Haji Bibi Case Part 2
Witness No. 3, Nathu Virji, is neither Shia Ismaili nor Shia Ashnashri. He cannot say what sort of a Shia Khoja he is. He does not understand what is meant by Shia Ismailis nor Shia Ashnashris. But he believes only in the 12 Imams. He also says that the Bibis of the Mursheds are regarded only as their Bibis. He has never heard the Doowa in which the names of the 48 Imams are recited. He admits that the Khojas of Cutch do not regard Coochick as Dharamguru, as they regard the present Aga Khan, and he says as follows:- "The present Aga Khan is on the gadi. I now say that my previous statement that all our Mursheds including the present Aga Khan, are entitled to equal respect and reverence is not correct. I cannot give the name of a single member of Aga Shah Hassan Ali's Family who has ever been regarded as Dharamguru by our Jamat or by any other Jamat anywhere else in the same way as they regard the present Aga Khan and his father and grand father respectively as their Dharamgurus. As a matter of fact the other members of Aga Shah Hassan Ali's family are not regarded by the Khojas as their Dharamgurus just as they regarded Aga Shah Hassan Ali and Aga Ali Shah as their Dharamgurus, and do regard the present Aga Khan as one. These three persons have been on the gadi." He also mentions one occasion on which Jumabhai Ismail said that the Aga Saheb was coming to the Mandvi harbour and something should be given to him for the family of Shah Hassan Ali, and another occasion on which he said it was resolved to give the Aga as nazrana Rs. 125. He cannot explain why, on the second occasion, no mention is made of the family of Shah Hassan Ali, and I should be disinclined to believe this witness altogether on this point. He says that except the present Aga Khan and Coochick Shah, he does not know that names of any members of the family of Shah Hassan Ali nor has he seen any.
Ladha Rahimtulla is a servant, and he says whatever balance of offerings is left is sent for the food of defendant 1 and the family of Hassan Ali, and that the money is sent for that family in order that the children may be fed because Hassan Ali "is our Murshed." It appears, however, that he earns only Rs. 10 a month. His evidence, as to the entries in his books, in cross-examination does not strike me as very satisfactory. He considers the present Aga Khan as his Murshed and apparently fences a great deal on the questions he is asked.
"Q:- Do you consider yourself bound to accept as your Imams such persons as Pir Sadrudin may have directed you to believe in?
A:- Yes. Even if Pir Sadrudin has directed us to recognize Salam Shah and his descendants on the gadi as our Imams, I would not recognize defendant 1 as Imam. My previous statement that I consider myself bound to accept as my Imams such persons as Pir Sadrudin may have directed us to believe in, is not correct and is false."
Mahomed Nanji, commission agent and doing business on his own account, similarly says that the balance of the offering is sent to Bombay for the family of Hassan Ali because he is their Murshed. He says that he was present when the Rs. 125 spoken by Nathu Virji was paid for the family of Hassan Ali, and he says that it was said at the meeting that it was for the family of Hassan Ali. But although he says that he follows at present the Khoja Shia Ismaili faith, he cannot explain what Shia Ismaili means, and to the question "If those who follow the Shia Ismaili faith believe in Hazrat Ali and those who have succeeded him on the gadi down to the present Aga Khan as their Imams, do you still consider yourself as a Khoja following the Shia Ismaili faith," he answered "No;" from which it would appear as if his views on the subject of his own religion were somewhat obscure to say the least. Then he says he believed only in the 12 Imams. He does not consider himself at present bound to follow the Doowa in which the names of the 48 Imams are recited. He does not regard the defendant 1 as his Hazar Imam. From this it would appear to me that this witness is a seceder. He further says:
"When I said in my examination-in-chief that the balance, after consulting the members of the Jamat, is sent to Bombay for the family of the Aga Shah Hassan Ali, I stated simply what I had heard and not from my own knowledge. I have never seen since I have been acting as the Kamadia, or at any time before that, any writing in which it was mentioned that our payments were for Aga Shah Hassan Ali's family's maintenance; nor can I produce any such writing in support of my statement. I have not seen any entry in the books of our Jamat stating that the payments made to the Aga Shah were for the maintenance of Aga Shah Hassan Ali's family."!
His cross-examination, as to the payment of the Rs. 125 to the Aga Saheb, tends to throw considerable doubt on my mind upon his evidence on the point. He further says that the amount which each member of Hassan Ali's family would get would not depend upon the nearness of the relationship to the Aga Khan, and the males should get the same share as the females, provided they are the members of that family. He cannot answer the question: would you prevent the Aga Saheb from spending the monies as he likes? The note by the Commissioner at the foot of his examination shows that he is an unsatisfactory witness.
The next witness is Bandeali Dhalabhai. In cross-examination he says that he believes only in 12 Imams and not in the present Aga Khan as his Hazar Imam, whereupon his examination promptly concluded and the Mandvi commission closed.
