Nass is like a will, needs to be corroborated: Defendant

Senior counsel Fredun Di’Vitre for defendant Syedna Mufaddal Saifuddin, informed Justice Gautam Patel that another important factor for a valid nass was tawqeef (confirmation by witnesses). Submitting that this was based on the verses of the Qur’an

Mumbai: Arguments in the Syedna succession case in the Bombay high court reached another decisive point after the defendants submitted that the need for witnesses in a nass could not be dispensed with as per the tenets of the Dawoodi Bohra faith. The defendants cited the famous case of Sulaiman, the claimant to the 27th Daiship, which was tried in the court of Emperor Akbar in the 16th century. The bench was told that while rejecting Sulaiman’s claim of having being appointed the Dai based on a letter purportedly written by the 26th Dai, Akbar’s ministers had held that as the letter was not corroborated by any witnesses, his claim could not be allowed.

Mumbai, India - September 03, 2021: Bombay High Court at Fort, in Mumbai, India, on Friday, September 03, 2021. (Photo by Anshuman Poyrekar/Hindustan Times) (Anshuman Poyrekar/HT PHOTO)

Senior counsel Fredun Di’Vitre for defendant Syedna Mufaddal Saifuddin, informed Justice Gautam Patel that another important factor for a valid nass was tawqeef (confirmation by witnesses). Submitting that this was based on the verses of the Qur’an, he referred to a verse in Chapter 5 which says that ‘the will be witnessed by two witnesses’ to show that the established laws mandated the need for witnesses.

Di’Vitre then said that nass was akin to a will, as the Dai had to appoint his successor as a divine duty in his lifetime, and referred to a verse that says, ‘It is decreed for you that when death approaches one of you, if he leaves property, he shall write a will.’ Di’Vitre said that in light of the above, a Dai was bound to appoint his successor and have the appointment confirmed by witnesses.

The defence counsel also placed passages of the book written by the 20th Imam before the court, wherein it was emphasised that nass had to be confirmed by witnesses, and remarked that though plaintiff Syedna Taher Fakhruddin had accepted the book, he seemd to have a different view on the necessity of having witnesses. He was referring to Syedna Fakhruddin’s cross-examination where he had said that the 20th Imam was prompted to emphasise the need for witnesses on account of the prevailing circumstances at the time when the Imamate of the 19th Imam was disputed between brothers Mustali and Nizari.

The bench was then informed about the case of Sulaiman bin Hasan who was the grandson of the 24th Dai. After the demise of the 26th Dai, Sulaiman had given ‘misaaq’ (allegiance) to the 27th Dai but three years later, had claimed to be the successor of the 26th Dai based on a letter written by the latter to him conferred nass.

As this claim threatened to cause discord in the community, it was referred to Emperor Akbar’s court. After seeing the letter purportedly written by the 26th Dai, the ministers noted that the sanctity of any document could be accepted only if it was corroborated by witnesses, and as the letter shown by Sulaiman had none, it could not be accepted.

Di’Vitre submitted that whenever there was nass, there had to be tawqeef, without which nass could not be accepted. He also refuted the claim of the plaintiff that nass and tawqeef were synonymous. When asked to clarify whether both nass and tawqeef had to be done simultaneously, and whether tawqeef could be done privately or had to be done publicly, Di’Vitre said that it could be done separately but it was needed in both public and private nass.