by DvV 4 Chhatar Singh, who is an Advocate practising in the local court. He was also appearing as a counsel in these two suits. It was also proved by the appellant himself and is marked Ext. A-l in the court below. The respondent, however, denies his signature on this document it is also argued before us that this document bears the signatures of one Gyan Singh also. There is no evidence as to how and in what circumstances these signatures were made. On the basis of this the learned counsel for the respondent argued that this document was a forged one and can not be relied upon. He also referred to certain pleadings of the appellant which do not support the execution of this document. There is no evidence as to how and in what circumstances these signatures were made. On the basis of this the learned counsel for the respondent argued that this document was a forged one and can not be relied upon. He also referred to certain pleadings of the appellant which do not support the execution of this document. We have perused the pleadings and we find that there is certain confusion in the pleadings alright but merely for that reason it can not be said that this document was obtained subsequently or that it was a forged one. Our reasons for the same are that the stamp papers on which this document has been executed had been purchased on 21-3-1980 having serial Nos. 915 and 916 from one and the same Stamp Vendor and they are in the name of Kartar Singh himself. The document is an affidavit which has been prepared by an Advocate who has himself entered the witness box and has deposed that he was the author of this document and was signed by the parties in his presence. It is also signed by the Advocate himself bearing the same date. The Stamp of the Oath Commissioner is also there which clearly mentions the names of the parties whose affidavit was verified giving the name of the identifier as Chhatar Singh Advocate. It is dated 21-3-1980. In the face of all these facts, it can not be said that the document could be forged subsequently. Although it was not necessary for us to compare the signatures of the respondent but we did it just to fortify our conviction and compared the signatures of the respondent on this document with his signatures on the written statement and we find obvious similarities in the two. We are, however, not basing our judgment on the comparison made by us. This is only a statement of our conviction that the document had been executed in the manner stated by PW 4. 17. This document shows that plot no. 99 was given on Batai to the respondent for a period of three years. In paragraph 2 it is admitted that Rahut is blind since birth and that it is necessary for him to have some one to help and assist him in his cultivation. It also lays down that the parties can terminate the agreement on one month notice. 99 was given on Batai to the respondent for a period of three years. In paragraph 2 it is admitted that Rahut is blind since birth and that it is necessary for him to have some one to help and assist him in his cultivation. It also lays down that the parties can terminate the agreement on one month notice. The case of the appellant is that according to the respondent this was not a valid document of Batai and, therefore, he should execute a proper Registered document and it was on the basis of this misrepresentation that the appellant had executed the disputed instrument. The importance of this document, therefore, lies in the fact that it forms the basis on foundation for the misrepresentation pleaded by the appellant. Even if there is no explanation for the presence of the signature of Gyan Singh on this document, the genuineness of the document can not be washed away only for that reason. It is thus clear that there was some foundation for saying that the appellant was prevailed upon by misrepresentation made to him that the document sought to be executed by him was merely a registered Batainama which, in the circumstances of the case, he would have been quite willing to execute. Even though there is some confusion in plaintiff's pleadings regarding the execution of Batai deed but it is neither contradictory nor inconsistent with the over-all case set up by the plaintiff. In this deed also the defendant himself has admitted on affidavit that plaintiff was blind since birth. 18. The evidence discussed above leads to the only conclusion that plaintiff was blind and if we apply the principles discussed earlier, the appellant must be found entitled the special consideration such as is ordinarily available to a pardanashin lady. It cannot be seriously doubted that a person Who is blind are one who is stone deaf can easily become victim of misrepresentation on account of their physical infirmity. In such cases availability of independent advice also assumes importance. In this case, there are some inherent improbabilities which raise serious suspicion in our mmd about the transaction being normal or above- board The first relates to the date of stamp paper on which the alleged agreement has been scribed. In such cases availability of independent advice also assumes importance. In this case, there are some inherent improbabilities which raise serious suspicion in our mmd about the transaction being normal or above- board The first relates to the date of stamp paper on which the alleged agreement has been scribed. The respondent's