Borhras and reform
An excerpt from the book Indian Courts and Characters
Sayedna Taher Saifuddin in court: recollections
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.
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 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 ho 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 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 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.