Borhras and reform
Borhras and reform
The clergy and the courts
It is amazing that the clergy of a microscopic sectarian community should have fought numerous legal battles with its followers. These legal battles reveal the clergy's sense of insecurity, its greed and its desperation to find legal sanction for its astounding claims to absolute authority.
Some of these battles were fought ferociously from court to court decade after decade. Nothing could better illustrate the pettiness of Bohra clergy than the lawsuit No. 7074, known as Buxamusa Dadhi case, filed against the 51st Sayedna, late Dr. Taher Saifuddin Saheb in the court of small causes at Bombay in 1941.
Sayedna Taher Saifuddin refused to grant permission for the nikaah of Buxamusa's son, Idris because Idris did not have a beard! The permission for nikaah was granted when the helpless father agreed to the demand of the Sayedna Saheb to deposit rupees two hundred as guarantee money that his son would grow a beard after marriage! The son grew a beard but the money was not refunded even after repeated pleas.
Why was the money not refunded? The pretexts are amusing. "Bhai Idris grows a beard but it appears to be a little bit trimmed"! (Exhibit K). Idris's brother Mansur should also grow a beard and pledge to do so ( Ex. 2 and 3). "As the beard was not maintained according to the Holy Shariat, hence the said amount was not refunded".
The nikaah of the present writer and those of his numerous contemporaries were performed by the priestly class in the Fifties though we were all beardless and remained beardless. "The object of the defendant", the learned Judge said, "appears to be not so much to enforce any particular religious injunction as pretended by the defendant as to keep them under his domination". To conclude, the learned judge decreed, "I would hence on the findings recorded, decree the plaintiff's claim with costs and rupees thirty professional costs against the defendant".
About Sayedna Saheb's claim to the sole right to perform the nikaah of the Dawoodi Bohras, the learned judge observed: "No text from any religious book nor any authority from any of the recognized text books on Mohammedan Law was cited to me in support of the defendant's extreme right that his permission was necessary or obligatory as a sine qua non for the validity of the marriage effected by a Dawoodi Bohra without any such permission of the defendant was illegal or invalid in law as urged by the defendant."
Further, the learned judge remarked significantly, "Moreover, I find that when as occasion did arise for testing such a highly pretentious calim of the defendant in a regular suit in the High Court, the defendant allowed a decree to be passed against him in invitem that the marriage of the Dawoodi Bohra in that suit though performed without his permission was valid according to the law applicable to the Dawoodi Bohras"(empahsis mine). (See decree in High Court Suit No. 548 of 1938).
Out of court settlement
The suit alluded above by the learned judge is the famous Abde-Fatema case. Here again on the same pretext, Sayedna Saheb refused to perform the nikaah. The real reason was, however, the support extended by groom's father, Seth Amiruddin Salehbhai Taiyebji to the agitation launched by a section of enlightened Bohras for the withdrawal of the exemption granted by the Bombay government to Sayedna Saheb from the application to Bohras of the Mussalman Wakf Act of 1923. After waiting in vain for two years for permission, the nikaah of Abdeali and Fatema, daughter of Abdeali Rajabali Chibawala, was solemnized by a Muslim Qazi.
This defiance infuriated the Bohras clergy. The then Aamil of Bombay late Salehbhai Saheb Safiyuddin, served written notice on both husband and wife that the nikaah was invalid and they were in effect living in sin. The late Sayedna Saheb was then away on Haj pilgrimage but upheld the contents of the notice on his return. The notice was addressed to the bride as Miss Fatema and not as Mrs. Fatema Abdeali.
The aggrieved couple filed a defamation suit against Sayedna Saheb in the Bombay High Court. Inspite of engaging the best legal brains, Sayedna Saheb was cornered as the nikaah was performed as per Islamic Shariat. The plaintiffs counsel, Mr. Setalbad, submitted that as marriage in Islam is contractual, no priest's permission is necessary for its solemnization.
