Haji Bibi Case Part 1
The Shorthand of the Case itself is now available below the transcript in attachment to this page.
The Aga Khan has absolute property over the offerings made to him - Members of the Aga Khan's family not jointly entitled to such offerings - Succession to the estate of the Aga Khan is not joint - Khoja are Shiah Imami Ismailis and not Asnasharis - History of the Aga Khan family - History of Shia Imami Ismailis - Judge entitled to exclude the public from the court or to let the evidence likely to arouse religious or political disquietude be published.
The offerings made to the Aga Khan for the time being by his followers are intended by them to be for his own personal use and benefit and are his absolute property, and such offerings are made to him from a feeling of veneration and reverence, the object of them being that while on the one hand he is to take them for himself, they on the other, are to reap the benefit of them whether it be of a temporal or a spiritual character. They are not made for the benefit of the members of the Aga Khan's family. The members of the family have no right to be maintained by the Aga Khan nor are they in any way entitled to the offerings received by the Aga Khan for the time being.
There is no joint succession to the estate of the Aga Khan.
The ancestors of the Khojas of Bombay were originally converted to the Shiah Imami Ismaili faith by Pir Sadurudin, a missionary of the time of Imam Salamshah, and the Aga Khan is not an Asnashari but is the hereditary chief and the Hazar Imam of the Shiah Imami Ismailis. The faith of the Khojas who follow the Aga Khan is, and always has been, the Shia Imami Ismailis faith. They are not and ever were Asnasharis.
In determining whether the performance of any particular rite promotes any particular religion, and benefits the members of the denomination or body who profess it, the secular Court must act upon the evidence of the belief of the members of the community concerned.
History of the belief of the Shia Imami Ismailis traced.
* Suit No. 729 of 1905.
History of the Aga Khan family narrated.
When the evidence in any case if published in the daily papers is likely to arouse religious or political disquietude, the Judge is entitled to exclude the general body of the public and to decline to let the evidence be published.
THIS suit was brought against His Highness Sir Sultan Mohamed Shah, the Aga Khan, and some of his relations by one Haji Bibi, widowed daughter of Jungi Shah, an uncle of Sir Sultan Mohamed Shah, claiming as one of the daughters of Jungi Shah, a share in the estate left by the first Aga Khan, and for that purpose preying to set aside a certain release which had been passed by one Shamsudin Shah, the administrator of the estate of Jungi Shah, releasing all the claims of that estate against Sir Sultan Mohamed Shah.
The plaintiff and defendant 2 and defendants 9 to 14, who supported the plaintiff's case, contended inter alia:
1. That the voluntary offerings made by the Khoja followers of the Aga Khan were made not for the personal use of the Aga Khan alone, but for and on behalf of the members of the Aga Khan family.
2. That the Aga Khan for the time being was bound, as a matter of right to maintain all his relations from out of such offerings, as had been done by the first and the second Aga Khans.
3. That the Khoja followers of the Aga Khan were from the date of their conversion into Mahomedanism, and had always been Shia Asnasharis by faith and not Shia Imami Ismailis.
4. That the release executed by the administrator of the estate of Jungi Shah was fraudulent and collusive and was a sham transaction never intended to be acted upon.
Mr. Bahadurji, the Honourable Mr. Setalvad and Mr. Dessai, for the plaintiff.
Mr. Inverarity, Mr. Lowndes and Mr. Raikes, for His Highness the Aga Khan.
The Honourable Mr. Scott, Mr. Strangman and subsequently Mr. Branson and Mr. Jinnah, for Shamsudin Shah.
Mr. Bahadurji and Mr. Desai, for defendant 2.
Mr. Robertson and Mr. Jardine, for defendant 3.
Mr. Branson and Mr. Viccaji and subsequently Mr. Jaffer Rahimtulla, for defendants 4 and 6.
Mr. Padsha and Mr. Lalkaka, for defendants 7 and 8.
The Honourable Mr. Setalvad, with Mr. Davar and Mr. Desai, for defendants 9 to 14.
Mr. Justice Russell, owing to certain questions being put to His Highness the Aga Khan in the course of his cross-examination, ordered the Court to be cleared and directed that the evidence must not be published in the daily papers. The counsel for the plaintiff thereupon submitted that he was instructed not to proceed with the case if it was not fully reported. He and the counsel for defendants 9 to 14 withdrew from the case. ...Although the plaintiff's counsel and solicitors...the Court has still power, on the authority of Mr. Gowdappa (1) to decide the case on the merits and evidence that has been adduced. I submit the Court.....to dismiss the suit under S.102, Civil procedure Code, on the ground that some of the parties do not appear, and it was for this reason that I considered necessary to complete my evidence. The plaintiff's counsel withdrew, not because any evidence was rejected, but because certain questions and answers were not allowed to be published in newspapers. In an oriental country it is advisable, if possible, to avoid matter which would give offence to other religious sects. In England it is recognized that one should not discuss whether one particular religion is truer than any other faith. The province of a Court of law in deciding cases where questions of religion come in is confined merely to finding out what the beliefs and doctrines of a particular community are: See Jamshed v. Soonabai (2); O'Hanlong v. Logue (3). The Court has not to decide the truth or otherwise of a particular religion, but whether a particular community holds certain beliefs.
The plaint charges the Aga Khan with fraud in reference to the release, but the plaintiff closed her evidence without supporting the charge. In her examination-in-chief no effort was directed to show that there was any fraud whatsoever in the execution of the release. We hear of the release as a sham and fraudulent document for the first time in the plaint four years after it had been executed and four years after the plaintiff had known about it. It was clearly not a sham transaction because under the document Rs. 40,000 were paid and three bungalows worth one lakh of rupees were conveyed to Jungi Shah's estate. The arrangement was a fair one and was due to the quixotic generosity on the part of the Aga Khan.
It is alleged that the Aga Khan family is a joint and an undivided family. The plaintiff at one time said that the first Aga Khan's brothers and sisters and their descendants were all members of the joint and undivided family and were all entitled to a share in the estate. Thus there were 200 people entitled to a share in the property. She abandoned that case seeing that Jungi Shah would thus be entitled to very little and subsequently said that the joint family was confined to nine heirs and heiresses. This is quite absurd.
The suggestion that the Aga Khan instigated the ............. of Hassam Shah and Jangi Shah was not made until near ........... after the suit was filed. This allegation was absolutely immaterial to the case and was brought to increase the pressure which the plaintiff wished to put upon the Aga Khan to settle the case.
As to the question whether offerings made to the Aga Khan are for his sole use and benefit or are made on behalf of the members of the family, the first point the Court has to consider is to enquire why they are made. We have got over three hundred witnesses who have sworn that they are made in consequence of the injunction in the religious books known as Ginans. The offerings are collected at various Jamatkhanas and sent to the Hazar Imam. The plaintiff's case once was that the payments were made for the benefit of the relations of the Hazar Imam and that these payments to the relations had been mixed up with the Imam's money and therefore they were entitled to the money which were mixed up with the Imam's money. Subsequently a different case was set up and it was said that there was no Hazar Imam. It was also alleged that there were passages in the Ginans which imposed upon the followers the duty that they should make payments to the members of the family of the Ali, and that the meaning of the word 'Al' was progeny. This allegation was subsequently dropped when a witness pointed out that the Ginans themselves explained that the 'Al' of Ali meant the Imam on the Gadi. When it suited the plaintiff and her supporters they adopted Ginans and Imam, and relied on the Ginans as the foundation of their claim that the offerings were for the benefit of the family. They now say before this Court that Ginans are a recent introduction of the Aga Khan and have not been heard of for ages. There is not a word suggested during the time that various commissions in different countries were going on that the Doowa and the Ginans were recent inventions. It is quite clear from the evidence taken at Mahuva that witnesses never suggested that Hasan Ali was Asnashari. The seceders who signed the advertisement in l90l were ostensibly Ismailis but were really Asnasharis for great many years. The Khojas were always Ismailis, although some members, who ostensibly followed that faith were Asnasharis at heart,and when they got sufficient followers to form a community of their own they openly seceded. The Aga Khan's followers do not visit any members of his family. They never kiss their hands. The case that has been set up here is a complete invention in order to get rid of the effect of the evidence taken on commission. I think your Lordship will be of opinion that the commissions were ably conducted by Mr. Moos, who proved a most excellent cross-examiner and managed the whole of our commissions in the best possible manner.
(RUSSELL J. - I quite agree with you. I do not think it could have been better done.)
In the whole course of my thirty-eight years' experience at the bar here, I have never received better assistance than what I have had from Mr. Moos in this case. He knows the case from top to bottom and has always had at his finger's ends any information that was required.
We have for the first time the story told of the offerings being made to the lady members of the family and their being sent to the Dafterkhana where all moneys were sent. This was a bold invention and absolutely contradicted by the whole of the evidence and by the plaint.
