Sayedna Taher Saifuddin in court: recollections

[SBM]

by Sir Thomas Strangman
An excerpt from Indian Courts and Characters
The longest case with which I was ever connected was a suit filed by me as
Advocate-General against the Mullaji, or High Priest of the Dawoodi Borah
Community, and certain of his followers.
The suit related to a mosque in Bombay, popularly known as Chandabhoy's
mosque, and the adjoining tomb of Chandabhoy, a member of the
community who died about a century ago.
During his lifetime Chandabhoy had been an ordinary trader like the
generality of the community: it was not suggested that he had been a
religious teacher or indeed that he was even learned in religion. This much,
however, was certain, that after his death he had come to be regarded as a
saint by the community, who believed that his intercession with the divinity
could be invoked by means of prayers offered at his tomb, and that as a
result of such intercession miracles could be brought to pass. Thus it was
believed that the sick, the old, the lame, and the blind could be cured, and
generally that people could be relieved of their afflictions, both physical and
mental. Offerings in cash and in kind were made at the tomb, some
descriptive of the cures which had taken place, e.g. gold or silver limbs or
eyes. So general and deep-rooted was the belief, that the offerings would
amount to a considerable sum every year. Regular accounts had been kept
of the offerings, from which various, expenses had been annually met, viz.
those relating to the' upkeep of the tomb; the holding of a feast and the
celebration of various ceremonies in honour of the saint; the upkeep of the
mosque and the holding of a feast in the holy month of Ramzan in honour
of Ali, the son-in-law of the Prophet. Large surpluses had resulted from
time to time, and these had been expended partly upon the neighbouring
official residence of the Mullaji and partly in the purchase of landed
property in the vicinity.
The main question in the suit was whether the mosque, the tomb, the
offerings at the tomb, and the investments made from the surplus of
the offerings were charitable in the legal sense.
The suit lasted for about six months. It was remarkable not merely for its
length but for the amazing claims put forward on behalf of the Mullaji, the
like of which have probably never been put forward in a court of law. To
appreciate these claims some account of the community and its religious
tenets must be given.
The Dawoodi Borahs are a clever trading community of Shiah
Mahommedans, mostly descended from Hindu converts. They number
about 300,000, and are mainly concentrated in Guzerat and Bombay. They
are, however, to be found in most of the principal trading centres of India,
East Africa, Burma, and the Malay Peninsula.

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It appears that Ulmustansir, the Eighth Fatimite Khalif of Egypt, regarded
by his followers as the Eighteenth Imam, who reigned about the time of
William the Conqueror, sent a missionary to Yemen in Arabia, not only to
preach the Shiah Faith of the Egyptian Dynasty, but likewise to rule over
the country. The missionary and his successors were known as the Sultanis
or Dais of Yemen. On the death of the Eighteenth Imam a dispute arose
regarding his succession, and the Sect was divided into two, one branch,
now represented by the Khojas, following the elder son, and the other, now
represented by the Borahs, following the younger son as the Imam.
According to the Borah faith, the last revealed Imam was Tyeb, who
succeeded as the Twenty-first Imam in the early part of the twelfth
century, and subsequently went into seclusion. According to their faith,
there has been a regular succession of Imams since the death of Tyeb,
though all subsequent to Tyeb have been in seclusion. The Imam as
representative of the Prophet, and through him the representative of God,
having withdrawn from the world, someone must represent him, and so
ultimately the Deity on earth. The Dai, according to their belief, is that
representative. In the sixteenth century the Dai ceased to be Sultani in
Yemen and migrated to Guzerat. The Mullaji against whom the suit was
filed was the Fifty-first Dai, the line having been carried on by the holder of
the office appointing, during his lifetime, his successor. As Sultanis in
Yemen the Dais no doubt had sovereign powers: it was not claimed that
any of these sovereign powers survived after the migration to India.
Reverting to the suit, the Mullaji, by virtue of his office, was in charge of
the mosque, the tomb, the offerings, and the investments made from
them. The main question was whether he was in such charge as a trustee.
According to the contentions put forward on his behalf, there could be no
trust enforceable in a court of law in regard to these properties, for the
Mullaji as ultimate representative of God on earth was infallible and
immaculate: he was accountable only to the Imam in seclusion, whose
immediate representative he was. Incidentally it was denied that
Chandabhoy was regarded as a saint, and it was contended on this account
and for various other reasons, mainly technical, that neither the tomb nor
the offerings nor their investments could form the subject of a charitable
trust.
The main contention raised a question not only of great importance but of
the greatest interest, viz. whether there could be a trustee of earthly
assets accountable for his trust to no earthly tribunal.
The case created considerable excitement in the community. Not only was
there a challenge in regard to the position of one whom they rightly
regarded with the greatest veneration, but, as was well known, the
proceedings, like most proceedings instituted by the Advocate-General,
owed their inception to private hostility on the part of those who had put
him in motion. In this case matters had progressed to such an extent that
the Mullaji had excommunicated those who were behind me. Naturally
enough, with feeling running so high and the vast bulk of the community
solidly behind the Mullaji, it was difficult for me to obtain evidence, either
oral or documentary, in support of my case. Although from first to last the