Rahimtulla Hamir, the first witness on the Mundra commission, says, as usual, that whatever balance is left is sent to the family of Hassan Ali for their maintenance by the Jamat. He then describes in detail the Mehmani which his master had given to the Aga Saheb, but the first answer he makes in cross-examination is that he follows the Shia Ashnashri faith and has been doing so for the last 20 years. Before that he followed the Shia Ismaili faith. At present, as an Asnashari he believes only in the 12 Imams. He goes on to say that, as a Shia Ashnashari, he does not believe in defendant 1 as his Hazar Imam; those who believe in him as such are known as Shia Imami Ismailies. After he became an Ashnashari, he ceased making any payments to the Aga Khan and the Jamatkhana. When he was a Shia Ismaili, he believed in Aga Ali Shah as his dharamguru. Then he says. "I believed in him as my Murshed." He did not believe in him as being on the gadi of Hazrat Ali. He did not believe in him as being on the gadi of Murshedship. He cannot point out any text from the Gnans directing that the Shia Ismailis should recognize the family of Hassan Ali as their Mursheds, and he further says, "when he said that Hassan Ali's family members were their Mursheds, he said so simply from what he had heard from other people in his Jamat." He goes on to say that all that he stated in examination-in-chief as to the disposal of the monies by the Jamat was stated on hearsay. His cross-examination on the Mehmani incident shows that he is not very reliable on the subject.
Ladha Vali is a trader at Mundra. He believes in the 12 Imams as his Mursheds and follows the Ashnashari faith. He does not say that the balance of the offerings is given to the family of the Aga Khan. In fact in cross-examination he says that no payments are made out of the collections made at the Musjid for the family of Hassan Ali or for any one else. They are not sent to the family of Hassan Ali, because those who attend the Musjid do not regard them as their Mursheds and have nothing to do with them. He does not assist the plaintiff's case much.
Ladha Dewsi says that the balances of the offerings is sent to the Aga Saheb for himself and his family, by which he understands Ali Shah's brother Aga Jungishah, Zenalabadeen. He also is an Ashnashari and used to regard the Aga Khan as his Dharamguru. He mentions a Mehmani given to Aga Saheb, but on cross-examination does not give very satisfactory account of it.
Adat Jirvraj is an Ashnashari. He also says that the balance of the offerings is sent to the family of Hassan Ali and he says monies used to be sent to Hassan Ali and his family from the Talikas which used to be received and which were read out in the Jamatkhana. He says these monies were sent to the Hassan Ali's family as Syeds, but the monies were never sent to them as Mursheds, and it is not correct to say that Hassan Ali and his family are the Mursheds of the Khojas.
Ladha Devji says the offerings were sent to the Bombay Jamat in order that they may be given to Hassan Ali's family. In cross-examination he says that he is an Ashnashari and then he makes the astounding statement that, during the 12 years that he attended the Bombay Jamatkhana, he neither heard the Doowa which used to be recited there nor did he know what sort of Doowa it was. He never heard the Gnans which used to be recited there, and does not even know that there are Gnans of Pir Sadrudin and Pir Hasan Kabirudin. He says only the male members of the family of a Murshed would be regarded as Mursheds. The female members would simply be the Bibis of the Mursheds. Hassan Ali never claimed to be an Imam. If he made such a claim, it was a false one. He never saw the Bombay Jamat making any payment to any member of Hassan Ali's family and the statement that the Bombay Jamat used to make the payment of the monies remitted to the family of Hassan Ali was made from what he had simply heard from the other Khojas, but he cannot give the name of a single such Khoja.
Datar Dina, witness No. 1 on the Bharapore Commission, is a grocer. He says that the balance of the offerings was sent to the Bombay Jamat for maintaining the family of Hassan Ali. He first says he had not seen Hassan Ali. Then he says he had seen him, but he does not know when and where. He never heard the Doowa recited in his life. He does not understand what Khoja religion is. He has no idea of what a Talika means.
Mulji Rahim, the Patel of Bharapore and a cultivator, says that the balance of offerings is sent to Bombay to Hassan Ali's family. He does not understand what is meant by Shiah. He believes in the Imams whose names are recited in the Doowa. He regards the families of the 48 Imams from Hazrat Ali to Sultan Mahomed Shah as "our Mursheds." He admits, "when Hassan Ali was alive he was our Sirkar Saheb. On his gadi succeeded Ali Shah who then became our Sirkar Saheb. Sultan Mahomed Shah succeeded Ali Shah and he then became our Sirkar Saheb." He says that when the words "accept Moulana Sultan Mahomed Shah" used to be recited by the person who led the Doowa at the end of each Sujida, we used to make obeisance. He cannot produce any writing, entry or document of any kind whatever to show that the monies remitted by the Jamat are for all the descendants of Hazrat Ali or for the family of Hassan Ali.