As Sayedna Saheb could not adduce any evidence in support of his claim that his permission was either necessary or obligatory, and to escape the consequences of his ill-conceived action, he arrived at an out of court compromise settlement, recognizing the nikaah as valid according to the tenets and beliefs of Dawoodi Bohras. He has also to withdraw all allegations made in the letters and notice served on the couple. So much then for the infallibility of Sayedna Saheb.
Malegaon mosque case
The Malegaon Mosque case is significant because the court upheld the right of entry and worship in the mosque under the control of Sayedna Saheb of those Dawoodi Bohras who do not accept him as a Dai-ul-Mutlaq but only as a Nazim Dai. The validity of the nomination of the 47th Dai and his successors has been a contentious issue now for more than 150 years not only among a section of learned Ulemmas but also among the family members of Sayedna Saheb.
Though the Bohra reform movement, of which the present writer is an advocate, is neither concerned nor involved in this dispute and accepts the present Sayedna Saheb as Dai-ul Mutlaq, the advocates and adherents of the reform movement are not only denied entry into mosques but also beaten up and thrown out of mosques even during the holy month of Ramzan and at the hour of prayer. Even then the Bohra priesthood brazenly claims to be the rightful depository of the true Islamic spirit.
The Malegaon Mosque case filed in 1958 and moving between lower and higher courts, was finally disposed of in December 1967. Sayedna Saheb's followers were not only restrained from obstructing entry in the mosque of members of anti-Kothar party, but they were also restrained from pronouncing curses on them in the course of recitation of prayers (duas) like, inllaah and wala niyyaten.
This business of pronouncing curses (laanats) has itself become a curse. The Sunni-Bohra riots in Bombay in August, 1988 in the wake of Sayedna Mohammed Burhanuddin's publicly pronouncing curses on the first three Caliphs of Islam is even now a nightmarish memory. When will the Bohra clergy learn to be prudent and charitable? It was only the intervention of Mr. Sharad Pawar the then chief Minister of Maharashtra, that saved Sayedna Saheb from being publicly prosecuted in a court of law. Sayedna Saheb however had to tender a public apology telecast over Bombay Doordarshan for his misdemeanor. Once again infallible indeed!
Two historic cases
It would b an injustice to describe briefly the two historic and classic cases filed against the 51st Sayedna Saheb. In both Seth Chandabhai Galla case and Burhanpur Durgah case, hundreds of witnesses were examined and a huge mass of documentary evidence filed as exhibits.
In the Seth Chandabhai Galla case, the cross-examination of the late Sayedna Saheb itself lasted for nearly sixteen days in the court and occupies 207 pages of appeal record book. Before the cross-examination of Sayedna Saheb was to begin on 5th October 1920, an attempt was made on his behalf to arrive at a settlement with the sons of Sir Adamjee Peerbhoy "Rafiuddin", meaning father of the community Ð a title conferred on him by the 50th Sayedna Saheb, Sayedna Addullah Badruddin.
The negotiations continued on 6th October 1920 also but failed, and the cross-examination of the late 51st Sayedna Taher Saifuddin began on 8th October 1920 in the court and ended on 22nd November 1920. Seth Chandabhai Galla case, suit no. 941 was filed in 1917 in the High Court of judicature at Bombay by the Advocate General and was decided against Sayedna Saheb vide judgement of Justice Marten on 19th March 1921.
The Burhanpur Durgah case is a remarkable instance of the fierce determination with which the case was contested by both sides. The original suit No. 25 was filed in the court of 1st Class, Subordinate Judge Burhanpur in 1925. Judgement against Sayedna Saheb was delivered on Friday 2nd January 1931 by G.S. Kher, 1st Class Additional Subordinate Judge, Burhanpur.
Sayedna Saheb went into appeal against Hon. Mr. Kher's judgement in the court of the Honourable Judicial Commissioner, Central Provinces and Berar, Nagpur, vide appeal No. 52 filed on 9th April 1931. The Judicial commissioner reversed the judgement and decree of Additional Subordinate Judge, Burhanpur. For Sayedna Saheb it was a sweet moment to savour.
