Law:

Section:

(a) Transfer of Property Act (IV of 1882)------S.60---Limitation Act (IX of 1908), S.28---Specific Relief Act (1 of 1877), S.42---Constitution of Pakistan (1973), Art.185(3)---Redemption of mortgage---Limitation---Suit for declaration by the mortgagees to the effect that mortgagors not having redeemed the property within the prescribed period of limitation, the mortgagees by such failure of mortgagors and influx of time had become owners of the land under mortgage which admittedly otherwise belonged to the mortgagors---Suit was decreed against the mortgagors and revision up to High Court met the same fate---Leave to appeal was granted to the petitioners (mortgagors) to consider the contentions that burden of proof remaining always on the plaintiffs in such a case, the expiry of period of 60 years from the time of repayment had not been established; that having now been held that S.28, Limitation Act, 1908, was repugnant to the Injunctions of Islam there was no reason why the limitation regarding the law of mortgages should be. kept intact notwithstanding the fact that the same was also against the Injunction of Islam and that if the law which was repugnant to the Injunction of Islam could not be considered as ineffective unless so declared and held by the competent forum, and would continue to operate till the needful was done in that behalf, case having been launched by the side who under the Islamic principles were in the wrong and were making immoral claim, they should have been denied the relief claimed under S.42 of the Specific Relief Act, 1877 as in the said provision the discretion allowed to the Court had not only been visualised in the use of word "may" but in addition in order to emphasize the element of discretion and its importance in S.42 of the Specific Relief Act, 1877 the expression "in its discretion" has also been used and if in any case like the present one when the grant of relief to the plaintiffs side would be clearly in the negation of the Injunctions of Islam, on account of repugnancy, there would be no other case better qualified for denial of the relief in the discretion of the Court under S.42, Specific Relief Act, 1877. (b)…

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