Sardar Syedna Tahersaifuddin Saheb vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 99 of 1954

Decision Date: 27 November 1957

Coram: S.K. Das, A.K. Sarkar, Venkatarama Aiyar

In the matter titled Sardar Syedna Tahersaifuddin Saheb versus The State of Bombay, a judgment was delivered on the twenty‑seventh day of November, nineteen‑fifty‑seven by a bench of the Supreme Court of India consisting of Justice Aiyyar, Justice T. L. Venkatarama, and Chief Justice Sudhi Ranjan, together with Justices Bose, Vivian Das, and Das, and Justices S. K. Sarkar and A. K. Sarkar. The petitioner, identified as Sardar Syedna Tahersaifuddin Saheb, brought the action against the respondent, the State of Bombay. The case was reported in the 1958 All India Reporter at page 253 and in the Supreme Court Reports at page 1010. The legal issue arose under the Practice‑Appeal‑Maintainability framework, specifically concerning a suit based on a personal right where the plaintiff had died while an appeal was pending. The relevant statutory provision was the Bombay Prevention of Excommunication Act of nineteen‑forty‑nine (Bombay Act XLII of 1949). The appellant, acting as the religious head of his community, had excommunicated an individual named T; consequently, T instituted a suit seeking a declaration that the excommunication order was invalid. While the suit remained pending, the Bombay Prevention of Excommunication Act was enacted, and one of the questions raised in the suit was whether the excommunication order was invalid by reason of the new Act. This question was tried as a preliminary issue because it raised the constitutional validity of the Act, leading to the State of Bombay being impleaded as a second defendant. The Bombay High Court decided the preliminary issue against the appellant but granted a certificate of appeal to the Supreme Court under Articles 132 and 133 of the Constitution. After the certificate was issued, the plaintiff died, and the personal action abated. The appellant contended that, because the State of Bombay had been a party to the suit and the decision on the Act’s validity had been given in its presence, the appellant could continue the appeal against the State without reference to the deceased plaintiff and obtain a decision on the Act’s validity.

The Supreme Court held that the appeal was not maintainable and thus dismissed it. The Court reasoned that the appeal was essentially a continuation of a suit that had already abated due to the death of the plaintiff, and therefore there was no surviving cause of action to support the appeal. Additionally, the Court found that the certificate issued under Articles 132 and 133 of the Constitution was incompetent because it was based on an interlocutory finding, and the Constitution does not permit a certificate of appeal in respect of such a finding. The Court distinguished the present case from the earlier decision in United Provinces v. Mst. Atiqa Begum and Others, reported in the Forty‑Fourth Federal Court Reports at page 110, where different circumstances applied. Consequently, the appeal filed by the appellant was dismissed as not maintainable. The judgment emanated from Civil Appeal No. 99 of 1954, which arose from the judgment and order dated the twentieth of August, nineteen‑fifty‑two, of the Bombay High Court in Appeal No. 43 of 1952, itself arising out of Original Suit No. 1262 of 1949. Counsel for the appellant were N. C. Chatterjee, J. B. Dadachanji, and Rameshwar Nath, while counsel for the respondent were Porus A. Mehta and R. H. Dhebar. The judgment was delivered by Justice Venkatarama Aiyar, who noted that on the twenty‑eighth of February, nineteen‑thirty‑four, the appellant, as the religious head of the Dawoodi Bohra community, had passed an order excommunicating one Tyebbhai Moosaji Koicha.

In this case the appellant, who served as the religious head of the Dawoodi Bohra community, had on 17 July 1920 excommunicated two members, Tahirbhai and Hasan Ali, an action that was subsequently challenged in a suit filed before the Subordinate Judge of Barhampur. The dispute progressed through the courts and ultimately reached the Privy Council, which held that while the religious head possessed the authority to excommunicate a follower, such authority could be exercised only after observing the prescribed formalities; because those formalities had not been complied with, the Privy Council declared the excommunication order invalid, as reported in Hasan Ali v. Mansoorali. Anticipating that the order dated 28 February 1934, issued by the appellant, might be vulnerable to the same argument that it failed to meet the required formalities, the appellant initiated a fresh proceeding and on 28 April 1948 issued a new order of excommunication. Tyebbhai Moosaji then instituted the present suit seeking a declaration that both the 1934 and 1948 excommunication orders were void and requesting any consequential reliefs. While the suit was pending, the Bombay Legislature enacted the Bombay Prevention of Excommunication Act (Bombay XLII of 1949), which prohibited excommunication and came into force on 1 November 1949. The plaintiff asserted that the effect of this legislation rendered the two excommunication orders illegal. The appellant responded in two ways: first, by arguing that the Act was not retrospective and therefore the 1934 and 1948 orders remained valid and unaffected; second, by contending that the Act was unconstitutional because its subject matter did not fall within any of the entries listed in List II or List III of the Seventh Schedule to the Government of India Act, 1935, and thus the Bombay Legislature lacked the competence to enact it. After the Constitution became operative, the appellant additionally claimed that the right to excommunicate community members was protected by Articles 25 and 26 of the Constitution and that the impugned Act was void for infringing those provisions. The matters in the suit were eventually framed, and Issue No. 19 was framed to address the appellant’s contentions, posing the question: “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 question was tried as a preliminary issue because it raised the constitutionality of the statute; consequently, the State of Bombay was impleaded as a second defendant. Justice Shah, who tried the issue, held that the Act operated retrospectively, that it was within the competence of the Provincial Legislature, and that it did not offend Articles 25 and 26 of the Constitution. The appellant contested this finding and preferred an appeal to a Bench of the Bombay High Court.

