Least Plausible For Syedna Mohammed Burhanuddin To Think Of Appointing Successor Immediately After Assuming Office In 1965: Bombay High Court

The Bombay High Court observed that Taher Fakhruddin, challenger to his uncle Mufaddal Saiffuddin's position as the Dai al-Mutlaq of the Dawoodi Bohra community, accepted vague indications for his own nass, but dismissed concrete evidence for the nass conferred on Syedna Saifuddin.

“Clearly, the Plaintiff applies different standards to the nass he claims was conferred on himself and the nussoos of the Defendant. It is all right, we are told, if the nass on the Original Plaintiff did not use the words nass, Mansoos, crown, or anything of the kind. It does not matter that it was without witnesses and in private, and never revealed or even alluded to...But for the Defendant, audio, video, and the depositions of those actually present are all worthless. The court's own study and appreciation of the audio-visual material is worthless”, the court highlighted.

The court found it “least plausible” that Syedna Mohammed Burhanuddin, the 52nd Dai, immediately thought of appointing his successor upon assuming office in 1965 at 51 years of age, as claimed by Fakhruddin.

“It is not impossible. But what is the likelihood of this as compared to a time five years later in 1969, with things firmly under control, and a spiritual leader's thoughts turn to the matter of succession? Or 2005, forty years later after he became in 1965, when surely this must have been a concern, and health issues already coming up? Or 2011, forty six years from the date of the Plaintiff's claimed nass? Of these, the Plaintiff's is the least likely, the most implausible scenario”, the court opined, highlighting the four occasions where 'nass' was conferred on Syedna Saifuddin.

The court held that Fakhruddin's suit failed on all counts of likelihood, probability, balance, preponderance, prudence.

In its 226-page judgment dismissing the suit, the court highlighted that this case revolved around the issue of control, not merely over indiscernible wealth but over the entire Dawoodi Bohra faith and way of life.

The court emphasized that the suit is a civil claim, distinct from matters of faith, and it is deciding not who should more appropriately be the Dai, but merely who proved, according to civil law, his claim of having properly appointed the 53^rd Dai. "The claim is undoubtedly a civil claim, one that agitates a civil right. That this may have wider consequences to the faith is immaterial."

The case

Fakhruddin's (plaintiff) father Khuzaima Qutbuddin's (original plaintiff) case rested on the assertion that he was appointed as the “Mansoos” or would-be 53rd Dai through a 'nass' by the 52nd Dai on December 10, 1965, during a private meeting between the two. This alleged appointment was kept confidential until after the 52nd Dai's demise on January 17, 2014. After Qutbuddin's death, his son Fakhruddin took over, claiming that Qutbuddin conferred the 'nass' on him.

On the other hand, Syedna Saifuddin (defendant) claimed to have been appointed as the would-be 53rd Dai on multiple occasions, including in 1969, 2005, and twice in 2011. He argued that a 'nass' could be freely alterable and revocable, and the last 'nass' before the incumbent Dai's passing would supersede all previous appointments.

Plaintiff's prayers

Declaration that Fakhruddin's father Qutbuddin was appointed as the 53rd Dai al-Mutlaq and Fakhruddin was duly and validly appointed as the 54th Dai-al Mutlaq of the Dawoodi Bohra Community.

Declaration that Qutbuddin, as the 53rd Dai al-Mutlaq, and Fakhruddin, as the 54th Dai al-Mutlaq, were entitled to administer, control, and manage all properties and assets of the Dawoodi Bohra Community.

Directions to Syedna Saifuddin to hand over possession of various movable properties taken by him upon the death of the 52nd Dai.

Permanent injunction allowing Fakhruddin to enter and use Saify Mahal in Malabar (the Dai's residence), Saifee Masjid, Raudat Tahera, and other Dawoodi Bohra community properties for conducting audiences, prayers, sermons, etc.

Permanent injunction preventing Syedna Saifuddin from interfering with Fakhruddin's rights over community wakfs, trusts, and other assets.

Direction to Syedna Saifuddin to furnish complete particulars of assets/properties of the office of Dai al-Mutlaq and database of community members to Fakhruddin.

Verdict

On burden of proof

The court emphasized that the burden rested on Fakhruddin (plaintiff) to prove the existence, validity and irrevocability of the alleged 'nass' (designation of a successor) conferred upon his father Khuzaima Qutbuddin. Syedna Saifuddin (defendant), while presenting an affirmative case, was not required to prove anything conclusively but could succeed by disproving Fakhruddin's claims.

