Refusal of defendant to give witness not ground for questioning appointment: HC

ByK A Y Dodhiya
Mar 03, 2023 01:09 AM IST

Mumbai The Bombay high court on Thursday noted that the refusal of the defendant in the Syedna succession case to give witness, cannot be a ground for questioning validity of his appointment

Mumbai The Bombay high court on Thursday noted that the refusal of the defendant in the Syedna succession case to give witness, cannot be a ground for questioning validity of his appointment. The court made the remark after the counsel for the plaintiff Syedna Taher Fakhruddin submitted that the original plaintiff was knowledgeable about the doctrinal aspect of the validity of secret nass and hence came to court. However, as the defendant refrained from attending court, his belief on nass being conferred on him could not be tested and hence his ascension as successor to the 52nd Dai was questionable.

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The HC noted that as the word of the appointing Dai was final and as there was no eligibility criteria for appointment to the post, the defendant’s claim of the nass on June 4, 2011 sufficed and his knowledge and qualification did not matter.

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On the 35th day of the final hearing of the Syedna succession case, senior advocate Anand Desai representing the plaintiff continued his rejoinder to the arguments of the defendant on the doctrinal aspect of a valid nass. The defendant Syedna Mufaddal Saifuddins counsel had stated that as per doctrine, witnesses were necessary to validate a nass.

Desai informed the bench that as he had refuted the defendants claim about witnesses through instances on Wednesday he would deal with another doctrinal aspect. He submitted that it was an accepted norm in the community that the Dai had to be most knowledgeable and submitted that the Syedna Khuzaima Qutbuddin, original plaintiff, had the requisite qualification.

The senior counsel referred to the sermon and statements made by the 51st Dai wherein the leader had lauded the knowledge of Syedna Qutbuddin. The bench was further told that the 52nd Dai had in fact entrusted the defendant and his brothers to the tutelage of the original plaintiff and in turn the students had also admitted to the high level of knowledge that their teacher possessed.

In light of this submission, Desai told the court that it was expected that the defendant who had taken the post of Dai after the demise of the 52nd Dai would have come to court and given witness but his refusal could give an inference that he was not the most knowledgeable in the community.

However, justice Gautam Patel did not accept the submission and said that the question of the Dai being the most knowledgeable was neither the case of the original plaintiff nor a point of contention as conferment of nass was solely at the discretion of the conferring Dai. He further noted that as there was no criteria of the Dai having to appoint only his son as the successor as was the case for Imams, the Dai could appoint anyone regardless of the level of the conferees knowledge and hence the plaintiff could not raise the issue.

Desai responded and said that the only reason for raising the point was to highlight the doctrinal aspect that the Dai is most knowledgeable and in light of that had the defendant given witness to his belief on conferment of nass on himself it would have been the best evidence.

The senior counsel also submitted that he would be dealing with the factual aspect of the nass which was the third issue but the fact remained that the defendant had neither come himself nor had brought any senior scholar of the community as a doctrinal witness and referred to the deposition of the defence witnesses wherein they had said that they were unaware of many of the books that the defendants’ counsel had referred to, to elucidate the doctrinal validity of the nass.

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