Haji Bibi Case

[Admin]

Haji Bibi Case

THE BOMBAY LAW REPORTER

ORIGINAL CIVIL.

--------

Before Mr. Justice Russell

HAJI BIBI

v.

H.H. SIR SULTAN MOHAMED SHAH,

THE AGA KHAN *

LINK: http://www.ismaili.net/heritage/node/29459

[mahebubchatur]

Haji Bibi case was filed in 1905 with judgement in 1909. (It is significant the Ismaili constitution was ordained in 1905)

Haji Bibi " a milestone" case was mainly whether members of the Imams family were entitled to an inheritance under the law from assets (which include offerings given by Ismailis). This was regarding the estates of Aga Khan I and II ( MHAS and MAS)

MSMS at the time was 30 years old. (According to the judgement MSMS became Imam at age of 8 in 1885)

Evidence in this case was also given by "Gupti" Ismailis. (There was no assertion that MSMS was not Hazar Imam)

(After the Khoja case (see below) rites and ceremonies of Ismailies were practiced openly & many changes by Imams).

Mehmani and Thal Sufro , etc were explained in court, amounts paid are stated and these are a part of the court findings and judgment.

Mehmani is not simply a personal Belief as Shafik Sachedina and Aziz Bhaloo say in the current lawsuit against Nagib and Alnaz

For example also

Samar chanta is defined. Themoney is for Imam. The object is for blessings for benefit - Sawan, of the soul. Samar is the journey and provisions for the journey of the soul.

Siri ni Halva and chandrat are explained too.

Sirbundi is also explained. This is where a murid gives the whole of his property for the Imam before a committee of Ismaili Elders in Jamat Khana. They then magnanimously re give him the property which he buys back at a price which sum is then given to them to give to the Imam.

The judge went to JK and witnessed the ceremonies of Thal Sofro and Sirbundi etc.

Evidence from witnesses was also taken on the money given and used for expenses Jamat Khannas etc and the balance sent to the Imam and his family members. They including Kamadia who controlled the funds confirmed they sent the balance of funds (after expenses), to Imam.


Therefore these are matters of public record and to be proud of. No reason to be secretive.

The various titles of Imam are also in the judgement.

1866 Khoja "milestone" Case was about whether assets given by the community to their Imam belonged to the Khoja community (who included converted Khoja Ismailis). The case mated 25 days. The court decided Ismailis were a different independent faith community and therefore non Ismaili Khojas are not entitled to communal assets of Ismailis.

Pir Sadardin converted Khojas 442 years ago. he is a Dia and Ismaili missionary. His ginans incl. Das Avtar were filed in evidence. They include Ismaili doctrine and from the Quran. Das Avtar was used to convert Khojas and Hindus to the Ismaili faith.

This case established that the Imam was MSMS from a long lineage of Imams starting with Ali. ismailism was a part of the Islamic faiths (school of thought)

After this case the Ismaili faith was practised more openly and there were changes to the practices.

This case marks the beginning of the end of taqiyah. (However being secretive had become second nature for Ismailies.

Sectecy has been used by some in control institutionally politically and to for example block and change Imams guidance ( Farmans).

This is changing with increased access and use of the internet. And as a result of the unprecedented lawsuit against Nagib and Alnaz.

See relevant summarises below

1847 Sajan Meharali’s case which decided against the rights of Khoja females to inherit according to Mahomedan Law….When the Aga Khan was yet in Calcutta, a fresh litigatiion, known as Sajan Mehr Ali Case was carried in 1263/1847, in which the question of the rights of female inheritance among the Ismailis was brought before the Supreme Court of Bombay.


1861 Agha Khan circulated a general announcement declaring the Khojas to be the 'Shi' ites' (20th October 1861) when the dissenting Khojas publicly joined the Sunni fold, the Aga Khan issued a decree in which he expressed his desire to bring the Ismailis to conform to the practices of the Shia Imami Ismaili creed of his holy ancestors, regarding marriage ceremonies, ablutions, funeral rites etc. The decree ended thus, "He who may be willing to obey my orders shall write his name in this book that I may know him."


