Chandra Prakash Agarwal vs Bhagirath Agarwal

This is an application filed by the plaintiff; who is one of the two brothers of three siblings; the defendant no. 1 being the other brother and defendant no. 2 being the only sister; for selling the properties mentioned in paragraph 5 of the petition and for executing the lease deed of the property mentioned in paragraph 7 of the petition. The prayer is for joint sale of these properties by private treaty or by apportioning the land and building mentioned in the two paragraphs of the petition in equal proportion between the three siblings who are the plaintiff, the defendant no. 1 and the defendant no. 2. The petitioner states that the parties have recently to come to an understanding by which the parties have agreed to dispose of the properties in the suit in parcels and distribute the money realised from sale of such properties between the parties to the suit.

It should be mentioned that by several orders passed by this Court, at least from November 2018, the plaintiff was directed to serve a copy of the plaint upon the defendant no. 2, who has been described as living in Meerut, UP. The orders record the repeated attempts made by the plaintiff to serve the defendant no. 2, which was finally done on 29th November, 2018, as shown in affidavit of service filed by the plaintiff.

Despite the above, the defendant no.2 remains unrepresented. Since this Court expressed concern of the defendant no.2 being deprived of the sale and distribution of the properties mentioned in the application, learned Counsel for the plaintiff reassured this Court that the properties would be sold in a manner so as to allocate 1/3rd of the proceeds of such sale to each of the parties to the suit. Counsel submits that the only relief asked for is for an equal distribution of the properties amongst the three siblings and that there is no scope for the defendant no.2 not having the benefit of such sale and / or allocation of the properties mentioned. It is also submitted that the defendant no.2 was a party to the understanding arrived at between the three siblings.

Learned Counsel for the defendant no.1 being a party to the understanding mentioned in the application does not oppose the prayers made therein.

Having regard to the submissions made by Counsel for the plaintiff and the fact that the defendant no.2, although served in November 2018, has chosen not to contest this proceeding, there shall be an order in terms of prayers (a) to (g) of the application. It is made clear that the plaintiff and the defendant no. 1 will have right, title and interest of the properties sold and the proceeds thereof only to the extent of one-third share each and will not deal with the share of the defendant no.2 in any manner howsoever. He is also made clear that all the properties mentioned in the application will be sold and the proceeds equally distributed among the three parties.

The advocate-on-record of the plaintiff is directed to serve a copy of this order on the defendant no.2 and file an affidavit to that effect within a fortnight from date.

The application is disposed of accordingly.