The passage referred to in the Koran has nothing to do with offerings. It is quite impossible that it should be so for the very good reason that when the Koran was revealed there were no Imams. We were told that the plaintiff's case was that it was in consequence of the injunctions in the Koran that the offerings were made to the members of the family. The passage in the Koran refers to the booty or spoils taken in war. Not one of the commentators quoted by Sale make the suggestions that is now made. The Privy Council has held that the Courts would not put their own construction on the Koran in opposition to the old commentators: See Aga Mohamed Jaffer Binadanim v. Koolson Beebee (1).
The making of the offerings to the Hazar Imam is part of the religion of Ismailis and it is in consequence of that faith the offerings were made to Imam not as trustee for the members of the family, but to him personally for the purpose of getting prosperity in this world and paradise in the next.
Your Lordship has to find what the Ismaili faith is. We submit, in this case it is proved beyond doubt that the religious faith of the Khoja Shia Imami Ismailis is found upon injunctions given to them by Pir Sadrudin and Hassan Kabirudin and contained in their ancient religious books, and Ginans. We have in evidence that there are similar religious books which give injunctions to the same effect as the Ginan for the other followers of the Aga Khan whose ancestors had been converted to the Imami Ismaili faith by different missionaries and at different times.
We are entitled to separate set of costs for each set of defendant. I ask for decrees of costs against the plaintiff, the second defendants, and defendants 9 to l4. Cur. Adv. Vult.
RUSSELL J. - Although in this suit no less than l28 issues have been raised, and the suit itself has attained the distinction of having taken up the longest time on record in these Courts, 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 llth September l90l made between Shamsudin, defendant 5, in his own right and as administrator of the estate of Jungi Shah of the one part, and defendant l of the other, a sham transaction or collusive and fraudulent, and is it binding upon the plaintiff?
The plaintiff is the widow of Aga Moochool Shah, who was a son of Jallal Shah, who was a son of Hassan Ali, the first Aga Khan (hereinafter referred to as H.A.). The lst defendant is the present Aga Khan, the 3rd son of Ali Shah, the second Aga Khan (hereinafter referred to as A.S.). The 2nd defendant is Bibi Saheb, widow of Suleman Khan and one of the daughters of Hassan Ali. The 3rd defendant is Bibi Shamsool Mooluk, widow of Ali Shah, otherwise called Lady Ali Shah. The 4th defendant is Khudijah Bibi, widow and 2nd wife of Jungi Shah, another son of Hassan Ali. The 5th defendant is Aga Shamsudin Shah (hereinafter called Samsudin) 2nd son of Jungi Shah aforesaid. The 6th defendant Shahzadi Begum, wife of defendant l, is one of the daughters of Jungi Shah by the said Khudijah Bibi and a sister of the plaintiff, and the said Shamsudin. The 7th defendant is Aga Sharookh Shah, a son of Akbar Shah, who was one of the sons of Hassan Ali. The 8th defendant is Aga Farookh Shah, another son of the said Akbar Shah. The 9th defendant is Aga Coochick Shah (hereinafter called Coochick), the brother of Moochool Shah and Shah Bibi, and son of Jallal Shah. Coochick married first a daughter of Shabuddin Shah and after her death her sister. The l0th defendant is Shah Bibi, the widow of Nooroodin Shah, the second son of the said Ali Shah and brother of defendant l. The llth defendant is Malik Taj Begum, sister of Shah Bibi, wife of Zainulabedin Shah and daughter of Jallal Shah. Defendants l2 to l4 inclusive are the two sons and daughter respectively of Moochool Shah by the plaintiff. See pedigree annexed to the plaint and the one put in by defendant l which must both be taken as part of this judgment.
The contending parties in the suit are on the one hand the plaintiff, defendant 2 and defendants 9 to l4; and on the other hand defendant 1 and defendants 3 to 8.
The material paragraphs of the plaint are paras 1, 2, 13, 14, 15, 17, 18, 23, 24, 34, 36, and 55, and of the prayers (c), (g), (j) and (k). I read them at length.
1. That Hassan Ali Shah Alias Mohamed Hassan Hoosaini, late of Bombay but less recently of British Sind, and formerly of Kerman in Persia, commonly called the lst Aga Khan, Hereditary Chief and unrevealed Imam or spiritual Head of the sect of Mohamedan known as the Shiah Imami Ismailis or Ismaili Shiahs. Hereditary Imam of the community known as the Khojas of Bombay and elsewhere in India and other countries and titular Head of his own family, deceased, was or claimed to be the direct lineal descendant of Imam Ismail, son of one Jaffer Sadiq, 6th Imam of the Shiahs through the Fatemaid Khalifs of Cairo.
2. That as such spiritual Head as aforesaid, the lst Aga Khan (and each of his said ancestors since A.D. l770 and probably for several centuries earlier) was the recipient of large, valuable and frequent offerings and presents from the Khojas aforesaid and also from Ismaili Shias. He also received an allowance of Rs.3,000 per month from the Government of India. All the said emoluments, or the investments now representing the same, form as the plaintiff contends, parts of the entire estate of the said family wherein she claims to have rights as hereinafter stated.
13. That during and since the lifetime and regime of the said lst Aga Khan and up to the instances of breach hereinafter stated, every male member of the family on attaining majority, and every female member thereof on attaining majority or marrying, has resided rent free in some house or houses pertaining to the said family estate and through the Titular Head and Manager for the time being of the said family, and out of the funds of the said family estate has received personal monthly allowances and the salaries of servants, and wedding presents in the event of marriage, and has also been provided with food, servants, carriages, horses, furniture and other requisites and comforts.
14. That the said residence, allowances, requisites, and comforts were so enjoyed by the same members of the said family as aforesaid by virtue of the fact that they were heirs and heiresses jointly entitled as of indefeasible right under the Mohamedan Law of Inheritance whereby the said Shiahs and the said family as belonging to that sect are governed, to definite parts of shares of and in the said family estate.
15. That, nevertheless, the said residence, allowances, requisites and comforts are not and never have been given to and received by the said several members of the said family as the equivalent or in the stead of or as wholly representing but only as a portion or on account of what they have been, are, or would be entitled to receive as heirs according to their said respective parts or Shares under the said Law of Inheritance of and in the said family estate, inasmuch as the said several parts or shares are and always have been undivided and have never been actually ascertained and declared nor has the said family estate ever been partitioned by metes and bounds and distributed or allotted amongst and to the several heirs and heiresses entitled thereto in accordance with any such ascertainment or declaration.
17. That the said lst Aga Khan died in l88l at Bombay leaving the following heirs and heiresses to wit - three widows, the said Serve Khan Begum, the said Meriam Khanum, and the said Haji Baig; three sons, the said Ali Shah, the said Aga Jangi Shah and the said Akbar Shah, and three daughters the Said Bibi Saheb, the said Bibi Gowhar and the said Bibi Tajmah.
18. That the death of the said lst Aga Khan as aforesaid, all his said nine heirs and heiresses jointly succeeded to his estate according to their respective shares therein under the law, but that one of the said heirs, to wit, the said Ali Shah, also succeeded him as titular Head of the family and as Manager thereof and of the estates pertaining thereto, and became known as the 2nd Aga Khan, and continued as such until his death hereinafter stated.
23. That after the death of the said lst Aga Khan as aforesaid, his said three widows, three sons and three daughters (named in para l7) and their issue continued to live together as an undivided joint family, being jointly in enjoyment of the entire family estate according to their respective undivided shares therein, residing in divers houses pertaining to the said estate, and receiving payments out of the funds thereof in their character as heirs and heiresses, and after the death of any of the said widows, sons and daughters, his or her heirs continued to live as an undivided joint family together with the survivor and their issue and jointly to enjoy the said family estate.
24. That according to the said Mohamedan Law of Inheritance whereby the said family are governed as aforesaid, each of the said three widows named in para l7 became entitled to an undivided 24th share in the said entire family estate, each of the said three sons became entitled to seven undivided 26th share therein and each of the said daughters became entitled to seven undivided 72nd share therein.
34. That in consequence of various demises and joint successions above set forth, the plaintiff became and is entitled to 7 undivided 144th share in the entire estate of the said family.