However it was short lived. The original plaintiffs went into appeal in the Privy Council, London, vide appeal No. 79. The appeal was disposed of in 1947. "Their Lordship will therefore humbly advise his Majesty that the decree of the court of the Judicial Commissioner be set aside and that the decree of the Additional Subordinate Judge be reinstated..."
Some minor modifications were suggested. Thus after 22 years, the Burhanpur Durgah case ended. The issues involved in this case were so wide-ranging that it could be said to be the most historic case in the community. We shall try to discuss these issues after dealing with the issues involved in the Seth Chandabhai Galla case.
Seth Chandabahi Galla case
The background to Seth Chandabhai Galla case is interesting. Its origins lie in the jealousies aroused in the late 51st Sayedna Taher Saifuddin by the pre-eminence enjoyed within the community by the wealthy and highly philanthropic family of Sir Adamjee Peerbhoy. It appears that there was no love lost between the sons of Sir Adamjee Peerbhoy and the 51st Sayedna Saheb after the demise in quick succession of both the 50th Sayedna Saheb and Sir Adamjee.
This is borne out by the efforts of the 51st Sayedna Saheb to nullify the attempts made by the sons of Sir Adamjee to secure for the Bohras of Bhopal just compensation for the losses suffered by them following Sunni-Bohras riots in Bhopal in December 1914. Some sort of reconciliation was effected between them but it did not last long. The bitterness persisted and culminated in the filing of the Seth Chandabhai Galla case and the excommunication of the sons of Sir Adamjee Peerbhoy by the 51st Sayedna Saheb.
The cash offerings at the mausoleum of Seth Chandabhai Galla were managed as a charitable trust by private individuals without any interference from the Bohra priesthood. These cash offerings were regularly spent on the maintenance of the mausoleum, the adjoining mosque and on the annual celebration of the Urs of Seth Chandabhai Galla who was esteemed as a saint both by Bohras and non-Bohras. The surpluses, if any, were spent on the welfare of the poor and the needy.
However, during the period of the 50th Sayedna Saheb and at the beginning of the period of the 51st Sayedna Saheb, part of the offering and income of Galla (cash box) were diverted towards purchase of land and to partly finance the construction thereon of what is now known as Badri Mahal, erstwhile residence of the 51st Sayedna Saheb before he shifted to the present palatial residence known as Saifee Mahal.
Notice was served by the sons of Sir Adamjee on the trustees and Sayedna Saheb to render account of the trust income and to confirm how much of the income was spent on the acquisition and construction of Badri Mahal. Sayedna Saheb refused to render account, claiming that Seth Chandabhai was not a saint, that he was not a trustee but the sole owner of not only the offerings but also of all the properties of not only of the community but also of the properties of all Dawoodi Bohras, their mind, soul and body. That he was accountable to the Imam in seclusion and to God only.
Thus began the titanic tussle in which the sons of Sir Adamjee Peerbhoy displaying a remarkable crusading zeal diverted all their considerable financial resources to meet the expenses of the suit which ran into millions. As the advocate general of Bombay was then looking after charitable trusts, he instituted the case against the managing trustees and Sayedna Saheb.
The issue involved was simple. Whether the cash offerings at the mausoleum were charitable in nature, to be spent on the welfare of the community by Sayedna Saheb as the trustee and whether he was accountable in law. However, for Sayedna Saheb the stakes were high. He was claiming to be the sole owner of everything and to do as he pleased. He therefore, kept on complicating the issues.
At one stage of the proceedings he not only claimed to be the sole representative of God on earth, but in effect God, a claim prudently withdrawn later. He claimed that though he may not have the rank of the Holy Prophet (peace be on him), he had the same power as the Holy Prophet. He claimed to be infallible. He claimed that his followers were bound hand and foot to him by the oath of allegiance (Misaaq) and to obey implicitly all his commands. By virtue of his rank as Dai-ul-Mutlaq, he claimed to be the owner of the properties of his followers and to deal with them as he pleased. It is pertinent to note here that the 51st Sayedna Saheb was only 28 years old when he succeeded to the Gaddi and just 30 years old at the time of the suit.
