Bombay High Court
Khuzemabhai Syedna Taher ... vs Mufaddal Burhanuddin Saifuddin ... on 7 March, 2017
Bench: G.S. Patel
Dawoodi Bohra Dai Al-Mutlaq Succession Case
1-CHS1290-16.DOC
SHEPHALI
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS NO. 1290 OF 2016
IN
SUIT NO. 337 OF 2014
Khuzemabhai Syedna Taher
Saifuddin Sahab alias Khuzembhai
STS Qutubuddin alias Khuzaima
Qutubuddin
aged 73 years, Indian Inhabitant residing at
Fourth floor, Flat 1, Al-Azhar, Saify Mahal,
Malabar Hill, A. G. Bell Road, Mumbai 400 006,
and having a residence at Darus Sakina
(Madhuban Bungalow) Pokharan Road Number 1,
Upvan, Thane (W)400 606 ... Plaintiff
(deceased)
~ VERSUS ~
Mufaddal Burhanuddin Saifuddin
aged 67 years, Indian Inhabitant residing at
Burhani Manzil, 2nd floor, Saify Mahal, Malabar
Hill, AG Bell Road, Mumbai 400 006. ... Defendant
~ AND ~
Taher Fakhruddin Saheb alias
Taherbhai K Qutubuddin alias
Taherbhai Qutubuddin
aged 47 years, Indian Inhabitant residing at
Fourth floor, Flat 1, Al-Azar, Saify Mahal,
Malabar Hill, A. G. Bell Road, Mumbai 400 006,
and having a residence At Darus Sakina
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(Madhuban Bungalow) Pokharan Road Number 1
Upvan, Thane (W) 400 606 ... Applicant
Appearances
For the Applicant Mr RM Kadam, Senior Advocate,
with Mr Anand Desai, Mr Chirag
Mody, Mr Samit Shukla & Mr
Sausher Kohli, i/b DSK Legal.
For the Defendant Mr JD Dwarkadas, Senior Advocate,
with Mr Pankaj Sawant, Senior
Advocate, Mr Firdosh Pooniwalla,
Mr Juzer Shakir, Ms Azmin
Irani, Mr Abeezar Fazullabhoy,
Mr Murtuza Kachwalla & Mr
Shehen Pradhan, i/b HSA
Advocates
CORAM: G.S. PATEL, J
DATED: 7th March 2017
ORAL JUDGMENT:
1. The original Plaintiff ("Khuzemabhai") brought suit for a
declaration that he was properly appointed as the 53rd Dai Al-
Mutlaq (spiritual leader and head) of the Dawoodi Bohra
Community by the 52nd Dai Al-Mutlaq, Syedna Mohammad
Burhanuddin, whom he (the original Plaintiff ) was entitled to
succeed. The remaining prayers are for orders regarding various
estates and properties that vest in the Dai Al-Mutlaq by virtue of
that appointment.
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2. The Defendant, for his part, claims to have been validly
appointed by the 52nd Dai, Syedna Mohammad Burhanuddin, as his
successor. He assumed office after the 52nd Dai died on 17th
January 2014. Khuzemabhai challenged the Defendant's claim to
that office in this suit.
3. From the beginning, the Defendant resisted the suit most
strenuously. When the original Plaintiff's Motion came before me, I
indicated that this was not a matter that lent itself to arguments on
Affidavit or interim relief, and that the Suit itself would have to be
heard at an early date. A quite extraordinary amount of time was
spent in filing a Written Statements, framing issues, disclosures,
marking documents and so on, but by our glacial standards, the
matter went to trial with uncommon despatch. The original Plaintiff
filed a substantial Affidavit in lieu of examination-in-chief. Cross-
examination commenced on 27th April 2015, just a little over a year
after the Suit was filed. Khuzembhai was being cross-examined.
While this was under way, the matter, which obviously could not
proceed on a day-to-day basis, was adjourned by consent. Before the
next hearings could be scheduled, Khuzemabhai died in American
on 30th March 2016.
4. Now his eldest son, Taher Fakhruddin, the present Applicant,
seeks to continue his father's suit, saying that his father, the original
Plaintiff, in turn properly appointed him as the 54th Dai Al-Mutlaq.
5. The question before me today in this Chamber Summons is
whether the suit Khuzemabhai filed was for a declaration of a
personal status and rights entirely personal to him; if so, whether
this suit abated on his death; if not, whether Taher Fakhruddin can
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continue the suit in his own name, amending it for a suitable
declaration in his own favour. Clearly, Taher Fakhruddin would have
to prove the validity of his father's appointment as the 53rd Dai, and
then his own as the 54th.
6. There is at least one amendment that Taher Fakhruddin seeks
that is on his own showing an addition to what was originally sought.
I will consider that separately.