1866 Khoja Case..All the Khojas are Sunni. It was rejected by the court. The celebrated Khoja case which lasted for 25 days was litigated in the High Court of Bombay between the months of April and June, 1866, before Justice SIR JOSEPH ARNOULD. (November 21st)
Link
http://ismaili.net/heritage/node/29460

[mahebubchatur]

H H the Aga Khan explained in an affidavit in this case that there are 3 key differences, between Shia Ismaili and Shia Itnasharees
1 Itnasharees believe heirs of Musa are their only Imams. For Ismailis after the 6thImam)

i. Ismailis believe the first successor Imam to Prophet is Imam Ali and today Aga Khan IV

2 Itnasharees believe the successor of Imams to the Prophet, reached an end at the 12th Imam. They believe in the return of the messiah (Mehdi)

i. For Ismailis Succession of Umams continued (and is ever present)

ii. Ismailis do not believe in the return or coming of the messaih

3 Itnasharees believe that the existence of God is Separate from the Materia (Material world and all physical matter)

i. Ismailis are monoesthic and believe that God is one (inclusive –a one mono-reality)

ii. Ismailis believe God is a part of, and an emanation or incarnation of the “One” (God (Allah)

[Admin]

Beside the transcript of the Haji Bibi Case, we have now added the PDF of the Bombay Law Reporter 1908

http://ismaili.net/heritage/files/Haji- ... r-1908.pdf

And we have also added the handwritten shorthand of the Case!

See the attachments on bottom of the page on the following link:

http://ismaili.net/heritage/node/29460

Taking into account the importance of this documents, we felt the need to complete our Archives of the Haji Bibi case with these documents.

As we find more documents, we will be adding them on the website and inform on this page.

[kmaherali]

There is a related thread at:

Haji Bibi Case Incident

http://www.ismaili.net/html/modules.php ... opic&t=355

[mahebubchatur]

In the Haji Bibi case , there were allegations of fraud, murder, concealment of books and properties against our Imam in this court case. They included;

1. The first Agakhan left a will which the present Aga Khan III suppressed
2. The Aga Khan III had murdered or had a hand in the murder of Jungi Shah and his son in 1896 (His paternal uncle)
3. Aga Khan III was desirous of shielding the murderer Jiva Juma (Hashem Shah)
4. The documents the 11th September 1901 releasing the property was a sham, false and or fraudulent, and concocted by Aga Khan III
Aga Khan III sold off family properties, used funds and excluded properties of the family unlawfully.

These claims were by members of the extended Family and their supporters (with media and religious interest)

There were over 300 witnesses who gave evidence. The Judge made findings of fact. These are important to understand in the context of the copyright lawsuit, Farmans and lessons to learn and bring forward as Mawla says we must. The Judge ruled in favour of the Imam.


The following are the three Aga Khan historic and unprecedented religious lawsuits

Khoja Case in 1866. It was established that Khojas in India are the Ismaili Muslims. The judge ruled that Khoja's are a sect of people whose ancestors were Hindu in origin; & who were converted to and have throughout abided in the faith of the Shia Imami Ismailis and have always been and are still bound by ties of spiritual allegiance to the hereditary Imams of the Ismailis Muslims.

Haji Bibi Case 1905 . The court rules in favour of the Imam and established the Ismaili Imams funds, donations, lineage, religion, & assets. Ismaili Religious doctrines & ceremonies were articulated & explained. The first Ismaili constitution was ordained in 1905. Link to Judgement- http://ismaili.net//hajibibi.html

The Aga Khan Copyright lawsuit in 2010 - The court ruled in favour of what Imam said. Therefore authentic Farmans are available and shared by Ismailis today - link to what Imam said - http://ismaili.net/source/legal-documen ... hatur8.pdf. Link https://www.facebook.com/groups/1629337 ... 01?sfns=cl

[Admin]

In fact Aga Jangi Shah, brother of Mowlana Aga Ali Shah was appointed the tutor of the young Imam Sultan Muhammad Shah and he was the one who transferred all the assets of Imam Aga Ali Shah to Imam Sultan Muhammad Shah in the British Court.

This created a lot of bad blood in his own closer family who plotted to kill him and succeeded in their task in 1896. Haji Bibi, daughter of Aga Ali Shah was one of the person frustrated that the assets of Imam Aga Ali Shah were not kept by his father for her and his family.

