JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard learned counsels for the parties. 2. The instant second appeal has been filed against the judgment and order dated 19.11.1981 passed by the VIth Additional District and Sessions Judge, Varanasi in Civil Appeal No. 121 of 1981 reversing the judgment and decree of the Trial Court dated 26.2.1981 in Original Suit No. 3 of 1978. Civil Suit was instituted by Ram Adhar alias Rama and Hari Nath, minor adopted son of Ram Adhar alias Rama claiming relief for cancellation of sale deed dated 31.10.1977 registered on 14.11.1977 in favour of Ram Sagar Pandey and others, defendant-respondents. The plaintiff No. 1 died during the pendency of the suit on 9.8.1978 leaving behind only adopted son namely Hari Nath, appellant. Substitution application was allowed on 24.7.1978. Two written statements were filed, one by defendant Nos. 1 to 5 on 21.3.1978 and the other by defendant Nos. 6 to 9 on 30.8.1978. The suit was decreed by 13th Munsif, Varanasi vide its judgment and decree dated 26.2.1981 which was challenged in civil appeal filed by Virendra Nath Pandey and others. The first appeal was allowed by the District and Sessions Judge, Varanasi setting aside the judgment and decree passed by the learned Munsif, Varanasi. The judgment of the lower appellate Court is challenged in the instant second appeal which was admitted on the following substantial question of law : “Whether the judgment of the lower appellate Court is vitiated by mis-placing the burden of proof entirely on the plaintiff and also reversing the finding of the trial Court which is based entirely on the appraisal of the oral evidence”. 3. The submission of the counsel for the appellant is that the lower appellate Court has illegally dismissed the plaintiff’s suit on wrong assumption of fact. The sale deed was registered one and therefore, there is presumption of correctness. Since it is an official act and protected under the provisions of Evidence Act as well as Indian Registration Act. The next ground of challenge is that the lower appellate Court while allowing the appeal failed to reverse the specific finding of fact which was based solely on appreciation of the oral testimony of the witnesses. Since it is an official act and protected under the provisions of Evidence Act as well as Indian Registration Act. The next ground of challenge is that the lower appellate Court while allowing the appeal failed to reverse the specific finding of fact which was based solely on appreciation of the oral testimony of the witnesses. It is settled law that the Court where the oral evidence is recorded, is in a better and advantageous position to observe the demeanor of the witnesses and, therefore, the lower appellate Court was liable to confirm the finding of the trial Court. It is also argued on behalf of the appellant that the trial Court has recorded a finding and arrived at a conclusion while deciding issue No. 2 that the statement of the defendant witnesses particularly DW-1 and DW-2 are contradictory and they have failed to prove the pleadings in the written statement so far it relates to the exchange of consideration on the date of alleged sale deed. Learned counsel has emphasized that there can hardly be any evidence available for proving the allegation of fraud which was specific pleading in the plaint and it was incumbent on the Court below to examine material evidence available on record while reaching a conclusion which was contrary to the trial Court. The findings of the trial Court have not been reversed by the appellate Court with regard to mental status of the plaintiff. The Court also ignored the material fact that previously the plaintiff-appellant Hari Nath instituted original suit No. 1 of 1977 seeking relief for permanent injunction against the plaintiff No. 1 Ram Adhar alias Rama restraining him from executing any sale deed of the disputed property. Since the said suit ended in the terms of compromise, the Court was liable to take this fact into special consideration. It is further submitted that the lower appellate Court misinterpreted and misconstrued the oral as well as documentary evidence available on record and the ratio settled in the case of Hans Raj Gupta v. Dehradun Mussoorie Electric Tramway Co. Ltd. and others, AIR 1940 PC, 98 has completely been overlooked. It is further submitted that the lower appellate Court misinterpreted and misconstrued the oral as well as documentary evidence available on record and the ratio settled in the case of Hans Raj Gupta v. Dehradun Mussoorie Electric Tramway Co. Ltd. and others, AIR 1940 PC, 98 has completely been overlooked. Counsel for the appellant states that it was the duty of the lower appellate Court to consider and examine whether the defendant-respondents have been able to discharge their burden and establish due execution of the sale deed which was specifically denied by the plaintiff on the ground of fraud etc. The findings stands vitiated on the ground that the benefit available to a Pardanashin lady should also be made available in the instant case. The Court should have considered that the transferee was dealing with an aged and infirm person suffering from physical disability and therefore, genuineness of the transaction and burden of proof lay heavily on his shoulders but has wrongly been placed on shoulders of the plaintiff. 