36. That by an Indenture dated the llth day of September l901 made between the said Aga Shamsudin Shah defendant No. 5, in his own right and as administrator of the estate of the said Aga Jungi Shah deceased of the one part and the said defendant No. l of the other part, and registered at Bombay, reciting the death of the said lst Aga Khan, leaving him surviving the widows, sons and daughters already named as his only heirs and legal representatives according to Mohamedan Law, and also leaving moveable and immoveable properties at Bombay, Poona, Bangalore, and Karachi, and reciting that immediately after the death of the said lst Aga Khan the said 2nd Aga Khan entered into possession of the properties described in the Schedule A thereunder written, being the immoveable properties belonging to the estate of the said lst Aga Khan deceased, with the exception of the property described in the Schedule B thereunder written, and managed the same on his own behalf, and himself exclusively enjoyed the rents and profits thereof to the exclusion of the other heirs of the said lst Aga Khan deceased up to the time of his death, and that the said Aga Jungi entered into possession of the said property described in the said Schedule B and exclusively enjoyed the rents, profits and income thereof upto the time of his death, and reciting the death of the said 2nd Aga Khan leaving the widow and son already named as his only heirs and legal representatives according to Mohamedan Law, and reciting that at the death of the 2nd Aga Khan, all his properties both moveable and immoveable including the properties described in the said Schedule A came into possession of the said Bibi Shamsool Moolak defendant No. 3, and was managed by her for and on behalf of the said defendant No. 1 to the exclusion of the other heirs of the said lst Aga Khan and reciting that in the year l893 the said defendant No. l entered into possession on his own behalf of all the said last mentioned properties, and reciting that the properties situate in Bombay and described in the said Schedule A were in the year l893 transferred in the books of the Collector of Bombay and of the Municipality of Bombay into the name of the said defendant No. l, and reciting that since the death of the said 2nd Aga Khan the said defendant No. l had been in sole and exclusive enjoyment of the rents, and profits and income of the said properties described in the said Schedule A, as also of the other properties left by the said lst Aga Khan and the said 2nd Aga Khan, save as aforesaid to the exclusion of the other heirs of the said lst Aga Khan, and reciting the death of the said Bibi Tajmah and of the said Bibi Maryum each leaving the said Aga Jungi Shah as one of her heirs and legal representatives according to Mohamedan Law, and reciting that the said Aga Jungi Shah (as the said defendant No. l did thereby admit and acknowledge) remained in possession of the said property described in the said Schedule B ever since the death of the said lst Aga Khan and himself enjoyed the rents and profits thereof to the exclusion of all other heirs of the said lst Aga Khan up to the time of his death, and reciting that the said Aga Shamsudin defendant No. 5 (as the said defendant No. l did thereby admit and acknowledge) entered into possession of the said property described in the said Schedule B on the death of the said Aga Jungi Shah as aforesaid, and had been himself enjoying the rents and profits and income thereof to the exclusion of all of the heirs of the said lst Aga Khan deceased, and reciting that the said Aga Shamsudin Shah defendant No. 5 as the sole surviving son and as one of the heirs of the said Aga Jungi Shah deceased applied for and obtained Letters of Administration to the estate of the said Aga Jungi Shah deceased from this Honourable Court on the 28th day of August l90l, and reciting that the said defendant No. l and the said 2nd Aga Khan deceased having been in absolute possession and enjoyment of the said properties described in the said Schedule A since the death of said lst Aga Khan, the said defendant No. l did contend that the said Aga Jungi Shah had not for a long time before his death had any claim, and his estate had then no claims whatsoever in the said properties or against the estate of the said lst Aga Khan, because the said Aga Jungi Shah's right to a share as an heir of the said lst Aga Khan had long prior to his death been barred by the law of Limitation, and reciting that the said Aga Shamsudin Shah, defendant No. 5 as such administrator, as aforesaid and in his own right did thereby admit and acknowledge correctness of the parts therein before recited and of the aforesaid contention, and did admit and acknowledge that the claim, if any, of the said Aga Jungi Shah and after his death of his estate to share in the estate of the said lst Aga Khan deceased had at the death of the said Aga Jungi Shah been and was barred by Limitation, and that the said estate of the said Aga Jungi Shah was not in any way entitled to any portion of the said properties described in the said Schedule A or in the estate of the said lst Aga Khan, and reciting the said Aga Shamsudin Shah as such Administrator as aforesaid and in his own right did thereby further admit and acknowledge, that all and singular the payments and allowances, which were made and the food and provisions which were from time to time supplied, and the residence in some of the houses in the properties situate in Bombay firstly, secondly, thirdly and fourthly described in the said Schedule A and the properties situate in Poona firstly and secondly described as the Poona properties in the said Schedule A, which was permitted by the said 2nd Aga Khan during his lifetime, and after his death by the said Bibi Shamsool Moolak defendant No. 3 as mother and guardian of the said defendant No.1 and that the other similar payments, food, provisions and residence, which were still being made, supplied and permitted by the said defendant No.1 himself, since he came of age to the different members of the family of the said 1st Aga Khan, including the said Aga Jungi Shah deceased and his children and descendants including therein the said Aga Shamsudin Shah defendant No. 5, had been and were being made, suffered and permitted respectively, as a matter of grace and favour, and not as a matter of right or by reason of any custom or usage or for any other cause or any other ground whatever, but was entirely dependent on the will of the said defendant No. l, and that the same could not and would not be claimed as a matter of right, and reciting that with a view to prevent any disputes in future between the parties thereto, and out of family affection but without the said defendant No. l in any way admitting the right or claim of the said Aga Shamsudin Shah defendant No. 5, as such Administrator as aforesaid, or in his own right, or of the estate of the said Aga Jungi Shah deceased, or of any of the other sons or daughters of the said lst Aga Khan to any claim whatever in the estate of the said lst Aga Khan or any other right or claim, if any, or howsoever arising, and without prejudice to all the rights and contentions of the said defendant No. l that all such claims, if any, had long since become barred by Limitation, and which rights and contentions were thereby expressly reserved, the said defendant had determined to grant and convey unto the said Aga Shamsudin defendant No. 5 as such administrator as aforesaid, the property described in the Schedule C thereto annexed being a portion of the property thirdly described in the said Schedule A and to pay to him a sum of Rs. 40,000, on or about the execution of these presents, which conveyance and payment was given and made by the said defendant No. l voluntarily and not by reason of any obligation binding on him; and reciting that the said Aga Shamsudin Shah defendant No. 5 as such administrator as aforesaid and in his own right, in consideration of such conveyance and payment and of the said defendant No. l releasing all his right, title and interest (if any) to or in the said property described in the said Schedule B was willing to execute in favour of the said defendant No. l the release thereinafter contained, and reciting that for the purposes of stamp duty and value of the said property described in the said Schedule C was taken at Rs. l00,000. It was witnessed that to effectuate the said determination and in consideration of such release as was therein after contained, the said defendant No. 1 did thereby grant and convey unto the said Aga Shamsudin Shah defendant No. 5 as such administrator as aforesaid and his heirs, executors, administrators and assigns, all that piece or parcel of land or ground more particularly described in the said Schedule C being a portion of the property, thirdly described in the said Schedule A together with all rights and appurtenances thereto belonging and all the estate and interest of the said defendant No. l therein, to have and to hold the same unto and to the use of the said Aga Shamsudin Shah defendant no. 5 as such administrator as aforesaid, his executors, administrators, and assigns forever, subject as therein mentioned, and it was further witnessed that for the consideration aforesaid and in consideration of the sum of Rs. 40,000 paid by the said defendant No. l to the said Aga Shamsudin Shah defendant No. 5 as such administrator as aforesaid, the said Aga Shamsudin Shah defendant No. 5 as such administrator as aforesaid and also in his own right as one of the heirs of the said Aga Jungi Shah deceased did thereby release or discharge the said defendant No. l and his estate and effects and the estate and effects of the said lst and 2nd Aga Khans, including the properties described in the said Schedule save that portion of the property thirdly described in the said Schedule A as was thereby conveyed to the said Aga Shamsudin Shah defendant No. 5 of and from all actions, claims and demands, whatsoever, as therein mentioned, it being distinctly agreed that the said release was to operate as a complete discharge in respect of any and every possible right, claim or demand of the estate of the said Aga Jungi Shah deceased, whether past, present, derivative or contingent to upon, and against the estates of the said lst and 2nd Aga Khans and against defendant No. l and his estate, and it was further witnessed that in consideration of the premises the said defendant No. l did thereby release, convey and assure unto the said Aga Shamsudin Shah defendant No. 5 his heirs, executors, and administrators all the right, title and interest of the said defendant No. l (if any), of, in and to all the properties described in the said Schedule B with their appurtenances, to have and to hold the same unto and to the use of the said Aga Shamsudin Shah defendant No. 5 his heirs, executors, administrators and assigns absolutely.
55. Plaintiff is informed by the said Aga Coochik Shah the defendant No. 9 above named, the said Shah Bibi the defendant No. l0 above named, and the said Malik Taj Begum the defendant No. ll above named, who together with the said Aga Moochool Shah deceased were all alive at the time of the death of the said lst Aga Khan as aforesaid, and also by the said Aga Abdul Sumad Shah the defendant No. l2 above named, the said Aga Jalal Shah the defendant No. l3 above named, and the said Shah Begum the defendant No. l4 above named, and believes that they also claim to be entitled as joint heirs to share in the said entire estate and to maintenance out of the said estate in virtue of a family custom and usage they set up and that they allege that the said lst Aga Khan left a will which has been suppressed by the said defendant No. l and they accordingly all joined as defendants in this plaint.
(e) That an inquiry may be held under the directions of this Honourable Court to ascertain what the estate of the said lst Aga Khan consisted of at the time of his death, and which on such death came into the hands of the said second Aga Khan as such Titular Head of the said family and manager of the affairs thereof as aforesaid.