Justice Marten's judgement, on the recorded evidences of both the plaintiffs' and defendants' witnesses not only demolishes these claims of Sayedna Saheb but also exposes the various prevarication's of the Bohra priesthood. It is an irony of fate that a supposedly religious but in reality a materialistic and predominantly trading community has neither time, inclination nor an intellectual and critical frame of mind to study and understand its religious beliefs and its history. A slave to its own pettiness, it has become a bonded slave of its worldly clergy and is likely to remain so at least in the foreseeable future.Sayedna
Saheb had claimed that if he was to be considered a trustee and not malik (owner) and therefore accountable, the Mohammedan religion would come to an end. Commenting on certain documents exhibited in the suit Justice Marten said: "Ex. E.N. 5 is dated 14th October 1919, and recites that the Mullaji was in possession of the property as trustee or manager of the religious charity or wakf created by Vazirbai, the trusts whereof were or purported to be set out..... in addition to those documents, the Mullaji signed a letter of 2nd Sept. 1916 formally setting out his claim as managing trustee under the trust deed......Accordingly in the proceedings before the special collector, he is described as managing trustee of wakf created by Vazirbai".
Continuing further, Justice Marten observed: "That these documents seriously affect the defendants case is obvious. The explanation given is that they were all a mistake and were not understood by his predecessors. But these documents were of a most formal character and the Mullaji was claiming to be paid money on the basis that they were correct. In Ex. E.N. 5 he obtained a conveyance of land on that basis and the Board in their letters (Ex. E. R.) had asked for Mullaji's execution to be attested by a Solicitor, which in fact was done. The onus, therefore, lied heavily on the defendants to prove that the document were not understood. I have carefully considered the evidence in support of the explanation tendered to me, but to my mind it fails to discharge that on us".
On the one hand Sayedna Saheb thunders that Islam would come to an end if he is considered a trustee and on the other derives benefits for himself as a managing trustee! On the one hand he claims to be "infallible" and on the other says that these documents were all a mistake and not understood by him. So much then for the trustworthiness of Sayedna Saheb's words and deeds.
About Sayedna Saheb's claim to the ownership of the properties, mind, soul and body of his followers, Justice Marten said : "The principal religious books in this community are:
- The Koran
- The Hadees or saying and doings of the Holy Prophet Mohammed
- The Najhul Balagh or sayings and doings of Ali.
In none of these is the claim which the Mullaji now makes specifically put forward. His counsel admitted that he had no religious authority to show in precise words that the Mullaji could take away trust property under a deed, will or schemeÉ.. I have been through all the other religious writings which were cited but it is impracticable to do this in a judgement. I have given them my consideration, but in the result I am not satisfied that they fairly substantiate the claims of the Mullaji to ownership of the minds and properties of the followers. I mean as a matter of religious belief (emphasis mine).
Now for the coup-de-grace. Justice Marten pertinently observes : "I should mention an extremely important fact, viz, that the defendants cannot produce a single instance of these extreme claims having been exercised by any Mullaji Saheb prior to the present suit. They cannot even show that these claims have even been put forward prior this suit" (emphasis mine).
To substantiate his observation, Justice Marten refers to an earlier suit filed in Surat in 1892 against the 49th Dai ul Mutlaq by his own Aamil (suit no. 285 of 1892). The Aamil had filed the suit to claim Rs 53,680 which he had advanced to the 49th Dai. The Aamil had even prayed for imprisoning the Mullaji Saheb.
Commenting on this case, Justice Marten observes: "Not a word was then said by the Dai that he was the master of the priest's (plaintiff's) body and soul and the owner of the priest's property. And if ever there was an occasion to raise such a plea, surely it would be when this follower of his proposed to put the then Mullaji Saheb into prison. It is, I think to the credit of the then Dai that he did not even excommunicate this audacious priest."
What a world of difference a century has made! The Bohras are now so terror-stricken by the scourge of social boycott that they shiver in their sayas to even whisper a word of dissent.
