S. K. PHAUJDAR, J. This second appeal was admitted two substantial questions of law. The questions were as follows: (1) Whether the suit for specific performance of contract to sell-could be legally decreed where the plaintiffs have failed to prove and the lower appellate court has failed to record a finding as to the payment of Rs. 1,500 to the deceased-defendant, Mst. Nasiran Bibi, prior to the execution of the said agreement to sell. (2) Whether the agreement to sell dated 16-7-1973 could prove the execution in question without proving its contents by reading over and explaining the same to the deceased defendant, who was an illiterate purdahnasheen lady. 2. To appreciate these questions of law and before enterting upon a decision on these points, it is necessary to State the facts of the present case. A suit was filed by Mohd. Hasan and his two brothers in the year 1976 before the Munsif, Azamgarh, which was registered as Suit No. 369 of 1976, against one Nasiran Bibi (now deceaseds and represented through her legal representatives the present appellants ). The plaintiffs had filed the suit for specific performance of a contract that was entered into by the defendant with the plaintiffs. It was stated that Nasiran and 1/3rd share on the land in question. She had a talk with the plaintiffs for sale of her share on a consideration of Rs. 2,000 and agreed to execute a sale-deed. On 16-7-73 a "um of Rs. 300 was paid to her and an-agreement to sale was executed and registered. She had already obtained, earlier to this transaction, a sum of Rs. 1,500 from the plaintiffs. According to the plaint, only Rs. 200 remained to be paid. When the plaintiffs desired that the defendants should accept Rs. 200 and should execute a sale-deed as agreed and had stint a notice to that effect, neither the notice was replied to nor the sale-deed was executed. 3. The defence case was that the defendant never executed any agreement for sale on 16-7-1973. It was stated that on that date the plaintiffs had come to the house of the defendant and requested her to sign papers to facilitate mutation in terms of an earlier sale. The defendants son was not in the house on that date. The plaintiffs were the cousins of the defendant and she had full faith on them. It was stated that on that date the plaintiffs had come to the house of the defendant and requested her to sign papers to facilitate mutation in terms of an earlier sale. The defendants son was not in the house on that date. The plaintiffs were the cousins of the defendant and she had full faith on them. Accordingly, she went with them and after the paper was scribed, she put her thumb-impression on it and she was instructed to admit her signature (thumb-impression) when asked by the Registrar. She never entered into an agreement nor did she receive any money towards any agreement either on that date or prior to it. The deed of agreement was made on a collusion between the witnesses of the deed, the plaintiffs and the officers in the registering office. She denied to have receive any notice. 4. The trial court decreed the suit of the plaintiffs on 11-5-1977 on a finding that there was an agreement for sale on 16-7- 1973 and the plaintiffs were entitled for a specific performance of the agreement. The defendant preferred an appeal before the Civil Judge, Azamgarh. Which was registered as Civil Appeal No. 38 of 1978. The appeal stood dismissed by the judgment and decree dated 29-10-79 whereafter the present appeal has been preferred by the legal representatives of the deceased defendant, Nasiran Bibi. 5. The learned counsel for the defendant-appellants urged that the plaintiffs suit could not have been decreed without proof of the fact that the payment of Rs. 1,500 to Nasiran and the courts below failed to record any finding on such payment and as such the decree could not be sustained. It was also urged that Nasiran being a rustic unlettered purdahnasheen lady, the onus of proof of due execution of the agreement to sell lay on the plaintiffs and the plaintiffs failed to discharge this onus. It was contended on behalf of the respondents that the second appellate court could not go against the findings of fact consistently arrived at by the courts below and the onus lay on the defendant to prove that there was no agreement to sell as the defendant was a lady who knew fully well what were legal transactions and how a registration was made as she had in past executed other documents before the registering authorities. It was contended that the courts below had given clear find ings on the transaction of payment of Rs. 1,500. 6. The learned counsel for the appellant placed before me several decisions in support of his contentions. Reliance was placed on a decision of the Privy Council in the case of Mst. Fariddun Nisa AIR 1925 PC 208. It was observed herein that "the parties to prove the State of sellers mind are the parties who set up and rely on the deed. They must satisfy the court that the deed has been explained to and understood by the party thus under disability, either before execution or after it, under cir cumstances which establish adoption of it with full knowledge and comprehension. " Reliance was also place on a decision of the Division Bench of the Allahabad High Court in the case of Mst. Izharfatima Bibi, AIR 1939 All 348. The court dealt with an alleged execution of a deed by a purdahnasheen lady and with the question of burden of proof on the point. It was observed" in the case of a purdahnasheen lady the law places a very heavy burden on those who found a claim on a document executed by her. Those who found upon the deed must show affirmatively and con clusively that the deed was not only executed by, but was explained to, and was really understood by the grantor. " A similar view was taken by another Division Bench of the Allahabad High Court in a subsequent decision in the case ofdaya Shanker v. Smt. Bachi, AIR 1982 All 