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Mullaji kept his people in strict check, it required considerable courage for
any member of the community, whatever his individual beliefs, to go into
the box and face a Court crowded with the more fervent element of the
Mullaji's supporters.
A few did come forward, including a religious expert, but when I closed my
case I felt there were so many gaps that it was doubtful whether, even if
the evidence stood alone and unchallenged, it would suffice for a decree in
my favour. On the main point on which I had called the expert he had,
either through nervousness or misunderstanding, given an answer dead
against me.
The Mullaji and his supporters were, however, all anxious to give evidence.
The defendants' Counsel were reluctant to take the risk of leaving the
record as it stood: the Mullaji and many of his principal supporters, a vast
host, went into the box. My case was proved with their aid and that of a
number of documents which began to filter into the hands of my solicitors.
The Mullaji himself was an early witness. I felt convinced from the first that
there must be some other grounds for the defence of non-accountability
besides that already indicated.
The defendants' first witness had foreshadowed that there were.
Accordingly the method of attack when the Mullaji came to be cross-
examined was to ascertain these reasons with precision and then to
destroy their foundations. Some seven hours were required to obtain the
reasons in full. Owing no doubt to a difference in viewpoint, it is somewhat
difficult to extract information from an ecclesiastic on matters religious,
particularly if account be taken of a certain amount of not unnatural
suspicion when the questions are put in cross-examination. At the end of
seven hours the position adopted was reasonably clear. Shortly stated, it
amounted to this: that the Mullaji by virtue of his office was the
owner of the mind, body, spirit, and property of every Dawoodi
Borah, hence it followed that there could be no trust, private or charitable,
in favour of Dawoodi Borahs. If, for example, property were settled for the
upkeep of a hospital or school for Dawoodi Borahs, the Mullaji, as owner of
Dawoodi Borah property, could change the object at will: indeed he could
throw the property into the sea if it was physically capable of being so
thrown. His position had attained a high pinnacle, there was nothing
to compare with it throughout the world.
Then came the fall. His father, when Forty-ninth Dai, had had a suit filed
against him in Surat, and a decree had been passed in favour of the
plaintiff, who was a Dawoodi Borah priest. In his pleadings the Dai had
disclaimed all interest in the property in the suit. After the decree had been
passed the priest had actually applied, though unsuccessfully, for the
imprisonment of the Dai in execution of the decree. The priest was the
recipient of a small allowance from the funds of the administration: he
continued to draw it up to the time of his death.
It was clear from these proceedings that neither the priest nor the Dai had
considered that the Dai was the owner of all Borah property. The priest

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could not have thought so, otherwise he could never have filed the suit,
much less sought to put the Dai in jail in execution of the decree. The Dai
could not have thought so, otherwise he would have pleaded the exact
contrary to what he did, and would no doubt have marked his displeasure
at the sacrilegious conduct of the priest by stopping his allowance. The
Mullaji was, of course, unable to reconcile these happenings with
his claims.
Then there were many suits in regard to Dawoodi Borah Charities in the
High Court. Had the Mullaji's contentions been correct he should have been
a party to represent such charities. Yet in no case had he been or had it
been suggested that he should be a party.
Lastly, no instance could be adduced not only of the exercise of any such
claims but of their ever having been previously put forward.
The case proceeded-numerous supporters entered the box. All testified to
the correctness of the claim put forward on behalf of the Mullaji: none, not
even a lawyer, was able to meet the difficulties which had been suggested.
Generally they merely served to accentuate the impossibility of the attitude
adopted. Incidentally, they proved that Chandabhoy was regarded as a
saint, and generally filled in the gaps. A religious expert was called. His
proof, I believe, was taken on the lines that everything said by my religious
expert was wrong, anyway, that was the manner in which his evidence was
given. He thus corrected the erroneous answer my own witness had given
against me.
In the result the Court held in favour of the charitable character of
the properties.
With regard to the defence that there could be no trust on the ground that
the Mullaji was infallible and immaculate, the Court held that however
unthinkable it might be that the Mullaji might commit a breach of trust, the
prohibition, like the prohibitions of the Criminal Law, still subsisted: such
prohibitions must be of general application: they must apply equally to the
good and bad alike, the likelihood of their being obeyed or disobeyed being
irrelevant.
Looking back on the proceedings I think what impressed me the most,
even more than the extravagance of the claims, was the personality of the
Mullaji, a frail-looking figure possessed nevertheless of an iron will, great
determination, and organising capacity. At the time he assumed office the
administration must have been extremely slack. The Surat litigation a few
years before gave some indication of what it had come to. Add to the
difficulties with which he was faced the fact that generally speaking
religious domination is on the wane: ecclesiastical claims are far more
likely to be carefully scrutinised before acceptance now than they were in
the past. Yet he managed in a very few years not only to pull the
administration together but to obtain a hold upon his followers greater
perhaps than that of any of his predecessors. Two matters forcibly
illustrated the hold he had obtained - one, the testimony to his extreme
claims given by his followers, who one and all gladly stated that he

