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Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay .
Factual and Procedural Background
The appellant, the religious head of the Dawoodi Bohra community, issued an order on 28 February 1934 excommunicating one Tyebbhai Moosaji Koicha. An earlier set of excommunications (17 July 1920) had already been litigated up to the Privy Council, which ruled in Hasan Ali v. Mansoor Ali, AIR 1948 PC 66, that although the religious head possessed power to excommunicate, the power had to be exercised after observing prescribed formalities.
Fearing that the 1934 order could be invalidated on similar grounds, the appellant commenced fresh proceedings and passed a second order of excommunication on 28 April 1948. Tyebbhai Moosaji sued for a declaration that both excommunications were void.
While the suit was pending, the Bombay Legislature enacted the Bombay Prevention of Excommunication Act, 1949 (“the 1949 Act”), effective 1 November 1949, which altogether prohibited excommunication. The plaintiff contended that the statute rendered the two orders illegal. The appellant counter-argued that the Act (i) was not retrospective, (ii) was beyond provincial legislative competence, and (iii) violated Articles 25 and 26 of the Constitution.
Issue 19—“Whether the orders of excommunication made in 1934 and/or 1948 are invalid by reason of the provisions of the Bombay Prevention of Excommunication Act, 1949?”—was tried as a preliminary issue. Shah, J. upheld the Act’s validity and retrospectivity; a Division Bench (Chagla, C.J. & Bhagwati, J.) affirmed and granted a certificate to appeal to the Supreme Court under Articles 132 and 133.
During the pendency of the appeal the plaintiff died (11 March 1953). His daughter’s substitution application was eventually withdrawn, and the cause title was amended to delete the plaintiff’s name. The only parties left were the appellant and the State of Bombay.
Legal Issues Presented
- Whether, after the plaintiff’s death and consequent abatement of the suit, the appeal could still proceed solely between the appellant and the State of Bombay.
- Whether the High Court’s decision on a single preliminary issue constituted a “judgment, decree or final order” so as to found appellate jurisdiction under Articles 132 or 133 of the Constitution.
- (Underlying issue in the suit) Whether the orders of excommunication dated 28 February 1934 and 28 April 1948 were invalid owing to the retrospective effect and constitutional validity of the Bombay Prevention of Excommunication Act, 1949.
Arguments of the Parties
Appellant’s Arguments
- The 1949 Act is not retrospective; therefore the 1934 and 1948 excommunication orders remain valid.
- The provincial legislature lacked competence under the Government of India Act, 1935 to enact the 1949 Act; hence the statute is ultra vires.
- Post-Constitution, the right to excommunicate is protected by Articles 25 and 26, rendering the Act void.
- Even after the plaintiff’s death, the appeal can proceed because the State of Bombay is a party and United Provinces v. Mst Atiqa Begum, AIR 1940 FCR 110, recognises a governmental interest in defending the validity of its legislation.
Plaintiff’s Arguments
- The 1949 Act, by prohibiting excommunication, automatically invalidated the 1934 and 1948 orders.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hasan Ali v. Mansoor Ali, AIR 1948 PC 66 | A religious head may excommunicate only after observing prescribed formalities. | Provided historical context; it prompted the appellant to issue a second excommunication order in 1948. |
| United Provinces v. Mst Atiqa Begum, AIR 1940 FCR 110 | The Government may appeal solely to uphold the validity of legislation even without a substantive interest in the suit. | The appellant relied on this case; the Supreme Court distinguished it because that matter involved a final decree, whereas the present appeal concerned only an interlocutory finding. |
Court's Reasoning and Analysis
1. Abatement of the suit: The original cause of action—wrongful excommunication—was personal to the plaintiff. Under the maxim actio personalis moritur cum persona, the action died with him. Since his legal representative abandoned substitution, the suit itself abated and no decree existed.
2. Appeal is a continuation of the suit: An appeal cannot survive the demise of the underlying proceeding. Because the suit no longer existed, there was nothing to continue.
