P L D 1958 (W (PLP)

(a) Jurisdiction‑Order without jurisdiction passed by Court is illegal and should be ignored. (b) Bai‑ul‑wafa‑-- Means contract between transferor and transferee that transferor transfers to transferee property in question for price subject to condition that if transferor pays back price either within fixed period or at any undefined time, sale would be deemed to have been cancelled and property would be restored to transferor‑There is however conflict as to whether such transaction amounts to mortgage pure and simple or sale. (c) Bai‑ul‑wafa‑Interpretation--‑ No unanimity of opinion among juris‑consults of Islam on interpretation of nature of transaction called Bai‑ul‑wafa‑Courts are at liberty to choose opinion which might be conformable to equities of case and may carry out real intention of parties‑Held, that in circumstances of case transferee was entitled to usufruct and transferor was bound to pay original stipulated price to transferee. (d) Bai‑ul‑wafa‑Usufruct‑Party admitting that usufruct may be deducted out of original stipulated price though on wrong assumption‑Party is to be deemed to have relinquished his right to that extent. (e) Costs‑Difficult questions of law involved in case‑ Parties should be left to bear their own costs‑Civil Procedure Code (V of 1908), S.

35. RAHMAN, C. J.

‑ The facts giving rise to this appeal are as follows. Muhammad Amin, the father of the plaintiff respondents, transferred a garden and a house to one, Dur Muhammad, by way of bai‑ul‑wafa, on the 14th of Safar 1341 Hijri, in lieu of Rs. 6,

000. On the 26th of Jamadi‑ul Awal 1343 Hijri, Dur Muhammad in turn transferred his rights in the property with the consent of Muhammad Amin to Gul Muhammad, father of Mirza Khan appellant. On the 20th of June 1927, Gul Muhammad gave this property on lease for five years to Lehri Mal Setal Dass at Rs. 360 per annum as lease money. Apparently, Lehri Mal Setal Dass were creditors of Gul Muhammad and their successor‑in -interest, Ladhu Mal claimed that the property was given to them by way of payment of interest on the sum due from Gul Muhammad. The last named died about a year after he had leased out the property. The lessees continued in possession even after the first five years' lease period had expired. Mirza Khan was then a minor. The lessees were dispossessed on the 17th of December 1949 and possession of the property was given back to the plaintiff‑respondents by order of the Kalat authorities. Mirza Khan admitted that his father had received lease money for one year only from Lehri Mal Setal Dass and nothing was paid by them for any subsequent period. On the 11th of October 1947, the plaintiffs filed a suit against Mirza Khan and Ladhu Mal for possession of the property, in forma pauperis. There was a reference to a Jirga but eventually the dispute between the present parties, to the exclusion of Ladhu Mal, was referred to the Sharai Court of the Qazi of Sarawan. Before the Qazi the plaintiffs also claimed compensation for loss and destruction of certain parts of the property. As has been mentioned above, they had already received possession of the land and the garden. From the side of Mirza Khan the plea was taken that either the possession should be restored to him or the plaintiffs should be directed to pay him Rs. 6,000. the original sum in lieu of which the bai‑ul‑wafa had been effected. The Qazi assumed in his order dated the 3rd of August 1952 that the bail‑ul‑wafa transaction was really a mortgage and held that the heirs of the original owner were entitled to restoration of the property on condition that they paid Rs. 6,000 to Mirza Khan. However, he deducted Rs. 400 out of this sum on account of the usufruct of the property for one year, which Mirza Khan, admitted his father had received from the lessees. Somewhat inconsistently he held that for the period the property remained on lease without the consent of the original transferor, Mirza Khan's father was entitled to the usufruct though it would be makrooh on his part to retain it. The claim of the plaintiffs with regard to damages for loss was negatived. An appeal was taken to the Wazir‑i‑Muarif by the plaintiffs who on the 27th of January 1954 decided that the plaintiffs were entitled to receive from Mirza Khan the income of the property during the, whole period that they had remained out of possession, and directed that this sum may be ascertained and adjusted towards the mortgage money. The learned Wazir‑i‑Muarif was of the opinion that though the transaction had been described as bai‑ul‑wafa, it had the effect of a mortgage and under Muslim law it was the right of the mortgagee to appropriate the usufruct of the property. There was a further appeal to the District Judge, Kalat, who, by order dated the 13th of April 1954, upheld the Wazir‑i Muarrf's order in substance, subject to certain amendments. The learned District judge held that Dur Muhammad and subsequently Gul Muhammad held the land as surety for the return of the mortgage debt with the condition that they had to render accounts in regard to the net profits and by the time the net profits equalled the mortgage money, the debt would be automatically discharged. He computed the income from the property to be not less than Rs. 500 per year and lie, therefore, considered that Ladhu Mal had received a sufficient return for the unrecovered debt due to him from Gul Muhammad, the father of Mirza Khan, and as a matter of fact he had received more than his due. He, therefore, directed that the land should be released without payment of any money by the plaintiffs. Mirza Khan has appealed to this Court.

