JUDGMENT : 1. Heard Sri Anand Saurabh learned counsel for the appellants and Sri Om Prakash, learned counsel for the respondents. 2. This is a defendant second appeal against judgment and decree dated 01.09.1992 passed by Sri Janardan Singh, 11th Additional Chief Judicial Magistrate/Additional Civil Judge, Meerut in Civil Appeal No.45 of 1986 whereby appeal was dismissed and judgment and decree dated 31.01.1986 passed by Sri O. P. Goel, Munsif, Court no.1, Meerut in Original Suit No.315 of 1984 was confirmed. 3. This is a defendant second appeal against judgment and decree dated 01.09.1992 passed by Sri Janardan Singh, 11th Additional Chief Judicial Magistrate/Additional Civil Judge, Meerut in Civil Appeal No.45 of 1986 whereby appeal was dismissed and judgment and decree dated 31.01.1986 passed by Sri O. P. Goel, Munsif, Court no.1, Meerut in Original Suit No.315 of 1984 was confirmed. 3. The plaintiff's' case is that they and defendant no.2 are real brothers and they are sons of Nasir; that defendant no.1 Munazri is wife of defendant no.2; Nazir, their father, was Bhumidhar in possession of plot nos.638, 640, 1186; that parties are residents of village Laliyana, District Meerut where the land in dispute is situated; that plaintiff no.1 used to do cultivation in village Shujlu, District Muzaffarnagar and plaintiff no.2 does the work of motor mechanic at Meerut; that defendant no.2 resides in village Laliyana; that plaintiffs' also used to look after land in dispute occasionally and Nasir lived with them; that about 2 to 3 months back Nasir expressed his willingness to go to village Laliyana and plaintiff no.1 took him to the village; that Nasir started living in the village and got severely ill and became unable to move and died on 14.09.1981; that defendants did not behave properly with Nasir nor ever looked after him during his illness nor made any arrangement for his treatment; that defendants took him to Meerut on the pretext of treatment and got a sale deed of plot nos.638 and 640 executed in favour of defendant no.1 from Nasir; that sale consideration of Rs.38,000/- was shown to be paid and sale deed was executed in the presence of witnesses Taufiq, real brother-in-law of defendant no.1 and Ausaff who is “Samdhi” of Taufiq; that disputed sale deed was executed on 26.6.1980 and on the same date agreement to sale of plot no.1186 was also executed for an amount of Rs.20,000/-in favour of defendant no.1 out of which Rs.10,000/-was stated to have been paid; that on account of old age Nazir was not in a position to understand the implication of the documents nor he got any money for the same; that he had no need of selling the land which belonged to all of his three sons; that both the plaintiffs reside out side their village and therefore, they are unable to look after their land in village; that when they expressed their intention to sell the land of their share, defendant no.1 expressed his willingness to purchase the same so that the land remains within the family, that defendant no,2 purchased the plot no.1186 from the plaintiffs' for an amount of Rs.20,000/-by way of sale deed dated 5.5.1982 but defendants never informed about the earlier sale deed of other plots and the agreement to sell got executed by defendant no.1 from Nazir; that defendant no.1 got her name mutated over land in dispute on the basis of disputed sale deed on 19.05.1982 which they came to know in March, 1994; that they filed an application for setting aside of the mutation order on 15.03.1984, which was allowed on 15.07.1984; that they came to know about the fraudulent agreement to sell got executed by defendant no.1 from Nazir, which has become ineffective after sale deed of the land of plot no.1186 in favour of defendant no.1 by the plaintiffs; that sale deed of plot no.638 and 640 is without consideration and void; that plaintiffs requested the defendants to get the aforesaid sale deed cancelled but in vain and hence the suit was instituted. 4. The defendants filed written statement stating that suit is under valued and Court fee paid is insufficient; that deceased, Nazir never came to live in village Laliyana and he always lived with the plaintiffs'; that Nazir executed the disputed sale deed and accepted the full amount of sale consideration in his full sense and also executed the agreement to sale of plot no.1186; that he was absolutely well at that time and the money he got from the defendants was given to plaintiff no.1 for starting his business; that on the basis of sale deed their names have been mutated in the knowledge of the plaintiffs and the sale deed dated 05.05.1982 was executed by Nazir in favour of defendant no.1, that the defendants never brought Nazir for treatment with them to Mawana from his Village; that plaintiffs' have no concern with the land in dispute nor they are in possession over the same and therefore, the suit may be dismissed. 