376 . It was observed herein that the law presumes prima facie in favour of the deeds being duly executed. So, ordinarily, the person who challenges the validity of a transaction on the ground of fraud, undue influence etc. . . . . . . . . . . . . . . faith, has a discharge the burden of proof which rests on him. But the major exception to this rule is that the initial burden would not shift to the party who challenges the transaction and will instead be cast on the person who rely on such deed if a relationship of "active confidence" or fiduciary relationship between the contracting parties, such as guardian and ward, agent and principal, doctor and patient, spiritual advisor and disciple, trustee and cestui qui trust etc. The probability of dominating over the will of another party arises either directly from the very nature of the relationship existing between the parties or sometimes from a peculiar handicap or disability from which the other party suffers. Thus, Section 111 of the Evidence Act has to be read along with the provisions of Section 16 of the Contract Act. 7. The learned counsel for the appellant further submitted that even in a second appeal the court could go to the facts if the court below had approached the case essentially from a wrong view point Jagdish Singh v. Nathu Singh, 1992 ALJ 620. In this case the High Court in a second appeal had, on some points of fact, reapprised the evidence. The Supreme Court observed that the High Court was right in its view and so far the jurisdiction of the High Court to reappreciate the evidence in a second appeal was concerned, the Supreme Court opined that where the finding of the court below was vitiated by non- consideration of the relevant evidence or by an essentially erroneous approach to the matter, the High Court was not precluded from recording proper findings. 8. I find from a reading of this case-law that the provisions of Section 103 of the Code of Civil Procedure have really been explained which State that in a second appeal the High Court may, if the evidence on record is sufficient, determine any issue necessary for the disposal of the appeal (a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appel late court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100. The learned counsel further relied on a decision of the Orissa High Court as reported in AIR 1970 Orissa 161, Mali Bewa & Ors. v. Dhunda Sambhal & Anr. . It was held in this case that in a suit for specific performance it was for the plaintiff to establish that he was, since the date of contract, continuously ready and willing to perform his part of the contract. It was mandatory that not only such readiness should be averred m the plaint but also should be stated in court during trial. It was mandatory that not only such readiness should be averred m the plaint but also should be stated in court during trial. In my view, this point is not available to the appellant as no such plea was raised in the written statement nor was such plea raised at the time of admission of the appeal. 9. The first question as indicated in the inception of this judgment relates to the fact of payment of Rs. 1,500 to Nasiran prior to the execution of the agreement. It was contended that the suit of specific performance of the contract could not have been decreed as the plaintiffs had failed to prove such payment and as the lower appellate court had failed to record a finding on such payment. The judgment of the lower appellate court confirmed the judgment of the Munsif. The Munsif, while deciding issue No. 1 before him - whether the plaintiffs were entitled for the specific performance of the contract - had come to a clear finding that the defendant had received Rs. 1,500 prior to the registration of the agreement and a further sum of Rs. 300 was paid at the time of registration. The court gave a further finding of fact that the plaintiff was always ready and willinging to perform the remaining part of the agreement, i. e. paying the rest amount of Rs. 200 to the defendant. The lower appel late court also found in paragraphs 7 and 8 of its judgment that there was evidence of payment of Rs. 300 in presence of the Registrar and there was further a statement that Nasiran had admitted that she had received Rs. 1,500 as past consideration. It is not alleged before this Court that these findings are perverse or are not based on evidence on record. As a court of second appeal this Court could not go, therefore, into the question of belief or disbelief of the statement of the witnesses and the facts consistently found by the two courts below must be accepted. It must accordingly be held that there was not only a finding by the lower appellate court but by the court of the first instance also that Nasiran had been paid Rs. 1,500 prior to the registration and Rs. 300 at the time of registration and the plaintiffs were ready to pay Rs. 200 more ?n terms of the agreement. It must accordingly be held that there was not only a finding by the lower appellate court but by the court of the first instance also that Nasiran had been paid Rs. 1,500 prior to the registration and Rs. 300 at the time of registration and the plaintiffs were ready to pay Rs. 200 more ?n terms of the agreement. The case-law relied upon by the appellant, as reported in 1992 ALJ 620, may not, therefore, the applicant to the present set of facts as the judgments of the courts below were not vitiated by non-consideration of the relevant evidence or by an essentially erroneous approach to the matter. The; case-law reported in AIR 1970 Orissa 168, as relied upon by the appellant, is also not applicable to the present case as the readiness on the part of the plaintiff to pay the remaining part of the contract money was pleaded in the plaint and was also averred in evidence. The first point on which the appeal is pressed must, therefore, fail. 10. The second substantial question of law relates to the