Non-Muslim donee also benefits: Supreme Court on PIL challenging laws exempting Muslims from gift registration

The Supreme Court on Thursday observed that the exemption granted to Muslims from compulsory registration and payment of stamp duty on gifts of immovable property under Section 129 of the Transfer of Property Act is not a straightforward instance of discrimination against non-Muslims since the provision can benefit a non-Muslim donee too..A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and Vipul Pancholi was hearing a public interest litigation (PIL) filed by Advocate Hari Shankar Jain and Nivedita Sharma. They challenged Section 129 of the Transfer of Property Act along with Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 on the ground that the exemption from mandatory registration and stamping requirements, which is available only to Muslims, amounts to discrimination and violates the equality mandate under Articles 14 and 15 of the Constitution.The Court declined to entertain the constitutional challenge at this stage, observing that the appropriate recourse would be before the Law Commission of India. The Bench granted liberty to the petitioners to approach the Law Commission for recommending suitable changes to the law..Section 129 of the Transfer of Property Act, 1882 exempts Muslims from Chapter VII of the Act, which governs gifts of immovable property and mandates registration and stamp duty.Non-Muslims must execute a registered and stamped gift deed under Section 123 of the Act read with Section 17 of the Registration Act, 1908, and the Stamp Act, 1899..Advocate Parth Yadav, appearing for the petitioners, argued that the exemption causes loss to the public exchequer and violates Article 14..However, Justice Bagchi pointed out that while a case of discrimination can be made out when comparing a Muslim donor who pays no stamp duty against a non-Muslim donor who must, the analysis does not end there.When the donee receiving the hiba (gift) is a Hindu or a person from some other non-Muslim community, such a donee stands to benefit from the very exemption being challenged as discriminatory, the Court pointed out.Hiba, being a special form of gift, has to be examined from both ends of the transaction and not merely from the donor's perspective, Justice Bagchi observed..This two-pronged complexity, the Bench indicated, is precisely why the constitutional question cannot be resolved at this stage, it opined.The CJI also flagged the considerable delay in raising the challenge."In 2026, you have suddenly remembered that 1882 law violates fundamental rights. After 75 years, you realised this law offends certain provisions. You can inform the parliament that this law might have escaped your notice," he stated.CJI Kant suggested that the petitioner should first approach the Law Commission which can then urge parliament to make suitable changes to the law."The best forum is the Law Commission of India. If the parliament perceives discrimination in a pre-Constitution law, it has the authority to look into the matter and consider amendments," he stated."When all doors are knocked and when you see no reply you can come here," the Court added..[Read Live Coverage].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.