Sharīʻah Compatibility of Laws Governing Contracts of Mortgage and Pledge in Pakistan-Analytical Study in the Light of Sharīʻah and Law

Abstract

This research article aims to investigate the Sharīʻah compatibility of laws governing contracts of mortgage and pledge in Pakistan. This research paper endeavors to conduct analytical study of statutory law of Pakistan on contracts of mortgage and pledge in the light of Sharīʻah and law. Sharīʻah appraisal of three core issues, that are, Sharīʻah issues in kinds of mortgage, legal status of mortgaged property and right of mortgagee to get benefit from mortgaged property, have been conducted. This paper finds that stern Sharīʻah issues are present in all kinds of mortgage except mortgage by deposit of title deeds which cannot be overlooked and un-noticed. Therefore, it is suggested that section 58 of the Transfer of Property Act, 1882 must be amended and different kinds of mortgage available and practiced must be barred by statutory law being repugnant to Sharīʻah. Moreover, this study concludes that mortgaged property is a trust, amānah, in the hands of mortgagee. Therefore, only mortgagor is allowed to get benefit from mortgaged property.