Decoloniality and Mortgages: A Legal Discourse in Pakistan’s Perspective

الملخص

This article argues that, after independence, Pakistan inherited the legal system of British India; based on the principles of common law having least concerned with customary practices of subcontinent as well as personal laws of indigenous communities; erected to strengthen the ongoing colonization of subcontinent. Three quarters of a century has been passed since independence but still some of very important statutes are from colonial era; the “Transfer of Property Act, (TPA) 1882” is one of them, based on English principles of real property, deals with creation and disposition of rights and interests over immoveable property by act of individuals. TPA, 1882 provides six kinds of mortgages, most of them were those originated and practised in United Kingdom during eighteenth and nineteenth centuries or even before; customary mortgages of subcontinent were ignored while drafting TPA, 1882. Pakistan still has more than one hundred- and forty-years old kinds of mortgages which are also out of practise in the United Kingdom now. This article analyzes two kinds of mortgages namely “mortgage by deposit of title deeds” and “anomalous mortgage” through the lens of decoloniality. The article suggests that mortgages may be modernized and decolonized through legislative amendments.