5. On the basis of pleadings of the parties Trial Court framed the following issues in the suit : (i) Whether the defendant no.1 and 2 got the sale deed dated 26.08.1981 of disputed land in their favour from deceased Nasir by fraud. If yes then its effect? (ii) Whether the suit is under valued and Court fees paid is insufficient ? (ii) Relief ? 6. The Trial Court decide the issue no.2, regarding Court fee and valuation of suit in favour of plaintiff. Issue no.1 was decided against plaintiff holding that Nazir executed sale deed dated 26.08.1981 and agreement to sale of the same date after receiving Rs.38,000/- and he was hale and hearty at that time and therefore, sale deed is not the result of fraud. Issue no.3 was decided holding that plaintiffs are not entitled to any relief, suit was dismissed. 7. Plaintiffs preferred Civil Appeal No.45 of 1996 before the lower appellate court wherein no point of determination was framed by the lower appellate Court but the dispute was decided argument wise. 8. The first issue dealt by the lower appellate court was whether sale deed was result of fraud. The lower appellate Court found that none of the defendants nor the witnesses of the sale deed, namely, Taufiq and Aausaf appeared in the witness box to prove the defence of defendants set-up in suit. Rather Babu Khan, son of defendant nos. 8. The first issue dealt by the lower appellate court was whether sale deed was result of fraud. The lower appellate Court found that none of the defendants nor the witnesses of the sale deed, namely, Taufiq and Aausaf appeared in the witness box to prove the defence of defendants set-up in suit. Rather Babu Khan, son of defendant nos. 1 & 2, appeared as power of attorney holder and proved the case set-up by defendants. The lower appellate Court further found that the entire amount of sale consideration of Rs.38,000/-was not proved to have been paid to Nazir by defendant's witness, Babu khan. He proved only payment of Rs.34,000/-to Nazir. DW-1, Babu Khan has expressed his ignorance about the agreement to sell executed of 26.08.1980 regarding plot no.1186 by Nazir in favour of his mother. Further contraction found by lower appellate court was that in their written statement he stated that Nazir need money for starting business by plaintiff no.2. But in the statement before the Court their witness stated that sale deed was executed for repayment of debt and for payment of some money to daughters. The lower appellate Court further found that witness in sale deed were his brother and “Samdhi” of her brother and they did not appeared to prove the sale deed which makes it doubtful. Further finding was recorded that the burden of prove that sale deed was not the result of fraud was upon defendant and not on plaintiff, which they have failed to discharge. The lower appellate court after going into the details of the transaction came to the conclusion that the sale deed dated 26.08.1981 was result of fraud and therefore, the judgment and decree passed by the learned Trial Court was set aside and suit of the plaintiffs was decreed by lower appellate court. 9. Aggrieved by the judgment and decree of the Court below, defendants have preferred this Second appeal this Court. This appeal was admitted on the following substantial questions of law : 1. Whether the findings of the appellate court are legally sustainable in view of the fact that they have been recorded without meeting and setting aside the findings of the trial court; 2. This appeal was admitted on the following substantial questions of law : 1. Whether the findings of the appellate court are legally sustainable in view of the fact that they have been recorded without meeting and setting aside the findings of the trial court; 2. Whether the court below illegally decreed the suit for cancellation of sale deed dated 26.8.1980 when on the same day Nazir executed the disputed sale deed and also agreement to sale of his plot No.1186, on the basis of which agreement to sell the plaintiff executed the sale deed in favour of defendant/appellant no.1, Munazari on 5.5.1982 and this fact itself proves that the plaintiffs themselves admit that the sale deed and agreement to sale was executed by Nazir; 3. Whether first appellate court illegally held that burden lies on the defendants/appellants to prove that Nazir, who executed the sale deed in favour of appellant no.1, was in need of money which compelled him to execute sale deed. 10. After hearing learned counsel for the parties, the first substantial question of law requires to be decided whether the findings of lower appellate court are legally sustainable in view of the fact that they have been recorded without meeting and setting aside the findings of the trial Court. 