Alidina Moledina, Khoja by caste, is an inhabitant of Kera. He says the same as regards the balance of the offerings and says he sends the monies to the family of Hassan Ali knowing them to be "our Mursheds" so that they may maintain themselves. In cross-examination, he says he believes at present only in the 12 Imams, not in the 48. He considers Shah Ismail as a Syed, as also all the ancestors of Hassan Ali. He says he may have read the Gnans of Pir Sadrudin but does not remember them. He regards Hassan Ali as his Murshed because he gave Bodh to his grandfather who regarded him as his Murshed. He says that he heard Coochick giving Bodh at Kera in March or April 1907. He says that Jungi Shah gave him Bodh in Bombay in Samvat 1932. He says there can only be one Murshed. His name is Gadi Varas Aga Sultan Mahomed Shah. He says "We consider our Murshed as our Sirkar." He regarded Hassan Ali alone as the Sirkar Saheb. He cannot produce any document to show that any monies were remitted by the Kera Jamat to Hassan Ali and his family. He may have read the Talikas but he does not remember them. From his cross-examination with regard to the Police proceedings against him, it is evidence he is very hostile witness to defendant 1.
The next witness Nathu Gangji believes only in the 12 Imams and not in the 48. He goes to the length of saying that although he has joined in the Doowa which is recited by the Khojas in the Khoja Jamatkhana, he does not know how many names are recited in the Doowa and he has not heard a single name recited in the Doowa. He does not know how to recite the Doowa. He considers himself a Shia Khoja but not a Shia Imami Ismaili. He says that it is not recorded anywhere that the monies are sent for Hassan Ali's family. He speaks to defendant 1 having Karsazi placed at his feet when he came to Kera in Samvat 1960. According to him, the nearer relations of the Aga must get a larger share out of the monies remitted than those who are distantly related.
After this witness Alidina Moledina was recalled and his evidence shows that the books of the account of the Kera Jamat which he was directed by the Commissioner to produce in Court are not produced.
Abdulla Piradina, in business at Kera, speaks to the balance of the offerings being sent to Bombay for the family of Hassan Ali. In cross-examination, he speaks to factions being in existence in the Jamat at Kera and his having been charged with rioting in the Police Court. He cannot account for the Kera Jamat being referred to as the Ismaili Jamat in the last hundies sent by the Kera Jamat except that it must have been by some mistake. He believes only in the 12 Imams. With reference to the Karsazis remitted to Bombay, he wrote in the books of account of the Jamat that the monies were remitted to the Aga Khan Saheb in Bombay. He tries to explain why the books of account were not sent before the Commissioner.
Meherali Mahomed is a cultivator at Kera. He says that the balance of the offerings is sent to Hassan Ali's family by which he means those born of him for their expenses. In cross-examination he describes how Coochick came to Kera, made a speech to the Jamat, and they placed 200 Kories before him. These monies were paid for Coochick himself. He also believes only in the 12 Imams. He says that the Jamat does not recognize the defendant 1 as their Hazar Imam.
Haji Kasam Haji Dhala, in business at Kera, is also an Ashnashari and became one about three years ago. He says except the 12 Imams, all the descendants of the Prophet must be treated as Syeds.
Meherali Rahim is the first witness at Anjar and is in business there. He says the balance of the offerings is sent to the Bombay Jamat for the family of Hassan Ali. In cross-examination, he says that his religion is that of the Musjid, i.e. belief only in the 12 Imams, which faith he has been following for the last 12 years. He does not know if defendant 1's name used to be recited in the Doowa after he came to the gadi. From the note taken during his cross-examination, he seems to be a most unsatisfactory witness.
Jaffer Hasan of Nagalpore, in business there, says the balance of the offerings were sent to the Bombay Jamat for the family of the Aga Sahebs who are "our Dharamgurus." He is also an Ashnashari as his father was before him. He does not know whose names are recited in the Doowa.
Hirji Visram of Sinugra, a grocer, does not know what is done with the payments made in the Jamatkhana. He also is an Ashnashari. He believed in the Aga Khan before he became so.
Ladha Pira says that the balance of the offerings is sent to the Bombay Jamat for the family of Hassan Ali who are his Mursheds.
Ladak Kanji of Nagalpore says that the balance of the offering is sent to Bombay for the Aga Saheb's family for their expenses as Hassan Ali was their Murshed.
I have gone at length through each of the witnesses on commission called by the plaintiff, and it will be seen from my remarks upon them as I went along that they do not strike one as being of a very satisfactory character, nor are they in as good positions generally as the witnesses called on behalf of the 1st defendant. Those witnesses were inhabitants of, and were examined at, Bhownagar, Junagadh, Rajkote, Calcutta, Rangoon, Jamnagar and various parts of Cutch and Karachi and Zanzibar. They are taken from every class of the community. Looking at the mass of evidence they have given, it would be impossible for me to go through each of them, as I have done in the case of the plaintiff's witnesses. [His Lordship referred to the names of different witnesses and continued.] I have selected these witnesses after perusing the whole of the evidence twice.
The first and most important point as regards this evidence to my mind is that it is evidence which is strongly against the pecuniary interest of all the witnesses. Very large sums indeed are paid from all these different places to the Aga Khan for the time being.