3. Lack of a “judgment, decree or final order”: Articles 132 and 133 permit appeals only from judgments, decrees or final orders. The impugned High Court decision was merely a finding on a preliminary issue and did not dispose of the entire suit. The Explanation to Article 132, which treats certain issue-decisions as final orders, was inapplicable because even a ruling favourable to the appellant would not finally dispose of all remaining issues.
4. Distinction from Atiqa Begum: Unlike the earlier Federal Court case—where a final decree existed—the present matter lacked any final adjudication. Therefore, the rationale permitting an appeal by a governmental party in Atiqa Begum did not apply.
For these reasons the Court concluded that the appeal was incompetent.
Holding and Implications
DISMISSED as not maintainable.
The dismissal rests solely on procedural grounds: the suit had abated and the High Court’s order was not a final judgment. The Supreme Court expressly refrained from ruling on the constitutional validity or retrospective effect of the Bombay Prevention of Excommunication Act, 1949. Consequently, the appellant remains free to assert any available rights in future, properly constituted proceedings; no substantive precedent on the merits of the 1949 Act was created.
Venkatarama Aiyar, J.— On 28-2-1934, the appellant who is the religious head of the Dawoodi Bohra Community, passed an order excommunicating one Tyebbhai Moosaji Koicha. On 17-7-1920, the appellant had excommunicated two persons, Tahirbhai and Hasan Ali, and the validity of the order was questioned in a suit instituted in the Court of the Subordinate Judge, Barhampur. The litigation went up to the Privy Council, which held that the appellant as the religious head had the power to excommunicate a member of the community, but that that power could only be exercised after observing the requisite formalities, and as in that case that had not been done, the order of excommunication was invalid. Vide Hasan Ali v. Mansoor Ali AIR 1948 PC 66.
2. Apprehending that the order dated 28-2-1934, was open to challenge under the decision in Hasan Ali v. Mansoor Ali on the ground that it had not complied with the requisite formalities, the appellant started fresh proceedings, and on 28-4-1948, passed another order of excommunication. Thereupon, Tyebbhai Moosaji filed the present suit for a declaration that both the orders of excommunication dated 28-2-1934, and 28-4-1948, were invalid and for other consequential reliefs.
3. While this action was pending, the Legislature of the Province of Bombay passed the Bombay Prevention of Excommunication Act (Bombay 42 of 1949) prohibiting excommunication, and that came into force on 1-11-1949. The plaintiff contended that the effect of this legislation was to render the orders of excommunication illegal. The answer of the appellant to this contention was, firstly, that the Act had no retrospective operation, and that, in consequence, the orders passed on 28-2-1934, and 28-4-1948, were valid, and remained unaffected by it; and secondly, that the Act was itself unconstitutional, because the subject-matter of the impugned legislation was not covered by any of the entries in List 2 or 3 of Seventh Schedule to the Government of India Act, 1935, and the Legislature of the Province of Bombay had no competence to enact the law. After the coming into force of the Constitution, the contention was also raised that the right of the defendant to excommunicate members of the community was protected by Articles 25 and 26 of the Constitution, and that the impugned Act was void as infringing the same.
4. The issues in the action were then settled, and Issue 19, which was raised with reference to the contentions, was as follows:
“Whether the orders of excommunication made in 1934 and/or 1948 are invalid by reason of the provisions of the Bombay Prevention of Excommunication Act of 1949?”
This was tried as a preliminary issue, and as it raised the question of the vires of a statute, the State of Bombay was impleaded as the second defendant in the suit. Shah, J., who tried this issue, held that the impugned Act was retrospective in its operation, that it was within the competence of the Provincial Legislature, and further that it did not offend Articles 25 and 26 of the Constitution.
5. Against this finding, the present appellant preferred an appeal to a Bench of the Bombay High Court, and that was heard by Chagla, C.J, and Bhagwati, J., who held that under the Act, excommunication meant the condition of being expelled, that it was a continuous state during which the person excommunicated was deprived of his rights and privileges, and that, therefore, the Act would operate to protect those rights from the date it came into operation. They further held that the Act was within the competence of the legislature, and they also repelled the contention that it infringed the rights guaranteed under Articles 25 and 26 of the Constitution. In the result, they concurred in the decision of Shah, J., and dismissed the appeal but granted a Certificate to appeal to this Court under Articles 132 and 133 of the Constitution. Hence this appeal.
