Sardar Syedna Tahersaifuddin Saheb Vs.
The State of Bombay  INSC 107 (27 November 1957)
AIYYAR, T.L. VENKATARAMA BOSE, VIVIAN DAS,
SUDHI RANJAN (CJ) DAS, S.K.
CITATION: 1958 AIR 253 1958 SCR 1010
on Personal right-Death of plaintiff pending appeal-Bombay Prevention of
Excommunication Act, 1949 (Bombay XLII of 1949). Supreme Court-Appeal against
interlocutory finding- Certificate by High Court-Competence-Constitution of
India, Arts, 132, 133.
The appellant as the religious head of his
community ex- communicated T who thereupon filed a suit for a declaration that
the order of excommunication was invalid. When the suit was pending the Bombay
Prevention of Excommunication Act, 1949, was passed and one of issues raised in
the suit was whether the order of excommunication was invalid by reason of the
provisions of the Act. This issue was tried as a preliminary issue and (1)
(1948) L.R. 75 I. A. 30.
128 1008 as it raised the question of the
vires of the Act, the State of Bombay was impleaded as the second defendant in
The Bombay High Court decided the issue
against the appellant, but granted a certificate to appeal to the Supreme Court
under Arts. 132 and 133 Of the Constitution of India. Pending the appeal the
plaintiff died and the action which was personal to him consequently abated. It
was contended for the appellant that as the State of Bombay had been impleaded
as a party and that as the decision on the question of the vires of the Act had
been given in its presence, the appellant was entitled to continue the appeal
against the State without reference to the plaintiff and seek the decision of
the Court on the validity of the Act :
Held, that the appeal must be dismissed as
not maintainable, because (1) the appeal was only a continuation of the suit
which, in the events, had abated, and (2) the certificate under Arts. 132 and
I33 of the Constitution was incompetent, as it could not be granted in respect
of an interlocutory finding.
The United Provinces v. Mst. Atiqa Begum and
Others,  F.C.R. 110, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 99 of 1954.
Appeal from the judgment and order dated the
20th August, 1952, of the Bombay High Court in Appeal No. 43 of 1952 arising
out of Original Suit No. 1262 of 1949.
N. C. Chatterjee, J. B. Dadachanji and
Rameshwar Nath, for the appellant.
Porus A. Mehta and R. H. Dhebar, for the
1957. November 27. The following Judgment of
the Court was delivered by VENKATARAMA AIYAR J.-On February 28,1934, the
Appellant who is the religious head of the Dawoodi Bohra Community, passed an
order excommunicating one Tyebbhai Moosaji Koicha. On July 17, 1920, the appellant
had excommunicated two persons, Tahirbhai and Hasan Ali, and the validity of
the order was questioned in a suit instituted in the Court of the Subordinate
Judge, Barhampur. The litigation went up to the Privy Council, which held that
the appellant as the religious head had the power to excommunicate a member of
the community, but that that power could only be exercised after observing the
requisite 1009 formalities, and as in that case that had not been done, the
order of excommunication was invalid. Vide Hasan Ali v. Mansoorali (1).
Apprehending that the order dated February
28, 1934, was open to challenge under the decision in Hasan Ali v. Mansoorali
(supra) on the ground that it had not complied with the requisite formalities,
the appellant started fresh proceedings, and on April 28, 1948, passed another
order of excommunication. Thereupon, Tyebbhai Moosaji filed the present suit
for a declaration that both the orders of excommunication dated February 28,
1934, and April 28, 1948, were invalid and for other consequential reliefs.
While this action was pending, the
Legislature of the Province of Bombay passed the Bombay Prevention of
Excommunication Act (Bombay XLII of 1949) prohibiting excommunication, and that
came into force on November 1, 1949. The plaintiff contended that the effect of
this legislation was to render the orders of excommunication illegal. The
answer of the appellant to this contention was, firstly, that the Act had no
retrospective operation, and that, in consequence, the orders passed on
February 28, 1934, and April 28, 1948, were valid, and remained unaffected by
it; and secondly, that the Act was itself unconstitutional, because the subject
matter of the impugned legislation was not covered by any of the entries in
List 2 or 3 of Seventh Schedule to the Government of India Act, 1935, and the
Legislature of the Province of Bombay had no competence to enact the law. After
the coming into force of the Constitution, the contention was also raised that
the right of the defendant to excommunicate members of the com- munity was
protected by Arts. 25 and 26 of the Constitution, and that the impugned Act was
void as infringing the same.
The issues in the action were then settled,
and issue No. 19, which was raised with reference to the above contentions, was
" Whether the orders of excommunication
made in 1934 and/or 1948 are invalid by reason of the (1) A.I.R. 1948 P.C. 66.
1010 provisions of the Bombay Prevention of
Excommunication Act of 1949?" This was tried as a preliminary issue, and
as it raised the question of the vires of a statute, the State of Bombay was
impleaded as the second defendant in the suit. Shah J.who tried this issue,
held that the impugned Act was retrospective in its operation, that it was
within the competence of the Provincial Legislature, and further that it did
not offend Arts. 25 and 26 of the Constitution.
