As the Bohra succession case continues to power on in the Bombay High Court, Justice Gautam Patel expressed his frustration. On 21st March, both morning and afternoon sessions proved to be explosive with Justice Patel castigating both sides in an attempt to bring the suit to a speedy conclusion.
In a new twist, for the first time Justice Patel made his feelings about the importance of the Bohra Succession case clearly known to both the involved parties, saying “I don’t think there has been a case of this magnitude in decades.” With the fate of a million-strong community hanging in the balance, it is no surprise that Patel commented further that “the stakes are unimaginable.”
‘Stringing every nerve’
At the opening of the day, Senior Counsel Iqbal Chagla representing the defendant Mufaddal Saifuddin Saheb asked plaintiff Taher Fakhruddin Saheb about a book with which Fakhruddin claimed to be unfamiliar. Chagla then showed Fakhruddin the manuscript for the first time and asked him to identify it. Justice Patel noted that that the Plaintiff has not accepted its authenticity, authorship, and correctness and that the defense will have to lead evidence to bring those on the record. He further commented that Chagla appeared to be “stringing every nerve not to get the Defendant in the [witness] box.” To date, the Defendant has not signed on any of the court documents including his own written statement.
When asked by Chagla about whether a nass of succession can be conferred by written communication, Fakhruddin responded in the positive, and that one example of such a conferment was when the 20th Imam appointed the 21st Imam, and that the written communication was sent to Hurrat al-Malika in Yemen who authenticated its contents. Chagla asked Fakhruddin whether Hurrat al-Malika was a ‘witness’ to the written communication. “No”, Fakhruddin replied.
Chagla pointed to Fakhruddin’s evidence affidavit which stated that the 20th Imam “chose Maulatuna Hurrat al-Malika to be the single witness to the nass he conferred” via that written communication and asked which of the two statements were correct. When Fakhruddin said that both statements were correct, Justice Patel stepped in and three times demanded a succinct answer to that question. The tension in the courtroom was palpable as Justice Patel told Fakhruddin’s counsel, Anand Desai, that he was “not amused”.
Justice Patel allowed Fakhruddin to respond as he wished. Fakhruddin responded that both statements were correct, and in response to today’s question, he meant that Hurrat al-Malika was not physically present in Egypt to witness the letter bring written. Whereas in the evidence affidavit he said that she was the single witness to the nass because she testified that the 21st Imam was Imam-al-Tayyeb and it was based on her testimony that the Dawat continued in Imam Tayyeb’s name.
Justice Patel lamented that four years after the case has been filed, cross examination of the first witness is still not yet complete, asking “when is this ever going to end?” Chagla has till date asked over one thousand questions on wide ranging topics including family, business, doctrine, websites, and timelines, but even after this extensive questioning the cross-examination remains incomplete.
This is how the proceedings went through between March 21-22 2018
The recording of evidence of Taher Fakhruddin Saheb, the Plaintiff in Suit 337/2014, which had been originally filed by his predecessor Late Khuzaima Qutbuddin Saheb (the Original Plaintiff) in the Hon’ble Bombay High Court, continued on 21st and 22nd March in Courtroom No. 37 of the Hon’ble Bombay High Court, presided over by the Hon’ble Justice Gautam Patel.
Over four sessions of cross-examination, Taher Fakhruddin Saheb was asked 78 questions by Iqbal Chagla, Senior Counsel for defendant Mufaddal Saifuddin Saheb. Since 2015, when the cross-examination began, Khozema Qutbuddin Saheb was asked a total of 544 questions, and now, Taher Fakhruddin Saheb has so far been asked 733 questions, a cumulative total of 1,277 questions between the Original Plaintiff and the Plaintiff to date.
Chagla showed Fakhruddin Saheb a manuscript that he was not familiar with. He was then asked to read from it to see whether it said that the nass conferred by 25th Dai, Syedna Jalal RA on the 26th Dai Syedna Dawood bin Ajabshah RA was in presence of the people of Dawat. Fakhruddin Saheb answered in affirmative; that was what the manuscript said. Fakhruddin Saheb further added that the manuscript incorrectly said that the people of the Dawat handed over Dawat to 26th Dai.
Fakhruddin Saheb explained that it was never for the people of the Dawat to hand over the Dawat to the Mansoos and an authority as high as Syedna Hamiduddin al Kirmani (The Bab ul-Abwaab of the 16th Imam, Imam Hakim) had said that even if the whole world were to testify that a particular person is a successor, that is not valid unless there is a nass conferred by the Imam or Dai and therefore, it is the Imam or Dai who hands over the Dawat to the Mansoos.