7. Did this suit abate on Khuzemabhai's death? Did the cause of
action end on Khuzemabhai's demise? Does the right to sue
survive? To answer these, we must first look at the prayers in the
suit. I have broadly indicated the frame of prayer (a) earlier. Prayers
(a) to (j) are the final prayers in the Suit and this is how they read:
"(a) that this Hon'ble Court be pleased to declare the
Plaintiff was appointed as the 53rd Dai al-Mutlaq of the
Dawoodi Bohra Community and that he is entitled to
succeed as the 53rd Dai al-Mutlaq of the Dawoodi Bohra
Community;
(b) this Hon'ble Court be pleased to further order and
declare that Plaintiff being the 53rd Dai al-Mutlaq of the
Dawoodi Bohra Community is entitled to administer
control and manage all the properties and assets of the
Dawoodi Bohra Community including and not limited to
community's wakfs and trusts, and assets / properties
which have been presently usurped by the Defendant;
(c) that the Defendant be ordered and directed to
handover to the Plaintiff possession of the various movable
properties which are more particularly described in Exhibit
"SSS" hereto, which has been usurped by Defendant upon
the death of the 52nd Dai al-Mutlaq;
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(d) that the Defendant be restrained by a permanent
order and injunction from in any manner holding himself
out as or doing any acts, deeds or things as the Dai al-
Mutlaq of the Dawoodi Bohra Community;
(e) that the Defendant by himself, his servants and
agents be restrained by a permanent order and injunction
form in any manner preventing or obstructing the Plaintiff
from carrying out his duties as the 53rd Dai al-Mutlaq or in
any manner threatening or taking any steps against
members of the Community who believe in the Plaintiff;
(f) that the Defendant, his servants and agents be
restrained by a permanent order and injunction from in any
manner preventing the Plaintiff from entering and using
Saify Mahal situate at A. G. Bell Road, Malabar Hill,
Mumbai 400 006, which houses the official office-cum-
residence of the Dai al-Mutlaq;
(g) that the Defendant, his servants and agents be
restrained by a permanent order and injunction from in any
manner preventing the Plaintiff from entering and using
Saifee Masjid, Raudat Tahera and all other Dawoodi Bohra
Community properties (such as mosques, Dar ul-Imarats,
Community halls, mausoleums, schools, colleges, hospital,
maternity homes, musafirkhanas, cemeteries, offices etc.)
more particularly described at Exhibit "TTT" hereto to
conduct audiences, prayers, sermons, etc.;
(h) that the Defendant, his servants and agents be
restrained by a permanent order and injunction from in any
manner using, selling, destroying, interfering with or
exercising any rights over the Dawoodi Bohra
Community's wakfs and trusts, and assets/properties to
which the Dai-al-Mutlaq is entitled by virtue of his office;
(i) that the Defendant be directed to furnish to the
Plaintiff complete particulars of the assets/properties to
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which the Dai-al-Mutlaq is entitled by virtue of his office,
including database of all the Dawoodi Bohra Community
members (e-jamaat ITS database) and hand over such
assets / properties to the Plaintiff;
(j) that the Defendant be ordered and directed to
furnish to the Plaintiff complete particulars of the funds and
assets / properties of the trusts, wakfs and assets/
properties associated with the office of Dai al-Mutlaq
utilised or disposed off or dealt with by him, or under his
direction or acquiescence since 4th June 2011 and bring
back and deliver such funds and assets/properties to the
Plaintiff;"
8. It seems to me evident that prayers (b) to (j) all depend on the
Plaintiff's succeeding in obtaining a declaration in terms of prayer
clause (a). The question however is whether this is a declaration as
to a personal status and whether this declaration is one that would
not survive the Plaintiff.
9. I have heard Mr Kadam and Mr Desai for the Plaintiff and Mr
Dwarkadas for the Defendant at some length. Mr Dwarkadas
submits that while it is open to Taher Fakhruddin to file his own
Suit, he cannot possibly continue his father's. The right to sue does
not survive to him. The suit as originally filed is not in a
'representative capacity'; it was for a declaration of status personal
to Khuzemabhai.
10. Mr Kadam and Mr Desai on the other hand have been at
some pains to urge that the declaration sought was of a status
conferred on Khuzemabhai in accordance with the law that governs
the Dawoodi Bohra Community. Taher Fakhruddin was appointed
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by Khuzemabhai. He is, therefore, entitled to continue his father's
suit and to establish, if he can, that not only was his father the
correctly appointed 53rd Dai, but that he is the correctly appointed
successor, the 54th.
11. On an overall balance, and for several distinct reasons, it
seems to me I should allow this Chamber Summons and the
amendment. Mr Dwarkadas readily concedes that a separate suit by
Taher Fakhruddin is possible. But if this is so, then surely the
continuance of the present suit is equally possible, and possibly
desirable in the interests of saving judicial time, money and, not
least, vast amounts of paper.