oral evidence is that prior to the evening on 15-2-1981 there had been no talk at all regarding the alleged agreement of sale. The agreement is said to have been executed on 16-2- 1981. The stamp paper, however, bears an endorsement of sale by the Stamp Vendor on 14-2-81 If no talks had ever taken place before 15-2-1981, there could be no occasion to purchase any stamp paper on 14-2-1981. Obviously some one had been planning such an agreement from before. This creates a serious suspicion in our mind about the transaction being fair and above board Secondly the oral testimony of PWs is not consistent. According to PW 1. PW 3 and PW 4 the talks for the sale of land either took place for the first time in the evening of 15-2-1981 or on the morning of 16-2-1981 and not earlier PW 1 has stated that these talks had taken place a day before the execution of the agreement and at that time only the parties alone were present, and no one else was ore sent there without arriving at any final settlement of terms. The agreement was actually arrived at on the morning of 16-2-1981 while the agreement was duly executed later in the day. According to Sodal PW 3 the talks took place at about 8 A.M. on 16-2-1981 at the house of Vijay PW 4. He admittedly was not even acquainted with the parties prior to 15-2-1981. PW 4 Vijay stated that the talks for the sale of the land first took place only on the evening of 15-2-1981 and were finalised the same evening At that time besides the parties and PW 3, Tula Ram was also present. From this evidence, apart from material contradictions, at least it emerges that talks for sale of land wers not mooted before the eve of 15-2-1981. The original agreement is on a stamp worth Rs. From this evidence, apart from material contradictions, at least it emerges that talks for sale of land wers not mooted before the eve of 15-2-1981. The original agreement is on a stamp worth Rs. 5/- which had been purchased on 14-2-1981 from one Rajendra Kumar Jain, Stamp Vendor, Licence No. 13, Mawana as would be apparent from the seal and the note made at the back of the Stamp. As seen above the oral evidence of the PW's is not compatible with the date which the stamp bears. No Explanation has come from respondent's side to explain away this inconsistency. Obviously the entire theory of oral agreement of sale on 15-2-1981 appears to be fake and concocted and, therefore, most unreliable and un trust worthy. To say the least the wholo evidence on this point is highly suspicious. 19. The oral evidence regarding the time and place when the agreement took place is also wholly inconsistent and contradictory in material particulars. As regards the time when the agreement took place, there is a contradiction between the statements of PW 1 and PW 3 and PW 4. As seen earlier, while PW 1 stated that the talks of agreement of sale had taken place a day before but nothing had been settled at that time. PW 4 Vijay, however, says that the talks had taken place in the evening of 15-2-1981 and the sale consideration etc. had all been settled at that time thus contradicting PW 1 on the question of final settlement of the deal. PW 3 on the other hand says that the talks had taken place in the morning and immediately thereafter they had proceeded to Mawana for having the agreement executed and registered. The statements of all these witnesses are, therefore, inconsistent in material particulars. 20. The presence of Sodal and Tularam, two of the witnesses of the agreement who are residents of another Village Kola, 5 kms. away, is also not free from suspicion. According to PW 3 he had come to village Pali to which the parties belonged on 15-2-1981 with the intention of purchasing a she-buffalo. In spite of all this he stayed at his house for the night. He also admits that they were not acquainted with either of the parties to the agreement from before and for the first time they had met them at the house of Vijay. In spite of all this he stayed at his house for the night. He also admits that they were not acquainted with either of the parties to the agreement from before and for the first time they had met them at the house of Vijay. According to him, only he (Sodal) and Tularam were present and they had stayed at the house of Vijay. The appellant Rahut also was there while respondent had reached the house of Vijay a little before 8 in the morning and at that time the talks had taken place. According to him, Tula Ram, Rahut and Vijay all slept in one room in the Gher of Vijay PW 4, however, has a different story to relate. According to him, the talks had been finalised in the evening in the presence of himself, Tula Ram and Vijay. In the night, he Vijay and Tula Ram only had slept in the Kotha while Rahut and the respondent had come together in the next morning. He further stated that Rahut had stayed with the defendant that night. Thus in this regard also there is material contradiction in their testimony. There is also discrepency in their statements regarding the manner in which the money was paid. Although all the witnesses say that Rs. 29,000/- was paid to Rahut, according to PW 3 the amount was directly paid by the respondent to Rahut and thereafter Rahut counted the same himself. According to PW 4, however, the sum of Rs. 29,000/- was handed over by the respondent to PW 4 and it was counted by him, Sodal and Tula Ram and thereafter handed over to Rahul. He also contradicted PW 3 when he stated that Sodal and Tula Ram were known to the respondent from before although this fact was denied by PW 3. 