(f) That an account may be taken of all the property immoveable and moveable belonging to the said family at the time of the death of the said second Aga Khan, and which on such death came into the hands of the said defendant No. l as such Titular Head and manager as aforesaid, and of all accretions thereto, and of all rents, profits, income, investments and expenditure thereof, and of all dealings therewith by the said defendants No. l since that time.
(g) That it may be declared that all accretions to the said family estate since the death of the said lst Aga Khan formed and still form part of the joint estate of the said family.
(k) That a partition may be effected under the orders and directions of this Honourable Court of the entire estate of the said family, and that the respective shares therein of the several parties to this suit may be ascertained and their respective rights therein declared, and that the share of each of the said parties when ascertained may be allotted to him or her in severalty, and that he or she may be put in the possession thereof.
Written statement of defendants 9 to l4:
3. Those defendants say that all the members of family of Shah Hasan Ali the lst Aga Khan including these defendants are jointly entitled to the offerings received from time to time and to the properties acquired by means of such offerings. These defendants say that instead of dividing the said offerings and properties among the persons so entitled to them a custom has grown up in the family ever since the time of the lst Aga Khan to the effect that the Titular Head for the time being keeps charge of and manages all offerings and makes suitable allowances to the other members, the males on attaining majority and the females on getting married or attaining majority, besides providing for them residence, servant's salaries, horses and carriages, food and all requisites and wedding and funeral expenses out of the family properties and offerings. These defendants used to receive such allowances, etc. as shown in Schedule No. l hereto annexed, but the same have been considerably reduced from the respective dates therein shown.
Defendant 1's written statement sets forth a large number of defences, the nature of which, however, may be sufficiently gathered from the first 125 issues.
The 5th defendant Shamsudin, in his written statement, sets forth the circumstances under which the alleged release of the 11th September l90l came to be passed.
The 7th and 8th defendants inter alia say that their father Akbar Shah appropriated to himself certain properties belonging to the said Hassan Ali which he treated as his own exclusive property, and that their father never claimed any more property against the estate of the said Hassan Ali nor any of the allowances, and they say they have no right to any of the properties left by the said Hassan Ali.
The defendants 9 to l4 say inter alia that the offerings received by the successive Aga Khans were received not for their individual benefit, but for the benefit of all the members of the family as shown in the pedigree, Ex. A to the plaint. Para 3 of their written statement sets up the custom they rely upon.
It will be seen that upon the face of the plaint it is difficult, if not impossible, to ascertain the real basis of the plaintiff's claim. The plaintiff claims 7-144 of Hassan Ali's estate, and at the hearing before me it was contended that the parties were governed by Mohamedan law, but the plaint mixes up Mohamedan law with Hindu law in a very confusing way and is hopelessly inconsistent.
Para l7 of the plaint first sets out the nine heirs and heiresses of Hassan Ali, para l4 says that those nine heirs and heiresses jointly succeeded to his estate according to their respective shares according to law. If this is interpreted to be Mohamedan law, there is no such thing as joint succession known to it. Para 23 says that after his death the said 9 heirs and heiresses, named in para l7, and their issue continued to live together as an undivided joint family. The words "continued to live" imply that they lived as an undivided joint family during Hassan Ali's life. In the correspondence, all through H. l6, see pages 22 to 25 of the Appeal Book, it will also be seen that the plaintiff bases her claim as having a joint interest with defendant l. See also D.H. 6 Edgelow and G's letter, 3lst March l904, on behalf of Coochick to defendant 1. It is therefore very difficult to ascertain from the plaint by what law or legal principle the succession to the estate of Hassan Ali is to be determined, and in my opinion the Mohamedan law of Inheritance and the Hindu law are mixed up in a way which renders it almost impossible to know what those, who drafted the plaint, had in their minds when they drew it. According to the Hindu law of the joint family, the governing principle is not heirship but survivorship, and that I understand those who drafted the plaint had in their minds when they say in para l8 that on the death of the first Aga Khan as aforesaid all his said nine heirs and heiresses jointly succeeded to his estate according to their respective shares therein under the law, meaning I apprehend the Mohamedan law which is referred to before; but then in para 23 they go on to say that after the death of the said first Aga Khan, his said three widows, three sons and three daughters and their issue, continued to live together as an undivided joint family, receiving payments out of the funds thereof in their character as heirs and heiresses. From this I assume that it was intended to say that the Hindu law of the joint and undivided family was applicable to the case and not the Mohamedan law under which the succession devolves in severalty, and this conclusion of mine is borne out by the plaintiff's evidence in cross-examination, and Mr. Inverarity rightly took the plaintiff in detail through the various members of the alleged joint family, so that she should be making no mistake upon this most important part of the case. I therefore read her cross-examination on this point in extenso on Saturday l5th February l908. See from page 39, line 28: "I have heard of Mohamed Taki Khan, son of ... etc.," to page 43, line 5, of the printed evidence before me. That the plaintiff, however, discovered afterwards the fatal effect of her evidence is plain, because after she had given the above evidence she abandoned that position and said as follows on Monday l7th February l908, page 53, line l4: "I wish to say now, etc.," to "answers I have given today," line 25, p. 53. Further para 2 of the plaint admit that there was no new departure from the time of Hassan Ali; the offerings were made to Hassan Ali as the 46th Imam, not as Aga Khan. Offerings are made for many years to the Imams not to Aga Khans. Therefore hundreds of people would be entitled to share in them, and why should Khalilulla's descendants not be so entitled? If, therefore, the case is to be governed by Hindu law, it is obvious that it is impossible upon the record, framed as it is now, for this Court to decree the partition that is sought for, for the simple reason that a large number of persons who are interested in and entitled to share in the property of the joint and undivided family are not on the record, and no application for placing them on the record has been made to me, and this obviously is a fatal defect in the plaintiff's case.
It, undoubtedly, was open to defendant l to raise various preliminary points in this case, but no application was made to me that they should be decided in the first place, the reason for this being, I apprehend, that the advisers of the lst defendant, seeing the very grave importance of this case to him upon the merits, were unwilling to base their defence upon technical questions of law, but determined to fight the plaintiff and her supporters on the merits.
As Mr. Inverarity put it the position of his client made it quite impossible for him to raise the smallest technical objection to the attacks made upon him. An attack has been made upon him which involves fraud and moral turpitude, and he must have the whole matter thoroughly sifted out in view of the moral effect that such charges would have upon his followers.
I propose now to deal with the first of the two main branches of the case which I have stated above, namely, who is entitled to the offerings made by the followers of the Aga Khan, or in other words whether the members of the family other than the Aga Khan for the time being have any right or title thereto.
The consideration of this question necessitates my setting forth, as shortly as I possibly can, certain facts as to the history of the Aga Khan and the Khojas so far as they are material to this case, and the conclusion I have arrived at as to the faith professed by him and his followers. But before doing so I wish to clear the ground in respect of one matter upon which a mass of evidence has been given and by which a great deal of the time of the Court has been occupied, and that is whether the Aga Khan is an Asnashari. This question arose in this way; when the plantiff's counsel began to put questions as to this, I could not at first judge whether they were relevant or not. As soon, however, as I ascertained the object with which they were being put, namely with a view to depreciate the position of defendant I in the community, I of my own motion drew Mr. Bahadurji's attention to paras 1 and 2 of the plaint, and told him that if he wished to give the go-bye to those paras, he must formally amend the plaint. When I did this it was in the expectation, and may say in the hope, that objection would be raised on behalf of defendant 1, and those defendants who sided with him, that any such questions were irrelevant, and had such objection then been taken I would at once have so ruled. No such objection however was formally raised, and I did not see my way to overruling the question without a formal objection being raised. Afterwards when the defendants, other than defendant 1, began to feel that the length and expenses of this trial was becoming a formidable matter to them, formal objection was taken on their behalf to this class of questions. By that time, however, a considerable amount of evidence had been given, purporting to show that defendant 1 was an Asnashari. Mr. Inverarity, for defendant 1, thereupon objected to this evidence, at that stage, being held to be irrelevant for he claimed the right to have it all recorded, and to put his client into the box to deny the suggestions and all statements on the point. In my opinion he was justified in adopting this line of conduct, as otherwise the obvious result would have been that it would have been said that defendant 1 did not object to the evidence being given till he found that it was becoming too strong when he joined the other defendants in objecting to its relevancy. The evidence accordingly was taken. As I have said para 1 of the plaint is opposed to the defendant 1 ever having been an Asnashari. No suggestion of this sort was made on the Commission, and I am pretty sure I am right in saying that the only mention of Asnashari (not in this connection) is at pp.147 and 182 of book 1 of defendant's evidence on Commission.