12. There is, Mr Desai says, more than sufficient authority to say
the right to sue survives where the question is whether the plaintiff
has been validly appointed as the occupant or the incumbent of a
particular office. The right sought to be established in such cases is
not entirely personal; it survives the death of the claimant plaintiff.
13. I turn first to the relevant provisions of Order 22 of the Code
of Civil Procedure, 1908 ("CPC"):
O. XXII: DEATH, MARRIAGE AND
INSOLVENCY OF PARTIES
1. NO ABATEMENT BY PARTY'S DEATH IF
RIGHT TO SUE SURVIVES
The death of a plaintiff or defendant, shall not cause
the suit to abate if the right to sue survives.
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2. PROCEDURE WHERE ONE OF SEVERAL
PLAINTIFFS OR DEFENDANTS DIES AND
RIGHT TO SUE SURVIVES.
Where there are more plaintiffs or defendants than
one, and any of them dies, and where the right to sue
survives to the surviving plaintiff or plaintiffs alone,
or against the surviving defendant or defendants
alone, the Court shall cause an entry to that effect to
be made on the record, and the suit shall proceed at
the instance of the surviving plaintiff or plaintiffs, or
against the surviving defendant or defendants.
3. PROCEDURE IN CASE OF DEATH OF ONE OF
SEVERAL PLAINTIFFS OR OF SOLE PLAINTIFF
(1) Where one of two or more plaintiffs dies and
the right to sue does not survive to the
surviving plaintiff or plaintiffs alone, or a sole
plaintiff or sole surviving plaintiff dies and
the right to the sue survives, the Court, on an
application made in that behalf, shall cause
the legal representative of the deceased
plaintiff to be made a party and shall proceed
with the suit.
(2) Where within the time limited by law no
application is made under sub-rule (1), the
suit shall abate so far as the deceased plaintiff
is concerned, and, on the application of the
defendant, the Court may award to him the
costs which he may have incurred in
defending the suit, to be recovered from the
estate of the deceased plaintiff.
9. EFFECT OF ABATEMENT OR DISMISSAL
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(1) Where a suit abates or is dismissed under
this Order, no fresh suit shall be brought
on the same cause of action.
(2) The plaintiff or the person claiming to be the
legal representative of a deceased plaintiff or
the assignee or the receiver in the case of an
insolvent plaintiff may apply for an order to
set aside the abatement or dismissal; and if it
is proved that he was prevented by any
sufficient cause from continuing the suit, the
Court shall set aside the abatement or
dismissal upon such terms as to costs or
otherwise as it thinks fit.
(3) The provisions of section 5 of the Indian
Limitation Act, 1877 (15 of 1877) , shall apply
to applications under sub-rule (2).
Explanation.--Nothing in this rule shall be
construed as barring, in any later suit, a
defence based on the facts which constituted
the cause of action in the suit which had
abated or had been dismissed under this
Order.
10. PROCEDURE IN CASE OF ASSIGNMENT
BEFORE FINAL ORDER IN SUIT
(1) In other cases of an assignment, creation or
devolution of any interest during the
pendency of a suit, the suit may, by leave
of the Court, be continued by or against the
person to or upon whom such interest has
come or devolved.
(2) The attachment of a decree pending an
appeal therefrom shall be deemed to be an
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interest entitling the person who procured
such attachment to the benefit of sub-rule (1).
(Emphasis added)
14. Mr Desai puts his case like this: If the right to sue survives,
the suit will not abate. If it does abate, and that can only be if the
right to sue does not survive, then a fresh suit on the 'same cause of
action' would be barred. Taher Fakhruddin's claim is, of necessity,
derivative or inherited -- he has no stand-alone claim or right he
can assert independent of his late father's claim. This means, as a
logical inevitability, that if his father's suit is held to have abated,
then no fresh suit by Taher Fakhruddin is possible; Taher
Fakhruddin cannot seek that which died with his father; and without
seeking that, he cannot maintain his own claim. We thus pass
through the filters of O.22 Rules 1, 2 and 9 and arrive at O.22 R.10.
This is not a case of assignment of any interest. It is also not, strictly
speaking, a case of a 'creation' of an interest. It is a case of
devolution of an interest, and that devolution is traced in this suit
back to the 52nd Dai. His interest in any estate of the Dawoodi
Bohra community was one he held qua the Dai, in that capacity and
no other. Khuzemabhai claimed to have succeeded to that interest
by virtue of no other 'right' other than that which attached to his
appointment or nomination as the successor (53rd) Dai by the 52nd
Dai. Again, there was no personal interest involved in the sense of
there being an interest that inhered in Khuzemabhai as an individual
de hors his appointment as the 53rd Dai. Taher Fakhruddin's claim is
drawn from his father's. Syedna Mohammad Burhanuddin's
'interest' qua the undisputed 52nd Dai is the wellspring of all rights,
privileges and entitlements. Thus, Taher Fakhruddin's claim is one
under a process of devolution (as was his father's), and the suit must
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be allowed to continue, in either view of the matter, viz., that the
right to sue survived Khuzemabhai within the meaning of O. 22
Rule 1, or on account of devolution under O.22 Rule 10.
