Tag: #propertylaw

THE PARTIES’ TIME TO DETERMINE WHETHER THEY CAN DIVIDE THE PROPERTY USING METES AND BOUNDS

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-Report by Sejal Jethva

In the matter of BHUSHAN KUMAR GUPTA & ORS. vs. RAJINDER KUMAR GUPTA, Order XII Rule 6 of the Code of Civil Procedure, 19081, the drawl of a preliminary decree of partition with regard to property is requested.

FACTS

The late Sh. Hem Chander Gupta unquestionably bought the suit property on September 12, 1976. The following information about Sh. Hem Chander Gupta’s wife and five boys who he is said to have left behind after his intestate death on December 31, 1999: –

i. Smt. Premwati Gupta

ii. Shri Mange Ram Gupta

 iii. Shri Rajinder Kumar Gupta

 iv. Shri Santosh Kumar Gupta

v. Shri Satish Chander Gupta

 vi. Mr. Bhushan Kumar Gupta

On July 12, 2018, the mother, Premwati Gupta, also passed away intestate. Her 1/6th undivided portion in the suit property, therefore, passed to her five surviving sons, and the plaintiffs claim that as a result, each of the five surviving sons acquired a 1/5th undivided stake in the suit property.

According to reports, Sh. Mange Ram Gupta, the oldest son of the late Sh. Hem Chander Gupta and Smt. Premwati Gupta gave his daughter-in-law Smt. Shalini Gupta his 1/5th undivided share. It is important to highlight that the plaintiffs in the current lawsuit are Sh. Santosh Kumar Gupta, Sh. Satish Chander Gupta, Sh. Bhushan Kumar Gupta, and Smt. Shalini Gupta. Only Sh. Rajender Kumar Gupta, the other son of the late Sh. Hem Chander Gupta and Smt. Premwati Gupta, and Smt. Premwati Gupta, are opposed to the relief for division.

APPELLANT’S CONTENTION

The plaintiffs addressed the defendant to request a mutually agreeable division of the subject property, with each party having a right to a 1/5th portion. It is claimed that the plaintiffs approached the defendants regarding a partition that would be impacted by metes and bounds. The current lawsuit was filed on April 18, 2022, as a result of the aforementioned request not being granted.

 Learned lawyers appearing on behalf of the plaintiffs argued that, given the accepted position in the parties’ briefs that the property was itself acquired, the plea of ​​oral division could be clearly rejected. Furthermore, since the property was acquired by the father of the parties himself and he remained the owner during his lifetime, there could have been no division, at least until his death, according to which the property could have been divided between his legal heirs. It was also claimed that if the father wished at all, the property could have been transferred either by gift or by transfer. It was argued that neither the plea of ​​oral division nor the plea of ​​such division raised by the father while he was alive could possibly stand.

RESPONDENT’S CONTENTION

In these proceedings, the defendant has submitted a written statement. It is important to note that the written declaration does not contest the fact that the suit property was bought by the late Sh. Hem Chander Gupta. The property would unquestionably be seen as having been bought by the late Sh. Hem Chander Gupta on his own. The sole argument put out is that the late Sh. Hem Chander Gupta, who was the Class-1 legal heir, requested all of his sons during his lifetime to divide the suit property on or around March 1999. According to the defendant, parties agreed to an equitable split of the suit property and that an oral partition came about at that time.

JUDGEMENT

1. The Court is adamant that the presented defence is completely unworthy of consideration after giving it full attention. The defendant has not provided any evidence to support how an oral partition could have been created or established during the father’s lifetime. It was also uncontested that the fathers of the parties were the only ones to obtain the land.

2. As a result, a preliminary partition decree for the property at 14/1 Shakti Nagar, Delhi, is issued, designating plaintiffs Bhushan Kumar Gupta, Satish Chander Gupta, Santosh Kumar Gupta, Shalini Gupta, and defendant Rajinder Kumar Gupta as each owning a fifth undivided portion of the property.

3. The creation of a preliminary decision for division.

4. It is regarded as necessary to give the parties some time to decide if they can divide the property by metes and bounds. If not, a definitive decree of partition and/or sale of the property, including through the parties placing inter se bids, shall be made on the next hearing date.

READ FULL JUDGEMENT: https://bit.ly/3K7WYXO

Bitcoin:- How It Functions As Property Law?