The following are the ceremonies and occasions upon which the Aga Khan is entitled to receive fees:-
Thalsufra: This takes place after the recital of Gnans is over, i.e., three times a day and sometimes twice. The followers or Murids bring from their houses sweetmeats, fruits, cooked and uncooked food, for the Hazar Imam. These articles are placed in trays on benches. Then the Mukhi Kamadia puts them up for auction in honour of the Hazar Imam. The first Mehmani fetches the highest price, the second less and the third is still less. The money is paid on the spot and the person paying it says: "This is the property of the Hazar Imam." After the auction is over, the followers come near the Mukhi Kamadia and ask him to invoke blessings on the souls of the deceased persons. For that money is paid. No sum is fixed. The Mukhi then joins his hands with the hand of the donor and says: "Ali Allah Niat Murad Kabulkare." May Ali (Allah) accept or fulfil these wishes. The money which is bid for the articles is more than the intrinsic value of them. The fruits, etc. may be eaten at the Jamatkhana or the houses of the purchaser. More than the intrinsic value of the articles is paid, because they are brought as the Mehmani of the Imam.
Again the Khojas drink water mixed with the Kerbella dust (Abe-Safa) daily and specially at new moon at the Jamatkhanas. Money is paid to the Hazar Imam on that occasion.
Again the Punjebhais or the "Khas" special Murids of the Aga Khan make payments on the days on which they meet to recite a Mijlas of the Gnans and the tenth chapter of the Dasavtar. Punjebhais - one who joins palm with palm or five brothers or assembly of brothers. Each Punjebhai has a day allotted to him, e.g., the witness Joomabhai was a Wednesday and new moon day Punjebhai.
Again there is a box with a slit in it in the Jamatkhana and the safe itself has a slit in it into which payments are made to the Hazar Imam e.g. the Dassoon or the 2 annas in the rupee.
Again on the birth of a male Rs. 2-10-0 is paid and of a female Rs. 1-6-0.
For a marriage Rs. 8 for Oomani Kori, Rs. 10. is paid for Mandwani Doowa paid by the bridegroom's father. The bride's people pay Rs. 2 for Mandwani Doowa. It is said at the place where the marriage is performed. Doowa at the house is Niat Murad. At the house of bride and bridegroom - Sar is Dasoon - is a percentage on the dower 2 annas in the Rupee. The dower or Dej consists of ornaments and clothes.
In connection with death, the Mukhi Kamadia is sent for and the 10th chapter of the Dasavtar is recited. The Samar Chhanta is performed with reference to death. Some people have it done when they are alive. Money is paid then for the Hazar Imam. After the body is buried, other payments are made at the Jamatkhana, namely, Samar money for the Hazar Imam alone. The object of the Samar payment is that the soul of the deceased may rest in peace and get Sawab. Samar = provisions for the journey. (Quere: The connection between this and the coin placed in the mouth of deceased Greeks to see them safely across the Styx).
Another payment is called Sirni Halwa (a sweet); when the Hazar Imam comes to the Jamatkhana, Sirni is placed before him. He touches it and the followers, after placing money before him, eat the Halva.
Every new moon there is a payment called Chandraki, which is taken into account when the Dassoon is paid.
On the 7th day of each month, the followers fast for 4 hours from 6 to 10 a.m., and payments are made in respect of the Moula Ali Roza. Roza = fast.
When the Hazar Imam names a child, a fee of Rs. 2-10-0 is paid for a male and Rs. 1-6-0 for a female child.
There is another ceremony called Sir Bundi, literally the offering of the head. In this ceremony the follower puts the whole of his property at the disposal of the Imam through the committee of elders in the Jamatkhana. But they magnanimously relieve him from such an excessive sacrifice. They fix the price at which he is to buy back the whole of his property and the price so fixed is paid to the Imam.
I myself went with the counsel of some of the parties to the Jamatkhana and saw the Thalsufra and Sir Bundi.
We sat on chairs in front of a raised seat or throne on which the Aga Khan sits when he attends the Jamatkhana. The whole large room was full of Khojas seated and at times kneeling on the ground, in another room the women of the community were collected in large numbers and going through similar ceremonies. It was a most impressive sight owing to the reverence with which the whole proceedings were conducted. I may mention that the plaintiff's and Coochick's counsel were invited to accompany us as was also Coochick himself, but for some reason or another--whether prudential or otherwise I cannot say--the invitation was declined.
The following are some of the titles of the Aga Khan:--
Hazar Imam Present Imam.
Hazar Jomejo Dhani=Present holder of the Mantle.
Hazrat Moulana Dhani=Present Lord, the owner.
Dhani Salamat (Datar) Dhani= Master--may he be safe, the Giver.
Pir Salamat Datar=Dhani Pir.
Shah Pir= Great Lord.
Gur Pir=Spiritual instructor.
Pir Shah and others.
One witness Pirmahomed Ibrahim (p.428) said: "He is our Hazar Imam and the garland of my heart and the light of my eyes".
When these names are pronounced the followers bow.
The acknowledgements of the Karsazi (or remittances sent to Bombay) are described as in "the presence of Khudavand Dhani; Salamat Datar." 'Khudavand' meaning Lord.
One witness says:
"When the Talikas (i.e., documents which accompany remittances to Bombay) are received, we kiss the seals because they are the seals of the Hazar Imam.