15. In Shri Krishna Singh v Mathura Ahir & Ors,1 the Supreme
Court in paragraphs 78 to 81 said:
"78. It is argued that the original Plaintiff, Mathura Ahir,
having filed the suit primarily to establish his personal right
to the office of mahant which entitled him to possession of
the property in suit, the suit abated on his death. The cause
of action on which the suit was instituted, it is urged, was
personal to the Plaintiff, and in order to establish that he
had been duly and properly initiated as a sanyasi and
installed as a mahant, he had to plead and establish all the
necessary facts regarding his capacity to become a sanyasi,
his nomination by his Guru. and his ultimate election or
nomination by the 'Sant Mat' Sampradaya. The
submission is that these were facts special to the original
Plaintiff, and he having died, Respondent No. 1,
Harshankaranand cannot claim any relief unless and
until he also establishes all these facts in regard to his
claim to mahantship. The original cause of action, it is
said, has vanished with the death of the Plaintiff and the
Respondent No. 1, Harshankaranand had necessarily to
plead and establish a new set of facts. In substance, he
could not prosecute the cause of action as originally
framed and he could not succeed without materially
altering the pleadings and substituting another cause of
action, which could very well form the subject matter of
a separate suit.
79-80. It is argued that the nomination of a person as a
mahant invests him with a 'status' and, therefore,
1 (1981) 3 SCC 689.
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capacity to succeed to the office of mahant is an incident
of that status. It is said that the claim to mahantship is,
therefore, a personal right which does not survive the
Plaintiff; any suit claiming such a status must abate on
the death of the Plaintiff. Alternatively, the submission
is that if the Court came to the conclusion that the
Plaintiff had sued in his capacity as a de facto mahant, it
is obvious that the cause of action would be personal to
him and would certainly not survive the Plaintiff. In
that event, the suit must of necessity abate as a right
claimed on the basis of de facto ownership cannot
survive the Plaintiff.
81. The question whether a suit abates in its entirety
or not upon the death of the Plaintiff must necessarily
depend on the nature of the suit. This is not a class of
case to which the maxim, actio personalis moritur cum
persona applies. The suit that the Plaintiff Harsewanand
brought was for possession of the suit house which
belonged to Garwaghat Math, in his capacity as the
mahant. On denial of his title, he pleaded that he was
initiated as a chela by his Guru Swami Atmavivekanand, the
then mahant, in 1937 and nominated to be his successor and
accordingly upon his demise on August 23, 1949, had been
duly installed as Mahant of the Math by the 'Sant Mat'
Sampradaya, i.e., by the Mahants and Sanyasis of the Bhesh
and given chadar Mahanti according to the tenets of
fraternity. It was alleged that according to the tenets of this
particular sect, anyone, including a Sudra, could be a
sanyasi, and further that succession to the office of mahant
was from guru to chela according to the custom or usage
prevailing in the sect. One of the issues on which the parties
went on trial was whether there was in existence a math at
Garwaghat, and if so, whether the house in suit was an
accretion thereto."
(Emphasis added)
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16. It is true that the case before the Supreme Court began as a
claim for possession, but that should not I think affect the overall
approach. As the emphasized portions show, the claim for
possession was as an incident of a particular status:
The suit that the Plaintiff Harsewanand brought was for
possession of the suit house which belonged to
Garwaghat Math, in his capacity as the mahant.
This is not materially different from the claim before me in this suit.
The sequencing of the prayers is largely immaterial; evidently,
Khuzemabhai had to establish his status as the properly appointed
53rd Dai, and having got that, needed the prayers regarding
properties, assets, estates, wakfs and so on. Conversely, he could not
have obtained orders regarding those assets, properties and estates
without a preceding declaration of his status. The arguments before
the Supreme Court in paragraphs 78 to 80 are precisely the ones Mr
Dwarkadas makes before me today.
17. Shri Rikhu Dev v Som Dass2 came up before the Supreme
Court from a decree of the Punjab & Haryana High Court. The
appellant was the plaintiff. He said there was one Shiromani
Nirankari Dera at Patiala, and it had two branches, one at Landeke
in Moga Tehsil and the other at Nanga Kheri in the erstwhile state
of Patiala. As the mahant-in-charge of the Shiromani Dera branch in
Patiala, he had the right to manage the properties attached to the
other branch at Landeke. He sought recovery of possession of the
Landeke Dera and the properties attached to it. The defendant said
the Landeke Dera was independent and that he was in possession of
it and its properties as the lawfully appointed mahant. The trial
2 (1976) 1 SCC 103
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court decreed the suit. The defendant appealed. The appeal court
reversed. The plaintiff appealed to the High Court. Pending that
appeal, the defendant died. No application was made within the
time prescribed to implead his heirs. About three and a half months
after the defendant died, the plaintiff sought to implead the
defendant's chela. The defendant's date of death being in dispute,
the High Court referred the question to the trial court for enquiry.
