In transactions involving fiduciary relationships, the burden of proving the genuineness of the transaction lies on the party in a position to dominate the will of the other party. The presence of fraud must be determined by considering the circumstances and subsequent conduct of the parties.

( 1 ) THIS is defendants second appeal. It arises out of original suit No. 171 of 1974 filed by Smt. Triveni Devi, for declaration and cancellation of a gift deed dated 15-12-1962 executed by her in favour of the present defendant appellant, who is the nephew of her husband.

( 2 ) THE suit was instituted on the allegations that the plaintiff is the exclusive owner and in possession of two houses Nos. 17h and 1722 situate in Mohalla Anta Para. She has been residing over a portion of the house and the rest is in possession of the tenants. She is an illiterate old and Pardanasheen lady and is not aware about the legal formalities. The defendant-appellant used to against judgment and decree of District judge, Mathura, D/- 22-12-1979. visit the plaintiff off and on and served her about 10 years ago when she was ill. The defendant provided medicine etc. After gaining her confidence he one day suggested that to save her property and to exclude the other brothers of the defendant who would be otherwise legal heirs after the death of the plaintiff execute some document so that he alone be exclusive owner of the property to be left by her. She agreed to the suggestion of the defendant and went to District Court. There the defendant got prepared some document and obtained her signature on few papers on the pretext that after her death he would become the exclusive owner of the property and till her death she will continue to be owner of the property. The plaintiff believing the statements made by the defendant put her thumb mark on the document which was got prepared by the defendant blindly. About 15 days prior to the filing of the suit she came to know that the defendant is making negotiations to sell her two houses and she became suspicious thereof and then got the document read over. It then transpired that the defendant has become the owner of the property during her lifetime and as such the defendant played fraud on her. The plaintiff claimed that she is still in possession of the property in question in her own right.

( 3 ) THE suit was contested on number of pleas but the fact that the plaintiff is related to him and she is an illiterate, old and pardanasheen lady has not been controverted in the written statement. It has been pleaded that the plaintiff after fully understanding the contents of the document voluntarily executed the gift deed. The gift deed was executed as he had been residing with the plaintiff since his childhood and the plaintiff had great love and affection for him. In that circumstance the deed in question was executed. She is in occupation of the house in question not as an owner. On the other hand after execution of the document in question (gift deed) the defendant is in possession of the disputed house as owner and it is defendant who has let out the portion of it to the tenants. Plea of estoppel and acquiescence was also raised.

( 4 ) PARTIES led the evidence in support of their respective cases. Eight issues were framed by the trial Court. The trial Court dismissed the suit on the finding that the execution of the deed in question dated 15- 12-62 is fully established. In view of this finding it was further held under issue No. 5 that the suit is time barred as ,the gift deed was executed on 15-12-62 andjthe suit for its cancellation was filed on 23rd February, 1973. This decree has been set aside in Civil appeal No. 146 of 1978 by the District Judge mathura by its judgment and decree dated 22-12-1979.

( 5 ) THE appeal was admitted on the substantial questions of law which read as follows: " (A) Whether in view of the plaintiff, own admission that the only fraud committed by the appellant was that he was trying to sell the house and was not caring for her and her food, the suit could be dismissed? (B) Whether the nature of document was such which did carry out the intention of the plaintiff and as such there was no fraud?

( 6 ) HEARD the counsel for the parties and perused the record. T