Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay

Aiyar J, 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 conten-tion was also raised that the right of the defendant t<> excommunicate members of the community was pro-tected by Arts. 25 and 26 of the Constitution, and that the impugned Act was void as infringing the same.

The issues in the action were then settled, and issue No. 19, which was raised with reference to the-above contentions, was as follows :

"Whether the orders of excommunication made in 1934 and/or 1948 are invalid by reason of the provi-sions 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 Legis-lature, and further that it did not offend Arts. 25 and 26 of the Constitution.

Against this finding, the present appellant prefer-red 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 continu-ous 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 conten-tion that it infringed the rights guaranteed under 1951 Arts. 25 and 26 of the Constitution. In the result, Sardar they concurred in the decision of Shah J. and dismis-Syedna Taher sed the appeal but granted a certificate to appeal to Saifuddin Saheb v. this Court under Arts. 132 and 133 of the Constitu-The State of tion. Hence this appeal. Bombay

Pending the appeal, the plaintiff died on March 11, Venkatarama 1953, and his daughter applied on May 22, 1953, to be Aiyar J. .substituted in his place. But eventually she did not press the application, and that was dismissed on October 5, 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 defen-dant and the State of Bombay.

The question is whether in the event.s which have happened, the appeal can proceed. We are of opinion that it cannot. It should be remembered in this con-nection 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 undertermined. 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.

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 The

1957 United Provinces v. Mst. Atiqa Begum and others( l ). Sardar There, a suit was filed by a landlord for recovery of Syedna Toher rent. While it was pending in appeal, and Act was Saifuddln Saheb passed by the Legislature of the United Provinces

v. validating certain Government notifications requiring The State of

Bombay the landlords to give to the tenants remission of rent. Venkatarama The landlord contended that the Act was ultra vires,

A.iyar J. 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 s. 205 of the Gov-ernment of India Act, 1935, and contended that the impugned Act was valid. The judgment-debtor him-self did not file any appeal. The question was whe-ther the Government was entitled to file the appeal when the party bad not chosen to contest the decree. It was held by the Federal Court that the scope of s. 205 of the Government of India Act was wider than that of s. 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.

But apart from this, there is another formidable obstacle in the way of the appellant. Under Art. 132, an appeal lies to this Court only against judgments, decrees or ·final orders. That was also the position under s. 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 The United Provinces v. Mst. Atiqa Begum and others

(I} [1940) F.C.R. 110.

(supra), there was a decree, and the requirements of 1957 s. 205 were satisfied. Here, there is only a finding on Sardar a preliminary issue, and there is no decree or final Syedna T<1lrer order. The Explanation to Art. 132 provides that : Saiffuddin Sa/re/,. v. "For the purposes oi this Article, the expression The State of 'final order' includes an order deciding an issue which, B<mlbay if decided in favour of the appellant, would be suffi-Venkataramc cient for the final disposal of the case." Aiyar J. 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 Art.

132, and the fact that a certificate has been given does not alter the position. It is said that the certificate is also under Art. 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.

The result is that this appeal must be dismissed, as not maintainable. We should add by way of abun-dant 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.

Appeal dismissed.

RAJVI AMAR SINGH 1957

v. Novr1nber, ::!~J

THE STATE OF RAJASTHAN

(S. R. DAS c. J., VENKATARAMA AtYAR, s. K. DAS, A.

K. SARKAR and VIVIAN BosE JJ.) State Service-Formation of new State by intergration of States-Effect-Employee under intergrating State con-tinuing in service of new State-Status-If can be inferred

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 99 of 1954.

Appeal from the judgment and order dated the 20th August, 1952, of the Bombay High Court in Appeal No. 43 of 1952 arising out of Original Suit No. 1957 1262 of 1949. Sardar

N. C. Chatterjee, J.B. Dadachanji and Rameshwar Syedna Taher Nath, for the appellant. Saifuddin Saheb v. Porus A. Mehta and R. H. Dhebar, for the respon-Tire State of dent. \ Bombay

1957. November 27. The following Judgment of Venkatarama the Court was delivered by Aiyar J.

VENKATARAMA AIYAR J.-On February 28th 1934, the appellant who is the religious head of the Dawoodi Bohra Community, passed an order excommunicating one Tyebbhai Moosaji Koicha. On July 17, 1920, the appellant had excommunicated two persons,, Tahirbhai and Hasan Ali, and the validity of the order was ques-tioned in a suit instituted in the Court of the Sub-ordinate 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. Mansoorali(').

Apprehending that the order dated February 28, 1934, was open to challenge under the decision in Hasan Ali v. Mansoorali (supra) on the ground that it had not complied with the requisite formalities, the appellant started fresh proceedings, and on April 28, 1948, passed another order of excommunication.

Thereupon, Tyebbhai Moosaji filed the present suit for a declaration that both the orders of excommunica-tion dated February 28, 1934, and April 28, 1948, were invalid and for other consequential reliefs.

While this action was pending, the Legislature of the Province of Bombay passed the Bombay Preven-tion of Excommunication Act (Bombay XLII of 1949) prohibiting excommunication, and that came into force on November 1, 1949. The plaintiff contended that the effect of this legislation was to~ render the orders of excommunication illegal. The answer of the

-(1) A.I.R. 1948 P.C. 66.

1957 appellant to this contention was, firstly, that the Act Sardar had no retrospective operation, and that, in con-Syedna Taher sequence, the orders passed on February 28, 1934, and Salfuddt~ Saheb April 28, 1948, were valid, and remained unaffected 17ze State of by it; and secondly, that the Act was itself unconsti-

Bombay tutional, beca!lse the subject matter of the impugned Venkatarama legislation was not covered by any of the entries in