The trial court took evidence on the question of the date of the
defendant's death -- about a month and half before the date
asserted by the plaintiff. At this, the plaintiff asked the High Court
to treat his application as one for setting aside the abatement,
claiming he did not know of the defendant's death immediately it
happened. The High Court found no substance in the plaintiff's
plea that he had no knowledge of the defendant's death. It held the
appeal had abated and there was no ground to set aside that
abatement. Before the High Court, the plaintiff also urged that such
an appeal could not abate since the defendant claimed to represent
the Dera as its duly elected chela and in no other capacity. The High
Court rejected this contention too, and said the plaintiff was bound
to 'bring on record the legal representatives of the deceased within
the time prescribed by law'. This is what the Supreme Court said:
6. We do not think that the view of the High Court
was correct. The suit was filed on the basis that the
appellant as the lawfully appointed mahant was entitled
to manage the properties of the Dera at Landeke, that
the defendant was unlawfully claiming to be the mahant
of the Dera and entitled to manage the properties of the
Dera and that the appellant was entitled to be in
possession of the properties. As already stated the
contention of the defendant was that though the
properties belonged to the Dera, he was its lawfully
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appointed mahant and that the appellant had no right to
recover possession of the property of the Dera. When
Som Dass died, the interest which was the subject-matter of
the suit, devolved upon Shiam Dass as he was elected to be
the mahant of the Dera and the appeal could be continued
under Order 22 Rule 10 of the Civil Procedure Code
against the person upon whom the interest had
devolved.
7. [Order 22 Rule 10 is set out]
8. This rule is based on the principle that trial of a
suit cannot be brought to an end merely because the
interest of a party in the subject-matter of the suit has
devolved upon another during the pendency of the suit
but that suit may be continued against the person
acquiring the interest with the leave of the Court. When
a suit is brought by or against a person in a representative
capacity and there is a devolution of the interest of the
representative, the rule that has to be applied is Order 22
Rule 10 and not Rule 3 or 4, whether the devolution takes
place as a consequence of death or for any other reason.
Order 22 Rule 10 is not confined to devolution of
interest of a party by death; it also applies if the head of
the mutt or manager of the temple resigns his office or is
removed from office. In such a case the successor to the
head of the mutt or to the manager of the temple may be
substituted as a party under this rule. The word "interest"
which is mentioned in this rule means interest in the
property i.e. the subject-matter of the suit and the
interest is the interest of the person who was the party
to the suit.
9. It was, however, contended on behalf of the
respondent that there was no devolution of the interest in
the subject-matter of the suit on the death of Som Dass,
since there was no certainty as to the person who would be
elected as mahant to succeed him. The argument was that it
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was uncertain on the death of Som Dass as to who would
become the mahant by election, that it was only when a
person succeeded to the mahantship on the death of a
previous mahant by virtue of law or custom that there
would be devolution of interest in the subject-matter of the
suit and, therefore, Order 22 Rule 10, would not be
attracted. We see no force in this argument. We are of the
view that devolution of the interest in the subject-matter
of the suit took place when Shiam Dass was elected as
mahant of the Dera after the death of Som Dass.
10. Som Dass was sued in his capacity as a person
who claimed (though illegally according to the
appellant) as mahant of the Dera. Som Dass contended
that he was lawfully appointed as mahant of the Dera.
He never set up any claim which was adverse to the
Dera or its properties. The suit against Som Dass was
not in his personal capacity but in his capacity as de facto
mahant. In other words, the suit was for possession and
management of the Dera and the properties
appertaining to it by the appellant purporting to be the
de jure mahant against Som Dass as de facto mahant.
The fact that it was after Som Dass died that Shiam Dass
was elected to be the mahant of the Dera can make no
difference when we are dealing with the question whether
the interest in the subject-matter of the suit devolved upon
him. The subject-matter of the suit was the interest of
Som Dass in the Dera and its properties and it devolved
upon Shiam Dass by virtue of his election as mahant
subsequent to the death of Som Dass. And, as it was in a
representative capacity that Som Dass was sued and as it
was in the same representative capacity that the appeal was
sought to be continued against Shiam Dass, Order 22 Rule
10 will apply. [See Ratnam Pillai v Nataraja Desikar, AIR
1924 Mad 615 (1) : 84 IC 200] In Thirumalai v. Arunachella
[AIR 1926 Mad 540 : 92 IC 520] the Court held that a
succeeding trustee of a trustee who filed a suit and
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thereafter died during its pendency was not a legal
representative of the predecessor in office. The Court said
that where some of the trustees die or retire during the
pendency of a suit and new persons are elected to fill
their place, it is a case of devolution of interest during
the pendency of a suit and the elected persons can be
added as parties under Order 22 Rule 10 notwithstanding
that the period of limitation for impleading them had
expired.