Mowlana Sultan Muhammad Shah had asked Aga Jangi Shah to go to several Jamats in Muscat, Oman etc to take his Farmans to them and also to make Farmans on his behalf in India. Some of which we have traces in manuscripts.

[Admin]

1908-June 28: "…Dhanni Salamat Datar Farmayoon je hin case minj aaoon court mein jibani dindose ne paanje Ismaili dinji galiyoon court mein zaaher kandhos se aanhi likhii ginja ne cchapaeja. Ooni minja ketlik duniyaji ne ketlik estate ji achindi se gaal dhiyanme na ginni pann ketlik gaal paanje dinji hoondhi se dinni kamji aayese likhi ginni ne hamesha waanchnni. "

On June 28 of 1908 Mowlana Sultan Muhammad Shah, Aga Khan III, made this Farman on the subject of Haji Bibi Case. Before translating, here is some background:

This Farman was found in a 70 pages Khojki Book titled "Dhani Salamat Datarji Kushali "published in 1908 in Mumbai containing Farmans made in Mumbai and Poona.

There are few pages of introduction before the Farman to narrate in Katchi and in a very lively manner how Mowlana Sultan Muhammad Shah arrived by Boat in Mumbay after a long absence and was welcomed by the Jamat who clapped when the Imam descended and the Imam left from there for his home by car after giving his blessings. He was welcomed by Guptis, Badakshani and more Jamats outside his home where he announced that he will give Didar and allow hand kissing (Dast Boshi) ceremony the next morning during Didar in Jamatkhana.

The book narrates the Farmans and ceremonies in Mumbai and then in Poona. I relates Farmans made to Guptis, to Mehmani of Machi-Masala traders, the appointment of 8 members for the Grant and Review Board (yes at that time!), Farman on writing Constitutions for various places, Farman on the treasures included in the (Asal) Dua, Farman saying the Ruh of each Momin is linked to the Noor of Imam, Farman to Kandi Mowla Pajebhai of Tuesday and so on.

For 28 June 1908 on page 66 and 67 we read: "…Dhanni Salamat Datar (Aga Khan III) made the Farman that I will go to Court for this case and testify as witness and I will disclose matters of our faith which you should record and publish. There will be matters of the world and of estates to which you should not give importance but many matters which will be about our faith and important to it which you should write and always read."

Reading the signed handwritten affidavit in this context give a whole new meaning to the affidavit. ( http://ismaili.net/heritage/files/NoorE ... 1980-1.pdf )

[mahebubchatur]

This is one of three milestone court cases.

The 3 unprecedented lawsuits against Aga Khan since the Ismaili Imams moved from Alamut , to now in France & Portugal

1. The Khoja Case in 1866 - it was established that Khojas in India are the Ismaili Muslims. The judge ruled that Khoja's are a sect of people whose ancestors were Hindu in origin; & who were converted to and have throughout abided in the faith of the Shia Imami Ismailis and have always been and are still bound by ties of spiritual allegiance to the hereditary Imams of the Ismailis Muslims.

2. The Haji Bibi Case 1905 . The court rules in favour of the Imam and established the Ismaili Imams funds, donations, lineage, religion, & assets. Ismaili Religious doctrines & ceremonies were articulated & explained. The first Ismaili constitution was ordained in 1905. Link to Judgement- http://ismaili.net//hajibibi.html

3. The Aga Khan Copyright lawsuit in 2010 - The court ruled in favour of what Imam , Aga Khan said. Authentic Farmans were therefore retained and are today being shared

Link to what Imam said - http://ismaili.net/source/legal-documen ... hatur8.pdf

Link https://www.facebook.com/groups/1629337 ... 01?sfns=cl

[Admin]

https://www.livelaw.in/columns/an-abjec ... ion-155958

An Abject Suit With 128 Issues And Its Peacemaking Decision Sathyamurthy LS 29 April 2020 10:25 AM