In the subsequent appeal to the Bombay High Court, the bench comprising Chief Justice Chagla and Justice Bhagwati examined the meaning of “excommunication” under the 1949 Act and concluded that it signified a state of expulsion that persisted continuously, depriving the excluded individual of all rights and privileges. Accordingly, they held that the Act was designed to safeguard those rights from the date of its commencement. The judges further found that the Legislature possessed the authority to enact the statute and rejected the contention that it infringed the constitutional guarantees of freedom of religion contained in Articles 25 and 26. On these grounds they affirmed the decision of Judge Shah, dismissed the appeal, and nevertheless issued a certificate permitting a further appeal to the Supreme Court under Articles 132 and 133 of the Constitution.

While this appeal was pending, the original plaintiff died on 11 March 1953. His daughter filed, on 22 May 1953, a motion seeking substitution as his legal representative, but she later abandoned the application, which was finally dismissed on 5 October 1953. By order dated 21 November 1955 the Supreme Court amended the cause title by deleting the deceased plaintiff’s name, leaving only the defendant and the State of Bombay as parties before the Court. The question that arose was whether the appeal could continue in view of these events. The Court held that it could not, noting that no final decree had been rendered in the suit; only a finding on a preliminary issue had been made, and that finding alone formed the subject of the appeal to the High Court and subsequently to this Court. Since other issues remained to be tried, the action as a whole was still undetermined. The plaintiff’s original claim concerned his alleged wrongful excommunication, a matter personal to him; therefore, under the principle that a personal cause of action dies with the person, the suit was extinguished upon his death. Although his legal representative had applied to be entered on the record, that application was never pursued, resulting in the abatement of the suit and ordinarily necessitating the dismissal of the appeal.

Counsel for the appellant argued that because the State of Bombay had been impleaded as a party and because the decision on the constitutionality of the Act had been rendered in its presence, the appeal could proceed against the State without reference to the deceased plaintiff, allowing this Court to decide the validity of the Act. He relied on the Federal Court’s decision in The United Provinces v. Mst. Atiqa Begum and others, wherein a landlord’s suit for rent recovery, pending appeal, was affected by a legislative enactment and the government, having been impleaded, sought to advance its own appeal on the validity of that enactment even though the original judgment‑debtor had not appealed. The appellant contended that the same principle should permit the continuation of the present appeal.

The Government of the United Provinces had issued notifications that required landlords to grant rent remission to their tenants. The landlord challenged the validity of those notifications, arguing that the Act underlying them was beyond the legislative authority, i.e., ultra vires. A Full Bench of the Allahabad High Court was asked to give its opinion on the matter, and the Full Bench agreed with the landlord’s ultra vires contention. Subsequently, the Government of the United Provinces intervened in the landlord’s appeal, becoming a party to the proceedings. After the Full Bench’s opinion was incorporated into the judgment, the Government sought to appeal the decision to the Federal Court, relying on a certificate issued under section 205 of the Government of India Act, 1935. In that appeal the Government contended that the impugned Act was valid, even though it had no direct interest in the landlord’s claim. The landlord, who was the judgment debtor, did not himself file any appeal against the decree. The essential question before the Federal Court was whether a government could file an appeal when the original party to the suit chose not to contest the decree. The Federal Court held that the scope of section 205 of the Government of India Act was broader than the scope of section 96 of the Civil Procedure Code, thereby permitting the Government to appeal for a determination on the Act’s validity despite its lack of direct interest in the underlying claim.

The present Court, however, found that the Federal Court’s ruling did not apply to the present circumstances because the underlying action had already abated. An abated action cannot give rise to an appeal, since an appeal is merely a continuation of the original suit and there is nothing to continue when the suit no longer exists. Moreover, the appellant faces a further substantial obstacle under Article 132 of the Constitution, which confines appeals to this Court to judgments, decrees, or final orders. The same limitation was embodied in section 205 of the Government of India Act, which likewise permits appeals only against final judicial determinations. In the present case, the order that is being challenged is only a decision on a preliminary issue and does not dispose of the entire suit. By contrast, in The United Provinces v. Mst. Atiqa Begum and others, the appeal satisfied the requirements of section 205 because a decree had been passed. Here, no decree or final order exists; only a finding on a preliminary question was made. The Explanation to Article 132 clarifies that a “final order” includes an order that, if decided in the appellant’s favour, would completely resolve the case. Applying that test, even if the impugned Act were declared invalid, other issues would still remain to be tried, so the suit would not be finally disposed of. Consequently, the Court concluded that the appeal is not competent under Article 132, and the existence of a certificate under Article 133 does not change that position because that article, too, allows appeals only against judgments, decrees, or final orders.

In the matter before the Court, it was observed that the order which had been challenged was merely an interlocutory finding and that, under the relevant statutory provisions, a certificate of fitness for appeal could be issued only against a final judgment, decree or final order. Accordingly, the Court noted that no certificate could be granted in respect of an interlocutory finding, because such a finding does not meet the condition laid down for a certificate to be issued. As a result, the Court concluded that the appeal could not be entertained, since it was not maintainable according to the law. The Court further stressed, as a matter of abundant caution, that it was not expressing any view on the correctness or incorrectness of the decision that was the subject of the appeal. By making this disclaimer, the Court clarified that the dismissal of the appeal did not deprive the appellant of any right to seek relief in other appropriate proceedings that he might choose to commence. The Court also pointed out that, given the circumstances, it would not pass any order directing either party to bear the costs of the proceedings. Consequently, the appeal was dismissed without any further order being made.