Back
2017 Supreme(Bom) 2132
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J.
Khuzemabhai Syedna Taher Saifuddin Saheb Alias Khuzemabhai STS Qutbuddin Alias Khuzaima Qutbuddin - Plaintiff
Versus
Mufaddal Burhanuddin Saifuddin - Defendant
Chamber Summons No. 1290 of 2016 In Suit No. 337 of 2014
Decided On : 07-03-2017
Act Referred
LIMITATION ACT : S.5
Headnote
Dai Al-Mutlaq - Appointment of Successor - Order 22 of the Code of Civil Procedure, 1908 - Suit abatement on death - Devolution of interest in the subject-matter of the suit - Suit to be continued by legal representative - Suit for declaration of personal status and rights - Right to sue survives - Suit not in a 'representative capacity' - Derived, or devolved, interest - Suit to be continued in own name seeking derived, or devolved, interest - Suit not abated on death of original Plaintiff - Amendment disallowed on raising issue of apostasy and abandonment of the Ismaili faith
Fact of the Case:
The original Plaintiff brought suit for a declaration that he was properly appointed as the 53rd Dai Al-Mutlaq of the Dawoodi Bohra Community and for orders regarding various estates and properties that vest in the Dai Al-Mutlaq. The Defendant claimed to have been validly appointed as the successor. The original Plaintiff died during the trial, and his eldest son sought to continue the suit, claiming that his father properly appointed him as the 54th Dai Al-Mutlaq. The question before the court was whether the suit abated on the original Plaintiff's death and whether the son could continue the suit in his own name, amending it for a suitable declaration in his own favour.
Finding of the Court:
The court found that the suit did not abate on the original Plaintiff's death as the right to sue survived, and the son could continue the suit in his own name seeking derived, or devolved, interest. The court disallowed an amendment that raised the issue of apostasy and abandonment of the Ismaili faith as it was entirely new and formed no part of the cause of action pleaded by the original Plaintiff.
Issues: The main issue was whether the suit abated on the original Plaintiff's death and whether the son could continue the suit in his own name, seeking derived, or devolved, interest. Another issue was the admissibility of an amendment that raised the issue of apostasy and abandonment of the Ismaili faith.
Ratio Decidendi: The court held that the suit did not abate on the original Plaintiff's death as the right to sue survived, and the son could continue the suit in his own name seeking derived, or devolved, interest. The court disallowed an amendment that raised the issue of apostasy and abandonment of the Ismaili faith as it was entirely new and formed no part of the cause of action pleaded by the original Plaintiff.
Final Decision: The court allowed the son to continue the suit in his own name seeking derived, or devolved, interest and disallowed an amendment that raised the issue of apostasy and abandonment of the Ismaili faith.
For the Applicant : Mr Chirag Mody, with Samit Shukla and Nausher Kohli, i/b DSK Legal.
For the Defendant :Mr Pankaj Sawant, with Juzer Shakir, Azmin Irani, Abeezar Fazullabhoy, Murtuza Kachwalla and Shehen Pradhan, i/b has Advocates.
G.S. PATEL, J.
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.
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 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;
(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