11. Learned counsel for the appellant has not pointed out any specific finding which has been recorded by the Lower Appellate Court without meeting the setting aside the finding of the Trial Court. Perusal of the judgment of the Lower Appellate Court shows that it has considered the finding of the Trial Court and has recorded the judgment of reversal after considering the findings recorded by the Trial Court. It has been recorded the finding that the finding of Trial Court that Nazir sold the land for giving money to his daughters was not pleaded by any of the parties and this finding has been recorded by the Trial Court on its own. The substantial question of law is, therefore, answered against the defendant-appellants. 12. The second substantial question of law is based on the fact whether it can be presumed that knowledge of agreement to sale dated 26.8.1980 to the plaintiffs also proves that they were aware the execution of sale dated 26.08.1980, which was executed by Nazir in favour of defendant no.1 on the same date. 12. The second substantial question of law is based on the fact whether it can be presumed that knowledge of agreement to sale dated 26.8.1980 to the plaintiffs also proves that they were aware the execution of sale dated 26.08.1980, which was executed by Nazir in favour of defendant no.1 on the same date. The Trial Court has laid much emphasis on the fact that on 05.05.1982 Munazri, defendant no.1, got executed a sale deed in her favour from the three sons of the deceased Nasir by paying of Rs.20,000/- as sale consideration mentioned in the agreement to sale dated 26.08.1980 Trial Court has proceeded on the presumption that since plaintiffs were aware that the sale deed dated 05.05.1982 is being executed in pursuance of the agreement to sale dated 26.08.1980, therefore, it cannot be said that plaintiffs were not aware of the sale deed by their father on the same date in favour of defendant no.1. The prime witness to prove execution of sale deed dated 26.08.1980 by Nazir in favour of defendant no.1, after taking sale consideration of Rs.38,000/-, was defendant no.1 herself who never appeared in the witness box to remove the suspicious circumstances surrounding the execution of sale dated 26.08.1980. DW 1, Babukhan, son and power of attorney holder of defendant no.1, cannot prove the facts in the knowledge of the principal. He can only prove the facts exclusively in his personal knowledge. He is never competent to depose about the facts whereof DW 1 had exclusive knowledge. This Court in the case of Chaman Lal Vs. Awadh Kumar Agarwal, Manu/U.P./0023/2018 has held that : 7. Counsel for the revisionist submitted that the landlord opposite party never appeared in the witness box to prove his case. On his behalf, his son as deposed before the trial Court. The son alleges himself to be the power of attorney holder of the landlord. A power of attorney holder could depose, only as regards, facts which were in his personal knowledge. He was not competent to depose regarding the facts, which were in the exclusive knowledge of the landlord, his father and principal. 13. Similarly in the case of Janki Vasudeo Bhojwani & another Vs. Indusind Bank Limited and others, (2005) 2 SCC 217 :- 10. The second fallacy of the order of Tribunal was allowing Mr.V.R.Bhojwani (power of attorney holder), husband of appellant no.2 Ms. 13. Similarly in the case of Janki Vasudeo Bhojwani & another Vs. Indusind Bank Limited and others, (2005) 2 SCC 217 :- 10. The second fallacy of the order of Tribunal was allowing Mr.V.R.Bhojwani (power of attorney holder), husband of appellant no.2 Ms. Mohini Laxmikant Bhojwani, to appear in the witness box on behalf of the appellants. It may be noted that that the appellants were shy away from gracing the box. The respondent-bank vehemently objected to allowing the holder of power of attorney of the appellants to appear in the witness box on behalf of the appellants. This Court clarified that the burden of proving that the appellants have a share in the property will be on the appellants and it was incumbent on the appellants to have graced the box and discharged the burden that they have a share in the property, the extent of share, the independent source of income from which they have contributed towards the purchase of the property. The entire context of the order dated 10.2.2004 was forwarded to the Tribunal for the purpose. It is unfortunate that the Tribunal has framed its own issues not consistent with the directions and recorded a finding contrary to the directions as aforesaid. 