# SUI- REME COURT REPORTS (1962) SUPP. S'ARDAR SYEDNA l'AHER SAIFUDDIK SAHEB v. THE STATE OF BO'.\IBAY - **Citation:** [1962] Supp. 2 S.C.R. 496 - **Court:** Supreme Court of India - **Decided:** 1962 - **Bench:** B. P. Si~llA c. J, A. K. Sarkar, K. c. DAS GUP'l'A, N. Rajaoopala Ayyanoau, J. R. Mun110LKAR - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sui-reme-court-reports-1962-supp-s-ardar-syedna-l-aher-saifuddik-saheb-v-the-2322 - **Pages:** 59 ## Headnote Excommunication, Pret·enlion of-Enactment-Conalituticnal rolidity-Fundamrntal rights of membua of Dawoodi Bohra r.cmmunity and its religious Brad, if infringtd-Bomhay l:'ret·en:ion of Excommunication Act, I949(Bom. 42 oJ 1949), sa. 2, J-l'o1.stitution of ft,dia, Arts. 25, 26, 17. By s.3 of the Bombay Prevention of Excommunication Act, 1949 (Born. 42 of 1949), it is provided thal "Norwithstanding anything contained _in al\Y law, custom or usage for the time being in force, to the contrary, no t'xcommunication of a mem· bcr of any community shall be valid and shall be of any effect." The preamble to the Act stated, inter alia, that in keeping with the changing times and in the public intrrcst, it was expedient to stop the practice of excommunication prevalent in certain con1munitics and the definition of the word "community'' contained ins. 2 of the Act included the reJig;ous denomination of Dawoodi Bohras. The pietilioner, who wou the religi· ous head ,,f the Dawoodi Bohra community and trustee of its property, challenged the constilutional validiry of the Act on the ground thot it violated its fundamental rights guaranteed by Arts. 25 and 26 of the Corutitution. Reliance was placed on behalf of the petitioner on the decision of Judicial Committee of the Privy Council in Ila.an Ali v. Mansoor Ali, (1947) L.R.75 I.A. I, to which he was a party, as r~ognising his right a.< the 5lst Dai-ul-Mutlaq of the community to excommunicate any of its membcn under prescribed limits, /leld, (Per Sarkar, Das Gupta and Mudholkar, JJ., Sinha, C. J., diaaenting), that the impugned Act violated Arts. 25 and 26 of the Cons1itution and was, therefore, void. It was evident from the religious faith and :enets of the Dawoodi Bohra community that the exercise of the power ol excommunication by its religious head on religioua grounds formed part of the management of its affairs In matters of religion and the impugned Act in making even ruch excommunication invalid infringed the right of the community under Art. 26(b) of the Constitution. H1J1G11 .41i v. .llaMu•ment8, Mad, raa v. Sri Lakahmindm Thirtha Swamiar of Sri ShT1ir Mutt, [1954] S.C.R. Hi05, considered. Th< Durgah Committee, Ajmer v. Syed Huaaain Ali, [1962] I S.C.R. 383, referred to. Case-law discussed. The Act had for its purpose the fulfilment of individuat liberty of conscience ~uaranieed by Art 25(1) and sought to implement Art. 17 of the Con"itution in attempting to save an excommunicated person from virtually becoming an untouchable in his community and its constitutional validity could not, therefore, he questioned. Held, further. that the Act in pith and substance fell within Eniries 1 and 2 of List Ill of the Legislative Listi of the Constimtion Act of 1935, and there could be no doubt as to the con1pettn( y of the Lrgislature in rnarting it. Per Avyangar, J-The right of Dai-ul-Mutlaq to exercise the right of exc0mmuniration against a member of the drnomination as recogni.ed by the Privy Council in lltJMJnali v . .Jfan&00rali, could not be in doubt. A denomination under Art. 26 and its members under Art. 25 have the right to ensure ill existence by maintaininc discipline and ensu1ing adherence to its tenet& and practices bv such suitable action as excommunicatibn of those who denied the fundamental bases of the religion. The consequence of such action must n"cessari1y involve the exclusion of an excommunicated person from participation in the religious life of the denomination including the use of places of wonhip or burial grounds dedicated for the use of the members and vested in the religious head as trustee for the denomination. Dill v. Wataon, (1836) 3 Jones Rep. (Ir. Ex.) 4S