'Approach Law Commission' : Supreme Court On Plea Challenging S.129 TP Act For Exempting Muslim Gifts From Registration

The Supreme Court on Thursday refused to entertain a writ petition challenging Section 129 of the Transfer of Property Act, 1882, which exempts gifts (hiba) executed under Mohammedan Law from the Transfer of Property Act.

The petitioner, Hari Shankar Jain, argued that because of this exemption, Muslim gifts are exempted from registration and paying stamp duty, and hence a loss to the public exchequer was caused.

The bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi disposed of the petition, granting liberty to the petitioner to raise the issue before 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 the order.

At the outset, CJI Surya Kant asked the petitioner,  "What is your problem? How are you affected?"

Advocate Parth Yadav, the counsel for the petitioner, replied that because of this provision, Muslim gifts need not be registered, and this will result in a cause of loss to the public exchequer.

"If there is any loss to the public exchequer, Parliament can amend the law," CJI Kant said. 

The counsel replied that this provision was causing discrimination solely on the ground of religion, and hence Article 14 was violated.  "By virtue of the section, Muslims are exempted from paying stamp duty, while non-Muslims are not exempted. Since registration is not compulsory for them, they are not liable to pay stamp duty," he submitted.

"Why didn't you represent to a single parliamentarian?" CJI asked. The counsel replied that the matter involves an interplay between the TP Act, the Stamp Act and the Registration Act, and hence the Court was the suitable forum to decide the issue.

Unconvinced, the CJI asked, "This is a matter involving amendment of provisions. Why don't you approach Parliament?" 

The counsel replied that the matter involved a clash between personal laws and fundamental rights, which was a constitutional issue, requiring a decision by the Supreme Court.

Expressing disinclination to entertain the matter, the CJI 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 said that the provision has to be seen from the perspective of a donor and a donee. The provision recognizes an oral gift (hiba) executed by a Muslim person. While the donor is a Muslim, the donee can be a non-Muslim, Justice Bagchi pointed out. So even a non-Muslim can be a beneficiary of this provision, Justice Bagchi pointed out, addressing the argument that the provision was discriminatory on the ground of religion.

Justice Bagchi also said that it was a classification made by the Parliament to exempt oral gifts from registration.

Case : HARI SHANKAR JAIN Vs UNION OF INDIA | W.P.(C) No. 290/2026