Why challenge an 1882 Law Now? Supreme Court declines challenge to Section 129 TPA on Muslim Gifts

The Supreme Court declined to entertain a writ petition questioning the validity of Section 129 of the Transfer of Property Act, 1882, which preserves the validity of gifts (hiba) made under Mohammedan Law without subjecting them to the statute’s formal requirements. A Bench led by Chief Justice Surya Kant disposed of the plea filed by Hari Shankar Jain, holding that the matter concerns legislative policy and may be more appropriately examined by the Law Commission of India.

The petitioner had argued that Section 129 creates an uneven legal framework by allowing Muslim gifts to be completed orally without mandatory registration or stamp duty, which, according to him, leads to financial loss for the state and violates the equality principle under Article 14 of the Constitution of India. He urged the Court to strike down the provision, claiming it results in unequal treatment between Muslim and non-Muslim citizens in property transactions. The Union Government was not called upon to respond in detail, as the Bench focused primarily on whether the constitutional challenge was the appropriate route for addressing the concern.

The Bench, also comprising Justice Joymalya Bagchi and Justice Vipul Pancholi, was not persuaded to exercise its writ jurisdiction. The Court observed that the impugned provision reflects a legislative classification relating to personal law and that any reconsideration would fall within Parliament’s policy domain. Noting the absence of a direct personal grievance and the long existence of the provision, the Court remarked, “Such an expert body being functional as of now, we see no reason to entertain the petition,” while granting the petitioner liberty to place his concerns before the Law Commission.

Justice Bagchi further pointed out that a hiba involves a donor and a donee, and the beneficiary need not necessarily be Muslim, undermining the argument of religion-based discrimination.