aad Jl'rt• Church o/ Scotlallcl v. Ovcrlou, [I~] A. C. 515, referred to. It was not correct to say, in view of the ddinition of the word 'excomm11nication' contained in the Act., that it merely sought to save the civil righu of ·~ e_xcommun~~ted penon and had no concern with ~C011111llUl•cat100 .., reh'IOllfi 2 S.C.R. SUPREME COURT REPORTS 499 grounds entailing~ under the laws of the denomination, deprivation of civil rights. The impugned Act by depriving the Dai of the right to excommunicate and making its exercise a penal . offence struck at the very life of the denomination and rendered it impo· tent to protect itself against dissidents and schismatics and thereby contravened Art. 25 and 26 of the Constitution, The impugned Act cannot also to sustained as a measure of social welfare and reform under Art. 25 (2) (b) or under Art. l 7 of the Constitution. Venkatarama Devaru v. State of Mysore, [1958] $.C.R. 895, distinguished. The expression "laws providing: for social welfare and reform" in Art. 25(2: (b) of the Constitution was not intended to enable the legislature to "reform" a religion out of exis .. tence or identity. The activities referred to in Art. 25(2)(a) are obviously not of the essence of the religion nor was Art. 25(2)(b) intended to cover the essentials of a religion which are protected by Art. 25(1). Faith in the Dai-uJ.Mutlaq being an essenti:.1 part of the creed of the denominatio;; that held it· together, the impugned Act clearly contravened Art. 25(1) of the Constitu· tion by tnking away his po\ver of excomunicate by which he kept the denomination together and maintained the purity of its fellowship. OmGINAL JURISDICTION: ·Petition No. 128 of 1958. Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights. K. JI!. Munshi, R.J. Jo.•M, G.K. Jfunshi, T.S.N. Diwariji, J.B. Dadachanji, S. N. Andtey, Rameshim.r Nath and P. L. Vohra, for the petitioner. JI .C. Set,alvad, Attorney General o.f India, C.K. Daphtary, Solicitor·Generol of l"1dio. H.N .. Sanyal, Additional Solicitor General of lndhi, B. {{en and R.H. Dhehar, for the respondent. l.N. Shroff, for the intervener. 1962. January 9~Sinha. C.J., delivered his own Judgment. The Judgment of Sarkar, Das Gupta and Mudholk!t.r, JJ., was delivered by Das Gupta, J. AyY&ngar J. delivered a separate Judgment. 1962 Sardaf' Syulna TalMr Saifudd;• Saheb •• 11,, Slatt of s..,q, 11161 sw,,, s_,,4114 'Tlt.t Saifllddin Sah.b •• 7),, 8'4u of B ,m1a_, SinAa C.J. 600 SUPREME COURT REPORTS (1962] SUPP. S1: predecessor. The Shia sect itself l.ecame di"idPct into two sub-seota, known respectively as bmai/i.- and Ima Asharia. The Dawoodi Bllhras belong to the former sect, and believe that owing to perser.ution Imam Tyeb (the 21st llfam) went into seolu'sion and that an Iman from his line "'ill appear, it being their belief that an I man always exists although at times he may ho iovi&ihle to his believers, while in seclusion ; that owing to tho impen,ling seolusion of the 2 lst Imam {Imam Tyeb) his predecassor, tho :!0th Imam, clir~cted hie Hujjat (a. dignitary ranking next to an Imam), on,. Hurra-tul-.Malaka, to appoint a J)ai, a Mazoon (11 dignitary next ton Dai) and a Muh~ir {a dignitary ranking next to a Mazoon) to carry on the Duu·a.1 (miBBion) of tho /mJJm S•J long as th" Imam shoukf remain in seclusion, and to take antl receive from ~e faithful an oath of allegiance. The Doia are 2S.C.R. SUPREME COURT REPORTS 501 known ·as Dai-ul-Mutlaq. The petitioner, as the Head Priest of the community of Dawoodi Bohras, is the vice gerent of Imam on Earth in seclusion. The petitioner is a citizen of India. As Dai-ulMutlaq and the vicegerent of Imam on Earth in seclusion, the Dai has not only civil powers as head of the sect and as trustee of the property, but also ecclesiastic11l powers as religious leader of the community. It is the right and privilege of the petitioner as Dai-ul-Mntlaq to regulate the exercise of religious rights in places where such rights and ceremonies are carried out and in which religious exercises are performed. In his capacity as the Dai-ul-Mutlaq, that is to say, as· relie:ious leader as well as trustee of the property