2. Under the Dastur‑ul‑Amal Diwani of Kalat pro mulgated in 1952, an appeal lay from the Qazi's judgment to the Wazir‑i‑Muarif, now replaced by the Majlis‑i‑Shura, and a further appeal from the Wazir‑i‑Azam, Kalat whose authority has been substituted by this Court. There is no mention of the District Judge as an appellate Court in this section or anywhere else in this Dastur‑ul‑Amal. The appeal to the District judge, therefore, was entirely misconceived, and from the order of the Wazir‑i‑Muarif, the appeal was competent to this Court. We will consider the case on this footing and ignore the illegal order passed by the District judge as passed without jurisdiction.

3. The case falls to be decided according to the provisions of Muslim Law which had been enforced by a notification issued by the Khan of Kalat with effect from 1937.

4. The first question that arises is as to the nature of the transaction which the original owner entered into, with the first transferee whose rights were then acquired by the father of Mirza Khan. Copies of the two deeds of transfer exist on the file and they expressly refer to the transaction as bai‑ul‑wafa. In this type of transaction, the contract between the parties is to the effect that the transferor sells to the transferee the property in question for a price subject to the condition, that if he pays him back the price either within a fixed period or at any undefined time, the sale would be deemed to have been cancelled and the property would be restored to the transferor. Whether such a transaction amounts to a mortgage pure and simple or a sale, has been the subject of controversy between Muslim Jurists. The appellant's learned counsel contended that it was a sale, on the authority of the opinions expressed in Fatawa‑i‑Qazi Khan, the Hedaya and the Dur‑ul‑Mukhtar. We have referred to the original texts of these authorities and have also taken into consideration the opinion expressed in other books of authority on Muslim Law.

5. In the Rad‑ul‑Mohtar, which is a commentary on the Dur‑ul‑Mukhtar (which in turn was a gloss on the Tanwir‑ul -Absar), at page 341, Volume IV of the book published by the Matbatul Usmania, Istanbul, in 1324‑26 Hijri, two opinions are given. According to one view, such a transaction is already a mortgage and the vendee cannot have the benefit of the usufruct without the consent of the vendor. It is said to be a device invented for the purpose of escaping the vigour of the Quranic injunction against Riba (Usury). The second view comprehends two slightly differing opinions, according to one of which the transaction constitutes a valid sale so that the vendee is entitled to the usufruct but he is never theless subject to the limitation that he cannot sell the property to another person without the consent of the original owner. The condition of the reversion of the property to the original owner on payment of the stipulated price would also be given effect to. According to the second opinion falling under this view, the transaction is not a true sale but a fasid sale. The ownership in the property stand abrogated from both parties but nevertheless takes effect as a sale in respect of some of its incidents including the right of the vendee to the benefit of the usufruct though he is not entitled to sell the property to another without the concurrence of the transferor.

5. In the Behrurraiq which is a commentary on the Kansuridaqaiq, Volume V, at page 7 et seq of the book published from the Maktba‑i‑Shirkat Dar‑ul‑Kutab Al Arabiatul‑Kubra, eight opinions are collected together. The gist of these opinions is that according to one view it is only a mortgage the vendee does not become the owner and he cannot appropriate the usufruct without the consent of the vendor. According to other learned doctors, it is a true sale and bai jaiz so that the vendee is entitled to the use and income of the property. Others hold it to be bai fasid with a binding condition that the property would be returned to the owner on payment of the price which formed the con sideration for the transaction. Some of the jurists have expressed the view that if there is a considerable difference between the value of the property and the stipulated price, the obvious intention of the parties is to create a mortgage, and otherwise a sale. Still another school of thought has pointed out that the transaction is compounded of bai (sale) with respect to the vendee and rehn (mortgage or pawn) with respect to the vendor so that the vendee would be within his rights to get the income of the property. Still others have compared it to a sale under compulsion and described it as bai‑ghair sahi or bai f asid.