It is necessary to consider now what the meaning of the term Asnasharis is. It literally means the Twelvers or those who believe in the 12 Imams only and not in the 48 Imams. Their names are Ali, Hasan, Husein, Zenal Abadeen, Mohamedan Bakar, Jaffer Sadak, Musa Kasum, Moosa Reza, Mohamed Taki, Ali Naki, Hasan Askari and Mohomed Mehdi. It will be observed that they branch off from the Ismailis at the 7th Imam, for the latter believe in Ismail, another son of Jaffer Sadak, and not in Musa Kasum. It appears that there have been several secessions among followers of the Aga Khans. Jaffer Pardhan at p.235, who is the present president of the council of the Jamat, says the first one was in S. 1933, A.D. 1876-77, when several persons were excommunicated by order of Hassan Ali for following the Asnashari faith. The next secession was in S. 1935, A.D. 1879-80, when two persons were excommunicated for the same reason. Then came the secession of A.D. 1901. This was the greatest of the secessions both on account of the number of the seceders, and the fact that the Asnasharis in that year built an Asnashari Musjid not very far off the Khoja Jamatkhana. The Exs. D.H., 63-67, are the advertisements which were published, one of them, D.H. 66, being timed to meet the Aga Khan on the occasion of his return to Bombay. The true reason was not given in the advertisements, says Jaffer Pardhan, as it is not true they have always been following the Asnashari faith. No doubt many of them were Asnashari at heart, but under the system of Takia they were afraid or disinclined so to announce themselves, although the witnesses, to whom I put the question, would not admit it. I think that the spread of Asnasharism is probably owing rather to a temporal than spiritual or religious feelings, viz., an increasing disinclination to pay the various sums which are due to the Aga Khan as Hazar Imam for the time being. Of course we could understand the witnesses not being anxious to admit this. A very large body of evidence was given on the point. Witness after witness was examined and cross-examined as to where and in what language and on what occasions the Rozakhani or recitation of the sufferings of Hasan and Husein were recited. Witness after witness was examined and cross-examined as to whether the Ziarat (or doxology, if it may be so termed) does or does not form part of the Rozakhani, but in my opinion it is not necessary for me to go at length into the evidence which has been given in this matter. There can be no doubt that the mother of defendant 1 and some of his relatives are Asnasharis. He himself frankly admitted that he had been present on an occasion when the Ziarat to the 3rd, 8th and 12th Imams was said, but he did not repeat it (p.198). As a great deal has been attempted to be made of the faith of defendant 1, I think it is desirable to read his exact words (p. 214, line 22 to p. 216, line 4). To my mind it is impossible to believe that defendant 1 believes in a faith, the result of which belief would be that he was no longer entitled to his position of Hazar Imam, that he was no longer entitled to receive offerings from his followers from all over world, and, in short, as Mr. Inverarity put it, that he was practising a gross imposture. I cannot believe that if he really were an Asnashari, he would allow his followers to repeat in all reverence and on their knees in the Bombay Jamatkhana three times a day, the Doowa, D.H. 132 set out at length below a prayer in which inter alia all the 48 Imams are recited, and obeisance is made when the name of the Imam for the time being is uttered. The plaintiff and Coochick and their witnesses were driven to say that defendant 1 had invented the Ismaili faith as a new religion. Thus Coochick, p. 187 says:
"My case is that the present faith dates from Jungi's death, or a year after. The fanatic followers of the Aga Khan do date from that time. I cannot say before or after Jungi's death. The new religion has been going 15 years since Aga Khan's new Bhagats started preaching, 2 years before Jungi's death. I cannot say Doowa is a new invention of the last 12 or 14 years, since the present Aga Khan came of age. This new invention was never heard of before Jungi's death. Aga Khan has invented a new Doowa in Gujarati, the former one was in Arabic."
Again Malek Taj Begum, p. 246 says that she does not know of any sect of Shias who believe that Ismail was the 7th Imam, that before this suit she never heard it suggested by anyone that Ismail had succeeded Jaffer Sadak; that she believed it to be a new invention since this suit that Ismail succeeded Jaffer Sadak as the 7th Imam; she does not know when it was invented.
Upon this part of the case I have no hesitation in holding that the plaintiff has wholly failed to prove that the defendant 1 is or ever was an Asanashari, and that such an assertion is wholly contradictory to para 1 of her own plaint; her only explanation as to which has been that it was so stated by mistake and was overlooked by her. See page 66 where para 1 of the plaint is referred to and she says:
"He was not the hereditary Imam of the Khojas, who says that I do not say what is blasphemous. Hassan Ali did not claim to be direct descendant from Imam Ismail, son of Jaffer Sadak, as Ismail was not an Imam. It would be blasphemous to describe Ismail as Imam. The Imams are the 12 Imams. Any one who says, "Not", is blasphemous. When I signed the plaint I did not believe para 1 to be true. When it was read out to me, probably my attention was not called to it."
Again a considerable amount of evidence was given as to whether the followers of the Aga Khan would be permitted to put the Koran on their heads at certain times. The evidence shows that they do put the Panchtan (see Ex. D.H. 134), but whether they would or would not use the Koran in the same way seems to be wholly irrelevant.
In stating my conclusions as to the different faiths, the history of the Aga Khans, etc. etc., below, I may say they are derived from:
The celebrated equity suit in 12 Bombay, H.C.R. Watson's History of Persia, Articles by Dr. Leitner in Vols. 5, 6 and 8, Asiatic Quarterly Review, two articles by Sir Bartle Frere in Macmillian's Magazine, Vol. 34, 1876, Travels of Marcopollo by Lt. Hule; Huges Dictionary of Islam, 1896 and the Tarikh-e-Rashidi; Wilson's Mohomedan law; Amir Ali's Mohomedan Law.
It will, I think, tend to clearness if I now explain the various words which appear in the course of this case and must appear in the judgement:-
Imam means spiritual head or supreme Pontiff.
Mursheed means spiritual head.
Jamat is the congregation of all the adult male members of the Khoja community.
Jamatkhana is their meeting-hall or guild-hall.
Mukhi is the treasurer or steward.
Kamadia is the accountant.
Varas is the vazir.
"Sunnis" or the orthodox Musulmans, the people of the Souna or Tradition. Their Kalma or profession of faith is the simple one - "there is no God but God and Mahomed is the apostle of God."
"Shias" means either separatists, which is probably the more correct derivation, or persons who are pure from the blood of those members of the family of Ali, who early fell victims to the hostility of the Sunni Ommeiades, the Caliphs of Damascus. To the profession of faith of the Sunnis, above set out, the Shias add "and Ali, the companion of Mahomed, is the Vicar of God." The elevation of Ali, who, it is well known, was the son-in-law of Mahomed to an almost co-equal position with the apostle of God himself, may be stated popularly as the great distinctive tenet of the Shias.
The Shias are divided into several sub-sections, of which the chief are:
I. The Asnasharis or followers of the 12 Imams. Their last Imam disappeared in a grotto at Sumamram (Sirmanry) near Cupu in the 12th year of his age (according to Amir Ali, Vol. 2, p.11) or was thrown down a well according to Wilson's Mahomedan Law. He is believed to be still alive and they look forward to his reappearance to re-establish the universal Caliphate.
II. The Ismailis or followers of Ismail, one of the sons of Jaffer Sadak, the 6th Imam. In Bombay they comprise Bohras and Khojas. Both were converted in the early part of the 13th century from Hinduism to Islamism. The Khojas belong to the eastern sub-division of the Ismailis and are followers of 'The Old Man of the Mountain". Their descendants, residing at Bombay, hold spiritual sway over them. The Bohras, on the other hand, belong to the western sub-division and their Dai-ud-Dawat or Grand Prior lives at Yeman (Amir Ali, p. 12-13), or as stated in Vol. 1 of Travels of Marcopollo, edition of 1903, pages 1904 and 141:- Adherents to the family of Ali, as the true successor of the prophet, existed from the tragical day of the death of Husein and among these probably owing to the secrecy with which they were compelled to hold their religion, there was always a tendency to all manner of strange and mystical doctrines; as in one direction to the glorification of Ali as a kind of incarnation of the Divinity; in another direction to the development of pantheism and release from all positive creed and precepts. Of these, Aliites, eventually called Shias, a chief sect, were the Ismailis, who take their name from the seventh Imam, whose return to earth they profess to expect at the end of the world.
Some of the Ismailis apparently were known as Ali Ilahi, the origin of the whose name is to be found in a book called the Dabistan by Mullah Mohsain Fani quoted by Mr. Colebrook, an extract from which is to be found in the note at page 218 of the Tarikh-e-Rashidi by N. Elias and E.D. Ross, Sampson Son & Co., 1895.
Shia Imami Ismailis hold Ismail, the 7th in descent from Ali, to have been the last of the revealed Imams, and they also hold that, until the final manifestation of Ali, who as an Incarnation of God, is to come before the end of all things to judge the world, the musnud of the Imamate, or in Latin idiom the office of Supreme Pontiff, is rightfully held by an hereditary succession of unrevealed Imams, the lineal descendants of Ali through Ismail.
The revealed Imams, according to the Ismailis, are these seven:
(1)Ali, (2) Hasan, (3) Husein, (4) Zenalabadeen (this was that son of Husein who survived the massacre of Kerbala), (5) Mahomed Bakar, (6) Jaffar Sadak, (7) Ismail (who died before his father, and is called from his father's name Ismail bin Jaffar Sadak). But the Khojas regard the 2nd one, namely Hasan, merely as a Pir (see the Doowa).