of the community, one of his duties is to manage the properties which are all under his directions and control. He has 81so the power of excommunication. This power of excommunication is not an absolute, arbitrary and untrammelled power, but has to be exercised according to the usage and tenets of the community. Save in exceptional circumstances, expulsion from the community can be effected only at a meetmg of the Jamat, after the person concerned has b•:en given due warning of the fault complained of and an opportunity of mending, and after a public statemeut of the grounds of expulsion. The result of excommunication properly and legally effected involves exclusion from the exercise of religious rights in places under the trusteeship of the Dai-ul-Mutlaq. The petitioner claims that as the head of the Dawoodi Bohra community and as Dai-ul Mutlaq, he has the right and power, in a proper case and subject t·o the conditions oflcgal exercise of that power, to excommunicate a member of the Dawoodi Bohra community, and this power of excommunication is an integral part of the religious faith and belief of the Dawoodi Bohra community. The petitioner further affirms that the exercise of the right of 196! S ardar S.JlldnO Toher Saifudd.in . ~alub •• 1.'he State of Bombay Sinha C.J. IHI S•d.B•- T•""s:tf-"itl .. . 1l1 Stou if B.,.b.i> .... c.J. 502 SUPREllE COURT REPOR'.1'5 [1902] SUPP. excommunication is a matter of religion, and tha.t, in any event, the right is an incident of the managtoment of the affairs of the Dawoodi Bohm community in matters of religion. He also aHserts that the Da.woodi Bohra. community constitutes a religious denomination within the. meaning of Art . 26 of thp Constitution ; the said right of the petitioner to excommunicate a member of the community, for reasons of which the petitioner is the sole judge in the exercise of his position as the religious head, is a guaranteed right under Arts. 25 and 26 of the Constitution. The Bombay Legislature enacted the Act, which came into force on November l, 1049, The petitioner asserts that the Act violates bis right and pown, ai. Dai-ul-Mutlaq and religioll8 leader of the Dawoodi Bohra community, to excommunicate such members of the community as he may think fit and proper to do; the said right of excommunication and the exercise of that right by the petitioner in the manner aforesaid are matU,rs of religion within the meaning of Art. 26( b) of the Constitution. It is submitted by tho pttitioner that the said Act violates or infringes both the Arts. 25 and 26 of the Constitution, and to that extent., after the coming into force of tho Constitution, has become void under Art. 13 of the Constitution. Tho petitioner claims that notwithstanding the provisions of the Act, he, as the religious loader and Dai-ul-MuUaq of the community, is entitled to cxcomm~icatc any member of the Da.woodi Bohr& community for an offence, which according to his religious sense justifies expulsion; and insofar as tho Act interferes with the said right of the petitioner, it is ultra virea the Legislature. The Act is also challenged on the ground of legislative incompetence of the then Legislature of Bombay, inasmuch as it is contended that such a power is not contained in any of tho entries in the Seventh Schedule of the Government of India. Act, 1935. 2 s.c.R. SUPREME COURT REPORTS 503 One Tayebhai Moosaji Koicha (Mandivala) instituted a suit,. being suit No. 1262 of 1949, in the High Court of Judicature at Bombay, praying inter alia, for a declaration that certain orders of excom· munication passed by the petitioner against him prior to tho enactment of the Act were void and illegal and of no ·effect, and that the plaintiff continued to remain a member of the Dawoodi Bohra community. The said suit was heard by J.C. Shah, J., who. by his ·judgment dated February 21, 1952, held · that the Act was not inconsi11tent with Art. 26 of the Constitution, and was not ultra vires the Legislature of the Province of Bombay. The petitioner, being dissatisfied with the judgment of the learned Judge, preferred an appeal that came up for hearing before the Court of Appeal, composed 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 petitioner obtained leave from the High Court to appeal to this Court, and ultimately filed the appeal, being Civil Appeal No. 99 of 1954. 