Disposing of late Sayedna Saheb's claim to non-accountability and infallibility, Justice Marten said: "The claim to non-accountability is all the more surprising, because in effect it involves the infallibility of some 266 Aamils and numerous other managers and officers under the Mullaji. No man can manage personally 648 mosques to say nothing of 69 gallas (now both have multiplied manifold). The Mullaji must, therefore, act by agents. But on one suggests that they are infallible. (Nowadays they all act and are treated as such). If any such agent is corrupt or negligent, why should the community be without a remedy against him?".
To conclude by reverting to the original issue, whether the cash offerings at the mausoleum were charitable and whether Sayedna Saheb was a trustee thereof, Justice Marten said: "Let me once more go back to first principles. One essential principle of a trust is that it should be imperative. If a man can carry out or not carry out the alleged trust just as he likes (emphasis mine) then there is no trust.
"In other words if he is entitled to put the money into his own pocket, he is not a trustee known to the law .... That brings me to the important point as to the intention of the donors on which great stress was laid by the defendants. It is not disputed that if the donors want to make a personal gift to the Mullaji, they can do so. The gifts known as salaam are an instance of this. But the Galla offering seems to me to stand on a totally different footing.
"After giving my best consideration to the evidence and arguments, I am of opinion that it is imperative on the Mullaji Saheb to distribute these galla offerings for the benefit of the community and that he is trustee in respect thereof(emphasis mine)."
The plaintiff won the case and Sayedna Saheb lost. But he misled the community into celebrating his defeat as fath-e-mubin (manifest victory)!
Among the testimony of all witnesses, the testimony of the late 51st Sayedna Saheb is naturally the most important, fascinating and absorbing. Several times, he had to resort to devious devices, contradict himself, retract his admissions to defend the indefensible! To cite just one instance among many: On the question of riba (interest), inspite of resorting to many subterfuges, Sayedna Saheb could not escape admitting that he and his predecessor Dais, both borrowed and lent money on interest, though, according to him, interest is haraam (irreligious and immoral) in Islam!
Several times he contradicted himself on the question whether there could be saints in his community because he had denied Seth Chandabhai as being a saint. There are several more such instances. The English translation of his testimony is available with us should any reader of this essay be interested in it.
Once bitten, twice shy. This adage may apply to common prudent men. But as Justice Arnold observed more than a century ago, "The spiritual heads of communities are not generally remarkable for the modesty with which they state their pretensions".
Having lost the Seth Chandabhai Galla case in 1921, the late 51st Sayedna Saheb should have been wary in contesting the Burhanpur Dargah case in 1925 as one of the defendants. But he was a young determined man full of extraordinary zeal. He was bent upon establishing his absolute authority and control over his followers and the community's properties and to throttle any dissent or debate within the community about his position and power.
Burhanpur Dargah case
As mentioned earlier the gamut of issues which incidentally arose during the course of pleadings in the Burhanpur Dargah case is, indeed, all - comprehensive.
- From the validity of the appointment of the 47th Sayedna Saheb to the interpretation of doctrine of Inkitah
- From the essential conditions of being a Dawoodi Bohra to their rights to enjoy the community's common properties
- From the true text of Misaaq(oath of allegiance) to whom the misaaq is due
- From the powers of sayedna Saheb to restraints within which these powers could be exercised
- Whether sayedna Saheb has the power to excommunicate Dawoodi Bohras who honestly do not recognize him as Dai-ul-Mutlaq to the validity and consequences of such excommunications
- Whether Sayedna SahebÕs power to excommunicate is absolute or not whether Sayedna Saheb's all commands are to be considered as principles of religion or not
- Whether an alleged or actual breach of Misaaq automatically excludes a Dawoodi Bohra from the fold of the community
These issues are almost ad-infinitum in their scope. The effect of the truth or otherwise of the findings on these various issues on the community is almost frightening to contemplate in its consequences.
Though the Seth Chandabhai Galla case found its echo in the Dargah case, its origins are rooted in the Bohra priesthood's determination to protect its vested interests. It is an accepted axiom that an ignorant and ill-informed community is easy to mislead, control, dominate and exploit.
