Gopal Singh vs Lavendra Singh And Others on 17 July, 2026

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    Uttarakhand High Court

    Gopal Singh vs Lavendra Singh And Others on 17 July, 2026

    Author: Ravindra Maithani

    Bench: Ravindra Maithani

                                                   UKHC010055922023
    
    
    
                                                                2023:UHC:9538
    
    
    HIGH COURT OF UTTARAKHAND AT NAINITAL
                         Second Appeal No. 145 of 2023
    
    
    Gopal Singh                                                ........Appellant
    
                                     Versus
    
    Lavendra Singh and others                                  ....Respondents
    
    
    Present:-
    
                Mr. Neeraj Garg, Advocate for the appellant.
    
                                        JUDGMENT
    

    Hon’ble Ravindra Maithani, J. (Oral)

    By means of instant second appeal, the appellant

    SPONSORED

    challenges the following judgment and decree:-

    (i) Judgment and decree dated 05.08.2022, passed

    in Civil Suit No.76 of 2015, Gopal Singh Vs.

    Lavendra Singh and others (“the suit”) by the

    court of 1st Additional Civil Judge, Kashipur,

    District Udham Singh Nagar. By it, the suit filed

    by the appellant for cancellation of sale deed

    dated 30.01.2016 in favour of the respondent

    nos. 1 and 2 has been dismissed; and

    (ii) Judgment and decree dated 27.09.2023, passed

    in Civil Appeal No. 42 of 2022, Gopal Singh Vs.

    Lavendra Singh and others, passed by the court

    of 2nd Additional Civil Judge, Kashipur, District

    Udham Singh Nagar (” the appeal”).

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    2. Heard learned counsel for the appellant and perused

    the record.

    3. The appellant filed the suit on the ground that the

    respondent no.1 expressed willingness to purchase a land from the

    appellant in the month of January, 2016. The land was mortgaged

    with the Bank. It was agreed that the respondent no.1 shall repay

    the loan and shall also pay Rs.10 lakh as consideration for the sale

    of the land. Accordingly, on 30.01.2016, a sale deed was executed.

    The sale consideration was given through cheques. But, when

    presented, the cheques were dishonoured. Suit for cancellation of

    the sale deed was filed on the following grounds:-

    (i) The cheques given a consideration were not

    honoured by the Bank; and

    (ii) The respondent no.1 did not repay the loan.

    4. The respondents filed a joint written statement and

    denied the allegations. According to the respondents, it was not a

    condition that they would repay the bank loan. In fact, according to

    the respondents, they were never told about any bank loan and as

    such, it was not written in the sale deed.

    5. Based on the pleadings of the parties, five issues were

    framed. Parties led their evidence. Having considered the evidence

    and material on record, the suit was dismissed on 05.08.2022, by

    the trial court and the appeal against it was also dismissed.

    6. Learned counsel for the appellant submits that there

    are substantial questions of law involved in this appeal. He submits

    that to that extent, the impugned judgment and decree are valid
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    that in case, sufficient consideration is not paid, the suit for

    cancellation of sale deed may not lie and for recovery of remaining

    amount suit may lie. But, he submits that the instant case is quite

    distinct. It is argued that in the sale deed, two cheques of the year

    2014 were given, which is a fraud and this aspect has not been

    considered by the trial court. He submits that though the appellate

    court considered this aspect, but finding is not in accordance with

    law.

    7. At this stage only, the Court wanted to know from

    learned counsel for the appellant as to whether, it has been the

    pleaded case of the appellant that the cheques that were given for

    sale consideration, were of the year 2014 and they were defrauded

    by the respondents. He could not indicate any pleading, as such.

    8. Fraud is a question of fact. Unless pleaded, at this

    stage, for the first time, such question cannot be raised. Moreover,

    execution of sale deed is admitted to the appellant. How the

    appellant was defrauded, when the cheques were given to him and

    were also recorded in the sale deed.

    9. The trial court relied on the judgments of the Hon’ble

    Supreme Court in the cases of Kaliaperumal Vs. Rajagopal and

    another, (2009) 4 SCC 193 and Vidhyadhar Vs. Manikrao and

    another, (1999) 3 SCC 573 and other cases to record its finding

    which has been upheld in the judgment of the appeal.

    10. As stated, the suit for cancellation of sale deed was

    filed on two grounds; firstly, that the cheques as given as the

    consideration were not honoured, which means partial

    consideration was paid; and secondly, that the respondents did not

    pay the bank loan. On it, it has been the case of the respondents
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    that they were never informed by the appellant that the land is

    mortgaged and there is any bank loan on it.

    11. In fact, the Court further requested learned counsel for

    the appellant to indicate as to whether any averment with regard to

    the mortgage of the land with the bank is made in the sale deed?

    He could not indicate anything. In fact, it is not there.

    12. The question that remains is on the partial payment of

    sale consideration.

    13. In the case of Kaliaperumal (supra), the Hon’ble

    Supreme Court discussed this aspect and held that payment of

    entire price is not a condition precedent for completion of the sale.

    In para 17 of the judgment, the Hon’ble Supreme Court observed as

    follows:-

    “17. It is now well settled that payment of entire price
    is not a condition precedent for completion of the sale by
    passing of title, as Section 54 of the Transfer of Property Act,
    1882 (“the Act”, for short) defines “sale” as “a transfer of
    ownership in exchange for a price paid or promised or part-
    paid and part-promised”. If the intention of parties was that
    title should pass on execution and registration, title would
    pass to the purchaser even if the sale price or part thereof is
    not paid. In the event of non-payment of price (or balance
    price as the case may be) thereafter, the remedy of the
    vendor is only to sue for the balance price. He cannot avoid
    the sale. He is, however, entitled to a charge upon the
    property for the unpaid part of the sale price where the
    ownership of the property has passed to the buyer before
    payment of the entire price, under Section 55(4)(b) of the
    Act.”

    14. In the case of Vidhyadhar (supra) also, this aspect has

    also been dealt with by the Hon’ble Supreme Court and in para 36

    of the judgment, observed as follows:-

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    “36. The definition indicates that in order to
    constitute a sale, there must be a transfer of ownership from
    one person to another, i.e., transfer of all rights and
    interests in the properties which are possessed by that
    person are transferred by him to another person. The
    transferor cannot retain any part of his interest or right in
    that property or else it would not be a sale. The definition
    further says that the transfer of ownership has to be for a
    “price paid or promised or part-paid and part-promised”.

    Price thus constitutes an essential ingredient of the
    transaction of sale. The words “price paid or promised or
    part-paid and part-promised” indicate that actual payment
    of the whole of the price at the time of the execution of sale
    deed is not a sine qua non to the completion of the sale.
    Even if the whole of the price is not paid but the document
    is executed and thereafter registered, if the property is of the
    value of more than Rs 100, the sale would be complete.”

    15. The courts below have rightly held that merely because

    the cheques were dishonoured, the sale deed may not be cancelled.

    There is no such question of law, involved in this second appeal.

    Therefore, it does not merit acceptance. Accordingly, the second

    appeal deserves to be dismissed at the stage of admission itself.

    16. The second appeal is dismissed in limine.

    (Ravindra Maithani, J.)
    17.07.2026

    Jitendra



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