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 not granted by the High Court of 1.lombay. This Court dismissed the said appeal on the ground that the plaintiff having died, the cause of action did not survive. The petitioner further alleges that parties inimical to him and to the Dawoodi Community have written scurrilous articles challenging and defying the position, power or authority of the petitioner as the religious head of the oommunity; the challenge to the petitioner's position and his power to excommunicate as the head of the Dawoodi Bohra community is violat.ive of the petitioner's guaranteed rights under Arts. 25 and 26 of the Constitution. It is, therefore, claimed that it Barda< Sydrul T al&er Salfw/dl1t SoJieb v, Tiu Stale of B1111Hr1' Sinha c.J, 8.,o S)'Mno ro1in BaifvdJi• Solwb v. 11.SW.•fBW.,, SW. C • .1. 504 SUPREME COURT REPORTS [1962] SUPP. is inoumbont upon the respondent, in its public cha.raoter, to forbea.r from enforcing the provisions of the Act against the petitioner. By the petitioner's attorney's lettl'r, annexure B to the petition, dated July 18, 1958, the petitioner pointed out to the respondent the unconstitutionality of thf' Act and requested tho latter to desist from enforcing tho provisions of tho Act against the petitioner or against the Dawoodi Bohra community. In the premises, a. writ of .Mandamus or a writ in the nature of Mandamus or other appropriate writ, qirection or order under Art. 32 of the Constitution was prayed for against the respondent restraining it, its officers, servants and agents from enforcing the provisionH of the Act. The answer of the State of Bombay, the sole respondent, is contained in the affidavit sworn to by Shri V.N. Kalghatgi, Assistant Secretary to the Government of Bombay, Home Department, to the effect that the petitioner not having taken any proceedings to excommunicate any member of the community had no cause of action or right to institute the proceedings under Art. 32 of the Constitution; that it was not admitted that the Dai-ul-Mutlaq, as the bead of the community, has civil powers, including the power to excommunicate any member of the community; that, alternatively, such power is not in conformity with the policy of tba State, as defined in the Constitution; that the petitioner, as the head of the community may have the right to regulate religious rights at appropriate places and occasions, but those rights do not include tho right to excommunicate any person and to deprive him of his civil rights and privileges; and that, in any event, after the coming into effect of the impugned Act, the petitioner has no such rights of excommunication; that it was denied that the right to excommunir,a.te springs from or has its foundation in religion and religious doctrines, tenets and faith of the Dawoodi Bohra community that, a.t • 2 S.C.R. SUPREME COURT REPORTS 505 any rate, it was denied that the right to excommu· nicate was an essential part of the religion of the community; that, altcrnati vely, assuming that it was part of a religious practice, it. runs counter to public order, morality and health. It was also asserted that the impugned Act was a valid piece of legislation enacted by a competent legislature and within the limits of Art. 25 and 26 of the Constitution; and that thP right to manage its own affairs vested in a feligious community is not an absolute or untrammelled right but subject to a regulation in the interest of public order, mprality and health. It was denied that the alleged right of the petitioner to excowmunicate a member of the community is guaranteed by Arts. 25 and-26 of the Constitution. In the premises, it was denied that the petitioner had any right to the declaration sought or the relief claimed that the provisions of the Act should not be enforced. At a very late stage of the pendency of th1; proceedings in this Court, in April 1961, one Kurbanhusein Sanchawala of Bombay, made