proof of due execution of the agreement to sell dated 16-7-73. The deed was challenged on the ground that no proof was adduced on the contents of the document to the effect that the same were read over and explained to the deceased defendant Nasiran, who was an il literate purdahnasheen lady. Here again, one cannot appreciate this point without looking to the findings of facts arrived at by the courts below. That Nasiran was an illiterate persons goes without saying as she had always put her thumb-impression. This Court, however, is to see if there was any averment on behalf of Nasiran that sue was purdahnasheen or had no knowledge of the proceedings before the Registrar or that any fraud or undue influence was exercised on. her. The defence case, as made out in the court below, was that Nasira had not executed any agreement to sell on 16-7-1973. It was alleged that the plaintiffs had come to her house and requested her to sign certain papers to facilitate mutation in terms of an earlier sale. Her sons as not their. She had full faith on the plaintiffs and, accordingly, she had put her signature (thumb-impression) on the paper written and had accepted her signature thereon. It was alleged that the plaintiffs had come to her house and requested her to sign certain papers to facilitate mutation in terms of an earlier sale. Her sons as not their. She had full faith on the plaintiffs and, accordingly, she had put her signature (thumb-impression) on the paper written and had accepted her signature thereon. Upon these averments, the learned counsel for the present appellant urged that the burden of proof of the agreement to sell shifted to the plaintiffs. There was no claim, on the part of Nasiran that she was a purdahnasheen lady and did not normally come out in public. 11. The case-laws on this point referred to in the earlier paragraphs of this judgment make it clear that ordinarily the person who challenges the validity of the transaction on the ground of fraud, undue influence etc. and charges his opponent with bad faith, has to discharge the burden of proof which rests on him. An exception to the general rule was, however, accepted by the courts and it was held that the bur Jen would lie on the person who rely on such deed if a relationship of active confidence or fiduciary relationship existed between the parties so as to infer that one was in a position to dominate over the will of another. The case-laws also required that the party who proposed to rely on deed was to prove the State of sellers mind and must satisfy the court that the deed was explained to and understood by the party under disability. In the case of purdahnasheen ladies it was observed that a heavy burden lay on the person who found a claim on document executed by her and they are to prove affirmatively and conclusively that the deed was not only executed by the purdahnasheen lady but was-explained and was understood by her. 12. To apply, these case-laws one of the elements required to be brought on record was that Nasiran was a purdahnasheen lady. 12. To apply, these case-laws one of the elements required to be brought on record was that Nasiran was a purdahnasheen lady. This fact should have been stated in the written statement and should have been claimed in the evidence also and when this point was not raised at these two earlier stages and not even before the first appellate court, this Court may not presume that Nasiran, although an illiterate lady, must have been a purdahnasheen lady and, thereby, allow a plea, depending on a facts, which was never averred. 13. The only point that is left with is if Nasiran understood the contents of the deed and if there was fraud and/or undue influence exerted on her for execution of the agreement on the question of understanding there is a thorough discussion in the trial court judgment, this Court also finds that Nasiran had gone to the Registrar and had accepted to have received Rs. 300 and to have put her thumb-impression on the sale deed. There is evidence is on record to show that in the past also Nasiran had sold lands to these very plaintiffs. Thus, she was aware of the proceedings before the Registrar. A plea was raised that she was asked to sign to facilitate mutation. It is not explained whey for mutation she was to go to the Registrar or why she should have received some more money. The plaintiffs were cousins of Nasiran but that alone would not put them in a fiduciary capacity or in a position of active confidence so for the defendant Nasiran was concerned. The trial court had recorded a thorough discussion of the mental State of Nasiran. She had denied receipt of notice from the plaintiffs for execution of the sale-deed in terms of the agreement. But in her evidence she had accepted the receipt of notice and she even did not disclose the notice to her son. She did not send any reply nor did she got it read over by others. She never came up with any prayer before any authority by suit or otherwise for cancellation of the agreement even after receipt of the notice. Upon these findings of fact, the trial court had concluded that Nasiran knew that it was an agreement that was being written and registered and not a transaction for mutation. She never came up with any prayer before any authority by suit or otherwise for cancellation of the agreement even after receipt of the notice. Upon these findings of fact, the trial court had concluded that Nasiran knew that it was an agreement that was being written and registered and not a transaction for mutation. The first appel late court confirmed this finding and I find no good reasons to interfere with the findings of the two courts below on the question of agreement to sell. The second point raised by the appellant also fails. 14. Accordingly, the appeal fails and is dismissed. The judgment and decree of the courts below stand confirmed. The parties are to bear their own costs. Appeal dismissed. .