Chagla then asked Fakhruddin Saheb whether there was any written proof that supported his earlier statement that the biggest proof of the legitimacy of the 27th Dai Syedna Dawood bin Qutubshah’s claim to being the Dai was that he was the Mazoon of the 26th Dai. Fakhruddin Saheb responded in affirmative, that this was stated in the book ‘Al Burhan al Jaliya’ written by Syedi Hasan bin Idris.
Chagla asked Fakhruddin Saheb if Maulatuna Hurrat al-Malika was a witness to the written communication from 20th Imam appointing the 21st Imam. Fakhruddin Saheb responded that she was not. Chagla referred to the statement in Fakhruddin Saheb’s Affidavit of Evidence that the 20th Imam “chose Maulatuna Hurrat al-Malika to be the single witness to the nass he conferred via the Sijjil ul Bisharat” and asked which of these two above statements were true. Fakhruddin Saheb responded that both statements were correct. He said in the question put to him today, he (Fakhruddin Saheb) meant that she (Maulatuna Hurrat al-Malika) was not physically present in Egypt to witness the letter (Sijjil ul Bisharat) being written by the 20th Imam (she was in Yemen at that time). In his earlier statement in his Affidavit of Evidence, Fakhruddin Saheb said that Maulatuna Hurrat al-Malika was the single witness to the nass because she testified that the 21st Imam was al-Tayyeb and it was based on her testimony that this Dawat in the seclusion of the Imam would continue in the name of the 21st Imam.
Chagla asked Fakhruddin Saheb questions regarding the basis on which he had said that Prophet Sulayman SA first conferred nass on his successor in private without any outside witnesses (i.e. only Prophet Sulayman and his mansoos were present). Fakhruddin Saheb replied that the conferment of the first nass being conferred in private is narrated by Syedna Qadi al-Noman, who was a Dai and also the Chief Justice during the time of the Imam in his book ‘Asaas ut-taweel’.
In the same book, Syedna Qadi al Noman also narrated that when the nass was again done at the end of Prophet Sulayman’s life the dignitaries of the Dawat said that had they known who the Mansoos was before they would not have suffered the anguish of not knowing his identity. Syedna Qadi al Noman cites a Quranic verse about this incident.
Chagla asked Fakhruddin Saheb what he meant when he said that the appointment of Maulana Ali AS was by an indication (i.e. not by a direct statement). Fakhruddin Saheb responded that he meant that Prophet Mohammed SAW in addressing the gathering referred to Imam Ali as his successor by juxtaposing Imam Ali’s name with his own. The Prophet said, “‘Man Kuntu Mowlahu fa haza Aliyun Mowlahu“…which translated means “He of whomever I am the Master-Lord (Mowla), Ali is his Master-Lord (Mowla).” Chagla then asked Fakhruddin Saheb whether Maulana Ali succeeded Prophet Mohammed by public anointment, to which Fakhruddin Saheb agreed.
Chagla asked Fakhruddin Saheb whether he was familiar with the handwriting of the 51st Dai. Fakhruddin Saheb answered that he was familiar only to some extent. Chagla then asked whether he would be able to recognize the handwriting if he saw it. Fakhruddin Saheb said that he could not say until he was shown the specimen of his handwriting.
Chagla showed Fakhruddin Saheb a bound collection of documents. The portion shown was handwritten on lined paper using a pencil. Chagla then asked if Fakhruddin Saheb agreed that this was the handwriting of the 51st Dai. Fakhruddin Saheb responded in negative. Chagla asked if he recognized the handwriting at all, to which Fakhruddin Saheb again responded in negative.
Fakhruddin Saheb was then asked by Chagla whether Fakhruddin Saheb agreed that one of the pages in the collection of documents said that although nass can be conferred secretly, it must even so be done in the presence of two or four witnesses. Fakhruddin Saheb responded that the page in question does not say that it must be done in the presence of two or four witnesses, but rather says that it may be done in the presence of two or four witnesses, and that it also says that Dai has complete freedom of choice in this matter and may do as he pleases.
Hon’ble Justice Gautam Patel has scheduled the further cross-examination of Fakhruddin Saheb on 10th, 11th, and 13th April 2018.
Please note: Summary of the proceedings (in blue) is a reproduction of the same in the Plaintiff’s official website