(Emphasis added)
18. Again, I believe the present case is very close to Shri Rikhu
Dev as well -- the claim here again is by a de jure claimant against a
de facto incumbent, and it seeks, inter alia, the right in that defined,
specific capacity to exercise dominion over estates attached to that
office. (I hasten to add that I should not, in saying this, be
understood to accept either the de jure or the de facto capacities; I
have only invoked the words of the Supreme Court as illustrative of
their applicability to the case at hand.) I am not persuaded by Mr
Dwarkadas's submission that 'interest' in Order 22 Rule 10(1)
means interest in property and that can only mean a personal
interest in property. The first part may be correct; the second is not,
for there is nothing in Order 22 Rule 10(1) that speaks of the interest
being personal. If it did, then the whole of that Rule was surely
unnecessary. Where there is a right to property, this will survive the
death of the plaintiff.3 However, where the right claimed is a purely
personal right, different considerations may apply.
3 Ambalika Padhi & Anr v Radhakrishna Padhi & Ors, (1992) 1SCC 667.
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19. In Shri Rameshwar Manjhi v Management of Sangramgarh
Colliery & Ors4, the Supreme Court had before it precisely such a
case although in the context of the Industrial Disputes Act. The
question was whether the death of a workman during pendency of
proceedings resulted in abatement. The Supreme considered the
case of a narrow species of personal rights -- the right to sue for
damages in defamation, for example and similar reliefs. The
Supreme Court said this in paragraphs 12 and 13:
"12. The maxim 'actio personalis moritur cum persona'
though part of English Common Law has been subjected
to criticism even in England. It has been dubbed as
unjust maxim, obscure in its origin, inaccurate in its
expression and uncertain in its application. It has often
caused grave injustice. This Court in a different context,
in considering the survival of a claim for rendition of
accounts, after the death of the party against whom the
claim was made, in Girja Nandini Devi v Bijendra Narain
Choudhary observed as under:
"The maxim 'actio personalis moritur cum
persona' a personal action dies with the
person has a limited application. It operates in
a limited class of actions ex delicto such as
actions for damages for defamation, assault or
other personal injuries not causing the death
of the party, and in other actions where after
the death of the party the relief granted could
not be enjoyed or granting it would be
nugatory. An action for account is not an
action for damages ex delicto, and does not fall
within the enumerated classes. Nor is it such
that the relief claimed being personal could
4 (1994) 1 SCC 292.
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not be enjoyed after death, or granting it
would be nugatory."
13. It is thus obvious that the applicability of the
maxim 'actio personalis moritur cum persona' depends
upon the 'relief claimed' and the facts of each case. By
and large the industrial disputes under Section 2-A of the
Act relate to the termination of services of the concerned
workman. In the event of the death of the workman during
pendency of the proceedings, the relief of reinstatement,
obviously, cannot be granted. But the final determination of
the issues involved in the reference may be relevant for
regulating the conditions of service of the other workmen in
the industry. Primary object of the Act is to bring industrial
peace. The Tribunals and Labour Courts under the Act are
the instruments for achieving the same objective. It is,
therefore, in conformity with the scheme of the Act that the
proceedings in such cases should continue at the instance of
the legal heirs/representatives of the deceased workman.
Even otherwise there may be a claim for back wages or for
monetary relief in any other form. The death of the
workman during pendency of the proceedings cannot
deprive the heirs or the legal representatives of their right
to continue the proceedings and claim the benefits as
successors to the deceased workman."
(Emphasis added)
20. Mr Dwarkadas relies on the decision the Calcutta High Court
in Sarat Chandra Banerjee v Nani Mohan Banerjee5 to say that the
Applicant must assert the same rights the Plaintiff did. If so, the
right to sue survives, and the Court may then permit the legal
representative to amend and proceed with the Suit under Order
5 (1909) Cal. (Vol. 36) 799
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XXII Rule 3. A legal representative is of course defined in Section
2(11) of the CPC:
"A person who in law represents the estate of the deceased
person, and includes any person who intermeddles with the
estate of the deceased and where a party sues or is sued in a
representative character the person on whom the estate
devolves on the death of the party so suing or suit."
(Emphasis added)
21. The mere right to sue itself, Mr Dwarkadas says, is not
transferable. That is correct, but it does not have any bearing on the
present case.
22. Mr Dwarkadas says Order 22 Rule 10 this is a residuary
provision6 and it applies only in cases not covered by the preceding
Rules of Order 22. Thus, according to him, it is only where during
the pendency of the Suit the right to sue survives and the interest in
the subject matter devolves on a person other than the legal
representative that the suit can be continued.