an applicatfon either for being added as a party to the Writ Petition or, alternatively, for being granted leilve to intervene in the proceedings. In hi;i petition for intervention, he stated that he was a citizen of India and was by birth a member of the Dawoodi Bohra commun.ity and as such had been taking an active part in social activities for bettering the conditions of the members of the cummunity. He asserted that mem hers of the community accepted that up to the 46th Dai-ul11! utlaq there was no controversy, . that each one of them had been properly nominated and appointed, but that a controversy arose as regards the propriety and validity of the appointment of the 47th Dia-ul-Jfut/,aq, which controversy conti.aued all along until the present time so that opinioa is divided amonzst the members of the Dawoodi Bohra commuuity as to the validity of appointments and Sard11r S,..tna Taht1 Saifuddin Solr1b •• Tiu Stal• of Bomb47 Sinha C.J. 11111 s.-.s,.a. TN S•ifud4in 8- •• n. s..u •f "-"' 8/Mo C . .J. 506 SUI'REME COURT REPORTS [1962] SUPP. existence of Dai·ul-Mul/aq, from the 47th 'to the 6lst Dai-tJl-Mutlaq, including the present petitioner. The intervener also alleged that but for the impugned Act, the petitioner woulnded that religious reform, if that is the intention of the impmmed Act, is outside the ambit of Art. 25('!) (b) of the Con~titution. The learned Attorney-General for th<' respondent contended on the other hand, that thu right to excommunicate, whiuh has be0n renden·r! · i11 va.lid by the impugned Act, WilS not a matter of religion within the meaning of Art. :!G\b) of the Con;tibtion; that what the Act really intended was to put a stop to the practice inrlulgcd in by a caste or a denomination to deprive its membJr~ of their cidl rights as such members, as distinguished from matters of religion, which were withir1 th•.\ protection of Art. :.!5 and 2G. Altern 1tively, it WilS al;o argued that even a~suming that excommunication was concerned with matters of religion, the Act would not be void becaius it was a matter of reform in thil interest of public welfare. It was also argued that there was no evidence on the record to show that ex:communication was an essential matter of religion. The right to worship at a particular place or the right of burial in a particular burial ground were qllestions of civil natur~. a dispute in resp~ct of which was within the cvgnizance of the Civil ()ourts. ·rhe legislation in questio:1, in its real aspects, was a matter of social welfare and soci d reform and n'.>t within the prohibitioni of Art. 2.5( I) or Art. 26. E1:commllnication involving deprivation. of rights of worship or burial and the like wcr•• not matters of religion witliin the meaning of Art. 2G(b), and Ii.tally, Art. 26(b) waa controlled by Art. 25(2) (b) uf th3 Constitution, and, th'.Jrefore, even if excommunication touched oert~in religious matters, the Aot, insofar as it had abolisheJ it, was in co111onance with modern notions of human dignity 1962 Sardar ')ytdna Taher St1ifuddin Saheh v. Tnt State of Bomb•7 Sinla C. J. s., .. 8,.,,.. T- SaifutUi• So.lib 'v. T.\t S 1<14 of Bomb•J BW..C,J, 510 SUPREME CO~TREPORTS [1962] SUPP. and individual liberty of action even in matters of religiouR opinion and faith and practice. Shri Shroff, appearing for the intervener, attempted to reopen tho question whether the ~titioner as Dai-ul-Mutlaq, assuming that he had been properly elected as such, had tho power to excommunicate, in spite of the decision of their Lordships of the Judicial Committee of tho Privy Council in HatJan Ali v. Man..'