Every witness before me when he mentioned the name of the Aga Khan made an obeisance, as they did during the evidence on commission--see page 377 (inter alia). Such of the Aga Khan's followers as are Mukhis and Kamadias do their duties gratis and out of respect and regard for him. When the Aga Khan entered the Court all his followers, who were crowded in it, rose up and I allowed him to give his evidence in a chair, so as to enable them to resume their seats.
Another fact which strikes one upon this point is that practically none of the witnesses on either side knew anything about who the members of the family were. They only knew one or two by name, e.g., Jungi Shah and Akbar Shah, and many of them only saw Coochick Shah on the commission. This fact is important to my mind because knowing the native character as one does, after a long period in this country, it is to my mind very difficult to suppose that all these persons for many years have been in the habit of contributing monies towards the maintenance of persons whose very names and relationship to the Aga Khan they were wholly ignorant of. But in my opinion the documentary evidence adduced on the commission on behalf of 1st defendant is of still greater importance.
As regards the oral evidence of course it can be said that the witnesses for the plaintiff support the case of the seceders, while the witnesses for defendant 1 support him and, therefore, the evidence on both sides must be largely discounted. But no suggestion has been made that the defendant's exhibits on commission, which amount to no less than 133, or any of them, are fabrications or forgeries.
I shall refer merely to the exhibits themselves for to deal with them in detail would take far too much time.
[His Lordship referred to the various exhibits and continued.]
Looking at all these exhibits, in not one of which does the name of any member of the family of any of the Aga Khans for the time being appear, it is to my mind inconceivable that the parties paying these monies should not have made some mention about the members of the family had they intended the monies they paid or any part thereof to go for them. Not only are the followers of the Aga Khan in the habit of paying these large sums of money, but we find that in some cases monies were paid to the Aga Khan for the purpose of insuring their goods--see Ex. No. 4, page 6, and Ex. No. 62, page 93. Also as appears from Ex. No. 4 monies were paid to him to avoid the necessity of paying doctor's fees and also fees to lawyers, from which it would seem as though the followers believed that the Aga Khan was capable of ensuring them in respect of their spiritual as well as their material welfare, for there can be no question and in fact it is admitted by several of the witnesses on behalf of the plaintiff (before they seceded) that all the offerings are made in order that the persons making them may get Mukti or Sawab, i.e., salvation in the next world.
In a case of this kind the principle to be applied has thus been laid down:
"In determining whether the performance of any particular rite promotes any particular religion, and benefits the members of the church or denomination, or body who profess it, the secular Court must act upon evidence of the belief of the members of the community concerned. It can have no other guide upon that subject:" O'Hanlon v. Logue.
1  1, I.R.279..
It is well-known that in matters of this sort the human mind associates an idea of reciprocity and a few days ago I came across a note at page 25 of a book written by F. W. Bain, "In the great God's Hair", which seemed to me very apropos. It runs as follows: "Plato's idea that the relation between gods and men is one of commercial reciprocity is precisely that of the Hindus who lay it down in a hundred places as the essence of the "Stithi" or established constitution of things". Plato "Enthyphro" last page. Cf. Katha Sarit Sagar (last book), where the gods say to Shiva "the world of gods is always supported by the world of men;" also Kalidas' Raghuvansa, I, 18, where the king is thus commended. "He took taxes from his subjects only for their own good as the sun draws vapour up to return it a thousandfold to earth in the shape of rain." I would also refer to the well known text "lay up for yourselves treasure in heaven where moth and rust do not corrupt and thieves do not break through nor steal"
I now propose to deal with the evidence given before me on this point. As I have already pointed out the suggestion that the members of the family of the Aga Khan are entitled as of right to share in the offerings made to him is one not put forward in the plaint, and the evidence on the part of the plaintiff and her witness before me was of a very unsatisfactory character.
At page 28 the plaintiff says that the family was considered holy and the Khojas made payments or gave presents to the Aga Khan and his descendants and children. At page 57 she says:--
"Till I gave my evidence herein I had not alleged in any document whatever that offerings were made to the members of the family personally. At the time of plaint I did not recollect. I did not make this allegation in any of my affidavits nor in correspondence." At page 62 she admits that she never said a word to Framji and Dinshaw, her then Solicitors, about sharing in the offerings. At page 64 she says:
"When I first received offerings from the Khojas personally, I was I can't say how old, but about ten or twelve years old. I can't give the names of those who gave me offerings personally. The offerings I got when so young were not my own property alone. I was not entitled to a share in them. But my parents were entitled to them."
Bibi Saheb says that money and embroidered cloth were given to the ladies of the family, and she sometimes received presents from the ladies of the Aga Khans' disciples. She does not know the Khoja's names nor the ladies names. She was once given a sovereign which she kept for herself. Plaintiff was not entitled to share in it. She did not give her any share in it.
