‘Will not pass order if not convinced by doctrinal facts’ says HC
The Bombay high court bench of Justice Gautam Patel, which has been hearing the case since 2014 when the suit was initiated by Syedna Qutbuddin, said that if both parties failed to convince the bench of the doctrinal facts of nass, he would not pass any judgement in the case
Mumbai: In the course of the last week, the counsel for plaintiff Syedna Taher Fakhruddin concluded his submissions on the validity of the nass (appointment by divine inspiration of the secluded Imam) conferred upon his father, Syedna Khuzaima Qutbuddin, by the 52nd Dai.
The submissions dealt with four major issues: what is considered a valid nass; whether a nass conferred in private by the Dai on his successor is acceptable as per Dawoodi Bohra doctrines; whether nass is pre-ordained and hence once conferred is not revocable or changeable; and whether a subsequent nass is valid.
The Bombay high court bench of Justice Gautam Patel, which has been hearing the case since 2014 when the suit was initiated by Syedna Qutbuddin, said that if both parties failed to convince the bench of the doctrinal facts of nass, he would not pass any judgement in the case.
After Syedna Mufaddal Saifuddin, the son of the 52nd Dai Syedna Mohammad Burhanddin, took over the administration of the community as the 53rd Dai on the demise of his father in January 2014, Syedna Qutbuddin initiated a civil suit in the HC in April 2014 claiming that he had been named as the successor by the deceased leader in December 1965 and was the 53rd Dai. The HC conducted a trial for eight years, wherein Syedna Qutbuddin first deposed as a witness. On his demise, his son Syedna Fakhruddin continued the suit. He informed the HC that as his father had conferred nass on him during his lifetime, he was contesting the suit as the 54th Dai.
On the issue of what constitutes a valid nass, senior advocate Anand Desai, representing Syedna Fakhruddin, informed the bench that nass was a divinely inspired action of the Dai, and he alone was the recipient of the inspiration from the secluded Imam. Desai submitted that once the Dai named someone openly or informed him in private about his succession, it was considered a valid nass—there was no need for a direct witness, and a public proclamation of the successor or the Dai informing someone of his successor was considered a valid nass.
Desai informed the bench that there were many instances in the history of the Dawoodi Bohra community wherein nass conferred both openly and in private were accepted. Desai cited the examples of the 13th Imam and the 21st Imam to prove that their appointments were not publicly announced but were accepted.
When Justice Patel sought to know what material there was historically and doctrinally where conferment and communication had not been not proved, Desai referred to the actions of men of higher spiritual learning. He pointed out that after 1965, family members and men of higher spiritual learning had started prostrating before Syedna Qutbuddin and also referred to him as Maula whenever the 51st and 52nd Dais were referred to as Bewe Maula (both masters/leaders). Hence, though a public proclamation was not done of Syedna Qutbuddin’s nass, it was understood that he was the next Dai and hence was offered the same acts of reverence that were offered to the 52nd Dai.
However, the bench said that as acts of prostration and addressing the ‘mansoos’ (successor) as Maula was not exclusive to the highest ranking officials of the community, what other evidence could be relied upon to prove that the nass conferred on Syedna Qutbuddin was valid?
The bench was informed that as nass was pre-ordained, once the Dai conferred it on someone, it could not be changed or revoked. In the event of the named successor passing away during the lifetime of the Dai, he was considered to have attained a position in heaven where he continued his service of the Da’wa.
To buttress this, Desai cited the example of the sixth Imam who passed away in the lifetime of his father who had named him as the next Imam after him. Desai submitted that though the sixth Imam died before taking office, the Dawoodi Bohra faith accepted him as their Imam and his son as his successor.
The bench was also informed about the appointment of the fourth and fifth Dais wherein the third Dai had intended to appoint the fifth Dai as his immediate successor but had changed his decision before announcing it and named his son as the fourth Dai. Thereafter, the person intended as successor by the third Dai was named as the fifth Dai by the fourth Dai.
On the issue of revocation of nass, Desai submitted that it was accepted that the Dai was infallible. As the post of Dai was divinely ordained, it could not be changed as it would mean that the Dai had erred, which was not possible.
Due to the ambiguity in the doctrinal aspect of nass in the Dawoodi Bohra faith, Justice Patel said that he would not “hazard a guess” and would refrain from passing any order if both parties failed to show clarity on the concept.
The arguments by the plaintiff lasted for seven days and concluded on Wednesday, December 7, after which the counsels for defendant Syedna Saifuddin, who included senior advocates Iqbal Chagla, Fredun Di’Vitre and Janak Dwarkadas, began refuting the claims made by the plaintiffs. The hearing of the case will go on till December 23, by which date both parties have been directed to complete their arguments, counter-arguments and rejoinders.