But the unrevealed Imams continue down to defendant 1, who is the 48th. Their names are set out in Ex. D.H. 132, the Doowa. This exhibit, which shows the skilful blending of the ideas of the Hindu incarnations into the 10th or Dasavtar of Ali, is to my mind of such interest, that I set it out at length. It may be called the Imami Creed.
Say your prayers - Say your prayers - Say your prayers. May God Bless you! Take the name of God. May the Lord Ali grant you faith and modesty. O Shah, accept my evening prayer and supplication by virtue of the privilege Thou possesseth, O our Master Aga Sultan Mohamed Shah.
(Then) you are to prostrate. If it is the night prayer, say, "My evening and night supplications" and if it is the morning prayer, say "My evening, night and morning supplications."
Then repeat the rosary and prostrate.
Then repeat the following:
I repent for my sins. I repent for my sins. I am a sinful servant (of Thine), sinful from top to toe. O Shah, the Forgiver, forgive me. The Pirs pray (Thy) servant supplicates. Thou, O True Shah, accepteth the same. (I obey) the Firman (i.e., mandate) of the Shah as communicated by the Pir.
Having said the above, keep the rosary on the ground and repeat the following:
True declaration - God is Holy. Thanks to God. Praise to God. There is no God but God. God is great. There is no might or power except that of God, the High, the Great, the Merciful, the Magnanimous, the Good, the Great Holy Providence (Who is) in the district of Chaldea, in Persia, in human form, descended from the seventy-seven Patras (ancestors) and who is the forty-eighth Imam (Spiritual Chief) the tenth Naklanki Avtar, our Master, Aga Sultan Mahomed Shah, the Giver.
(Then) you are to prostrate. Then say, "Hak Shah" (i.e. O Shah, Thou art true) and repeat (the names of) the ancestors of Vishnu and of the successors of the Shah.
(Names of) Vishnu's ancestors:
The successors of the Shah say (the descendants of) Abu Taleb Vali (are):
1. Our true Lord Shah Ali.
2. Our true Lord Shah Husein.
3. Our true Lord Shah Zenal Abadeen.
4. Our true Lord Shah Mahomaed Bakar.
5. Our true Lord Shah Jaffer Sadak.
6. Our true Lord Shah Ismail.
7. Our true Lord Shah Mahomed bin Shah Ismail.
8. Our true Lord Shah Vafi Ahmed.
9. Our true Lord Shah Taki Mahomed.
10. Our true Lord Shah Razi Abdulla.
11. Our true Lord Shah Mehdi Mahomed.
12. Our true Lord Shah Kayem.
13. Our true Lord Shah Mansur.
14. Our true Lord Shah Moezz.
15. Our true Lord Shah Aziz.
16. Our true Lord Shah Hakem Abu Ali.
17. Our true Lord Shah Zahir Ali.
18. Our true Lord Shah Mustansirbillah.
19. Our true Lord Shah Nizar.
20. Our true Lord Shah Hadi.
21. Our true Lord Shah Mohtadi.
22. Our true Lord Shah Kaher.
23. Our true Lord Shah Ali Zakaria Salam.
24. Our true Lord Shah Ali Mahomed.
25. Our true Lord Shah Khud Jalaludin Hassan.
26. Our true Lord Shah Alaudin Mahomed.
27. Our true Lord Shah Ruknudin Khoor Shah.
28. Our true Lord Shah Shamsudin Mahomed.
29. Our true Lord Shah Kassam.
30. Our true Lord Shah Islam Shah.
31. Our true Lord Shah Mahomed bin Islam Shah.
32. Our true Lord Shah Mustansirbillah.
33. Our true Lord Shah Abd Salam.
34. Our true Lord Shah Garib Mirza.
35. Our true Lord Shah Budr Ali.
36. Our true Lord Shah Murad Mirza.
37. Our true Lord Shah Zulficar Ali.
38. Our true Lord Shah Nurudin Ali.
39. Our true Lord Shah Sayyed Khalilullah Ali.
40. Our true Lord Shah Nizar.
41. Our true Lord Shah Sayyad Ali.
42. Our true Lord Shah Hassan Ali.
43. Our true Lord Shah Kassam Ali.
44. Our true Lord Shah Abdul Hassan Ali.
45. Our true Lord Shah Khallilulla Ali.
46. Our true Lord Shah Hassan Ali.
47. Our true Lord Shah Aga Ali Shah.
48. Our true Lord Shah Aga Sultan Mahomed Shah the Giver.
Recognize him, the present owner of the Imamate, the Master of the Age, the Imam, the guide of the guides, the (Imam) in Power, Aga Sultan Mahomed Shah, the Giver, the Reliever of innumerable and crores of persons, the present owner of the Imamate, O Shah accept my supplication in Thy presence by virtue of the privilege Thou possesseth, O our Master Aga Sultan Mahomed Shah.
This Doowa is practically the same as the one in Hassan Ali's time, D.H. 128, and Ali Shah's time, D.H. 129 except the necessary addition of the Aga Khan for the time being.
Khoja means the honourable or worshipful person, the disciple.
Now, Khojas originally were Hindus of the trading class, inhabiting the villages and towns of Upper Sindh. Their language is Sindhi or Cuthci, a cognate dialect, and such ancient religious works as they possess are written in the Sindhi character and language. Sindh, an early Mahomedan conquest, has long had and still has a large Mahomedan population; but a considerable portion of the retail and wholesale business of the country has always remained in the hands of the Hindus. The position and circumstances of these remote and isolated Hindu traders were manifestly such as to favour their conversion to some form or other of Mahomedanism. It must be taken as established now that they were so converted by Pir Sadrudin about 442 years ago. And according to the tradition of the great body of the Khoja community, Pir Sadrudin came from Khorasan, and was an Ismaili Dai, or missionary, sent by Shah Islam, one of the ancestors of the Aga Khan, and the form of Mahomedanism which he taught his converts was the Shia Imami Ismaili faith.
In the well-known case decided by Sir. J. Arnould, The Advocate-General v. Muhammad Husein, Husein (1), that learned Judge sets out the various arguments for holding that Pir Sadrudin was a Dai, or missionary of the hereditary Imam of the Ismailis probably Shah Islam and that he converted the first Khojas to the Imami Ismaili form of Mahomedanism. To my mind the arguments he there adduces are such as no attempt as been made on the part of the plaintiff to shake in the present case.
Now it is admitted in this case that the followers of the Aga Khan are not necessarily limited to Khojas, and we find that his followers are to be discovered in Persia, Arabia, Zanzibar, Sind, Cutch, Bombay, Calcutta, Rangoon and other places. See the evidence of defendant 1 and that of his various followers who have been called as witnesses. It has also been proved in this case that for many years past the followers of the Aga Khan had been in the habit of making large voluntary contributions to their Sirkar Saheb i.e Lord and Master, out of religious feelings to the Imam for the time being of the Ismailis whom they revere as their Hazar Imam or their spiritual head. I give a list of the customary gifts and also the various names applied to the Aga Khan below.
Pir Sadrudin and Pir Kabirudin wrote the Ginans which have been put in evidence. The dasavtar was written by the former. The Dasavtar, as Sir Jospeh Arnould says, is a treatise in 10 chapters, containing as its name imports, the account of 10 Avtars or incarnations, each dealt with in a separate chapter. The first 9 chapters treat of the 9 incarnations of the Hindu God Vishnu. The 10th chapter treats of the incarnations of the most holy Ali. I state hereafter the effect of some of the ginans which were put in evidence before me as supporting the contention on behalf of defendant 1 that his followers were enjoyed by them to make offerings to him alone.
In my opinion the Dasavatar, as might be expected, are the outcome of an astute and clever brain. The object of the author was to convert the Hindus to Mahomedanism, and the way in which he does this is by recounting the various Avtars of the God Vishnu until he finally comes to Ali, the son-in-law of the Prophet Mahomed. As we see in so many forms of religions, the author adopted the process of evolution. The same process can be traced through the various forms of serpent worship down to the time when the serpent is said to have tempted Eve in the Garden of Eden. The same process of evolution is to be seen in the various religions, the first forms of which spring from the form of the Lingain and the Yoni, and by a process of evolution and improvement ends in the idea of an Immaculate Conception. So, again, amongst the Hindus, there is a ceremony, at which I myself was many years ago present, wherein the leaves of the nim tree were crushed into a powder and handed round to the assembled community of fakirs who were bidden to eat the body of Shiva, a ceremony which, by the process of evolution, has resulted in what the Christian Church knows as the Holy Communion. In the ginans we find the doctrines of Mahomed as disclosed in the Koran largely prevalent. The oral evidence in this case affords a striking example of the theory I am advancing. Three witnesses were called before me who belong to what are known as Guptis. They are unquestionably Shia Imami Ismailis. But they certainly adhere to some of the Hindu practices, for instance they do not circumcise their males and they burn their dead, but they are true followers of the Aga Khan; and one could not help being struck with the dramatic aspect of the situation when two of those Guptis said that they had made a mehmani to the present Aga Khan in the Ritz Hotel in Paris in the shape in the one case of 50 English sovereigns and in the other of French notes of the value of 4 sterling pounds.