Shah Bibi goes the length of saying at page 126 that money presents were given to the ladies by Khoja women which the ladies sent to the family Daftarkhana, and that she was a female Aga and received these presents as such, and at page 127 that the male members of the family received presents as being Agas. She also describes how the hands of the ladies of the family were kissed by male Khojas. See also her evidence at page 128, line 12, etc. At page 134 she says that she is the rightful Aga Khan at this moment and not her son Kassum; that she is the rightful head, but the defendant 1 has usurped it, a claim which she admits she never made before she got into the witness-box on that day. I would also specially refer to her evidence down to page 137 inclusive. At page 136 she swears:
I never heard of the Khoja Imami Ismailis till this moment. Nor have I heard of Imami Ismaili Khojas. Never up to this moment. I never heard of the Imami Ismaili faith up to this moment. Ali Shah and defendant 1 are simply Peshimames. I have never called them Imams. And nobody else called them so. The family is not sacred because they are Imams but because they are Syeds. The family has never supplied any Imam."
At page 137 she says:--
I did not tell my attorneys that offerings had been made to me before my written statement was filed or before the witnesses were examined. No suggestion about it is made in any of the affidavits."
At page 144 she can't give any estimate of the value of the presents given to her.
Coochick Shah at page 151 describes a Mehmani at Sialkote in November-December 1896 when Rs. 500 were placed in two saucers before himself and the Aga Khan. At page 152 he says he is not an Aga. He describes a Mehmani at the Aga Khan's premises in the lifetime of Ali Shah and several in the time of defendant 1. He describes another at page 153. He describes the kissing of hands of all the family at page 154. At page 172 he says that Hassan Ali's children are entitled to more of the offerings than his brothers. At page 191 he admits that he made a mistake in saying that at Sialkote 300 Khojas kissed his hand. He meant followers. He made a mistake in saying that 300 khojas, men and women, presented him with money, for he admits there were no Khoja followers in Sialkote. At page 197 he says that before he was examined in Court he never mentioned the Dust-bossi or kissing of hand and presents made to him at Dizbad near Meshed.
Malek Tej Begum describes the giving of presents to the members of the family, male and female, and kissing of their hands at a marriage about thirteen years ago in Bombay. She says she has seen male members receiving presents from Khojas. She has seen her own husband receiving presents from the Khojas at Poona, and presents made to her brothers and all the members of the family and to Jungi Shah. At page 252 she says that the ladies are entitled to share in the offerings because they have got children who are descendants of Hassan Ali. At page 257 she says that she heard from defendant 1 when she was a mere child that all the properties belonged to the family, and that Ali Shah assured other members of the family, in her presence, to the same effect. At page 258 she says that defendant 1 assured her to the same effect at a conversation which took place about her husband's body being sent by train to Bombay. Defendant 1 has denied this. At page 260 she says:
"Khojas used to give me presents when I went to marriages at seven years old. I say as a fact I got presents from the Khojas when I was seven years old, because I was a member of the family. They were money presents. I have forgotten the amounts. The Khojas give money presents to the children of the family because they are holy."
At page 261 she can't say how much she used to receive, whether it was thousands or hundreds or hundred or tens or a few annas per annum. The only woman she can name as giving her money and an embroidered sheet was the wife of Kamaria Haji, but she does not know the Kamaria Haji and his wife had lost their only son before that date and that the wife was not going out then.
Gulam Hussein Alu Muraj says that he used to make presents to the Aga Khan and the members of his family. Money presents were put in the saucer and placed before the Aga Khan and each of the other members before their feet. He has seen the hands of the members of the family kissed several times. In cross-examination he can't remember how many saucers were placed. He can't swear that more than one saucer was placed. At page 302 he says:
There is no difference between the present Aga Khan and any other Syed. There are many thousands of Syeds in the world. There is no difference between the Aga Khan and any of those. I consider them all equal, they are descendants from Fatima. There was no difference between Ali Shah and the descendants of Syeds in the World. I give the same answer as to Hassan Ali. I do not believe that defendant 1 or Ali Shah or Hassan Ali are descended from Ismail at all; I believe they were Syeds because they said so. I am not doubtful whether they are Syeds. In Hassan Ali's time I believed that he was no better than other Syeds. He was no more to me than any other Syed. So as to Ali Shah, I take no more interest in him and his family than I do in that of any other Syed. This has been so ever since I can remember."
Karmali Haji Bhoga says inter alia that presents were made to members of the family and their hands kissed because they were considered as holy. In cross-examination he says that he is the Secretary to the Khoja Asnashari Jamat and a member. At page 315 he will not swear that the monies paid at the Thalsfra are not absolute property of the Aga Khan for the time being.
Both these last witnesses are so unsatisfactory in the way they gave their evidence that I had to make a special note in each case of that fact.
Rehimtulla Ganji purported to produce certain entries of Mehmani to Akbar Shah. He said that he was not present when they were given. He also produced certain entries purporting to show that Akbar Shah had blessed some account books. But his cross-examination with regard to these books and entries throws a considerable amount of suspicion upon them.
Fazulbhoy Joomabhoy Lalji in the commencement of his evidence says there is no difference between the faith of a Khoja Ismaili and an Asnashari and he said to me that the Asnashris believed in 12 Imams. Khoja Ismailis believe the same and never believed any thing else. And again he says at page 345 that he really believes the first Aga Knan was an Asnashari. His statements strike me as so extraordinary that I do not feel disposed to attach much importance to his evidence.
