SARDAR SYEDNA TAHER SAIFUDDIN SAHEB versus THE STATE OF BOMBAY

Citation: [1958] 1 S.C.R. 1010 · Decided: 27-11-1957 · Supreme Court of India · Bench: SUDHI RANJAN DAS · Disposal: Dismissed

Judgment (excerpt)

1957 
iV11l'e111ber, 27. 
1010 
SUPREME COURT REPORTS 
SARDAR SYEDNA TAHER 
SAIFUDDIN SAHEB 
v. 
THE STATE OF BOMBAY 
[1958) 
(S. R. DAS c. J., VENKATARAMA AIYAR, S. K. DAS, 
A. K. SARKAR and VIVIAN BosE JJ.) 
Practice-Appeal-1\fointainabi!ity-Suit based on per-
sonal right-Death of plaintiff pending appeal-Bombay 
Prevention of Excommunication Act, 1949 (Bombay XLII 
-Of 1949). 
Supreme Com·t-Appeal against interlocutory finding-
Certificate by High Court-Competence-Constitution of 
lndia, Arts. 132, 133. 
The appellant as the religious head of his community 
-ex-communicated T who thereupon filed a suit for a dec-
laration that the order of excommunication was invalid. 
When the suit was pending the Bombay Prevention of Ex-
eommunication Act, 1949, was passed and one · of issues 
raised in the suit was whether the order of excommunica-
tion was invalid by reason of the provisions of the Act. 
This issue was tried· as a preliminary issue and as it raised 
the question of the vires of the Act, the State of Bombay 
was impleaded as the second defendant in the suit. 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 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 deci-
sion of the Court on the validity of the Act: 
Held, that the appeal must be dismissed as not main-
tainable, 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 133 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, 
[1940] 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 
S.C.R. 
SUPREME COURT REPORTS 
1011 
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 respon-
dent. \ 
1957. November 27. The following Judgment of 
the Court was delivered by 
VENKATARAMA AIYAR J.-On February 28th 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 ques-
tioned in a suit instituted in the Court of the Sub-
ordinate 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 
formalities, and as in that case that had not been done, 
the order of excommunication was invalid. Vide 
Hasan Ali v. Mansoorali('). 
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 excommunica-
tion 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 Preven-
tion 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 
-(1) A.I.R. 1948 P.C. 66. 
1957 
Sardar 
Syedna Taher 
Saifuddin Saheb 
v. 
Tire State of 
Bombay 
Venkatarama 
Aiyar J. 
1012 
SUPREME COURT REPORTS 
(1958] 
1957 
appellant to this contention was, firstly, that the Act 
Sardar 
had no retrospective operation, an

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