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Regular Second Appeal No. 15 of 1957, decided on 9th August 1957.
‑Order without jurisdiction passed by Court is illegal and should be ignored.
‑-- 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.
‑ 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.
‑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.
‑Difficult questions of law involved in case‑ Parties should be left to bear their own costs‑Civil Procedure Code (V of 1908), S. 35.
Muhammad Arif and Muhammad Fazil for Appellant.
Muhammad Ahmed Mirza for Respondents.
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