6. Pending the appeal, the plaintiff died on 11-3-1953, and his daughter applied on 22-5-1953, to be substituted in his place. But eventually she did not press the application, and that was dismissed on 5-10-1953. In this Court by an order dated November 21,1955, the cause title was amended by deleting the name of the plaintiff. Thus, the only parties who are now before the Court are the defendant and the State of Bombay.
7. The question is whether in the events which have happened, the appeal can proceed. We are of opinion that it cannot. It should be remembered in this connection that no decree had been passed in the suit. Only a finding has been given on a preliminary point, and it is that finding that has been the subject of appeal to the High Court of Bombay and thereafter to this Court. There are other issues still to be tried, and the action is thus undetermined. Now, the claim with which the plaintiff came to Court was that he was wrongly excommunicated, and that was an action personal to him. On the principle, actio personalis moritur cum persona when he died the suit should abate. As a matter of fact, his legal representative applied to be brought on record, but the application was not pressed. The result is that the suit has abated. This would ordinarily entail the dismissal of this appeal.
8. Mr N.C Chatterjee for the appellant argues that as the State of Bombay had been impleaded as a party, and that as the decision on the question of the vires of the Act had been given in its presence, the appellant is entitled to continue the appeal against the State without reference to the plaintiff and seek the decision of this Court on the validity of the Act; and relies on the decision of the Federal Court in United Provinces v. Mst Atiqa Begum AIR 1940 FCR 110. There, a suit was filed by a landlord for recovery of rent. While it was pending in appeal, an Act was passed by the Legislature of the United Provinces validating certain Government notifications requiring the landlords to give to the tenants remission of rent. The landlord contended that the Act was ultra vires, and a Full Bench of the Allahabad High Court, for whose opinion the question was referred, agreed with this contention. Thereafter, the Government of the United Provinces got itself impleaded as a party to the appeal of the landlord, and a decision having been given therein in accordance with the opinion of the Full Bench, it preferred an appeal to the Federal Court on a Certificate granted under Section 205 of the Government of India Act, 1935, and contended that the impugned Act was valid. The judgment-debtor himself did not file any appeal. The question was whether the Government was entitled to file the appeal when the party had not chosen to contest the decree. It was held by the Federal Court that the scope of Section 205 of the Government of India Act was wider than that of Section 96 of the Civil Procedure Code, and that the Government was entitled to file the appeal for getting a decision on the validity of the Act, notwithstanding that it had no interest in the claim in the suit. This ruling has, in our opinion, no application to the facts of the present case. Here, the action itself has abated, and there can be no question of an appeal in relation thereto, as an appeal is only a continuation of the suit, and there can be no question of continuing what does not exist.
9. But apart from this, there is another formidable obstacle in the way of the appellant. Under Article 132, an appeal lies to this Court only against judgments, decrees or final orders. That was also the position under Section 205 of the Government of India Act. Now, the order appealed against is only a decision on one of the issues, and it does not dispose of the suit. In United Provinces v. Mst Atiqa Begum there was a decree, and the requirements of Section 205 were satisfied. Here, there is only a finding on a preliminary issue, and there is no decree or final order. The Explanation to Article 132 provides that:
“For the purposes of this Article, the expression ‘final order' includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.”
Applying this test, even if we accept the contention of the appellant that the impugned Act is bad, that would not finally dispose of the suit, as there are other issues, which have to be tried. We are clearly of opinion that the appeal is not competent under Article 132, and the fact that a Certificate has been given does not alter the position. It is said that the Certificate is also under Article 133, but under that article also, an appeal lies only against judgments, decrees or final orders, and no Certificate could be granted in respect of an interlocutory finding.
10. The result is that this appeal must be dismissed, as not maintainable. We should add by way of abundant caution that as we express no opinion on the correctness of the decision under appeal, this order will not preclude the appellant from claiming such rights as he may have, in appropriate proceedings which he may take. In the circumstances, there will be no order as to costs.
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