The petitioner argued that the exemption causes loss to the public exchequer and violates Article 14, but the Court pointed to the two-pronged complexity of the issue.
Supreme Court Declines Plea Challenging Muslim Gift Exemption From Registration Under Section 129 TPA
The Supreme Court on Thursday refused to entertain a writ petition challenging Section 129 of the Transfer of Property Act, 1882. The provision excludes gifts, or hiba, made under Mohammedan Law from the Transfer of Property Act. The Court disposed of the petition and gave the petitioner liberty to raise the issue before the Law Commission of India.
Petition Challenges Muslim Gift Exemption
The petition was filed by Hari Shankar Jain. Advocate Parth Yadav appeared for the petitioner. Yadav argued that Section 129 allows Muslim gifts to escape registration and stamp duty. He said this causes loss to the public exchequer.
At the start of the hearing, Chief Justice of India Surya Kant asked the petitioner, “What is your problem? How are you affected?”
In response, counsel said that Muslim gifts need not be registered because of the provision. He added that this results in loss to the public exchequer.
CJI Kant replied, “If there is any loss to the public exchequer, Parliament can amend the law.”
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Bench Questions Challenge to Muslim Gift Exemption
The petitioner’s counsel also argued that the provision creates discrimination only on the ground of religion. He said this violates Article 14 of the Constitution. He submitted that Muslims get an exemption from stamp duty under the provision, while non-Muslims do not. He argued that since registration is not compulsory for them, they are not liable to pay stamp duty.
CJI Kant then asked, “Why didn’t you represent to a single parliamentarian?”
Counsel replied that the issue involves an interplay between the Transfer of Property Act, the Stamp Act and the Registration Act. He said the Supreme Court was therefore the proper forum to decide the issue.
The Bench did not agree. CJI Kant asked, “This is a matter involving amendment of provisions. Why don’t you approach Parliament?”
Counsel responded that the case raised a constitutional issue. According to him, it involved a clash between personal laws and fundamental rights, which required a decision by the Supreme Court.
Court Asks Petitioner To Approach Law Commission
The Bench declined to entertain the matter. It instead gave liberty to the petitioner to approach the Law Commission of India.
“In our considered opinion, the appropriate course of the petitioner will be to approach a body like the Law Commission of India..such an expert body being functional as of now, we see no reason to entertain the petition,” the Bench observed in its order.
Expressing disinclination to hear the matter, CJI Kant said, “We will interfere only when someone affected, and someone with bona fides approaches. It is an 1882 law, and suddenly in 2026, you challenge. Why have you not approached anyone? After 75 years of independence, you realised this law offends certain provisions. You can bring this to the notice of the Parliament that this law might have escaped your notice. The best forum is the Law Commission of India.”
Justice Bagchi Explains Scope Of Provision
Justice Joymalya Bagchi said the provision must be viewed from the perspective of both the donor and the donee. He noted that Section 129 recognises an oral gift, or hiba, made by a Muslim person. He also pointed out that while the donor must be a Muslim, the donee can be a non-Muslim. Justice Bagchi said that even a non-Muslim can benefit from the provision. He made the point while addressing the argument that the provision discriminates on the ground of religion.
He also said Parliament made a classification to exempt oral gifts from registration.
The Bench comprised Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi.
Case: HARI SHANKAR JAIN Vs UNION OF INDIA | W.P.(C) No. 290/2026 | 2026 INSC 232