During the progress of this case I confess it struck me as a strange thing that there should be any antagonism between the Sunnis and the Aga Khan and his followers, for, in my opinion, by the conversion of a large number of Hindus known as Khojas, there have been received into the Mahomedan faith a large body of well-to-do, respectable and physically powerful members of the community, who, had it not been for their conversion by Pir Sadrudin and Pir Kabirudin, must have remained followers of the Hindu religion which, of course is absolutely different from the Mahomedan. The offerings to the Aga Khans, or, as one witness has called them, Ismail's Pence (Note to Travels of Marcopollo, 1903, pp.149 and 147) is in many respects similar to the well-known Peter's Pence which have been offered to the Popes for so many years. And the worship of or respect paid to Ali, the son-in-law of Mahomed, or as it might be called Aliolatry (in the East) seems to be analogous to the Mariolatry or worship of, and respect paid to, Mary, the mother of Christ (in the West).
Hassan Ali, the first Aga Khan (which defendant 1 tells us is not a title but a sort of "alias" a pet name when Hassan Ali was a young man) was the son of Khalilulla, who was murdered at the City of Yezd in Persia in A.D. 1817 in one of those brawls which are so common in Persia. The then Shah of Persia, Futteh Ali Shah, severely punished the assailants in the fray and conferred upon Hassan Ali large possessions, the government of the districts of Koom and Mehelat, and the hand of one of his daughters in marriage. This action of the Shah was no doubt prompted by his dread, lest he should be held responsible by the Ismailis for the death of their sacred Chief. The next we hear of Hassan Ali is in 1838 when apparently he revolted against the Shah of Persia and seized the government of Kerman, where he himself had numerous followers. The reason for his revolt was apparently that a favourite of the Prime Minister of Persia demanded in marriage, for his son, one of the daughters of Hassan Ali, who would be, of course, the grand-daughter of the late Shah. The Prime Minister backed up his favourite's demand which was indignantly refused. Hassan Ali kept up his revolt till 1840, when, overpowered by numbers, he, with difficulty, escaped through the deserts of Baluchistan to Sind, where he was hospitably received. In Sind he found no money difficulties to contend with, for the Khojas there had always been his most zealous followers, and from them, and the other Khojas in the various parts of the East, he received ample supplies. He raised a body of light horse, who, during the latter stage of the Afghan War in 1841-42, were subsidized by Capt. Rawlinson for service under General Nolt in Candahar. For these services and others which he was able to render to Sir Charles Napier in his conquest of Sind in 1843-44 he received a pension of Rs. 3,000 per month from the Government of India. The present Aga Khan gets Rs. 1,000 from the British Government (see D.H. 227) since 10th May 1886. In 1845 Hassan Ali came to Bombay, where and at Poona he and his son and grandson have been residing.
In 1866 the well-known Equity suit came on for trial, which is reported in 12 Bom. H.C. Reports, the judgement wherein sets out the history of the Aga Khan and his followers, which, by the clearness of its arrangement and language, has formed the basis of all subsequent enquiries. In that case Sir Joseph Arnould, summing up the evidence before him, declares it to be judicially proved that "Mahomed Hussain, Hooseini, otherwise Aga Khan" or, as he is more formally styled when mentioned in official documents by the Indian Government "His Highness Aga Khan, Mehelati," is the hereditary chief and unrevealed Imam of the Ismailis, the present or living holder of the Musnud of the Imamate, claiming descent in direct line from Ali, the Vicar of God, through the seventh and (according to the Ismaili creed) the last of the revealed Imams, Ismail, the son of Jaffer Sadak.
His influence is much wider than was supposed when he first arrived in Bombay. In India it probably does not extend much beyond the Khoja community, who are chiefly settled in the maritime cities of the west, in Sindh, the Punjab, and Cashmere. But the members of Sir Douglas Forsyth's Mission to Yarkand ascertained that considerable communities of Shias, who acknowledge "Aga Khan of Bombay" as their spiritual head, and send regular tribute to him through agents in Srinuggar and other towns of Northern India, are still to be found far north, surrounded by the implacable Sunnis of Turkestan and Afghanistan. These Imami Ismaili Shias form the whole of the sparse population in many of the valleys leading down from the Pamir, the elevated "Roof of the World", on the banks of the higher Oxus, and its affluents - in Chitral, Gilgit, and in remote valleys between Kaffristan and Badakshan, hardly known to us except by name.
In Persia, Khoarsan and Western Afghanistan, there appear to be considerable numbers of the Aga's disciples, but they seldom, if they can help it, avow their allegiance to him whilst living under a Sunni government. In the maritime towns of the Persian Gulf and Eastern Arabia, especially under the comparatively tolerant rulers of Oman, the Khojas flourish, frequently having in some form or another, a claim to protection as British Indian subjects. On the African Coast they are found, in the same ports where Vasco de Gama found them as far south as Mozambique. It is probable that to this day, if a traveller wished to visit the Central Lakes in Africa, or the Ruby or Jade Mines of Badakshan in Central Asia, he could not do better than procure introduction from the descendants of the "Old Man of the Mountain" to his disciples in those parts. In the present case two witnesses, who had come all the way from Khorasan to see and do reverence to the Aga Khan and were in Bombay, were called before me. I purposely do not mention their names, for, as one of them said, their position might be dangerous on the return to their country and their heads cut off.
Hasan Ali died in 1881 when defendant 1 was about four years old and was succeeded by his son Ali Shah, who had been appointed by him as his Pir or religious Deputy during his life time. Ali Shah was the Aga Khan down to the year 1885 when he died. When defendant 1 was eight years old, Ali Shah during his lifetime by a Firman appointed defendant 1, the Aga Khan, see Exhibits (51 and 52 on commission). But defendant 1 at the time of his father's death, being of tender age, the management of the estate and properties was taken up by Lady Ali Shah, until the year 1893, when defendant 1, at the age of sixteen years, took them up, leaving, however, the domestic portion of the management in his mother's hands to a certain extent.
I now state shortly the way in which the Aga Khans lived and brought up their families.
As I have said it has not been proved that the 1st Aga Khan retained any property in Persia, and I think I may take it that when he arrived in Bombay, he had to rely on his pension from Government and the offerings of his followers. Gradually he acquired properties, and there can be no doubt that he maintained his family and probably the large number of retainers who must have accompanied him from Persia. He gradually acquired immoveable properties in Bombay and elsewhere, permitted the members of his family and some of his retainers to reside in his various houses. He also acquired property in Poona, where he followed the same practice. As the family increased, the requirements of the family increased, and the property increased. In addition to that he fed, from a common kitchen, all the persons living on his properties. Allowances were granted in cash to some of the members of his family, out of which they provided themselves or perhaps some were provided by him with horses, carriages and servants. The same system was continued in the time of Ali Shah and after his death by Lady Ali Shah on behalf of defendant 1, and after defendant 1 entered upon his estate by defendant 1. I have been unable to discover any evidence to show that these allowances of cash, food, and residence proceeded from anything but grace and favour of the Aga Khan. And Exhibits 211,215, 216 and 217 show that defendant 1 assisted and was begged to assist various members of his family with large sums of money.
The plaintiff's case is that the offerings made by the followers are for the benefit of the members of the family as well as for the Aga Khan, and on this point a great deal of evidence has been taken on commission. Before I deal with it, however, I would like to mention one or two points that strike me. The first, and I think the most important one, is that there is no assertion whatever in the plaint that offerings were made to the Aga Khan for the benefit of the members of the family as well as for himself. Para 2 of the plaint says, "As such Spiritual Head as aforesaid, the 1st Aga Khan was the recipient of large and valuable presents from the Khojas as aforesaid, and also from the Ismaili Shias. He also received an allowance of Rs. 3,000 a month from the Government of India. All the said emoluments or the investments now representing the same form as the plaintiff contends parts of the entire estate of the said family wherein she claims to have rights as hereinafter stated."
The written statement of the 2nd defendant does not set up such a claim. It simply says she has been receiving allowances as of right.
Defendant 4, the widow of Jungi Shah, in her written statement, expressly disclaims any such rights.
It is not until we get to Coochick's written statement that this point is specifically raised. Para 2 of that written statement says:-
"The defendants say that the offerings from time to time received by the successive Aga Khans, beginning from Shah Hassan Ali, 1st Aga Khan, were and are received by them not for their individual benefit, but for and on behalf of and for the benefit of all the members of the family as shown in the pedigree, Exhibit A to the plaint. These defendant says that the whole family is held sacred by the devotees, as the family that supplies the Imam, and that the Aga Khan for the time being is the titular head and representative of the family."