A civil suit for the main relief of declaration and its consequential reliefs was instituted by a non-descript woman claimed to be a right bearing 'justice seeker'[1] on the Original Side jurisdiction of the Bombay High Court, in the British India. The dominus litus had presented her plaint with an annexure of pedigree and with the grand narratives of facts and poignantly clear pleas, against 14 persons, even before the advent of the Code of Civil Procedure, 1908 (CPC). The plaint bearing a short cause title, 'Haji Bibi vs His Holiness Sultan Mohamed Shah, The Aga Khan' was taken on file and assigned Original Suit No: 729 of 1905. But the final judgment of the Bombay High Court was delivered after the CPC came in to effect.
The compendious averments in the plaint would reveals that one Hassan Ali Shah alias Mahommed Hassan Hoosaini, was the first Aga Khan, a spiritual head of the sect of Mahomeddans called as the Shiah Imam Ismailis, which is a community known as the Khojas of Bombay. A woman namely Haji Bibi, as a sole claimant who brought the law suit was the widow of Aga Moochool Shah, who was a son of Jallal Shah, a son of the first Aga Khan. She had detailed the offerings made to Aga Khan and vehemently questioned were those offerings only for the sole use and benefit of the then spiritual head or for the benefit of the whole khoja community. The plaint had also disputed the binding nature of the release dated 11 September 1901 entered in to between the fifth defendant in his own right and as an administrator of the estate of one part, and the first defendant. There were 48 spiritual heads, mode of prayers, offerings also referred to, in the plaint. On receipt of summons, the defendants entered appearance through their counsels and filed written statements.

SUPPORTING DEFENDANTS AND ORDER OF THEIR EXAMINATION

The Bombay High Court while scrutinizing the claim made in the plaint and the rival claims put forth by the defendants in their written version found that some of the defendants are supporting the plaintiff's claim. Therefore, the Court indulged in the task of how to describe or delineate the defendants supporting the claim of the plaintiff. An order was passed on 24 February, 1908 (prior to CPC came in to effect) for the interesting question about the defendants colluding with the plaintiff.[3] Justice Russell penned down the order, which runs as follows:

"Now I have been unable to find any definition of the word "plaintiff under the Indian, procedure; but I find, in the Judicature Act in England a section, viz. Section 100, which says that the word plaintiff" " shall include every person asking any relief (otherwise than by way of counter claim as a defendant) against any other person by any form, of proceeding, whether the same be taken by action, suit, petition, motion, summons or otherwise."
Therefore, I think, common sense tells us that "plaintiff ought to mean, "every person asking relief against another person." I have read the plaint and all the written statements since this case was last on, and the conclusion I have come to is that without doubt the plaintiff and the second defendant and defendants 9 to 14 must be considered as-to use a colloquial expression "being in the same boat", although no doubt defendants 9 to 14 are not seeking any relief possibly beyond that of the plaintiff and the second defendant, and therefore, you have these two forces arrayed against each other-the plaintiff and the second defendant and defendants 9 to 14 against the other defendants in the suit"

As stated above, the High Court first of all analysed the pleas and claims of each and every parties on the basis of their pleadings set out in the plaint and written statements. The line was also drawn identifying the actual contestants among the parties and the defendants who had supported the plaintiffs described in the colloquial expression 'being in the same boat'. Further, in the exercise of searching out a more appropriate and comprehensive word to indicate the defendant who accepted and admitted the plea or relief claimed by the plaintiff, the Court thought that in the absence of any specific definition for the term plaintiff it would be utter discretion of the Judge as to how to address or mention the parties to the suit.

However, the Court has also observed that there is no bar or nothing precluded the defendants who support the plaintiff's case to join with the plaintiff and lay a claim as joint plaintiffs. But it is also the right of the plaintiff, who is a master of the suit, and de jure author of the plaint, can choose his rival parties.

The Court while granting such an enormous liberty to the plaintiff in suing before the court of law, incidentally decided an extremely important aspect on the right of hot contesting defendants, amidst the sleeper cell defendants, who might clandestinely prejudice the cross examination and other phases of trial. It was held that in this case 'the plaintiff and such of the defendants who support the plaintiff's case wholly or in part, must address the Court and call their evidence in the first place, and then, the other party, namely the persons opposed to the plaintiff's case must address the court and call their evidence and so the case must be proceeded with in a proper legal and consistent manner.'[4] If the ninth defendant supporting the plaintiff was allowed to cross examine the plaintiff or adduce the evidence after the really contesting defendants 1 to 8, chaotic eventualities may arise or the defence put forth by the real rival party of the case might be diluted by the afterthought statements. Many a times the ambiguity or lacunae if any, created in the process of trial by one party may be clarified or filled up by the supporting party, if allowed to address after the contesting party exhausted the opportunity.

