The Supreme Court on Thursday asked a petitioner challenging the provision of the Transfer of Property Act (TPA) that exempts Islamic gifts (hiba) from registration requirements to first approach the Law Commission of India. The petitioner said that the exemption is discriminatory and causes a loss to the public treasury.
A bench comprising Chief Justice of India (CJI) Surya Kant and Justices Joymalia Bagchi and Vipul M Pancholi confirmed that the expert body is mandated to study the laws and recommend changes when necessary. It disposed of advocate Hari Shankar Jain’s plea and gave him freedom to approach the committee.
“In our considered opinion, the right approach for the petitioner is to approach the Law Commission of India, which is mandated to make recommendations on amending or changing the law or framing new laws,” the bench said. “We see no reason to accept this petition when this expert body is in place and functioning effectively.”
The petition challenged the constitutional validity of Section 129 of the Travel Ban Law, which preserves or protects the application of Islamic law regarding gifts.
Lawyer Parth Yadav, who represents Jain, said the ruling leads to discrimination because gifts given under Islamic personal law are exempt from formal requirements that apply to gifts from people who follow other religions. “We challenge the validity of Section 129 of the Prevention of Terrorism Act, which exempts Islamic gifts [hiba] Of the strict formal requirements of the law. “It is discriminatory and causes loss to the public exchequer,” Yadav said.
He argued that when Section 129 of the TPA is read with Section 3 of the Indian Stamp Act and Section 17 of the Registration Act, the exemption effectively allows gifts of immovable property to be made to Muslims without paying stamp duty or undergoing mandatory registration, resulting in loss of revenue to the state. “This contravenes Article 14 [the right to equality] Because they are not responsible for paying stamp duty.
The court questioned the place of filing the petition and the manner in which the case was presented to the court. “What is your problem? How are you affected? If there is a loss to the public treasury, what prevents Parliament from amending or amending the law appropriately? They are the competent authority, and they can change it,” she said.
The court noted that the law in question dates back to 1882, and wondered why the petitioner approached the court directly without first raising the issue before legislators or expert bodies. “It is a law passed in 1882, and you are challenging it in 2026 without even approaching the people or the government, which can examine your complaints.”
The bench suggested the petitioner to raise the issue with Parliament or parliamentarians if he believes the law requires amendment. He pointed out that the concept of gift under Islamic personal status law cannot be studied only from the perspective of the donor’s religion. “You have to look at it from the point of view of the donor and the donor… You raise the issue of discrimination from the point of view of the donor, but the donor could be non-Muslim.”
The court said the concept of gift should be examined through the legal principle of “clear differentiation,” a key test used in constitutional law to determine whether differential treatment under the law violates the guarantee of equality under Article 14 of the Constitution.
Section 129 of the Transfer of Property Act 1882 acts as a protective condition for certain categories of gifts. It ensures that the provisions of Chapter Seven of the Gift Promotion Law, which deals with gifts, do not exceed the rules of Islamic law governing gifts (hiba).
Under the TPA, Section 123 normally requires that a gift of immovable property must be made by a registered instrument signed by the donor and witnessed by witnesses. Because of Article 129, this requirement does not apply to gifts governed by Islamic personal status law. Under Islamic law, a valid gift can be made verbally, even for immovable property, provided that certain basic conditions are met. If these conditions are met, the courts have recognized the validity of these gifts even without registering them.