There are certain other specific circumstances which were pointed out by Mr. Inverarity in his reply. At page 78 of Bhownager Commission, Mr. Dadachanji made two admissions (1) that the offerings made by the followers of Aga Khan in the various Jamatkhanas were made by them on the occasions which have already been mentioned by the witnesses who have given their evidence. (2) that these offerings were collected by the Mukhi and the Kamadia and sent to the Hazar Imam in Bombay either through the Pargannah Kamadia or the Kul Kamadia by means of Hundies and deposed to by the witnesses. Then at page 110 Mr. Dadachanji says:
"My ease is that those relations of the Imam, to whom the followers paid moneys on kissing their hands, paid the moneys into the treasury into which the Imam's moneys lay, and the Imam and his relations lived together and enjoyed the benefits in these moneys which were mixed up with the Imam's money."
So at that time there was no suggestion that the Aga Khan is not the Hazar Imam. Then the plaintiff's advisers were going on the theory that the Gnans directed that the payments should be made to the members of the family, and they alleged that the meaning of the word "Al" was progeny, but unfortunately for this theory Vazir Cassum Ismail was called a man of great dignity and good position and he explained the expression - see page 104:
"The expressions Aal Ali and the Aulad Ali which occur in the Gnans have always been understood by us, followers, to mean that descendant of Ali, who is on the gadi of the Imam."
And he quotes the actual Gnan which is Exhibit D.H. 292 and is to this effect:-
"The Aal Ali is the son of Salamshah Raja. As is Ali so is the Imam, thus says Kabiruddin is what Pir Sadrudin has said. The followers who believe this will get Paradise."
Salamshah Raja was the then Imam in the time of Pir Sadrudin. The commission shows Mr. Dadachanji absented himself when this witness was examined and did not turn up to cross-examine him and declined to give any reasons for his conduct.
At the hearing before me the plaintiff and her supporters were driven to contend that the Gnans were a recent introduction of the Aga Khan.
That commission lasted from the 26th November, 1906 to 2nd January 1907, and no question was there put challenging the fact that the Aga Khan was the Hazar Imam. Moreover, no question is put as to whether payments were made to the female members of the family, with the exception of payments to the mother of the Imam - see pages 59, 87, 142, 183 and 184. As Mr. Inverarity points out, this idea of the mother refers to the reference in the old Equity suit to the Mata Salamat, which referred to Hassan Ali's mother, who was appointed a Pir and therefore got offerings as a Pir.
Again at pages 183 and 202 questions are put exactly contrary to the written statement of Coochick. At page 183 the question is this: "If I prove that there has been an old custom before Hassan Ali's time to divide the offerings among the family of the Imam, what will you do?" At page 202 the question is: "Do you object to the custom in the Imam's family to divide the offerings among the family. The answer was, "Yes." According to this case then there was an old custom before Hassan Ali's time to divide the offerings. When we turn to the written statement of Coochick, we find it stated that the practice has grown up not to divide them.
Then in the 2nd Book - Commission at Rajkote, Calcutta, etc - there again there is no suggestion made that any offerings were made to the female members of Hassan Ali's family except his mother. And reliance is placed on the Gnans as being the authority for giving the family a share in the offerings - see pages 272. At page 246 you find the first suggestion that nephews of Ali Shah were paid their expenses at Rajkote. Then at page 335 you have the suggestion that the offerings were divided amongst the relatives in a fixed sum for each relative - see page 335. That commission lasted from the 13th January to 3rd April, 1907.
In the 3rd book of commission no question is put challenging the Gnans or challenging the Doowa as having been recent inventions.
Then in the evidence on commission on behalf of the plaintiff and the defendants who support her, which lasted from 31st August to 31st October 1907, no suggestion was made that the Gnans and Doowa were recent inventions, but every one who was asked admitted that he knew the Doowa and the Gnans as long as he could remember. Some of them said that they could not say whether the names of the 48 Imams were recited because they were said so low that they could not hear. An attempt has been made by the plaintiff and the defendants who support her to show that the Koran enjoined payment of offerings to the members of the family, but it is clear that the passage (see page 143, Sale's Koran, F. Warne and Co.) refers to spoils taken in war and not to offerings such as these in question.
Upon the first of the two main points in this case, a mass of evidence, has been given which of course I must deal with, and it may, I think be divided conveniently into two heads - (1) the evidence taken on commissions (2) the evidence given before me.
I propose to deal in the first place with the salient points in the plaintiff's evidence on commission. and I may say at once that the plaintiff's witnesses were called to prove generally that out of the offerings, utensils of the Jamat are bought, furniture is bought, repairs of the Jamatkhana made, expenses of lighting the Jamatkhana made, wages of the servants of the Jamat paid, hope is given to the poor persons belonging to the Jamat and out of that whatever balance is left is sent to the Aga Khan and his family.
The first witness of the plaintiff goes as far as to say that he considers His Highness the Aga Khan and his family as his Murshed i.e. spiritual leader. After denying that there are already factions amongst the Khojas in Bhuj, he admits that there are two factions amongst them. He says further that he knows some relations of the Aga Khan have filed a suit against him, but he does not know what the case is about. He does not know that they claim to have a right to a share in the offerings which is followers make to the Aga Khan. No one spoke to him as to the nature of the claim in suit. He does not understand what is meant by Ismaili nor what an Imami means. He does not understand what Shia Asnashari means, although he understands what a Shia means. He does not know who the 12 Imams are. When their names are given to him he says he does believe in them. He says that he only regards "the male members as our Mursheds, but we do not regard the females as our Mursheds. We regard them only as bibis of the Mursheds." He concludes by saying that he is a Khoja, but he is neither Ismaili nor an Asnashari. He does not know the distinction between the two.
The 2nd witness, Jaffer Mowji, does know what is meant by Asnashari Khojas. They believe in the 12 Imams only. He gives their names:- Ali, Hassan, Hussein, Zenalabedin, Mohomed Bakar, Jaffer Sadak, Moosa Kasum, Moosa Raza, Mohomed Taki, Ali Naki, Hasan Askari and Mohomed Mehdi. He believes only in these 12 Imams, as the true Imams descended from Ali. He does not accept the present Aga Khan as his Hazar Imam. He says he never heard a Doowa in his life and does not know that the names of the 48 Imams, including the present Aga Khan, are recited in the Doowa. His evidence is also very unsatisfactory as to there being two factions amongst the Khojas in Bhuj. He admits the Aga Khan is entitled to do with the monies, i.e. offerings, as he pleases. He cannot quote a single text from the Gnans, i.e. religious books of the Khoja faith, directing that the members of the family be recognized as Murshed; female members cannot be considered as Mursheds as they are merely Bibis.
The 3rd witness, Bundeali, denies that there are factions amongst the Khojas in Bhuj. He admits that "when the Talikas are received in the Jamatkhana, they are saluted and the seal thereon kissed by us," although he does not remember to have saluted or kissed a single Talika. These Talikas are from the Aga Khan Saheb and in his name. He admits that dozens of Khojas in Bombay and other places believe in the Aga Khan as their Hazar Imam as the Dhani of the Hazar Jome, and such Khojas are known as Shia Imami Ismailis. He does not consider any one as Imam except the first twelve. The female members of the family he does not consider as Mursheds. They are merely Bibis.
The 4th witness, Dalla Shivji, does not know that in the Doowa the names of the 48 Imams are recited. He recognizes only one person as the Murshed, that is the Aga Khan, who shows him the path in religion, and considers him alone as his Murshed. The monies are sent to him for the reason that he is Murshed. The members of the family would be entitled to the maintenance out of the payment remitted to the Aga Khan only if they are Mursheds and not otherwise.
Pir Mahomed Sanya, witness No. 1 on the Mandvi Commission, says that he regards Coochick as his Murshed. He regards the whole family of the Aga Khan as his Murshed. He regards every member of the Aga Khan's family as his Murshed, having the same position as the Aga Khan as Murshed. "We would give the same respect to any other Murshed from the family as we would give to the Aga Khan himself." He says he never kissed the hand of any relation of the Aga Saheb whenever such relation might happen to be with him. But has kissed the hand of Aga Saheb on two or three occasions. Although he knows that 48 names are recited in the Doowa, he has not heard nor does he know the names, but he knows that 48 are the names from Hazrat Ali down to the present Aga Khan. He himself believes only in the 12 Imams. He says the Asnasharis believe in the 12 Imams, including Moosa Kasum as the 7th, and the Ismailis believe in Shah Ismail and his descendants as their Mursheds. He is not prepared to swear that the Ismaili Khojas do not believe in Shah Ismail and his successors on the gadi up to the present Aga Khan as their Imams.
Versey Banabhoy, witness No. 2, says that, out of the balance of the offerings, monies are sent to the Dharamguru for the maintenance of himself and the family, and he gives specific instance of money being paid to Ali Shah for himself and his family. He is a daily labourer, earning about Rs. 1 a day, the joint earnings of himself and his son. He has never heard the names of Shah Ismail and his descendants on the gadi down to the present Aga Khan recited in the Doowa. He would regard "all the descendants of our Mursheds down to the present Aga Khan" as his Mursheds. He also says that "the female members of the descendants of Shah Ismail would not be our Mursheds. They are merely their Bibis."