4. Reliance has been placed on a number of decisions; S.V.R. Mudaliar (dead) by LRs. and others v. Mrs. Rajabu F. Buhari (Dead) by LRs., AIR 1995 SC, 1607. In this case, Hon’ble Supreme Court held that the reasons given by trial Court for arriving at a certain conclusion must be considered by appellate Court. Paragraph 15 of the said judgment is quoted below : “15. There is no need to pursue the legal principle as we have no doubt in our mind that before reversing a finding of fact, the appellate Court has to bear in mind the reasons ascribed by the trial Court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari v. Maharaja Jagadhindra Nath, (1906) 10 Cal WN 630, wherein, while regarding the appellate judgment of the High Court of Judicature at Fort William as “careful and able”, it was stated that it did not “come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge.” 5. The next decision relied upon is, Madhusudan Das v. Smt. Narayani Bai and others, AIR 1983 SC 114 . The next decision relied upon is, Madhusudan Das v. Smt. Narayani Bai and others, AIR 1983 SC 114 . Paragraph 8 of the said judgment is quoted below : “In an appeal against a trial Court decree, even when the appellate Court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance or improbability to displace its opinion as to where the credibility lies.” 6. The next decision relied upon by the counsel is, Daya Shankar v. Smt. Bachi and others, AIR 1982 All 376 . Paragraphs 6 and 9 of the said judgment are quoted below : “6. 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. and charges his opponent with bad faith has to 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 relies on such deed if a relationship of “active confidence” or fiduciary relationship subsists between the contracting parties, such as guardian ward, agent and principal, doctor and patient, spiritual adviser and disciple, trustee and cestuiqui turst 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 (1887) 36 Ch D 145 and Halsbury’s Laws of England Third Edn. Vol. 17 para 1297, p. 672, Foll. Thus Section 111 of the Evidence Act has to be read along with the provisions of Section 16 of the Contract Act (1887) 36 Ch D 145 and Halsbury’s Laws of England Third Edn. Vol. 17 para 1297, p. 672, Foll. 9. The word ‘fiduciary’ as contained in the Webster’s New International Dictionary connotes “a person in trust, a person or thing holding something in trust.” The other meaning given in the dictionary is “of or pertaining to a trust, pertaining to or of the nature of trusteeship”. Thus whenever it is brought to the notice of the Courts that a person on account of some reason of the nature indicated above was not in a position to exercise his independent will, the Courts always insist on placing the burden of proof on the person who was in such advantageous position to establish that he did not abuse his position. The principle was originally confined to cases of Pardahnashin ladies who manifestly suffered from such inhibition and limitation. There is no reason why the said principle should not also embrace within its sweep the cases of males who by reason of their apparent physical or mental incapacity or infirmity or being placed in circumstances where they are greatly amenable to the overpowering influence of another person are induced to enter into conveyances and transactions relating to their property. The burden must be cast squarely on the person enjoying the dominating position to show that he secured the deed in good faith." 7. The next case relied upon by the counsel is, Lakshmi Amma and another v. Telengala Narayana Bhatta and another, AIR 1970 SC 1367 . Paragraphs 5 and 12 are quoted below : "5. The first noticeable feature is that the deed of settlement on the face of it was an unnatural and unconscionable document. Narasimbha Bhatta made negligible provision for his wife who was his third wife, the first two having died before he married her. She was left mainly to the mercy of respondent No. 1. Admittedly there was a residential house and no provision was made regarding her right to reside in that house till her death. Apparently there was no reason why he should have left nothing to his two daughters or to his other grand-children and given his entire estate to only one grandson namely respondent No. 1. 