JAMSHED A. IRANI Vs. BANU J. IRANI

JUDGEMENT

(1.) I am, however, feeling a great difficulty in following that judgment [Yezdiar Vs. Yezdiar, AIR 1951 Bombay 14 : (1950) 52 Bom. L. R. 876.)] . Before proceeding further I may state that the question whether Iranian; Zoroastrians are Parsis or not for the purposes of the said Act has become a question of great importance. Lam told that it had greatly agitated the minds of Iranian Zoroastrians in. India and particularly in Bombay, The importance attached is so great that the Iranian Zoroastrian Anjuman took, out, a Chamber Summons, before me in this suit for being added as a party to this suit. In support of that summons-it was pointed out to me and with great emphasis, that the decision as to whether Iranian Zoroastrians are Parsis or not for the purposes of the said Act will have very important and, grave repercussions on the members of that community. I was told that over a large number of years Iranian Zoroastrians, on the basis that they were Parsis, have contracted marriages as Parsis under and in accordance with the provisions of the said Act. The decision of the instant point would, therefore, reflect on the validity or otherwise of their marriages. Incidentally it would necessarily reflect on the legitimacy or otherwise of their children. Incidentally it would also reflect on intestate successions which have taken place in the case of deceased Iranian Zoroastrians of Bombay and India. I was also told that in India fire temples and places of religious worship as also Dakhmas or burial grounds for Zoroastrians are mostly, if not exclusively, for members of the Parsi Zoroastrian community and that Iranian Zoroastrians as Parsis are having the benefit thereof. I was also told that there are rich and varied endowments and charitable trusts for the benefit of Parsis and Iranian Zoroastrians as Parsis are receiving benefit there under and that the determination whether Iranian Zoroastrians are Parsis or not would affect the ability of Iranian Zoroastrians to take advantage of those places of religious worship, burial grounds, endowments and trusts. I have been given all this information not only by Mr. Khambatta who is the counsel for the Anjuman but also by Mr. Banaji who himself is one of Trustees of the Parsi Panchayat. I have mentioned all this merely for the purpose of bearing in mind that the question raised is of great importance to a community which, I am told, numbers in thousands. So far as that application for adding the Anjuman as a party was concerned, I however pointed out to Mr. Khambatta, the learned counsel for the Anjuman, but only on a prima facie view at that time, that in the case of an individual dispute between a particular plaintiff and a particular defendant it may not be possible for me to grant Mr. Khambatta's application to make the Anjuman a party to this suit. I however stated to Mr. Khambatta that as it appeared that the legal point involved may vitally affect a large community, I would hear submissions on law not only on behalf of the plaintiff and the defendant but also on behalf of the said Anjuman. In view of that statement made by me Mr. Khambatta did not press his summons. Mr. Khambatta has, however, continued to appear at the hearing of this suit and I have indeed allowed Mr. Khambatta even to make submissions on the present objection raised by Mr. Chhatrapati.