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was the owner of all their property, that in effect they were his
slaves; the other, the absence of any serious untoward incident during
the trial in spite of the feeling that had been aroused. In fact, so far as I
know, only one minor assault took place and that upon a poet.
Finally, I should like to add this testimony myself, and that is, firstly, that
in spite of the seeming absurdity - seeming that is to any person not a
member of the community - I am convinced that the Mullaji himself really
believed in his claims; and, secondly, that believing in such claims he
exercised the most commendable restraint towards those who had been
the cause of the challenge offered to them.

‘I do not feel obliged to believe that same
God who has endowed us with sense,
reason and intellect has intended us to
forego their use.’ - Galileo Galilei

[emphasis added]

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Wikipedia, the free encyclopedia gives the background of this case as follows :
The Chandabhoy Galla Case is a celebrated case in the history of religion where a human being is
challenged for representing God on earth being infallible and immaculate. The case was filed during
British rule in India by Sir Thomas Strangman, the Advocate General of Mumbai at the behest of
Adamjee Pirbhai family members against Dawoodi Bohra 51st Dai Syedna Taher Saifuddin . The case
was filed in 1917AD and decided in 1921AD. The claim was based on the belief of Imam as
representative of the Prophet, and through him the representative of God, having withdrawn from the
world, someone must represent him, and so ultimately the Deity on earth. The Dai, according to
community religious belief, is that representative. The ownership of the Chandabhoy ‘Galla’( box kept
for religious offerings) was challenged on the plea of improper succession. Issues raised, however, were
of far greater significance than the properties included in the case. The ownership was decided in favor
of Syedna, arguing succession proper. [1][2]
The case was also historic in the sense that similar case was put up in the court of Mughal emperor
Akbar , in year 1591AD, where representation was challenged on the legal point of proper accountability
and proper succession resulting in royal farman(order) issued in favor of 27th Dai Dawood Bin
Qutubshah . [3] In 2014, similar case moved to the high court in Mumbai to decide, valid succession of
53rd Syedna (Dai) of the Dawoodi Bohra community. [4] Sir Thomas Strangman observes in his book
"Indian Courts and Characters", the case is remarkable not only for its length, but for the amazing claims
put forward on behalf of the 'Mullaji'(Syedna Taher), the like of which have never been put forward in
any Court of Law. [5]
In the Chandabhoy Galla Case, It was contended that 47th Dai Syedna Abdul Qadir Najmuddin was not
validly appointed as Dai al Mutlaq. If this contention was upheld by the court, then the position of all
subsequent Dai al Mutlaqs would be put into question. Syedna Taher Saifuddin 's claim to be the Dai al

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Mutlaq was dependent upon the court deciding that Syedna Najmuddin was validly appointed. The court
upheld the succession of Taher Saifuddin proper. Considering all the circumstances, the judge held that
all the properties in respect of which the declaration was sought were devoted to charitable purposes and
that the Mullaji(Syedna Taher) was a trustee thereof. [6]
During the proceeding of the case, the remark of British judge Mr. Justice Marten is important on
clarifying religious trust. The judge observed that "high-ranking people could be trusted not to commit
criminal breach of trust; but that did not mean that they were beyond the pale of the law. For example,
His Grace the Archbishop of Canterbury, could not conceivably commit a criminal offence; but he was
nevertheless subject to the criminal law, and this fact involved no slur. So, too, in theory the Mullaji
Saheb was amenable to the criminal and civil law of this country, though it was unthinkable that he
would commit any offence. But the existence of this civil restraint is no more a slur upon an honest
trustee, than the existence of criminal restraint is upon an honest citizen. The test of a trust is not
whether the alleged trustee can ever commit a breach of trust, which is what the defendants' contention
in effect amounts to." [7]
During testimony of Syedna Taher, he clarified about knowledge classes of 'Zahir', 'Tavil' and, 'Hakikat'
present in community. First two are known to many but third one namely 'Hakikat' content some
religious truths known to very few. Some of which are known to only 2 or 3 persons in community, and
there is also knowledge which is available with Dai only, and he gets it from his predecessor Dai.

[Biradar]

A much better formatted version is already posted on this website. See below:

http://www.dawoodi-bohras.com/news/83/9 ... ollections