Mahomed Fakira, page 369, says he may have made presents to the Aga Khan on Idd days and big holidays, and he did so to those members of his family who were present. He does not remember who they were. The present was made in the Jamatkhana. He may have made the presents at the Wadi. He does not remember. In cross-examination he can't produce any entry of the payment made by him, and does not remember whether the last time he made present was twenty or thirty years ago.
As against this we have the evidence of Lady Ali Shah, defendant 1, Shamsudin, and the other witnesses who support their case upon this point.
As I intimated on Saturday, the 11th April 1908--see page 353--that I was then prepared to hold that the payments made by the Khojas are for the benefit of the Aga Khan alone and not for the benefit of his family, I do not propose to discuss the evidence in support of defendant 1's case on this point in detail. But I must refer to the following exhibits which have been put in during the progress of his case, because like those which were put in during the commission they are unimpeached documentary evidence which strongly supports the view that I have expressed. [His Lordship referred to the exhibits and continued.]
I have no hesitation in finding therefore that the offerings made by his followers to the Aga Khan for the time being are intended by them to be for his own personal use and benefit and that those offerings are made to him from a feeling of deep 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. Looking at the evidence given before me, were I to hold otherwise I should be dealing a blow at the faith of this large community scattered over all parts of the east, the results of which would be incalculable, and for which the evidence before me would not afford any justification whatever.
Before leaving this subject I must now refer to the various exhibits which have been put in from the Gnans which go to maintain the 1st defendant's contention that his recognition by his followers originates from these texts. [His lordship referred to the exhibits and continued.]
These exhibits have not been impugned and of course strongly support the case of defendant 1 who, in my opinion, has proved (1) that the faith of the Shia Imami Jsmaili Khojas is founded on injunctions given them by Pir Sadrudin and Pir Kabirudin and contained in their above-mentioned religious books. (2) That other followers, e.g., the Punjabis were converted by Pir Shams, and their principal religious books are the Gnans of Pir Shams, and they also follow the Gnans of Pirs Sadrudin and Kabirudin. (3) That the Pandiat Jawan Mardi is the religious book corresponding with the Gnans by which the followers of this faith in Khorasan and other distant places are governed. All the witnesses maintain that they are required by their religious books which govern them to make offerings to the Imam.
I have now dealt with the first main point in the case and, before dealing with the second one above mentioned, I am compelled to deal with the various charges of fraud, murder, concealment of books and property, etc., alleged by the plaintiff and those who support her. For although they are not possibly very relevant to the case, looking at the evidence which has been given, it would be wrong if I did not deal with them fully.
Para 4 of the plaint charges that defendant 1 has sold off several properties therein mentioned belonging to the family estate and invested the sale proceeds thereof as well as other monies belonging to the family estate in the purchase of divers properties now standing in the names of his nominees. It has been proved to my satisfaction that this statement is entirely untrue. No evidence whatever has been given on the part of the plaintiff to show that either Hassan Ali or the two succeeding Aga Khans ever owned properties in Persia and elsewhere mentioned in that paragraph--See also para 56 of the plaint. It is highly improbable, looking at the circumstances under which Hassan Ali left Persia mentioned above, that he would be allowed to retain any property he may have had there. No question was put to the plaintiff in her examination on this point, and her cross-examination shows she had not got a single instance of making away with family property when she filed her suit, see pages 37, 38. At page 38 of her evidence she admits that the whole of the names she gave in answer to interrogatories 16, 17 and 18 were furnished after the plaint was filed, and she actually gives the names of the persons in whose names the properties are alleged to have been bought and describes the situation of the properties. Jaffer Cassum and defendant 1 have clearly proved that there is no property which has been sold. All properties that Hassan Ali possessed are still in existence.
Para 55 of the plaint says that defendants 9 to 14 allege that the first Aga Khan left a will which has been suppressed by defendant 1. Those defendants in their written statement say they have no knowledge of this alleged will. In the evidence, however, the plaintiff denies that she was told of the will by these defendants, but they say they told her. Of course if the will had existed it would have disposed of the plaintiff's case, but not an atom of evidence is given as to the will ever having existed.
I now deal with the charge against defendant 1 in respect of the murder of Jungi Shah and his son. The plaintiff was at Jeddah at the time of the murder of Jungi Shah and his son in 1896 and describes it in her evidence-in-chief, see page 24. The plaint, para 35, says that in or about the year 1898 disputes began to arise in the family and have continued up to the present time. She was interrogated about this--Interrogatory 31--and in answer to that she said: "In 1898 disputes began to arise in the family in consequence of the murder of Hasham Shah". She was further interrogated, D.H.27 further answer to interrogatory 31, and after dwelling at length on Hasham Shah's murder she introduces the murder of Jungi Shah at the end of that answer as follows:
"About this time my husband sent a petition to the Viceroy for investigation into the incident of the murder of my father Jungi Shah and my brother Shah Abbas at Jeddah in 1896. The Aga Khan came to know of this petition and showed his resentments there at."