23. The last submission based on Vinayaka Dev, Idagunji v
Shivaram & Ors7 is quickly despatched, for that was a claim based on
a hereditary title. That right, the Supreme Court said, was a
personal right and not to a public right in a public trust. If anything,
as Mr Kadam says, that is a decision that assists the present
Applicant's case rather than damaging it in any way.
6 Dhurandhar Prasad Singh v Jai Prakash University & Ors, (2001) 6 SCC
534.
7 (005) 6 SCC 641.
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24. There is another dimension to this, too, one that Mr Kadam
hints at. Order 22 Rule 1 does not limit itself to the death of a
plaintiff. The survival of the 'right to sue' is a question that arises on
the death of either the plaintiff or the defendant. I will confine
myself to a situation of a sole plaintiff and sole defendant, because
that is what I have before me. Let us suppose the situations were
reversed, and the Defendant before me had passed away after
appointing a successor. That successor would have assumed office.
It surely cannot be suggested that Khuzemabhai's 'right to sue'
would not survive the death of the original Defendant. If the title
and right claimed by the Defendant is not personal to him and would
survive him, then surely the challenge to that title and claim must
also survive the original Plaintiff. This is, in my assessment, so
compelling an argument that one need not look much further.
25. In this particular case, I do not see why the Chamber
Summons ought not to be allowed. After all, the right sought by the
original Plaintiff to hold a particular office was one that he himself,
by virtue of his claim, could confer on another. If his own right
failed, then that of the Applicant would consequently fail. If, on the
other hand, the Plaintiff obtained a decree in terms that he first
sought, then surely the Applicant would be entitled to a resultant
decree in similar terms in his own favour. To view it from another
perspective, even if Khuzemabhai had not filed the Suit, the present
Applicant could well have brought the same Suit seeking first the
same declaration of his late father being the properly appointed 53rd
Dai and, in the next prayer, a similar declaration in his own favour as
the 54th Dai.
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26. To be clear: Taher Fakhruddin is not seeking to continue the
suit in his father's name. He does not want to rest with a declaration
of a title or status in or on his now deceased father. He seeks instead
to continue the suit, but in his name, seeking a derived, or devolved,
interest.
27. As to the question of whether the Suit in a representative
character or not, this is again answered with a similar parallel. A
complete outsider could have brought this Suit asking for a
declaration in favour of Khuzemabhai or Taher Fakhruddin or both.
If an outsider did this, and Mr Dwarkadas readily concedes that it
could be done, the plaintiff would be suing in a representative
character. It does not cease to be 'representative' only because a
plaintiff seeks the same relief in his own name. That is not the test;
one must look to the nature of the relief sought, and how the plaint
is laid. A claim for damages in defamation is, for instance, purely
personal -- nothing in that kind of claim would survive the death of
either a sole plaintiff or a sole defendant. Indeed, I would venture to
suggest that a claim for a titular declaration -- a nominal title alone
-- is entirely personal.
28. A Division Bench of the Patna High Court in Ramswarup Das
v Rameshwar Das8 took a diametrically opposite view. The Court
said:
In my opinion, the answer to the question raised on behalf
of the appellant depends upon the nature of the suit. If the
plaintiff is suing to establish his right to a certain
property in his own rights and not by virtue of his office,
certainly the cause of action for the suit will survive,
8 AIR 1950 Pat 184 : (1949) ILR 28 Pat 989.
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and his legal representative can continue the suit on the
death of the original plaintiff, either during the
pendency of the suit or of the appeal. But where the
plaintiff's suit is primarily to establish his personal right
to an office which would entitle him to possession of the
property in question, on his death, either during the
pendency of the suit or during the pendency of the
appeal, the right to sue would not survive, and the suit
will, therefore, abate.
(Emphasis added)
I mention this for two reasons. First, this is precisely the frame of
Mr Dwarkadas's submissions before me as I understand them today.
Second, this view was in terms disapproved by the Supreme Court
in Shri Krishna Singh (supra) cited by Mr Desai:
86. The correctness of the decision in Ramswarup Das v.
Rameshwar Das [(1949) ILR 28 Pat 989 : AIR 1950 Pat 184]
is thus open to question. It does not stand to reason that
when a suit is brought for possession by a mahant of an
asthal or math, or by a shebait of a debottar property,
and the defendant is adjudged to be a trespasser, such a
suit should abate with the death of the mahant or
shebait. This would imply that after a long drawn
litigation, as here, the new mahant or shebait has to be
relegated to a separate suit.
(Emphasis added)
29. To say therefore that the amendment changes the character of
the suit is also not correct.