>001" Ali ( '). He also supported the provisions of the impugned Act on the grou11d that they were in furtherance of public order. As we are not here directly concerned with tho question whether or not the petitioner as tho head of the religi0us community had thP power to excommunicate, we did not hear Mr. Shroff at any length with reference to that qu!'stion. We shall proceed to determin the controversy in this c11se on the aseumption that the petitioner bad that power. We are only directly concemrd with the questions whether the provisions of the Act, insofar as they have rrndered invalid the practice of excommunica· tion, are unconstitutional as infringing Art. 26(b}, and enacted by a legislature which was not competent to do so, as contended on behalf of the petitioner. We will, therefore, confine our attention to those questions. Keeping in view the limited scope of the c0ntroversy, we have first tO' determine the ambit and effect of tho impugned Act. The Bombay Prevention of Excommunication Act (Bombay Act XLII of 1919) is an Act to prohibit excommunication in the province of Bombay. Its preamble, which shortly states the background of the le;;islation, is in these terms : "Whereas it has come to the notice of Government that the fractice prevailing in certain communities o excommunicating its members is often followed in a manlier whi<.·h result.a in the deprivation of legitimate right. and privileges of it8 members ; (1) [19f7] L.Jl. 75, J. A. J, l 2 $.C.R. SUPREME COURT REPORTS 511 And whereas in keeping with the spirit of changing times and in the public interest it is expedient to stop the practice; it is hereby enacted is follows" Tue definition of "Community" as given in s. 2(a) would include the Dawoodi Bohra community, because admittedly its members are knit together by reason of certain common religious doctrines. and admittedly its members belong to the same religion or religious creed of a section of the Shia community of Muslims. The term 'community" includes a caste or a sub-caste also. "Excommuni· cation" has been defined. by s. 2 (b) as meaning "the expulsion of a person fl'Om any community of which he is member depriving him of rights and privileges which are legally enforceable by a suit of civil nature ......... ", and the explanation to the definition makes it clear that the rights and privileges within the meaning of the definition ~nclude the right to office or property or to worship in any religious place or a right of burial or cremation, notwithstanding the fact that the determination of such right depends entirely on the decision of the question as to any religious riteH or ceremonies or rule or usage of a community. By s. 3, excommunication of a member of a community has been declared to be invalid and of no effect, notwithstanding any law, custom or usage to the contrary. Any act of excommunication, or any act in furtherance of excommunication, of any member of a community has been made a penal offence liable to a puni8hment, on conviction, of fine which may extend to one thousand rupees. The explanation has made it clear that any person who has voted in favour of a decision of excommunication at a meeting of a body or an association of a particular denomination is deemed to have committed the offence made punishable by s. 4, as aforesaid. Sections 5 and 6 lay down the procedure for the trial of an offence under the' Act, the limit of time 1962 Sartlor SyeJno To.her l!Satfuddi11 Salreb v. Thi Slal• of BM11"'1 Sinha a. J, 1H3 8•44' B(l!in• r .... s.v..uu. B.Wt •• r1u Sl•ll •/ B~ 8i•"4 c. J. 512 SUPREME OOURT REPORTS [1962] SUPP. within which the prosecution must be launched and the necessity of previous sanction of the authority indicated therein. These, in short, are tho provisions of the impugned Act. It will be noticed that the Act is a culmination of tho hietory of social reform which began more than a century ago with the fnactmt'nt of s. 9 of Regulation YJI cf 1832 of the :Bengal Code, which provided, i11ter alia. that the J:rn s of Hindus and M'ijslims shall nl>t be permitted to ope· rate to deprive the parties of any property to which, but for the operation of such laws, they would have been entitled. Those provisions were subsequently incorporated in tlio [ndia Act (XXI of 1850)-known as the Caste Disabilities Removal Act-which provided th~t a person shall not be dcprivt-d of his rights or property hy reason of his or her renouncing or exclusion from tho communion of any religion or being dPprivcd of "~&te, and that an:v 011ch forfeiture shall not be enfNr<·d as the law in the Court8. The impugned Act, \],us, has given full dfect to modern notions of individual freedom to choose one's way of life and to do away with all those unduc and outmoded interfen·nces wi,h liberty of conscience, faith and belief. It. is also aimed at .ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long 'Ul he did not interfere with similar rights of others. The legislature had to take the logical final step of creating a now offene<• by laying down that nobody had the right to deprive others of their civil rights simply because the latter did not conform to a particular pattern of conduct. The Act, in subs· ta.nee, has added a new offence to the penal law of the country by i:enalising any action which has the effect of depriving a pPrson of his human dignity and rights appurtenant thereto. It also adds to the. provisions of the Criminal Proced11 .. r Code and has jQsistod upon the previous sanction of the prescribed 2 S.C.R. SUPREME COURT REPORTS 513 authority as a condition precedent to launching a prosecution for an alleged .offence against the provisions of the Act. In my opinion, ·therefore, the enactment, in pith and substance, would come within Entries 1 & 2 of List III of the Concurrent Legislative List of the Constitution Act of 1935. It is true that "excommunication" does not, in terms, figure as one of the entries in any one of the three lists. The legislative competence of the Bombay Legislature to enact the Act has not been seriously challenged before us; and, therefore, no particular argument was addressed to us to show that the legislation in question could not be within the purview of Entries 1 & 2 of List III aforesaid. What was seriously challenged before us was the constitutionality of the Act, in the light of the Constitution with particular reference to Arts. 25 & 26, and I shall presently deal with that aspect of the controversy. But before I do that, it is convenient to set out the background of the litigation culminating in the present proceedings. The first reported ca.se in relation to some aspects of Skia I mami Ismailis is that of the Advocate General ex relation Dave Muhammad v. Muhammad Husen HuBeni (1). That was a suit commenced befor.e the coming into existence of the Bombay High Court, on the Equity Side of the late Supreme Court, instituted by an information and bill, filed by the relators and plaintiffs, representing a minority of the Kkoja community, ·against 'the defendants representing tbe majority of that community. The prayer in the action was that an account be taken of all property belonging to or held in trust for the Kkoja community of Bombay in the hands of the treasurer and the accountant, respectively called Lifukki and Kamaria, and other cognate reliefs not relevent to the present controversy. In that case, which was heard on the Original side by Arnould J., judgment was delivered in November 1866, after a (I) (m75) 2 Born. H.C.R. 323 11HJ2 Sartiqr Syetfna I oh:~ Saifvddin. Saheb v. Tf.e "tote of Bom-~Y Sinha C. J. lH2 S•t!.r8..J.. 2'w s.v;;;;,. IMo6 v. n. Bkio •I B-J ~ sw..c. J. 514 SUPREME COURT REPORTS [1962] SUPP. prolonged hearing. In that case, the learned Judge went into a. detailed history of the several sects amongst Muslims, including the Shia I mami I smaili8, with pa.rtioula.r reference to the Aga Khan and his relation with the Ja.mat of the Klwjas of Bombay. In that case it was la.id down that there was no public property impressed with a trust, either expreas or impli<'d, for the benefit of the whole Klwja oommunity and that Aga. Khan, as the spiritual head of the Klwjas was entitled to determine on religious grnnnds who shall or shall not remain merubers of the Khoja community. In that case, the learned Judge, with reference to authoritative texts, went into the detailed history of the two sects of the Sunnis and Shi.as. He discuEsed the origin of the 1 wiailis as an offshoot of the Sh-ia,'J, and traced the hereditary succeesion of the unrevealed Imams in unbroken line down to Agha Khan. Except for its historical aspect, the case does not deal with any mattt•r relevant to the present controversy. 'l'he next reported case which was brought to our notice is thl' case of the Advocate Grneml of Bombay v. Yusufalli Ebrahim (I).