The Bohra priesthood has therefore, never encouraged or taken kindly to the spread of education in the community. It rightly perceives the spread of education, secular or religious as a serious threat to its vested interests. In the sincere desire of some well-meaning Bohras to promote the spread of education in the community and the Bohra PriesthoodÕs determined efforts to throttle these efforts, lie the origins of the famous Burhanpur Dargah case.
It would be instructive to quote at length here from the judgement of Hon. G.S. Kher as to the origin of the suit: "There is a school by name Hakimia Coronation High School in this town. It was started in the year 1901 as a Madresa which was raised to a Middle School in February 1910.
"The then Sayedna Abdulla Badruddin Saheb did not like this (emphasis mine) and therefore in April 1910 he imposed certain terms on the managing committee, one of which was that his local Aamil was to supervise the tuition given in the school and to close it at his discretion. A little later certain more conditions were sought to be imposed striking at the very root of the institution. The school committee rejected those terms as detrimental to the aims and objects of the institution.
"The result was that the vilification of the institution by the Mullaji Saheb and his Aamil increased causing great harm to the school ... When the present defendant Mullaji Saheb came to Gaddi in January 1915, fresh overtures were made to him and ultimately an agreement was arrived at between him and the Hakimia school authorities and the school committee appears to have carried out their part of the agreement, but the same could not be said of the defendant Mullaji Saheb( emphasis Mine).
"The result was that strong differences crept in between the defendant Mullaji Saheb and the school managing committee and the latter in spite of the strong opposition by the Mullaji Saheb, decided to get the Hakima school society registered and accepted government grant for their building."
Now all hell broke loose. "The staunch followers of Mullaji Saheb withdrew themselves from the committee". As the father of Mr. Asgarali, a pleader had invited Hasan Ali, editor Gulzar Magazine, an excommunicated person, to his sonÕs wedding, he was fined by the local Aamil. A case of extortion was filed against the Aamil.
"The Aamil retorted by excommunicating the plaintiff (brother of Mr. Asgarali pleader), his father, K.B. Fakhruddin, Mr. Habibullah, pleader and Mr. Imran Ali, pleader (the latter three being the members of the managing committee and the life and soul of the Hakimia School) in August 1917".
In Bombay parellely sons of Sir Adamjee Peerbhoy and others who took initiative in the Seth Chandabhai Galla case were also excommunicated in the same year. The excommunicated persons were prevented on several occasions from entering the mausolea of the three Bohra saints in Burhanpur and also adjoining mosque by the defendants.
Criminal cases ensued and the defendants were restrained on various occasions but the mischief continued, though magisterial orders maintained the rights of the plaintiff and party. This compelled the plaintiff to file the suit in October 1925.
However according to defendants own witness Moulvi Shaikh Dawood Shaikh Yusufali, Hakimia Coronation High School "was the prime cause of this suit". Knowledge which institutions like schools, colleges and universities disseminate is anathema for the Bohra clergy. It is, therefore, not surprising that there is hardly any such institution in the community worth the name even today.
As it often happens, it is, therefore, not surprising that as events begin to unfold in Burhanpur, secondary issues come to the fore and the real issues disappears backstage. The establishments and management of Hakimia Coronation High School was the real bone of contention between the parties.
The dispute over the school led to excommunications, this in turn to harassment and prevention, giving rise to the apparent cause as to whether the plaintiff and those whom he represents, as Dawoodi Bohras, had right to enter the mausolea, worship in the mosque and to bury their dead in the Bohra graveyard, irrespective of the fact whether they acknowledged 51st Sayedna Saheb as Dai-ul-Mutlaq or not.
The plaintiff and his party maintained that in any case this issue was quite irrelevant "for the purpose of this suit as the rights claimed by him are given to him by the law of land and the defendant Mullaji Saab in any capacity or any of his servants or agents had or have no right to deprive him and his party of any of the rights in suit".