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Introduction:-

Bitcoin is very similar to real estate transfers in that it covers almost all aspects. The transactional characteristics, such as the Buyer and Seller, the price to be paid as “consideration,” and the endorsements, are strikingly similar. But it’s worth noting that Bitcoins are scarce, and they’re not particularly valuable. However, much like any other real estate transaction, Bitcoin transactions have public records. The Bitcoin Database is a public record that keeps track of all Bitcoin transactions. Anyone with access to a computer can see any Bitcoin transaction, just like when you go to the Registrar’s office to find out about title deeds. However, unlike property, where the government imposes a stamp duty to give credence to the validity of the transfer, there is no governmental monitoring or cooperation with the operations.

Bitcoin As ‘Property’ Or ‘Goods’:-

At the very basic level, what becomes the foundation for Bitcoin are the computer codes, thus, Bitcoin does not exist in physical/tangible form. Hence, the question that pops up is to regulate the Bitcoin transaction, could be deemed to be Movable property under the laws?

It is important to note that the Transfer of Property Act, 1882, is the main statute that governs the property elements. However, while this Act covers characteristics of moveable property, it does not define what constitutes movable property, which is crucial to determine if Bitcoin falls under its scope. The term “movable property” is defined in the General Clauses Act of 1897, and it is taken from there for all purposes. Movable property is defined in Section 3(36) of the Act as:

 “Movable property” shall mean property of every description, except immovable property.”

The scope of this term is quite broad, and it includes intangible properties as well. It is important to note that the term “goods” is defined as follows in Section 2(7) of the Sales of Goods Act 1930:

“Goods means every kind of movable property, other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale”.

As a result, Bitcoins might be considered goods because they are transportable property. However, the judiciary has not put much effort into determining whether the intangible property also applies in the virtual sphere.

Tata Consultancy Services v. State of Andhra Pradesh:-

However, in the case of Tata Consultancy Services v. State of Andhra Pradesh, the Hon’ble Supreme Court has opined that –

There is no distinction between tangible and intangible property in Indian law. A ‘goods’ might be either a tangible or intangible asset. It would be considered goods if it exhibited the following characteristics: (a) utility; (b) ability to be purchased and sold; and (c) ability to be transported, transferred, delivered, stored, and possessed. If a piece of software, whether customized or not, fits these criteria, it is considered good.

Given the current legal structure around the intangible property, it is possible to conclude that Bitcoin fits within this category.

American Law For The Property:-

Three tests are mandated in the American legal system for determining the existence of a property right, which are reprinted below:

  1. There is a specific definition of an interest;
  2. It is capable of exclusive possession or control; and 
  3. The putative owner has demonstrated a valid claim to exclusivity.

To begin with, the individual who buys Bitcoin has a valid stake in it, and the value of that interest can be assessed in terms of the country’s currency. Second, there is no doubt that the individual who purchases Bitcoins has exclusive control of them. It’s similar to real estate, where a person holding the title deeds can only deal with that property; similarly, there are credentials in Bitcoin. Finally, but certainly not least, a person has a legitimate claim to it because when Bitcoin is transacted, it is recorded in the network’s chain of transactions, which eliminates the possibility of a fraudulent transfer. 

Thus, it could be said under that the American Legal System, there is recognition of Bitcoin as intangible property.  

Bitcoin As ‘Commodity’:-

When Bitcoins are classified as intangible property, it’s important to determine if they also meet the criteria of a commodity. Similarly, the transportable property, or commodity, is not defined, and there is no legal precedent on the subject. However, according to the dictionary, it refers to “every moveable thing that is purchased and sold (excluding animals), a commodity of trade, and a movable article of value or something that provides ease or advantage, especially in commerce.”

In the matter of Tata Consultancy (Supra), Justice Sinha stated that the term “commodity” refers to commodities of any sort, as well as something useful or a commercial item.

As a result, Bitcoins fall under the definition of a commodity, as well as intangible property, under Indian law.

Crypto-Currencies As ‘Asset’:-

While Bitcoin transactions are still unregulated, the income and gains generated by Bitcoin transactions have been taxed by the taxing authorities. As a corollary, they might be considered an asset because they are taxed.

As a result, it could be claimed that the government is gradually moving toward regulating Bitcoin transactions.

Conclusion:-

There has been a steady increase in Bitcoin investment across India and the rest of the world. These investments’ fate is inextricably linked to the fate of Bitcoins. As a result, it is vital to preach on the Legal Aspects of Bitcoins and their Regulation. Based on the foregoing legal position and authorities, it may be determined that it is most appropriate for intangible property and commodities. However, before any judicial pronouncements by a court of law, the very minimum might be said.

The present article has been written by  Kiran Israni, 3rd Year Law Student of Baba Saheb Ambedkar College of Law, Nagpur.

The present article has been edited by Shubham Yadav, 4th year Law student of Banasthali Vidyapith.

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