12. Admittedly there was a residential house and no provision was made regarding her right to reside in that house till her death. Apparently there was no reason why he should have left nothing to his two daughters or to his other grand-children and given his entire estate to only one grandson namely respondent No. 1. 12. We are satisfied that Narasimbha Bhatta who was of advanced age and was in a state of senility and who was suffering from diabetes and other ailments was taken by respondent No. 1 who had gone to reside in the house at Sodhankar village a little earlier in a taxi along with Lakshmiamma to the Nursing Home in Mangalore where he was got admitted as a patient. No draft was prepared with the approval or under the directions of Narasimbha Bhatta nor were any instructions given by him to the Scribe in the matter of drawing up of the document Ext. B-3. An application was also made to the Joint Sub-Registrar, Mangalore for registering the document at the Nursing Home by someone whose name has not been disclosed nor has the application been produced to enable the Court to find out the reasons for which a prayer was made that the registration be done at the Nursing Home. Lakshmiamma the wife of Narasimbha Bhatta who was the only other close relation present has stated in categorical terms that the document was got executed by using pressure on Narasimbha Bhatta while he was of an infirm mind and was not in a fit condition to realize what he was doing. The hospital record was not produced nor did the doctor who attended on Narasimbha Bhatta at the Nursing Home produce any authentic data or record to support their testimony. Even the will was not produced by respondent No. 1 presumably because it must have contained recitals about the weak state of health of Narasimbha Bhatta. The dispositions which were made by Ext. B-3, as already pointed out before, were altogether unnatural and no valid reason or explanation has been given why Narasimbha Bhatta should have given everything to respondent 1 and even deprived himself of the right to deal with the property as an owner during his lifetime. All these facts and circumstances raised a grave suspicion as to the genuineness of the execution of the document Ext. All these facts and circumstances raised a grave suspicion as to the genuineness of the execution of the document Ext. B-3 and it was for respondent No. 1 to dispel the same. In our opinion he has entirely failed to do so with the result that the appeal must succeed and it is allowed with costs in this Court. The decree of the High Court is set aside and that of the trial Court restored.” 8. The last decision relied upon by the counsel is, Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others, AIR 1968 SC 1413 . The Hon’ble Supreme Court held that a party in possession of best evidence which would throw light on the issue in controversy, if is withholding it, the Court ought to draw an adverse inference against him notwithstanding that burden of proof does not lie on him. A party cannot rely on abstract doctrine of burden of proof or on the fact that he was not called upon to produce it. 9. It is also emphasized that the lower appellate Court failed to take into consideration the settled principle of law that the Trust of the plaintiff No. 1 Ram Adhar alias Rama was eroded by taking advantages of physical infirmity. The sale deed was executed intentionally to dupe the appellant. 10. Sri Sankatha Rai, learned counsel for the respondents has categorically refuted each and every argument advanced on behalf of the appellant. The thrust of his argument is that a suit for cancellation of sale deed is filed under Sections 31 and 33 of the Specific Relief Act on the ground of ‘fraud undue influence’ etc. The word “fraud” is defined under Section 17 of the Indian Contract Act, 1872 which reads as under : "17. The thrust of his argument is that a suit for cancellation of sale deed is filed under Sections 31 and 33 of the Specific Relief Act on the ground of ‘fraud undue influence’ etc. The word “fraud” is defined under Section 17 of the Indian Contract Act, 1872 which reads as under : "17. “Fraud" defined—“Fraud” means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract : (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other fact fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent. Explanation.—Mere silence as to facts likely specially declares to be fraudulent. 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 person keeping silence to speak, or unless his silence is, in itself, equivalent to speech. 