It was actually Sayedna Saheb who raised this issue, claiming that as the plaintiff and those whom he purports to represent, do not accept him as Dai-ul-Mutlaq, they cease to be Dawoodi Bohras and therefore lose all their rights. However, to Sayedna Saheb's discomfiture, the judge ruled otherwise and upheld the palintiff's rights as we shall see later. In recent times, in Aurangabad, the Muslim Wakf board has upheld these rights of Dawoodi Bohras clandestinely "socially boycotted", as the Bohra priesthood has discovered that its exercise of right to excommunicate inconvenient" persons is fraught with risks.
When Sayedna Saheb raised the issue of he being the rightful Dai-ul-Mutlaq, the plaintiff contented that as the 47th Dai, Sayedna Najmuddin Saab, was not validly appointed by his predecessor, he and his successors are not Dai-ul-Mutlaq but only Nazim or administrative Dais and he and his party, therefore believes in them as such.
As we and all other advocates of Bohra reform movement accept Sayedna Najmuddin Saheb and his successors as rightful Dai-ul-Mutlaq, this issue is unimportant and we shall not dwell at length on it. However, as a matter of historical interest, it is interesting to note here that both the parties produced before the court a huge mass of religious texts, historical records, records of correspondences, letters etc. to establish their claims.
Among these is a photocopy of an alleged letter purported to have been written by the 49th Sayedna Burhanuddin Saab to his brother Abdulla Hakimuddin declaring that "he was not Dai-ul-Mutlaq at all in the religious sense but only a Dai for carrying on the administration of the Dawat(mission). The plaintiff claimed that it was a true copy of the letter. Sayedna Saheb said that it is a forgery and that Abdulla Hakimuddin was a great enemy of the Dawat. This only supports our earlier statement that this has been a contentious issue not only among a section of learned ulemmas but also among members of Sayedna Saheb's family.
Commenting on this issue the judge says, "This question, in my opinion, has perplexed the minds of the theologians in this community and will continue to vex them, perhaps for all time. It is unfortunate that such an intricate and highly technical question involving consideration of highly controversial religious texts should come up for investigation in a court of law".
Concluding his review of all evidences before him on this issue, the learned judge observed: "I find that defendant Mulla Saab is the 51st Dai and generally accepted as Dai-ul-Mutlaq by members of his community, and he virtually occupies that position; but there is in existence a section in his community which regards him and his predecessors upto Nazmuddin Saab as Dai-Nazims without Nas-e-jali and which accepts his authority as High Priest subject to the said qualification and consequently he is the de-facto religious leader of all Dawoodi Bohras.
After detailing various essential conditions for being a Dawoodi Bohra the learned judge observes that "a further condition is that it is essential for every Dawoodi Bohra to take oath of allegiance called Misaaq or Ahad at the age of 15 to the Imam. There is a dispute between the parties as regards the form of Misaaq and as regards the dignitary who can perform the initiation ceremony by administering it."
After consideration of all the evidence the learned judge concluded that the form of Misaaq that was administered in the time on Najmuddin son of Zakiuddin Saab the 42nd Dai-ul-Mutlaq has been in use since then and "it is not a form invented by the present defendant Mulla Saab".
The learned judge continues: "The next question is to whom the oath of allegiance, that is, Misaaq is to given. It was admitted by the defendants learned pleader Mr. Abdul Kayum that really speaking the oath of allegiance is for God and God can be obeyed through the Imam who can communicate God's message to his followers the oath is turned to the Imam also and in this sense it is for Imam".
After consideration of various extracts from religious texts filed both by the plaintiffs and the defendants, the learned judge conclues: "There is nothing in my opinion, in the extracts referred to by the defendants that the oath of allegiance is due to Dai personally; but, on the other hand, they support the plaintiffs version that it is due to the Imam and Imam only. It is therefore clear that Misaaq or oath of allegiance is due to the Imam and all the Momins including the plaintiffs are bound to take the oath to him".
The learned judge also affirmed that the defendant Mullaji Saab both as Dai-ul-Mutlaq and as a religious leader is the proper person to administer the oath of allegiance to his followers and also to plaintiff and other persons who regard him only as a Nazim Dai without Nass-e-jali.
Continuing the learned judge observes: "The covenant in the Misaaq for believing in the defendant Mulla Saab as a Dai-ul-mutlaq of the time will of course be omitted in case of such persons in view of their conscientious objection as to his status as Dai-ul-Mutlaq but in other respects the oath to be administered to them will be the same as to any other member of the community provided the subject matter of oath contains only such matter as is essentially required under the Dawoodi Bohra tenets ...it is clear from the defendants pleadings and evidence that the defendant Mulla Saab claims the oath of allegiance as due to himself and also insists on the covenant for believing in him as Dai-ul-Mutlaq of the time, being sworn to him.
"The plaintiff and his party were certainly not bound to take such an oath for the reason already given above and so their not taking the oath owing to their honest and conscientious belief, cannot take them out of the fold of the Dawat."
Vide para 52 of his judgement the learned judge observes: "In his written statement the defendant Mulla Saab claims implicit obedience to his commands by virtue of the Misaaq or Ahad and contends that disobedience of his commands or raising any question as to his absolute authority is a breach of Misaaq, whereby one ceases to be a Dawoodi Bohra. We have to see if absolute obedience is due to the defendant Mulla Saab".
During the consideration of testimony on this issue, the learned judge found to his satisfaction that the 47th Dai-ul-Mutlaq paid Rs. 511 and annas twelve on account of interest or Kasar. It is thus clear the learned judge says, "that the 47th Dai paid interest. In this connection, the defendants learned pleader has referred to Ex. D209 and Ex. D210 and D.W.2 on commission's statement that when the lending is on the bai shara system interest may be paid to the lender.
"Such a device might be pleaded by an ordinary person of worldly affair but that is wholly out of place for such a high dignitary as the Dai, who is supposed to be above all such devices. Moreover there is nothing in Ex. P276 that such a device was adopted in payment of kasar or interest. The 47th Dai evidently broke the misaaq which prohibits either taking or paying interest. This is also sufficient evidence as regards the claims to the infallibility of a Dai-ul-Mutlaq."
After a careful consideration of all evidence and testimonies of many witnesses on this issue, the learned judge concludes: "It is therefore clear that even a true Dai-ul-Mutlaq is neither immaculate nor infallible and it would therefore follow that no implicit obedience is due to him personally. The assertion of the defendant Mulla Saab that his commands are always to be regarded as principles of religion appears in view of the above discussion, to be entirely unfounded and an overstatement of his claims. I, therefore, think that no implicit obedience is due to the defendant mulla Saab, nor are his commands to be regarded as principles of religion, nor has he any absolute authority as claimed by him.
"The distinction between obedience to the Imam personally and that to a Dai-ul-Mutlaq duly constituted as discussed above, would show that the orders of the latter have to be obeyed only so far as they are in accordance with the Holy Koran and also in accordance with cannons of true reasoning".
While affirming that the custom of excommunication (baraat) exists among Dawoodi Bohras and Sayedna Saab has the power to excommunicate, the learned Judge comments: "The question is whether the fact of conscientious objection to the recognition of defendant mulla Saab as Dai-ul-Mutlaq on religious ground consistent with the tenets of the community, is an offense for which defendant Mulla Saab has power to excommunicate. None of the extracts of the defendants cover such a case.
"Thus it would follow that defendant Mulla Saab has no power to excommunicate people of plaintiff's party for their conscientious and honest objection to recognize him and his predecessors upto Najmuddin Saab 47th Dai as Dai-ul-Mutlaqs".
Discussing the validity of the excommunication of plaintiff and his party the learned Judge observes: "It appears to me that it is slackness or negligence in the performance of acts of Shariat (religion), or committing Shirk (heresy), or preaching doctrines pernicious to true religion, or disobedience to the Dai, or causing disturbance in the mission, that are punishable by excommunication.
"The nature of disobedience is not mentioned in the extracts. I think it apparently refers to disobedience in religious matters, to Dai's orders of the nature already discussed under issue No. 3 above. Applying this test to Burhanpur excommunications, the reasons for which are already stated above, it is manifest that neither the differences of opinion on matters educational between the defendant Mulla Saab and the Hakimia school managing committee, not the disobedience of his holiness orders as regards prohibition of registration of the society and a