On maintainability

The court dismissed preliminary objections raised by Syedna Saifuddin (Defendant) regarding the jurisdiction of the court and the nature of the suit. The court affirmed that the dispute was a civil matter concerning the appointment of the Dai al-Mutlaq and did not involve religious rites or ceremonies. Further, it was not a property dispute or trust dispute, as no personal rights were involved but merely those incidental to the Office of the Dai. The concerned properties and trusts would have anyway passed along with the office of the Dai, the court observed.

On conferment of 'nass' on Qutbuddin

The court noted the absence of direct evidence, such as a written record or witnesses, regarding the alleged conferral of 'nass' by the 52nd Dai to Qutbuddin.

The court highlighted the absence of proof regarding private meeting between the 52nd Dai and Qutbuddin, as well as inconsistencies in his accounts of the alleged conferral of nass.

The court noted that only the 52^nd Syedna and his brother Qutbuddin, both now deceased, could be the witnesses regarding conferment on 'nass' on Qutbuddin in a private meeting between just the two of them. The evidence of others regarding what was said in the meeting is irrelevant, it said.

There is no corroboration of Qutbuddin's version regarding the meeting, the court noted, adding, "We will never know if the 52nd Dai ever said in private the words to the Original Plaintiff that the Original Plaintiff claims. We do not even know if they met in private. There is no record of either; in itself odd from a community of inveterate record-keepers". 

Additionally, the argument regarding the secrecy of the appointment conflicted with claims of public knowledge through actions like sajda (a prostration) offered to Qutbuddin, the court said.

On requirements of valid 'nass'

The court observed that it's not within its purview to conclusively determine religious doctrine, and refused to affirmatively or prescriptively elucidate the requirements of a valid nass. Instead, it assessed whether Fakhruddin substantiated his claim regarding the requirements of a Nass.

Fakhruddin contended that a valid 'nass' only requires clear communication by the appointer, can be conveyed verbally or through indications, does not need independent witnesses, and does not necessitate public proclamation.

However, the court said that this raises several concerns, such as the implications of appointing a successor who later becomes incapacitated and the possibility of secret conferment of 'nass' on multiple people.

The court said that Fakhriddin must demonstrate regular cases where an unwitnessed 'nass' takes effect without later witnessed affirmation. The court rejected his examples of instances of private 'nass' in history, “Every single one of this is successfully shown to have been witnessed by others, though some of these may have been private; while others featured a public announcement on the successor during the lifetime of the incumbent.”

The court held that Fakhruddin failed to prove his case on requirements of a valid “nass”.

On revocability of 'nass'

Fakhruddin contended that a 'nass' is irrevocable based on several fundamental constructs: 1) every Dai is infallible, 2) the choice of a successor is divinely inspired and happens only once, 3) the choice of a successor cannot be wrong as it would undermine the infallibility of the Dai, and 4) no Mansoos (successor-designate) has ever been superseded or substituted by another Mansoos in the first Mansoos's lifetime.

The court identified a fundamental inconsistency in Fakhruddin's argument regarding infallibility. While both sides agree that Dais are infallible, Fakhruddin's argument implies that the Dai is no longer infallible if he changes his mind, the court said. “The conclusion does not follow from the premise. The infallibility of a Dai is expansive, all-inclusive, all-encompassing and limitless. What the Plaintiff is actually advocating is that the Dai's infallibility is constricted by a choice he makes”.

“None of the texts relied upon by the Plaintiff negate the overwhelming evidence on the record that a 'nass' appointing a successor-designate can be changed. Clearly, the Plaintiff has been clutching at straws”, the court added.

On validity of 'nass' conferred on Syedna Saifuddin

From all witness testimonies and evidence presented, the court concluded that all four instances of 'nass' being conferred on Syedna Saifuddin (defendant) by the 52nd Dai had been proved. The court highlighted that Qutbuddin knew about the 'nass' conferred on Saifuddin on June 4, 2011 as he presided over a 'majlis' on June 6, 2011 that could have been meant for nothing but celebrating the 'nass' conferred on Saifuddin.

The court highlighted inconsistencies in Fakhruddin's arguments regarding the mental capacity of the 52nd Dai at the time of the conferral of 'nass' on Saifuddin on June 4, 2011.

On one hand, Fakhruddin contended that the Dai is infallible, and on the other that the 52^nd Dai did not have the capacity to confer the 'nass' on Syedna Saifuddin on June 4, 2011, the court pointed out. The court questioned his assertions of incapacity, highlighting the 52nd Dai's continued public appearances and actions, such as significant donations, which were never questioned by Fakhruddin.

Thus, the court dismissed Fakhruddin's suit, rejecting all the prayers.

Case no. – Suit No. 337 of 2014

Case Title – Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin

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