14. Therefore, it is clear that beneficiary of the sale deed was DW 1 who never appeared in the witness box to prove her case. Further case of defendant was that at the time of execution of the agreement to sale dated 26.08.1980, regarding plot no.1186, Rs.10,000/-was paid by defendant no.1 to Nazir and Rs.10,000/- was balance sale consideration to be paid. Therefore, there was explanation given by the defendant as to why excess Rs.10,000/- (Total Rs.20,000/-) was paid to plaintiffs when defendant case was that the sale deed dated 05.05.1982 was in pursuance of the agreement to sale dated 26.08.1980 and the Trial Court has recorded finding that there is recital in the sale deed dated 5.5.1982 itself that the sale deed in pursuance of the agreement to sale dated 26.08.1980. Clearly amount of Rs.20,000/- was paid the plaintiffs only to avoid any dispute between the parties and getting the sale deed of plot no.1186 and this cannot lead to any presumption that if the plaintiffs were aware of the agreement to sale dated 26.08.1980 they must have been aware of the sale deed dated 26.08.1980, also executed by Nazir in favour of defendant no.1. The lower appellate court has considered the burden of proof regarding the case of old persons which is akin to pardanashi woman. The finding of the lower appellate court that the burden of proof due execution of sale deed with a healthy mind by Nazir was on defendants since they were beneficiaries of the sale deed. The lower appellate Court has also considered and found that the passing of consideration to Nazir has not been proved from the evidence on record. Babu Khan, DW 1 cannot clearly give details of money collected by him for payment to Nazir before the execution of sale deed. The finding of fact recorded by the lower appellate Court are based on proper appreciation of evidence do not require any interference in Second Appeal. 15. The last substantial question of law is regarding the burden of proof regarding need of money by Nazir which compelled him to execute the sale deed. Learned Trial Court recorded the finding that he needed money for paying his debts and giving it to his daughters. The Lower Appellate Court has found that need of Nazir set-up by the defendants, suffers from contradiction. It has found that in the sale deed it has been mentioned that heath of Nazir is not good and he is not able to cultivate his land. He needs money for food and other uses and therefore he is selling his land. In the written statement filed by defendant there is a different plea of need of money for payment to plaintiff no.1 for starting his business. Third need have been shown that there was loan incurred by Nazir and for repayment thereof he had to execute the sale deed of his land. There is no evidence on record to prove that amount received by Nazir was paid to plaintiff no.2. Therefore, Lower Appellate Court arrived at the conclusion that defendants failed to prove what was the need which lead Nazir to sell his land. There is no evidence on record to prove that amount received by Nazir was paid to plaintiff no.2. Therefore, Lower Appellate Court arrived at the conclusion that defendants failed to prove what was the need which lead Nazir to sell his land. Regarding the question of burden, it is clear that plaintiffs never set-up the plea of need on the part of Nazir to execute the sale deed. Rather their case is that Nazir execute the sale deed when he was not in a position to understand its implication due to old age and illness. Defendants has set-up the plea that Nazir needed money for starting business of plaintiff no.1. Therefore, as per Sections 101 and 102 of the Indian Evidence Act the burden of proof was squarely upon the defendants to prove the pleas taken in their written statement, regarding the need of Nazir for executing the sale deed. The Apex Court in the case of Mst. Sethani Vs. Bhana, AIR 1993(SC) 956 held that onus lies on the purchaser to prove that sale deed was not executed under undue influence as per Section 16 of the Contract Act in a case where a Tribal woman was old, illiterate and blind and had executed a sale deed. 16. In view of the above, the last substantial question of law is also answered against the appellant holding that lower Appellate Court was right in placing burden of proof on defendants to prove that Nazir needed money when he executed the sale deed in favour of defendant no.1. 17. In view of the answers to the above substantial questions of law, the second appeal fails and is hereby dismissed with costs.