21. The statement of PW 4 is also very unconvincing on other points. According to him, Rahut has been staying with him for the last 10-12 years and also messing with him. Rahut is cultivating his own land and is keeping the entire profit also with him but still PW 4 does not charge anything from him. He also says that he has no relationship with him and still be has no selfish interest in keeping Rahut with him, Strangely he also admits that the mother of Rahut is alive. Rahut is cultivating his own land and is keeping the entire profit also with him but still PW 4 does not charge anything from him. He also says that he has no relationship with him and still be has no selfish interest in keeping Rahut with him, Strangely he also admits that the mother of Rahut is alive. It is not believable that Rahut would be staying with Vijay PW 4 and be also dependent on him for his messing even though his mother was alive and obviously there is no provision for her stay, or. messing elsewhere. If this witness is to be believed then it would be difficult to believe that he neither knows about the litigation that took place between Rahut and his uncle Sukkhan nor does he know about the possession of Sukkhan over that land According to bin he had seen the land only 10 or 11 years before and prior to that be had never seen the land in question although his land is about for four Chaks ahead of this land. The entire testimony, therefore, is most unconvincing and can not be relied upon. 22. There is another suspicious circumstance in that no person from village Pali was available to witness the deed. Both the witnesses Sodal and Tula Ram are village Kola which is 5 Kms. away. TheRE could be no reason for these persons to have gone along with the parties to Mawana only to witness the deed though their purpose of visiting village Pali had come to an end When they never finalised the purchase of she-buffalo for themselves, normally they should have returned back to their own village in the morning. Vijay who belongs to the same village could have been a:likely attesting witness but according to PW 3, on being requested he refused to go. As for himself, PW 3, stated that only because Rahut had asked him to accompany them to witness the Deed, he had gone there. This also appears to be strange for a person who was an utter stranger to Rahut until a day before. According to PW 4, Sodal was known to the respondent and if at all a request to accompany them ought to have come from him and not from Rahut. This also appears to be strange for a person who was an utter stranger to Rahut until a day before. According to PW 4, Sodal was known to the respondent and if at all a request to accompany them ought to have come from him and not from Rahut. Rahut being a blind man or almost so, he could only request some one who was known and close to him to accompany him rather then a stranger. The presence of PW 1, therefore, appears to have been obtained, by the respondent and not by the appellant. A third witness who has assigned the document is Karam Singh. He is also of village Kola. He is said to have been present on the seat of the document writer from before in connection with his personal work. He too signed the document at the request of the appellant to whom he was not acquainted at all. This again appears to be improbable. Karam Singh was known to this witness who in turn was acquainted with the respondent and, therefore, the request of attesting the document could come only from either of them. Thus so far as the oral testimony is concerned, it is not at all convincing and as a matter of fact it is full of contradictions on many material point. 23. We now come to some inherent improbabilities in the deed itself. The first question arises as to why a period of two years was agreed upon for executing the sale deed when the respondent, according to his own case, was ready with money and he could have got the sale deed executed instead of a mere agreement of sale A very weak reason has been given that there was some litigation going on and Rahut himself wanted to execute the sale deed only after the litigation was over. Firstly there is no evidence regarding any pending litigation with Rahut at the time as the evidence on record shows that except plot no 99 he had no other property left at that time, having already transferred his plots Nos. 248-A, 248-B in 1974 to Ratan Singh and others. A copy of the Khatauni filed by the respondent shows three plots in appellant's name. Since two of them had admittedly been transferred in 1974 the remaining land was plot No. 99 and there could be no litigation pending in respect thereof. 248-A, 248-B in 1974 to Ratan Singh and others. A copy of the Khatauni filed by the respondent shows three plots in appellant's name. Since two of them had admittedly been transferred in 1974 the remaining land was plot No. 99 and there could be no litigation pending in respect thereof. 