(2.) Turning back to the said judgment of Chagla C. J. in Yezdiar Vs. Yezdiar, AIR 1951 Bombay 14 = (1950) 52 Bom. L. R. 876) , as I have already stated, I have studied that judgment with great care and anxiety. It has become my duty to analyse that judgment and to find out for myself how far I am bound by the same and whether I should follow the same. Needless to say, on the principle of stare decisis, I would be bound by that judgment. It is a judgment of a Division Bench. It is a judgment of the Appeal Court. It is a judgment delivered in an appeal from a decision of the Parsi Chief Matrimonial Court, the Court of which I am at present the sitting Judge. It is a judgment of a very eminent Judge. But having studied and analysed that judgment with great respect and with utter humility I have with great hesitation come to the conclusion which I will presently mention. The position in that case was rather peculiar. The case was tried in the trial Court only on one preliminary issue, viz. whether the Court had jurisdiction in view of the fact that the defendant in that case was not domiciled in India. The trial Court answered only that issue, the answer being in the negative. But the trial Court's judgment, as already noted earlier, makes it amply clear that the trial Court did not hold that it had no jurisdiction because the parties were not Parsis or that the said Act was not applicable to the facts of that case. Now, the judgment of the Appeal Court, however, does not appear to deal with that point at all and it does not certainly decide the appeal on that point. The appeal was decided on a different point, viz. that the parties were not Parsis and, therefore, the said Act did not apply and, therefore, the said Court constituted under the said Act had no jurisdiction. As pointed out both by Mr. Banaji and Mr. Khambatta, it is quite clear that the point whether either the plaintiff or the defendant was a Parsi or not was not raised at all in the trial Court. That was not a point taken in the pleadings. It was not a point put in issue. It was not a point argued before or decided by the trial Court. Naturally the parties did not lead evidence on that point nor did they urge their contentions in respect thereof before the trial Court. That point appears to have been taken for the first time only in the appeal. From the judgment it does not appear that the counsel for the appellant even drew the attention of the Appeal Court that the point had not been raised or argued or decided in the trial Court. It appears that the counsel for the appellant chose to argue the point raised for the first time in the appeal. Possibly, I say with due humility, the importance of the point which was being decided was not fully realised by the Appeal Court and certainly not by the counsel for the appellant in that case. In the said case of Sir Dinshaw M. Petit Vs. Sir Jamsetji Jijibhai, ILR 33 Bom. 509 = (1908) 11 Bom. L.R. 85 , Davar J. came to the conclusion that the Iranis from Persia professing the Zoroastrian religion, who come to India, either temporarily or permanently, would be included amongst Parsis. Now, so far as that part of the judgment of Davar J. is concerned, Chagla C. J. has pointed out that it was obiter because the question that Davar and Beam an JJ. had to consider in that case was whether by conversion to the Zoroastrian faith a person could become a Parsi. As regards the judgment of the Privy Council in the said second case Saklat Vs. Bella, A.I.R. 1925 P. C. 298 : (1925) 28 Bom. L. R. 161 (P.C) Chagla C. J. also points out that the question which they had to consider in the said case of Yezdiar Vs. Yezdiar did not arise directly for decision in the Privy Council case. That again was so because in the Privy Council case also the point was whether a Juddin, i.e. a non-Zoroastrian, upon conversion or initiation into the Zoroastrian religion, could be said to be a Parsi. In neither of the said two cases of Sir Dinshow M. Petit Vs. Sir Jamsetji Jijibhai ILR 33 Bom. 509 = (1908) 11 Bom. L. R. 85 and Saklat Vs. Bella : A.I.R. 1925 P. C. 298 : (1925) 28 Bom. L. R. 161 (P.C ) the point directly arose whether an Iranian Zoroastrian was a Parsi, but the point was directly considered by the Appeal Court only in the said case of Yezdiar Vs. Yezdiar : AIR 1951 Bombay 14 = (1950) 52 Bom. L. R. 876 and it was decided that Iranian Zoroastrians may not be Parsis. That judgment, however, expressly states that it was not necessary for the Appeal Court to decide the larger question as to whether an Iranian by being domiciled in India could become a Parsi. That point is, therefore, still open and has not been decided by that judgment. But so far as the main point is concerned, the Divisional Bench in that case has decided as aforesaid. How far am I bound to follow it That is the question which has considerably agitated my mind. In my humble opinion such a question of great importance and involving wide repercussions was decided by the judgment of the Appeal Court without the same having been raised in the trial Court and without any evidence on that question having been recorded on either side. It appears, if I may say so, that it was a point raised only at the time of the hearing of the appeal and the counsel in that case did not even point out to the Appeal Court that the point had not been raised or considered in the trial Court, and may have required evidence. In such circumstances, I feel myself not bound to follow the ratio of that judgment. As I have said earlier it is with greatest hesitation that I come to that conclusion. But I am of the opinion that justice requires that parties must get a proper opportunity to lead evidence and to fully argue that point before it can bind not only the parties but the entire community. It may be that if in that case evidence had been led or an issue raised and decided, it would not have been open in a subsequent case for a trial Court like the present one not to follow the judgment in that case on the ground that proper evidence had not been led or that proper arguments had not been presented. In this case, however, I am not following that judgment because the point was not even raised. It was certainly not argued. There was no evidence whatever led and it was not decided by the trial Court. It was merely a point raised for the first time in appeal without the attention, of the Appeal Court having been drawn to the fact that it was entirely a new point which would necessitate taking of further evidence..

(3.) In coming to the above conclusion there is another factor which has weighed with me. Undoubtedly the decision in Yezdiar Vs. Yezdiar AIR 1951 Bombay 14 = (1950) 52 Bom. L.R. 876 is a decision of a Division Bench constituted of two Judges and that decision is not obiter dicta. But there is a contrary decision in the said case of Sir Dinshaw M. Petit Vs. Sir Jamsetji Jijibhai, ILR 33 Bom. 509 = (1908) 11 Bom. L. R. 85 . Of course, that decision is obiter dicta. But that is a decision or rather an observation, of Sir Dinshaw Davar whom Chagla C. J. himself in his said judgment has called a very great authority on Parsi law. That decision is also a decision, not of a single Judge, but of a Bench of two Judges. That is a decision which has been given, although obiter, in an attempt at ascertaining the complete connotation of the word "Parsi". Moreover,.it appears that Davar J, made those observations after evidence was recorded in that case on that very point as to whether Iranian Zoroastrians were Parsis or not. A reference to the judgment of Davar J. appearing at pp. 113 and 115 of the said report shows that evidence in that behalf was led of one Jamsetji Dadabhai Nadershah and also of Beram Sheriar, an Irani priest. Indeed Beram Sheriar's testimony was as follows: