HC extends time for final hearing to decide on issues of nass
Mumbai: As the final hearing in the Syedna succession case entered its 12th day, given the magnitude of evidences and documents to be argued by both sides, the Bombay high court bench extended the hearing to January
Mumbai: As the final hearing in the Syedna succession case entered its 12th day, given the magnitude of evidences and documents to be argued by both sides, the Bombay high court bench extended the hearing to January. Justice Gautam Patel had earlier set a deadline for both parties to conclude arguments and rejoinders by December 23.
Last week, Justice Patel had declared that he would not pass a judgement if the doctrinal aspect of nass was not clarified by both sides. However, on Wednesday, he said that given the gravity of the issue, he would be passing orders on what constituted a valid nass, whether a private nass without witnesses was acceptable and whether a nass, once conferred, could be revoked. He said that passing orders on all three issues was necessitated, as he did not want an appeal court to revert the case to him, as it would require hearing the case all over again. Justice Patel said the hearing would be held from January 11 onwards on a day-to-day basis at 4.30pm.
Meanwhile, senior counsel Fredun Di’Vitre for Syedna Mufaddal Saifuddin continued from where he had left off on Tuesday on the issue of whether the Dawoodi Bohra faith and tenets permitted dispensing with witnesses for a valid nass. The bench was informed that there were two types of nass, namely nass-e-khafi (private or secret nass) and nass-e-jali (explicit and clear nass). Di’Vitre submitted that previous Dais had said that nass-e-khafi was permitted, provided there were the minimum number of witnesses required by Sharia law. However, the conferee himself being a witness was not valid.
Di’Vitre further refuted the arguments of plaintiff Syedna Taher Fakhruddin about there being instances of a Dai being conferred with private nass which was accepted by the community. He stated that the circumstances were different, as there was no one at the time who had been conferred with a nass-e-jali and hence the Dai was accepted as the mansoos (successor) by the community.
The refutation was with regard to the succession of the eighth Dai, who had been conferred nass by his predecessor who expired before the nass could be made known to the community. The plaintiff’s counsel, senior advocate Anand Desai, had informed the bench that since the nass was private and there were no witnesses, the eighth Dai had put forward questions to persons of higher spiritual learning. When they expressed their inability to answer these, he had given the replies, after which he had announced his appointment by the seventh Dai, and community members had accepted his succession.
Desai informed the bench that the 52nd Dai had referred to this incident in his sermon and had even mentioned the treatise titled ‘Kitabal Idaah wal Bayan’ which was written by the eighth Dai, Syedna Husain, wherein he had written the answers to the questions he had posed to the people of higher spiritual learning.
Di’Vitre then again referred to the incident of Ghadeer-e-Khum, wherein the Holy Prophet had appointed Ali as his successor by using the words ‘Of whosoever I am Maula, this Ali is his Maula’. Di’Vitre said that it was an explicit and clear communication to the multitudes who were present that Ali was the Imam after the Prophet. The senior counsel stated that it was a nass-e-jali and just because the Prophet had not used the words ‘my successor’, it did not warrant the comparison by the plaintiffs of an implied nass on Syedna Qutbuddin.
