Mumbai: The Bombay high court on Thursday said that it was keen on understanding the stand of both plaintiff and defence witnesses with regard to the doctrine of nass. The factual aspects of nass have already been dealt with by the court in the hearing.
On being questioned by Justice Gautam Patel, senior advocate Anand Desai, representing Syedna Taher Fakhruddin, submitted that nass without the presence of witnesses was an accepted practice in the community. He referred to the appointment of the eight Dai where, although he was informed by his predecessor of his appointment privately, did not disclose it to anyone.
Desai submitted that as there could have been other aspirants to the post of Dai after the demise of the seventh Dai, the eighth Dai had resorted to a method that is widely accepted by the community today, ie to test the knowledge of the people to ascertain who had answers to questions formulated by him. After everyone failed to answer the questions, the eighth Dai had the answers and then announced himself as the successor of the seventh Dai, which was readily accepted.
“In the event of any ambiguity with regard to who is the rightly appointed Dai, the level of knowledge of the claimants is put to test,” said the counsel. “In the same way, Syedna Khuzaima Qutbuddin, and later his son Syedna Taher Fakhruddin, also invited Syedna Mufaddal Saifuddin to a debate, but he did not respond.”
In light of this, Justice Patel sought to know whether Syedna Fakhruddin believed that mere communication between appointer and appointee of the nass without it being communicated to anyone was sufficient for an appointment to be made. Desai confirmed it.
When the bench sought to know whether there were instances in the past of an appointment being kept secret, Desai cited the appointment of the 13th Imam who did not disclose the fact of his Imamate to anyone for a few years even as people were wreaking havoc till he was divinely inspired to announce it.
During the afternoon session, the submissions revolved around the revocation of ‘nass’. In response to the query by Justice Patel on whether ‘nass’ once conferred on someone could be revoked, Desai said that it was an established doctrine that it could not. He said he would refer to submissions made by defence witnesses to fortify his point.
Referring to the examination of Kinana Mudar Dawoodi, assistant director of Jamia, a Dawoodi Bohra institution in Dubai, Desai cited the appointment of Ismail as the sixth Imam and his son Mohammad as the seventh Imam. Dawoodi had stated that the fifth Imam had appointed Ismail as his successor. However, though Ismail passed away during the lifetime of his father, the Dawoodi Bohra community believed that as he had been pre-ordained to be the next Imam, they accepted him as the sixth Imam.
The counsel for Syedna Saifuddin informed the bench that as the issue of the Imamate of the fifth, sixth and seventh Imams was a sensitive one, they would not be pressing on it.
The bench, on its part, sought to know how a doctrine could be extracted from one instance, and said it expected the parties to refer to documents, evidences and texts to show whether revocation of nass was impossible as a doctrine.
When the bench sought to know from Desai whether Dawoodi had been cross-examined on the inferences he drew with regard to the Imamate of the fifth to seventh Imams, Desai replied in the negative but said that another witness had been cross-examined on the same. However, Justice Patel replied that he was required by law to reject any inferences drawn by one witness, which were corroborated by another witness. “The same witness who has made the inference has to corroborate it,” he said.