24. Even assuming that there was some litigation pending in respect of this land, why would the appellant have postponed the execution of the sale deed. If at all it is the purchaser who will be interested in postponing the sale until the litigation was over while the vendor would be only too willing to shake off his liability by transferring the land even pending litigation. This ground, therefore, does not appear to be convincing at all. It is also strange that in the agreement we do not find any mention of this as a condition for executing the sale deed. In fact the agreement only shows that sale-deed will be executed after two years and there is no mention of any pending litigation. This story has appeared for the first time in the notice sent by the counsel probably to Explain why this period of two years was agreed upon. This was repeated in the pleadings and then in the oral testimony. PW 1 has gone to the length of saying that the fact of pending dispute was told to the scribe when the agreement was scribed and was also incorporated in the agreement. PW 1 has also stated that he had the entire sale consideration ready with him. At another place he stated that he sold his vehicle for Rs 40,000/- but he had only a share in that. How much money he had available with him is not very clear but even assuming what he says is correct, there could be no1 reason for him to postpone the finalisation of sale itself instead of waiting for two years. Besides, since the date of the agreement, the respondent evinced hardly any interest in getting the sale deed executed or even to enquire about the fate of the alleged litigation or 'no objection' from the Tax Authorities. This is a strange behaviour particularly when almost half the sale consideration had already been paid and possession was still with vendor. No person will keep his money tied up in this manner without getting any benefit whatsoever from it. This is a strange behaviour particularly when almost half the sale consideration had already been paid and possession was still with vendor. No person will keep his money tied up in this manner without getting any benefit whatsoever from it. This also creates doubt about the theory of agreement of sale as set up by the respondent. 25. There are other circumstances also which militate against the agreement. The appellant is alone, illiterate (he puts his thumb mark only), invalid at least partially inasmuch as he cannot properly see and he has already sold all other land except the one in dispute. Placed in this situation, hardly any one would like to transfer the same considering that the appellant was hardly aged 44 years at the time of his statement or hardly 40 years when the document is said to have been executed. With almost 20 years of expected life ahead of him, he could hardly think of transfering the entire land to any one. It is in this back- ground that we should now examine the evidence as to the actual execution of the document 26. The PWs of course say in unision that the document was written at the instructions of the appellant. It was executed by him in presence of witnesses and then put up before the Sub-Registrar for registration where he admitted having received Rs. 29,000/- before and Rs 1000/- in the presence of the Registrar. There is no evidence that the Registrar either read over the document to him or explained the meaning and purport of the same. Mere receital in the document by the Sub-Registrar that it was read over is not enough- When a person is dealing with another who is under a physical disability and is illiterate, it becomes his duty to adduce positive evidence showing that the document was read over and explained to him and that it was an intelligent and willing act of that pesson and not merely the physical act. In AIR 1987 SC 2328 it has been held that it is the duty of the Court to see that no party takes undue advantage in seeking specific performance. We have already found earlier that the two witnesses Sodal and Tula Ram were respondent's own men. In AIR 1987 SC 2328 it has been held that it is the duty of the Court to see that no party takes undue advantage in seeking specific performance. We have already found earlier that the two witnesses Sodal and Tula Ram were respondent's own men. They were closer to him rather than the appellant and as such the testimony of PW 3 cannot be taken on its face value. We do not have any proof apart from the oral statement about the payment of Rs. 29,000/- in village for which admittedly no receipt was executed. There is also no convincing evidence to prove that the appellant ever intended to execute an agreement of sale. The burden which, in the circumstances of the case, lay heavily upon the defendant has not been discharged. In fact the trial court has put the burden wrongly on the appellant. The approach of the trial court appears to be that merely because of the execution of the document has been proved by PWs 1 and 3, it must be assumed that the appellant intended to execute such a document. This approach was not at all warranted in law. Therefore, having considered the entire evidence and particularly in view of the circumstances of the case, we are of the clear opinion that the respondent had failed to establish that the document had been executed, out of the free will of the appellant or the same could be sustained. 27. The appeals accordingly succeed and are hereby allowed. The judgment and decree passed by the court below are set aside and Suit No. 426 of 1984 filed by Rahut appellant is decreed while the other Suit No. 142 of 1985 filed by the respondent against Rahut is dismissed. We make no order as to costs which the parties will bear themselves. Appeals allowed.