11. Section 19 of the Indian Contract Act, 1872 reads as under : "19 . Voidability of agreements without free consent.—When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party of contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true. The word ‘fee consent’ has been defined under Section 14 of the Indian Contract Act, 1872. The word “Coercion” has been defined under Section 15 of the Indian Contract Act, 1872. The word “Undue influence” has been defined under Section 16 of the Indian Contract Act, 1872. The word “Misrepresentation” has been defined under Section 18 of the Indian Contract Act, 1872. 12. The word “Coercion” has been defined under Section 15 of the Indian Contract Act, 1872. The word “Undue influence” has been defined under Section 16 of the Indian Contract Act, 1872. The word “Misrepresentation” has been defined under Section 18 of the Indian Contract Act, 1872. 12. In view of the aforesaid provisions since the plaintiff-appellant had claimed relief of cancellation of sale deed on the ground of fraud and undue influence, the burden was not of the defendants in whose favour registered sale deed was executed but it was the plaintiff who had to discharge this burden, therefore, the substantial question of law so far burden of proof is concerned, I am of the view that the judgment of the lower appellate Court does not suffer from any error whatsoever. It is also to be noticed that this is the case where the appeal was allowed and the finding recorded by the trial Court regarding execution of the sale deed was held to be based on surmises and conjectures. After going through the judgment and reasonings given by the District Judge, I find that the approach of the lower appellate Court is absolutely correct while disagreeing with the finding of the trial Court. It cannot be overlooked that the plaintiff No. 1 executed the deed only after receiving consideration amount before the Sub Registrar who had made an endorsement to the said effect. The defendants adduced positive evidence to prove and establish the execution and payment of consideration to the plaintiff and, therefore, the arguments of the counsel for the appellant is farfetched one. The names of the defendants have also been mutated in the revenue records after execution of the sale deed. Rs. 2000/- was paid before the Sub Registrar in addition to the earnest money paid prior to the date of registration and this finds mention in the recital of the sale deed, Exhibit-1. In the circumstances, the presumption raised in favour of the defendants-respondents cannot be said to be perverse and liable to be interfered in exercise of jurisdiction under Section 100 C.P.C. 13. Learned counsel for the respondents has cited certain decisions in support of his arguments. The first decision is, Hansraj Gupta and others v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd., AIR 1940 PC 98. Learned counsel for the respondents has cited certain decisions in support of his arguments. The first decision is, Hansraj Gupta and others v. Dehra Dun-Mussoorie Electric Tramway Co. Ltd., AIR 1940 PC 98. In this decision it was held that the party alleging fraud is bound to establish it by cogent evidence and suspicion cannot be accepted as proof unless it is established by circumstances which are incompatible with the hypothesis of the person charged with fraud. The next decision relied upon by the counsel is Mishri Lal and another v. Bhagwati Prasad, AIR 1955 All 573. The Division Bench of this Court (Lucknow Bench) held that the usual endorsement of the Sub-Registrar before whom the award was presented for registration was found on the back of the first page of the document wherein he stated that the execution and completion of the document were admitted by the executant of the deed of award. The Sub Registrar had also affixed a signature and there was no definite denial of the execution made in the pleadings, therefore, it was held that in these circumstances, the endorsement of the Sub-Registrar should be deemed to be sufficient proof of the execution of the deed. In the instant case, there was also an endorsement of the Sub Registrar which has not been denied, besides the sale deed was registered which was sought by the plaintiff to be cancelled on the ground that executant was physically infirm. In these circumstances, the approach of the lower appellate Court appears to be absolutely legal while coming to a conclusion that heavy burden lay on the shoulders of the plaintiff to establish this fact, but he has miserably failed to do so. The next decision relied upon by the counsel for the respondents is Afsar Shaikh and another v. Soleman Bibi and others, AIR 1976 SC 163 . Paragraph 15 of the said judgment is quoted below : “15. While it is true that ‘undue influence’, ‘fraud’, ‘misrepresentation’ are cognate vices and may, in part, overlap in some cases, they are in law distinct categories and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. While it is true that ‘undue influence’, ‘fraud’, ‘misrepresentation’ are cognate vices and may, in part, overlap in some cases, they are in law distinct categories and are in view of Order 6, Rule 4, read with Order 6, Rule 2 of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety two had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial Court, or in the first round, even before the first appellate Court.” 