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30. There is a controversy about two portions of the proposed
amendment. To understand the context, it necessary to reproduce
paragraph 12 of the Affidavit in Support at page 10:
"12. In the Schedule I have also made corrections at
paragraph 51 of matters that had been corrected by the
Original Plaintiff, added at paragraphs 15, 19, 60, 64 and 85
certain relevant matters which were to my personal
knowledge, and at paragraph 5 added certain events that
have transpired after the amendment to the Plaint on
October 6, 2014. I have also added a submission that the
Dawoodi Bohras belong to the Ismaili faith, and do not
believe that nass can be revoked. By taking a defence in this
suit that nass can be retracted or revoked or changed or
superseded, the Defendant has gone against the very basis
and foundation of the Ismaili faith viz. that nass is
irrevocable. Thus, the Defendant is no longer following
the faith of the Dawoodi Bohra Community, and
certainly cannot claim to be the Dai al-Mutlaq of the
Community."
(Emphasis added)
31. What Taher Fakhruddin now urges is that the process of
appointment, i.e., the pronouncement of a nass once made is
irrevocable. That is his case. He may or may not be correct. He will
have to prove this. He says that once an irrevocable nass is
pronounced, then no other may claim under a subsequently
pronounced nass. The consequence of this submission, according to
him, is that the retraction, revocation or supersession of a previous
nass results in the claim to the subsequent nass going against the
Ismaili faith. The specific averment that offends is that the
Defendant, by making such a claim of revocation or supersession, is
a deemed apostate or has forsworn the Ismaili faith. This assertion is
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not to be found in the original Plaint. These assertions are in
paragraphs 27 and 50D of the Schedule of Amendments at Exhibit
"C" to the Affidavit in Support of the Chamber Summons.
32. The Dawoodi Bohras are a sect within the Ismaili branch of
Shia Islam. It is also sometimes referred to as the Tayyabi Musta'li
Isma'ili sect. The Ismailis split from the Ithna Ashari Shias over an
issue of succession to Imam Jafar Al-Sadiq. The Ismailis took
Isma'il bin Jafar to be their Imam, while the Ithna Ashari Shia (the
so-called 'Twelvers') took Musa Kazim bin Jafar Al-Sadiq as theirs.
The Ismailis split into Druze and mainstream Isma'ilis on another
issue of succession. There followed another schism into the Nizari
and Musta'ali branches. The Dawoodi Bohras trace their theological
ancestry to the Musta'ali branch (which can ultimately be traced
back to the Fatimid Caliphate), and the 21st Imam Al-Tayyeb, who
went into occultation or hiding. His direct descendent is considered
the current Imam and remains in seclusion. The spiritual leader of
the Dawoodi Bohra community is called the Dai al-Mutlaq
(Vicegerent). He serves as the representative of the hidden Imam,
who according to Dawoodi Bohra tenets, lives on in seclusion or
occultation. Queen Arwa bint Asma or Arwa al-Sulayhi (al-Hurra al-
Malika) of Yemen -- one of only two female monarchs in the
Muslim Arab world to have had the khutba proclaimed in their name
in the mosques as sovereigns -- created the office of the Dai al-
Mutlaq to administer the community in the Imam's absence.
33. The two amendments in question, raising this issue of
apostasy and an abandonment of the Ismaili faith, are most serious
and are entirely new. They formed no part of the cause of action
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pleaded by Khuzemabhai. I propose to disallow these two
amendments entirely.
34. I will, however, clarify that the Applicant will be entitled to
lead evidence on the proper requirements and features of a valid
nass, including whether or not it is revocable as a matter of doctrinal
law or custom. This is necessary so that the Applicant is not latter
confronted at the time of evidence by saying that there is no
foundation in his pleading for that evidence.
35. The Chamber Summons is accordingly made absolute in
terms of prayer clauses (a), (b) and (c), except paragraph 27 and
paragraph 50D of the Schedule of Amendments at Exhibit "C" to
the Affidavit in Support of the Chamber Summons (at pages 21 to
23 and page 37 respectively of the Motion paper book).
36. Mr Kadam tenders a handwritten amendment to the
Schedule. This introduces prayer (a1). It is allowed. The draft is
taken on record and marked "X" for identification with today's
date. The amendment allowed will include this prayer. Mr Desai will
arrange to have the same prayer in a typed form placed on record by
tomorrow, 8th March 2017.
37. The amendments are to be carried out on or before 27th
March 2017.
38. A copy of the amended Plaint, properly retyped is to be
served on the Advocates for the Defendant on or before 3rd April
2017.
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39. Additional Written Statement, if any, to be filed and served
on or before 24th April 2017.
40. The amendment is without prejudice to the Defendant's
rights and contentions, including as to the validity of the Applicant's
appointment, but this obviously cannot extend to any question of
whether the right to sue survives or of abatement.
41. Suit to be listed for directions and, if necessary, framing
additional issues on 2nd May 2017.
42. Mr Dwarkadas is instructed to apply for a stay of this order.
The application is rejected.
(G. S. PATEL, J.)
7th March 2017