6. The Fatawa‑Aul‑anqarvi, Volume I, page 306, published from the Matba‑AI‑A' mratul Sultania Istanbul in 1281 Hijri, takes of these conflicting views and mentions that the opinion of most doctors is that such a transaction has the effect of a mortgage and the vendee is, therefore, not entitled to appropriate the income of the property without the consent of the vendor. The true opinion according to the author, however, is that if the contract uses the word 'bai', it is not a mortgage and if there follows a condition of cancellation in the contract itself, the bai becomes fasid. Even if there is an oral agreement introducing the condition of Bai‑ul‑wafa, it will be Bai‑ul‑jaiz or Bai ghair lazim and the promised condition would be binding.

7. In the dame‑ul‑Fasoolain compiled in 812 Hijri, both views are mentioned, one describing it as rehn and the other as bai fasid.

8. In the Fatawa‑i‑Alamgiri which has been translated into Urdu by Sayyed Amir Ali as Fatawa‑i‑Hindia and published by Nawal Kishore in 1932, at page 533 it is mentioned that in reality such a transaction is a rehn (pawn or mortgage) so that it entails the consequence that the transferee cannot appropriate the income of the property or use it without the permission of the owner,

9. In a book called Al Aqud‑ul‑durriya Fi Tanqihul Fataway‑ul‑Hamidia published from the Bulaq Press, Egypt, second edition, in 1300 Hijri, Volume I, at page 241, the same opinion is expressed as in the Rad‑ul‑Mohtar, namely, that it is in reality a mortgage with all the incidents of such a transaction. This is probably not surprising because the commentator is Sayyed Muhammad Amin, known as Ibn‑i- Abidin, who was also the author of the Rad‑ul‑Mohtar. In Hamilton's Hedaya (Grady's Edition) which has been repub lished by the New Book Co.. Lahore in 1957, at page 320, these conflicting views are also summed up. It is stated that some doctors consider it an invalid sale like a compelled sale, others that it is completely null and void as a sale, one group regards it as in the nature of a pawn but the doctors of Samarcand regard it as a valid and useful sale.

10. Mention has already been made of the opinions expressed in Fatawa‑i‑Qazi Khan and the Dur‑ul‑Mukhtar which appear to uphold the view that it should be regarded as in the nature of a sale so that for the time being, the transferee is vested with the rights of an owner till the Wafa condition is enforced though he cannot further transfer it to another person without the original owner's concurrence.

11. It would, therefore, appear that there is no unanimity of opinion among the juris‑consults of Islam on this question. The Court is, consequently, free to choose any of these opinions which might be conformable to the equities of the and may carry out the real intention of the parties.

12. Copies of the two documents of transfer on the file in this case show that the parties probably intended owner ship rights for the time being to pass to the transferee. The expression occurs in both the deeds and the last words in this expression would seem to indicate that the transferee was to be clothed with the powers of an owner, for the time being. Whether, there fore, the transaction of bai‑ul‑waf a is a valid sale or a fasid sale or it is to be regarded as a mortgage, in the circumstances o of the present case it ought to be held that the original transferor intended the transferee to enjoy the use or income of the property till such time as the transferor was able to get it back on payment of the stipulated price. Whichever view of the nature of the transaction prevails consequently, the facts seem to indicate that the transferee was entitled to the usufruct in this case and the consent of the original owner for this purpose must be presumed to exist.

13. The upshot of this discussion is that the appellant's father and he after him, was entitled to appropriate the produce of the lands in question and the appellant is not accountable for the income to the plaintiffs‑respondents. Its follows, therefore, that the plaintiffs' right to get back the property was subject to the condition that they paid him they original stipulated price. The correct decision should have, been, therefore, to maintain the restoration of the property to the plaintiffs on condition that they aid Rs. 8,000 to Mirza Khan appellant. The latter, however, himself conceded I before the trial Court that Rs. 400 may be deducted out of this sum, though it seems on a wrong assumption. To that G extent, therefore, his claim must be deemed to have been relinquished. We allow this appeal, set aside the order passed by the Wazir‑i‑Muarif and direct that the plaintiff -espondents should pay Rs. 5,600 to the appellant as a condition of retaining possession of the property if they fail to pay this sum to the appellant, the latter would be entitled to restoration of possession of the property. As difficult questions of law were involved in this appeal, we would leave the parties to bear their own costs in this Court. What the rights of Mirza' Khan and Ladhu Mal may be against each other, in respect of the transaction in question, is not a matter which calls for decision in this appeal and they must be left to pursue such remedies against each other as may be open to them under the law. K. M. A. Appeal allowed.