14. In the instant case, the only ground on which the relief of cancellation of sale deed is prayed that the plaintiff No. 1 was suffering from paralysis in his leg and therefore, he was duped in executing the sale deed cannot be accepted. Certain irrelevant contradictions in the statements of the witnesses are not sufficient to render a valid document invalid without there being sufficient proof. The trial Court committed an error while placing burden on the defendants that the sale deed was executed in their favour with a free consent and without any coercion completely overlooking the fact that admittedly consideration was paid, sale deed was registered, there was an endorsement of the Sub Registrar and the defendants were put in possession. The plaintiff was liable to establish that the mental faculty of the vendor was impaired and he did not understand the implication of what he was doing. It was the plaintiff who had come forward to seek redressal and, therefore, he cannot shink his responsibility which he failed to discharge. 15. I have gone through each and every paragraphs of the plaint. Order 6 Rule 4, C.P.C. makes it incumbent on the plaintiff’s to plead specifically without any ambiguity if he seeks redressal for cancellation of a deed on the ground of misrepresentation, fraud, breach of trust, willful default and undue influence. All the particulars with dates and items should be stated specifically in the pleadings. Order 6 Rule 4, C.P.C. makes it incumbent on the plaintiff’s to plead specifically without any ambiguity if he seeks redressal for cancellation of a deed on the ground of misrepresentation, fraud, breach of trust, willful default and undue influence. All the particulars with dates and items should be stated specifically in the pleadings. In the instant case, the pleadings of the plaintiff-appellant do not confirm this requirement and, therefore, I am of the considered view that the lower appellate Court was right while disagreeing with the judgment of the trial Court. The argument of the learned counsel regarding the evidence and its appreciation by the lower appellate Court vis-a-vis appreciation by the trial Court cannot be looked into in the present second appeal. The scope of Section 100, C.P.C. is very much narrowed after Amendment in the year 1976. The High Court while exercising its jurisdiction in a second appeal cannot substitute its own opinion arrived at by the first appellate Court unless the conclusions drawn by the lower appellate Court are so erroneous as contrary to the mandatory provisions of law applicable and law pronounced by the Apex Court or it is on inadmissible evidence. The lower appellate Court is the last Court of fact and the High Court can interfere only after there is a substantial error of law. The Apex Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, (1993) 3 SCC 722 has held in paragraph 5, as under : "5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 16. In the case of Sir Chunilal Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd., the Supreme Court held that : “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law”. 17. The Apex Court in the recent case of Santosh Hazari v. Purshottam Tiwari, (2001) 3 SCC 179 , ruled that a point of law which admits of no two opinions may be a preposition of law but cannot be a substantial question of law. To be ‘substantial’ question of law it must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. It will therefore, depend on the facts and circumstances of each case whether a question of law is substantial one and involved in the case, or not? It will therefore, depend on the facts and circumstances of each case whether a question of law is substantial one and involved in the case, or not? The same view has been expressed by the Apex Court in the cases of Rajeshwari v. Puran Indoria, (2005) 7 SCC 60 and Govinda Raju v. Mariamman, (2005) 2 SCC 500 . 18. In view of what has been stated above, I am not inclined to interfere in the present second appeal in exercise of jurisdiction under Section 100 C.P.C. The appeal lacks merit and is accordingly dismissed. Cost on parties. ———