C. Setalvad, Attorney General of India, K. Daphtary, Solicitor General of India, H.N. Sanyal, Additional Solictor General of India, B. Sen and R. H. Dhebar, for the respondent.
M. Munshi, R. J. Joshi, G.K. Munshi, T.S.N. Diwanji, J.B. Dadachanji, S.N. Andley, Rameshwar Nath and P. L. Vohra, for the petitioner.
The Dawoodi Bohras belong to the former sect, and believe that owing to persecution Imam Type the 21st Imam went into seclusion and that an Iman from his line appear, it being their belief that an Iman always exists although at times he may be invisible to his believers, while in seclusion that owing to the impending seclusion of the 21st Imam Imam Tyeb his predecessor, the 20th Imam, directed his Hujjat a dignitary ranking next to an Imam , one Hurra tul Malaka, to appoint a Dai, a Mazoon a dignitary next to a Dai and a Mukasir a dignitary ranking next to a Mazoon to carry on the Dawal mission of the Imam so long as the Imam should remain in seclusion, and to take and receive from the faithful an oath of allegiance.
I N. Shroff, for the intervener.
January 9 Sinha.
It is submitted by the petitioner that the said Act violates or infringes both the Arts.
The petitioner, being dissatisfied with the judgment of the learned Judge, preferred an appeal that came up for hearing before the Court of Appeal, companyposed of Chagla, C. J., and Bhagwati J. By its judgment dated August 26, 1952, the Court of Appeal upheld the judgment of the learned single Judge, though on different grounds.
The Dais are known as Dai ul Mutlaq.
1262 of 1949, in the High Court of Judicature at Bombay, praying inter alia, for a declaration that certain orders of excommunication passed by the petitioner against him prior to the enactment of the Act were void and illegal and of numbereffect, and that the plaintiff companytinued to remain a member of the Dawoodi Bohra companymunity.
The Shia sect itself became divided into two sub sects, known respectively as Ismailis and Isna Asharia.
The petitioner claims that numberwithstanding the provisions of the Act, he, as the religious leader and Dai ul Mutlaq of the companymunity, is entitled to excommunicate any member of the Dawoodi Bohra companymunity for an offence, which according to his religious sense justifies expulsion and insofar as the Act interferes with the said right of the petitioner, it is ultra vires the Legislature.
C.J., delivered his own Judgment.
128 of 1958.
SINHA, C. J. By this petition under Art.
The Judgment of Sarkar, Das Gupta and Mudholkar, JJ.,
The Dawoodi Bohras believe that the said Ali was succeeded by a line of Imams, each of whom in turn was appointed by Nas e Jali by his immediate predecessor.
was delivered by Das Gupta, J. Ayyangar J. delivered a separate Judgment.
26 of the Constitution, and was number ultra vires the Legislature of the Province of Bombay.
ORIGINAL JURISDICTION Petition No.
The said suit was heard by J.C. Shah, J., who, by his judgment dated February 21, 1952, held that the Act was number inconsistent with Art.
32 of the Constitution of India for enforcement of Fundamental Rights.
The intervener also alleged that but for the impugned Act, the petitioner would have lost numbertime in excommunicating him.
25 and 26 of the Constitution, and to that extent, after the companying into force of the Constitution, has become void under Art.
The petition is founded on the following allegations.
99 of 1954.
Petition under Art.
One Tayebhai Moosaji Koicha Mandivala instituted a suit, being suit No.
During the pendency of the appeal, the plaintiff respondent aforesaid died and an application made on behalf of his heirs for being brought on the record was number granted by the High Court of Bombay.
13 of the Constitution.
The Act is also challenged on the ground of legislative incompetence of the then Legislature of Bombay, inasmuch as it is companytended that such a power is number companytained in any of the entries in the Seventh Schedule of the Government of India Act, 1935.
He asserted that members of the companymunity accepted that up to the 46th Dai ul Mutlaq there was numbercontroversy, that each one of them had been properly numberinated and appointed, but that a companytroversy arose as regards the propriety and validity of the appointment of the 47th Dia ul Mutlaq, which companytroversy companytinued all along until the present time so that opinion is divided amongst the members of the Dawoodi Bohra companymunity as to the validity of appointments and existence of Dai ul Mutlaq, from the 47th to the 51st Dai ul Mutlaq, including the present petitioner.
The petitioner obtained leave from the High Court to appeal to this Court, and ultimately filed the appeal, being Civil Appeal No.