Against this finding, the present appellant
preferred an appeal to a Bench of the Bombay High Court, and that was heard by
Chagla C. J. and Bhagwati J. who held that under the Act, excommunication meant
the condition of being expelled, that it was a continuous state during which
the person excommunicated was deprived of his rights and privileges, and that,
therefore, the Act would operate to protect those rights from the date it came
They further held that the Act was within the
competence of the Legislature, and they also repelled the contention that it
infringed the rights guaranteed under Arts. 25 and 26 of the Constitution. In the
result, they concurred in the decision of Shah J. and dismissed the appeal but
granted a certificate to appeal to this Court under Arts. 132 and 133 of the
Constitution. Hence this appeal.
Pending the appeal, the plaintiff died on
March 11, 1953, and his daughter applied on May 22, 1953, to be substituted in
his place. But eventually she did not press the application, and that was
dismissed on October 5, 1953. In this Court by an order dated November 21,
1955, the cause title was amended by deleting the name of the plaintiff.
Thus, the only parties who are now before the
Court are the defendant and the State of Bombay.
The question is whether in the events which
have happened, the appeal can proceed. We are of opinion that it cannot.
It should be remembered in this connection
that no decree had been passed in the suit. Only a finding has been given on a
preliminary point, and it is that finding that has been the subject of 1011
appeal to the High Court of Bombay and thereafter to this Court. There are
other issues still to be tried, and the action is thus undetermined. Now, the
claim with which the plaintiff came to Court was that he was wrongly
excommunicated, and that was an action personal to him. On the principle, actio
personalis moritur cum persona when he died the suit should abate. As a matter
of fact, his legal representative applied to be brought on record, but the
application was not pressed. The result is that the suit has abated. This would
ordinarily entail the dismissal of this appeal.
Mr. N. C. Chatterjee for the appellant argues
that as the State of Bombay had been impleaded as a party, and that as the
decision on the question of the vires of the Act had been given in its
presence, the appellant is entitled to continue the appeal against the State
without reference to the plaintiff and seek the decision of this Court on the
validity of the Act ; and relies on the decision of the Federal Court in The
United Provinces v. Mst. Atiqa Begum and others (1). There, a suit was filed by
a landlord for recovery of rent. While it was pending in appeal, an Act was
passed by the Legislature of the United Provinces validating certain Government
notifications requiring the landlords to give to the tenants remission of rent.
The landlord contended that the Act was ultra vires, and a Full Bench of the
Allahabad High Court, for whose opinion the question was referred, agreed with
Thereafter, the Government of the United
Provinces got itself impleaded as a party to the appeal of the landlord, and a
decision having been given therein in accordance with the opinion of the Full
Bench, it preferred an appeal to the Federal Court on a certificate granted
under s. 205 of the Government of India Act, 1935, and contended that the
impugned Act was valid. The judgment-debtor himself did not file any appeal.
The question was whether the Government was entitled to file the appeal when
the party had not chosen to contest the decree. It was held by the Federal
Court that the scope of (1)  F.C.R. 110.
1012 s. 205 of the Government of India Act
was wider than that of s. 96 of the Civil Procedure Code, and that the
Government was entitled to file the appeal for getting a decision on the
validity of the Act, notwithstanding that it had no interest in the claim in
the suit. This ruling has, in our opinion, no application to the facts of the
present case. Here, the action itself has abated, and there can be no question
of an appeal in relation thereto, as an appeal is only a continuation of the
suit, and there can be no question of continuing what does not exist.
But apart from this, there is another
formidable obstacle in the way of the appellant. Under Art. 132, an appeal lies
to this Court only against judgments, decrees or final orders.
That was also the position under s. 205 of
the Government of India Act. Now, the order appealed against is only a decision
on one of the issues, and it does not dispose of the suit. In The United
Provinces v. Mst. Atiqa Begum and others (supra), there was a decree, and the
requirements of s. 205 were satisfied. Here, there is only a finding on a
preliminary issue, and there is no decree or final order.
The Explanation to Art. 132 provides that:
"For the purposes of this Article, the
expression 'final order' includes an order deciding an issue which, if decided
in favour of the appellant, would be sufficient for the final disposal of the
case." Applying this test, even if we accept the contention of the
appellant that the impugned Act is bad, that would not finally dispose of the
suit, as there are other issues, which have to be tried. We are clearly of
opinion that the appeal is not competent under Art. 132, and the fact that a
certificate has been given does not alter the position. It is said that the
certificate is also under Art. 133, but under that article also, an appeal lies
Only against judgments, decrees or final orders, and no certificate could be
granted in respect of an interlocutory finding.
The result is that this appeal must be
dismissed, as not maintainable. We should add by way of abundant caution that
as we express no opinion on the 1013 correctness of the decision under appeal,
this order will not preclude the appellant from claiming such rights as he may
have, in appropriate proceedings which he may take. In the circumstances, there
will be no order as to costs.