Six Open Supreme Court Questions on Property Law in 2026 and Your Title

Most explainers on property law cover rules that are settled: what a sale deed has to contain, why registration alone does not prove title, how far back a chain should be traced. Those rules help because the courts have stopped changing them. This article deals with the reverse. Six questions are pending before the Supreme Court of India today, and each can change how one kind of property should be valued, financed or bought in 2026.

None of this is settled law. We label each item by status: pending, interim, self-stayed or referred to a larger bench. Buyers and lenders pick up unpriced risk when they treat an open question as closed.

Overview: six open questions and the sensible response to each

• 1 · Question: Do pre-2016 benami purchases remain exposed? · Status: Unsettled. The 2022 ruling that the law is "not retrospective" was recalled in 2024, so the position moves again · Meanwhile: Count suspicious transfers with no consideration as higher risk whatever their date
• 2 · Question: In insolvency, do state tax dues rank above a bank's mortgage? · Status: Supreme Court authority conflicts and a curative petition is pending · Meanwhile: Name state tax arrears in every risk note on a distressed borrower
• 3 · Question: Is disputed waqf land protected, or can it be reclassified? · Status: An interim order applies and the final hearing is awaited · Meanwhile: Check registration and any Collector tagging before relying on either view
• 4 · Question: Does a Hindu woman's self-acquired property pass to her parents or to her husband's heirs? · Status: A constitutional challenge is pending and undecided · Meanwhile: §15(1) HSA is still in force; do not assume it was struck down
• 5 · Question: Which land counts as "Aravalli hill" for mining and construction bans? · Status: In December 2025 the Supreme Court stayed its own definition · Meanwhile: Treat any parcel in the Aravalli belt as carrying an unsettled restriction risk
• 6 · Question: What is "vacant land" under the old Urban Land Ceiling Act? · Status: Sent to a larger bench, undecided · Meanwhile: Do not lean on old ULC vesting orders without checking who actually held possession

Every item below gives the dispute, its status, and the steps a buyer, lender or title examiner can take in the meantime.

1. Can pre-2016 purchases with unaccounted money still attract benami action?

The dispute. The Benami Transactions (Prohibition) Act, 1988 was amended in a big way in 2016, which brought in criminal liability and powers of confiscation. The open question is whether the 2016 changes bite only on transactions from 2016 on, or also reach back to punish and confiscate property bought benami many years earlier.

The position. In Union of India v. Ganpati Dealcom Pvt. Ltd. (2022), a three-judge Supreme Court bench ruled that the 2016 amendments apply from then on, which put pre-2016 benami deals beyond the amended criminal and confiscation provisions. That seemed final, but it was not. On 18 October 2024 (2024 INSC 799) the Court recalled its own 2022 judgment in review. It found that the constitutional validity question it had decided was never argued by the parties. The Court had ruled on a point nobody raised. The matter returned to a new bench for fresh adjudication, retrospectivity included, and the 2022 "not retrospective" holding is no longer binding precedent. A further distinction came in 2026, in Manjula v. D.A. Srinivas (2026 INSC 465). The 2016 amendments apply retroactively as to declaratory, procedural and machinery provisions, but only prospectively as to the penal provisions that create new offences. On that footing, enforcement tribunals have started reviving benami attachment proceedings that had been quashed earlier.

What to do now. Do not treat "the deal is older than 2016" as a closed door. Mark any link in a title chain that has the classic benami shape (money from one person, title in another's name, with no credible relationship or consideration to explain it) as higher risk. Do not dismiss it as time-barred until retrospectivity is finally decided.

2. If a borrower owes the state tax, does the bank still get paid first?

The dispute. Under Section 53 of the Insolvency and Bankruptcy Code, secured creditors such as banks and NBFCs expect to be paid ahead of most other claims. What remains unsettled is whether a state government can jump that queue for unpaid taxes (VAT, GST arrears) by claiming the status of a secured creditor.

The position. Rainbow Papers Ltd. (State Tax Officer v. Rainbow Papers Ltd., 2022) is where the Supreme Court said that a state tax law with a statutory first charge, as Gujarat's VAT law had, makes the state a secured creditor, and a resolution plan that ignores or waives the state's tax claim has to be rejected. That put government dues in competition with banks on repayment order. The pushback came a year later from another two-judge bench, in Paschimanchal Vidyut Vitran Nigam v. Raman Ispat (July 2023). It criticised Rainbow Papers for overlooking the Section 53 waterfall and confined it narrowly to its facts. A review petition (Sanjay Kumar Agarwal v. State Tax Officer, 31 October 2023) invited the Court to reconsider Rainbow Papers head-on, and the Court said no. The result is two conflicting lines of authority from the same Court, both standing. A curative petition has since been allowed for open-court hearing, and nothing has been resolved yet.

What to do now. If a borrower has unresolved state tax arrears and is heading for, or already in, insolvency proceedings, a lender cannot safely assume that its mortgage outranks the state's claim. Name state tax dues in any risk assessment of a distressed mortgagor. The issue is truly open and is no formality.

3. Is land tied to a waqf claim safe, exposed or somewhere in between?

The dispute. The Waqf (Amendment) Act, 2025 removed "waqf by user" (land treated as waqf because of long religious use and not by formal deed) as a route to new waqf status. District Collectors were also empowered to tag disputed waqf land as government property, provisionally, while an inquiry was on.

The position. The Court's interim order of 15 September 2025 (2025 INSC 1116) left the Act as a whole in force. It did, however, stay the Collector's power to mark disputed land as government property unilaterally. That power is at present inoperative, and disputed waqf land keeps its existing status while the inquiry runs. The deletion of waqf-by-user recognition for future cases was left standing. The challenge to the Act's constitutionality is waiting for its final hearing. Our companion piece on waqf-adjacent property in 2026 covers the title-risk mechanics in full.

What to do now. Keep three cases apart. One is registered, existing waqf-by-user land, which for now is protected from dispossession; a parcel marked by a Collector as "government property" (currently without legal force); and a fresh waqf-by-user claim made after the 2025 Act came into effect (facing a much higher bar). Each has its own risk profile, and none is finally decided.

4. A Hindu woman dies without a will: do her parents or her husband's family inherit?

The dispute. The Hindu Succession Act, 1956 (Sections 15 and 16) lays down who inherits from a Hindu woman who dies intestate. Where the property is her own acquisition (and not inherited from her father or husband), the law sends it first to her husband's heirs, before her own parents. Many regard that as dated and out of line with how a man's self-acquired property would pass. Section 15(1) is under constitutional challenge in the Supreme Court in Kamal Anant Khopkar v. Union of India.

The position. The last confirmed hearing took place in November 2025 before Justices Nagarathna and Mahadevan. The Court did not strike down or read down Section 15(1) there. It declined to rule on the challenge then, and the matter stays open into 2026. Reports often get this wrong, so to be plain: Section 15(1) stands, and property chains should apply it as written until the Supreme Court rules differently.

What to do now. If your chain passes through a Hindu woman who died intestate with self-acquired property, use Sections 15 and 16 as they read now, and do not assume a more "modern" order from news coverage. Revisit the case from time to time, because a ruling could alter who the correct heirs are.

5. Which land is "Aravalli hill" land for mining and construction curbs?

The dispute. Where the legal line of "Aravalli Hills and Ranges" falls decides what happens to mining leases and construction across the belt, which spans Rajasthan, Haryana, Delhi-NCR and Gujarat. Land inside the line faces development and mining restrictions that land outside it does not.

The position. The Supreme Court on 20 November 2025 accepted a 100-metre elevation threshold: a landform of 100 metres or higher, within a defined proximity, would be a protected Aravalli hill or range, and a government-run Master Plan for Sustainable Mining would be needed before any new lease. Objections came at once. Government figures from the Forest Survey of India show that just about 8.7% of the roughly 12,081 mapped Aravalli hills rise above 100 metres. The Court's own test would thus have stripped automatic protection from most low-lying Aravalli land, chiefly in Delhi-NCR and Rajasthan. A Vacation Bench stayed the November order on 29 December 2025 and appointed a new expert committee to look at the definition again. As of writing, no new mining lease may issue and existing leases are frozen until the redefinition.

What to do now. The 100-metre test should not guide you on any Aravalli-belt land, most of all in the Gurugram/Faridabad/South Delhi/Alwar corridor. Until the Court gives a final definition that is not stayed, every parcel next to the Aravalli hills carries an open risk of development or mining curbs. Recheck this case before you sign off an opinion on land in the belt.

6. "Vacant land" in the old Urban Land Ceiling Act: does an old vesting order still mean the State owns the land?

The dispute. The Urban Land (Ceiling & Regulation) Act, 1976 allowed a state to treat whatever a landowner held above a ceiling as "excess vacant land" and vest it in the State. From 1999 most states repealed the Act. Two questions stay alive: what "vacant land" meant in the old ceiling formula, and whether an old vesting order, where the State never took physical possession, still defeats the original owner's claim today.

The position. On possession, the ruling in A.P. Electrical Equipment Corporation v. Tahsildar (2025 INSC 274) was that vesting under Section 10(3) of the ULC Act, by itself, moved title and left possession untouched. Suppose the State never took actual possession before the cutoff date in the 1999 Repeal Act (18 March 1999) and the owner never gave the land up voluntarily, the owner can claim the Repeal Act's benefit and keep the land despite the old vesting order. On the definition, M/s Kewal Court Pvt. Ltd. v. State of West Bengal (2023) saw the Supreme Court refer the meaning of "vacant land" in the repealed Act's Section 2(q) to a larger bench, to be answered authoritatively. That question has no ruling yet.

What to do now. For any parcel with a pre-1999 ULC "excess vacant land" notification or vesting order, do not take the vesting order alone as proof that the State owns or holds the excess land. Look for documented transfer of physical possession, or voluntary surrender, before the 1999 cutoff. Without that, the original owner probably keeps a live right to reclaim, and the definition of "vacant land" itself is still before a larger bench.

Why this list deserves attention

Six open questions on six unrelated statutes may look like scattered trivia. They are not. Each one sits squarely inside a type of property that banks, buyers and lenders meet regularly: benami-style purchases, insolvent borrowers, land near religious use, intestate succession chains, real estate in the Aravalli belt, and parcels notified under the ULC Act. A title opinion that treats any of the six as settled, either way, is placing a bet that the Supreme Court itself has not yet placed.

The common point: "unsettled" does not mean "no risk". An open question usually means today's interim or majority position is provisional. The right step is to find out on which side of each dispute a given property falls, record it, and look again before relying on it in a major transaction. For judgments that did settle recently, see our roundup of the biggest Supreme Court property-law rulings of 2025.

Hardly any buyer, and few bank credit teams, can track six moving Supreme Court dockets across every property they assess. LegiScore's automated title search is designed to flag these very categories wherever they show up in a property's chain: benami-pattern transfers, tax-arrears exposure on distressed sellers, waqf notations, gaps in intestate succession, location in the Aravalli belt, and ULC vesting history. Run a check before you close at legiscore.in.