It is material here to mention that Jungi Shah and his son were murdered in 1896, i.e., two years before the disputes were said to have begun. Pages 24 and 25 of her evidence-in-chief show how she intended to insinuate that defendant 1 and his mother stifled the inquiry into these murders, and her counsel declined to say whether he suggested or insinuated that defendant 1 instigated these murders. Her counsel said that he was only leading the evidence to show how the ill-feeling arose, and on that ground the evidence was held to do relevant. The malicious animus of the plaintiff was apparent when she said that her father and brother were killed by two "Fidavi" Khojas who are devotees of the Aga Khan and obey him. How she knew they were Fidavi Khojas she does not tell us. As I have said, the murder of these two men occurred at Jeddah, defendant 1 was in Bombay. He went to meet the body of Jungi Shah at Karachi and brought it down to Bombay. The evidence is uncontradicted that he was much distressed at these murders. Shortly afterwards he married his present wife, the daughter of Jungi Shah. Jungi Shah's family was present on the occasion, and all were on the best of terms. The marriage was celebrated in the usual way and the children of the family were dressed in uniform and played an amateur band which was got up for the occasion. If a petition was sent to the Viceroy, as is stated, the original or certainly a copy of it must have been procurable, and the plaintiff admits, page 36, that the Aga Khan's name was not so much as mentioned in the petition. Bibi Saheb in her evidence says they got possession at Jeddah of the murderers' blankets and shirts, but says they brought nothing back to Bombay. Malek Taj, page 235, says that she saw the plaintiff had a blanket in her hand at Jeddah. She tied it up with other articles belonging to herself, and then she goes on to describe how the plaintiff told her that she had given the blanket to Cassum Mussa and he took it away with him. In cross-examination she says:
"The colour of the blanket was black. It looked black to me, no other colour. It was in plaintiff's hands. I saw it at a distance and saw no other colour. I believe there was a picture of a lion on it. I don't remember the colour of the lion whether it was black or not. I remember a black blanket with a lion on it after twelve years as a person remembers things, I have never seen the blanket since that morning. Plaintiff got the blanket I don't know from whom."
In my opinion the suggestions and insinuations made against defendant 1 with reference to the murder of Jungi Shah and his son are absolutely without a shadow of foundation and ought never to have been made. Moreover, as pointed out by Mr. Inverarity in his reply, they are quite inconsistent with plaintiff's affidavit where she suggested that the reasons for stopping the allowances was that she had instructed Framji and Dinshaw to proceed against the Aga Khan.
I now deal with the charge against defendant 1 in respect of Hasham Shah's murder. This first appears in the plaintiff's further answer to interrogatory 31--D.H.27--where she sets out her case as to this and suggests that the Aga Khan was desirous of shielding the murderer Jiva Juma. She also there suggests that the murderer Jiva was never examined on oath and if he is examined further he would say that the Aga Khan had instigated the murder. The plaintiff in her examination-in-chief gives her account of it at page 25 where the plaintiff's counsel would not give any answer to Mr. Inverarity's question whether it is suggested that the Aga Khan had anything to do with Hasham Shah's murder. Plaintiff's counsel evidently did not fancy this suggestion much, as at page 88 he expressly said he was not going to ask Bibi Saheb any thing about Hasham Shah. At the time Hasham Shah was murdered, defendant 1 was in Europe and his mother was in Arabia. The telegrams that defendant 1 is said to have sent showing that he was anxious to shield Jiva Juma have not been produced. I can not attribute much importance to Mrs. Kenny's evidence, whose memory is evidently not very clear in the matter. The jury recommended Jiva Juma to mercy which looks as if they believed the confession of Jiva which has been put in as H. 26. Defendant 1 only knew him by sight and Lady Ali Shah did not know him at all. The letters D.H.57 and D.H.58, the former undated and the latter of 11th September 1898, written by defendant 1 to Kenny, show that defendant 1 was much upset by this murder. See also Kenny's evidence at pages 229 and 230. The letter D.H.59 to Kenny, dated 17th November 1898, show that defendant 1 was anxious that Shah Bibi should show some moderation in her conduct in this matter. I cannot possibly believe that defendant 1 threatened that the fate of the murdered man might befall his brother Kassum Shah as the plaintiff swears he did. On the contrary, the evidence shows that defendant 1 has provided for Kassum Shah and supplied him with funds to enable him to hold a commission in the Cadet Corps. I find this charge wholly unfounded.
As to the charge that defendant 1 has made away with any account books, I hold it to be entirely disproved, and it is unnecessary in my opinion to discuss the evidence relating thereto beyond referring generally to what Lady Ali Shah and defendant 1 have said on the subject. That some of the account books were burnt by accident at Bantwa is clearly proved.
The next charge involves the other main question in this suit which, of course, is of very great importance, namely, whether the release of the 11th September 1901 was a sham or a false and fraudulent document concocted by defendants 1 to 5. This is a matter with regard to which I must obviously go into detail to a considerable extent. As to its being a "sham" it is difficult to say it was, when I find as a fact that properties worth above a lakh of rupees were transferred by it to Jungi Shah's estate and Rs.40,000 paid on his execution.
Whether it was fraudulent I proceed to discuss.