In the cases where colluding parties or the parties hand in glove with each others in the suit frame may cause prejudice the trial and disturb the adjudicatory process, the High Court has framed guidelines as to the order of examination of parties to the suit, to ensure fair trial in the civil courts, before the commencement of CPC.

128 ISSUES AND MARATHAON TRIAL

After the parties settled down by making their pleas and claims in writing through the plaint and written statement the Court looked in to the pleadings on the date of first hearing of the suit and framed as many as 128 issues in the suit.[5] The contents of the final judgment delivered on 01 September, 1908 (after the commencement of CPC) do not consist of any particulars as to alterations or modification of issues or application from either side for reducing the number of issues.[6] It appears that the learned counsels represented the parties have adduced evidence touching all the issues framed in the suit. There was voluminous oral evidence recorded by the Court and through the advocate commissioners. The observation of the Bombay High Court regarding 128 issues framed in the said suit is given hereunder:

'Although in this suit no less than 128 issues have been raised, and the suit itself has attained the distinction of having taken up the longest time on record in this Court, the real questions at issue are of a simple character, and are not more than two in number. The first of these questions is: Are the offerings made by the Khoja community of Bombay to the Aga Khan made to him for his sole use and benefit or for the use and benefit of certain members of his family? (2) Was the release of the 11th September 1901 made between Shamsudin, defendant No. 5, in his own right and as administrator of the estate of Jungi Shah of the one part, and defendant No. 1 of the other, a sham transaction or collusive and fraudulent, and is it binding upon the plaintiff?'

Though the Court in the judgment pointed out that out of 128 issues only two issues are important and material, without omitting any issues, all the issues have taken in to consideration and after discussion, specific answers given with reasons and the newly (at the relevant time) enacted provision Order XIV Rule 2 CPC was scrupulously complied with.[7]

The speedy trial recognized as an inalienable right under Article 21 of the Constitution of India (1950) was duly considered in this suit by the Court as early as on1909 itself and the concern also expressed in the first paragraph of the judgment quoted supra, for the unavoidable long time consumption in the adjudication of suit.

Hon'ble Justice Benjamin N Cardozo, (Supreme Court, United States) has made a remark that 'every judgment has a generative power. It begets in its own image'.[8] The Haji Bibi case has its own generative power, for the reason that it has not only dealt with a highly sensational religious dispute and framed as many as 128 issues or looked into more than 250 pages oral evidence of witnesses or 445 exhibits on both sides, but convinced the hot contested litigants by positive words and compassionate language. The observation in the last paragraph (extracted hereunder) of the judgment reflects bona fide intention of Honb'le Justice Russell, who has resolved the dispute and wrote the judgment anticipated disappearance of differences of opinion that prevailed in the minds of the parties.

'In this judgment I have tried to avoid saying a word which may enhance feelings of religious animosity in the community or hatred among the members of the family, and I trust that the result of this case may be that gradually any feelings of such a character may disappear from the minds of the members of the family as well as from those of this large and important community.'[9]

A law suit is to decide which of the two claimants entitled to be and a judge determinates it, in his judgment. Of course, with the pronouncement of verdict the court becomes functus officio, but the judicial product commences its functioning and spirits starts to spread from it from the date of delivery.

The valuable purpose and noble vision of the judgment of Haji Bibi case was as expressed by Hon'ble Justice Russell, not only adjudicating the rights of the parties but also to dispel the hatred feelings and restore harmony and peace among them. Therefore, he employed euphemistic words, persuasive phrases and assigned convincing reasons to pacify the litigants to whom the judgment was meant and the entire sect of the Muslim. The noblest intention of its maker expressed in the last paragraph (quoted above) made this judgment to remain in the annals of judicial history for ever and the legal fraternity has been referring it often with deep reverence, for the purpose of conflict resolution with peacemaking through judgment.

Views Are Personal Only