PARSI PANCHAYAT CASE-1909


Sir Dinshaw M. Petit & others
 
versus
 
Sir ]amsetjee ]eejibhoy & others
 

This case known as the Parsi Panchayat Case arose out of somewhat peculiar circumstances.   In 1903, Mr. R. D. Tata of the House of Tatas married a French lady, who was a Christian, at Paris; and on his return to India, Mr. Tata brought his wife to Bombay.   After their taking up residence in Bombay, Mrs. Tata was duly admitted into the Zoroastrian faith by the performance of the "Navjote" ceremony, according to the religious rites and usages of the Parsis.  On the conversion of the lady from Christianity to Zoroastrianism, Mr. Tata claimed that, by virtue of the performance of the Navjote, his wife had become a Parsi professing the Zoroastrian faith, and as such was entitled to participate in the benefits of the charitable and religious trusts and institutions of the Parsis.   He claimed that she was entitled to enter all Parsi fire temples; and on her death, she would have the right to have her body deposited in the "Dakhma", or Parsi Towers of Silence.
 
This claim made on behalf of a Christian convert to Zoroastrianism created an uproar in the community, and there was strong opposition among the orthodox classes to the claims made on behalf of the convert.   Meetings were held and resolutions passed, mainly with the support of the orthodox section of the community, to the effect that Mrs. Tata, not being a Parsi, was not entitled to the rights claimed on her behalf by her husband, even though she had embraced the Zoroastrian faith.   As a result of these resolutions, the defendants in the suit, who were the trustees of the Parsi Panchayat in charge of the Parsi charitable funds and institutions, issued certain notifications.   Correspondence followed between the solicitors of the trustees and the solicitors of Mr. Tata, which ultimately led to the suit.   In the suit, along with other leading and wealthy Parsis, Mr. Tata was also joined as a plaintiff (6th plaintiff); but curiously enough, Mrs. Tata herself, on whose behalf this legal battle was commenced, was not joined as a plaintiff.   The defendants were the trustees of the Parsi Panchayat who were in charge of and managed and controlled the charitable institutions of the community.   Two reliefs were claimed in the suit: (1) that the defendants were not validly appointed trustees of the charitable trusts; and (2) for a declaration that the Zoroastrian religion enjoined proselytisation of aliens into their faith; that the moneys and properties in the hands of the defendants were dedicated by the founders of the trusts for the benefit of all Zoroastrians, and accordingly all Zoroastrians, including aliens duly converted into the faith, were entitled to the benefits of these funds and institutions, including their right to enter and worship in the fire-temples, and to have their bodies after death deposited in the Towers of Silence, according to the custom of the Parsis.
 
The defendants contended inter alia that the intention of the founders of these charitable trusts was to make provision for the benefit of the members of the Parsi community professing the Zoroastrian faith, and not for alien converts to Zoroastrianism; and that such converts had never been within the contemplation of the settlers of the trusts.   They further submitted that the Parsi community comprised only (1) descendants of the original Persian immigrants into India professing the Zoroastrian faith; (2) Iranian Zoroastrians residing in Iran, who came and settled, temporarily or permanently in India; in other words, the Irani Parsis; and (3) children of Parsi fathers by alien mothers.   In brief, according to the contentions of the defendants, voicing the views and sentiments of orthodox Parsis, a Parsi like a poet is born, not made.
 
In view of the importance and complexity of these questions, the Chief Justice Sir Lawrence Jenkins constituted a special Division Bench of two judges; and the suit came on for hearing before this Division Bench of Davar and Beaman, JJ. in 1909.   Lowndes with Basil Scott, Advocate-General, P. J. Padshah, F. S. Talyarkhan and F. P. Talyarkhan appeared for the plaintiffs; and with Inverarity, Strangman, Raikes, and Kanga, appeared for the defendants.
 
After a very lengthy hearing, in which numerous witnesses deposing to the doctrines and tenets of Zoroastrianism and the history, habits, customs and usages of the Parsis, both in Persia and in India, had been examined, and elaborate arguments addressed to the court by Lowndes for the plaintiffs, and Strangman for the defendants, the judgment was reserved.   After careful consideration, the judges delivered separate but concurring judgments on all except one issue, viz., whether under sec. 539 of the Civil Procedure Code of 1882 (sec. 92 of the Code of 1908), the court had jurisdiction to pronounce judgment on the question of the rights of converts, in the absence of a convert who was denied the rights, being joined as a plaintiff.   As noted above, none of the six plaintiffs who litigated this claim was a convert himself; and as such had no grievance and indeed no cause of action against the defendants.   The French lady, on whose behalf this battle royal was fought was, as stated above, not joined as a party-plaintiff.   Davar J. was of the opinion that the court gave relief only where a right was asserted and wrongfully denied or obstructed.   No convert had come forward and joined the plaintiffs to assert his rights; and in such a situation, it would not be right and proper for a court to adjudicate on the abstract rights of persons not before the court without giving them a hearing.   It was against judicial principles to pass judgment touching the rights of a class of persons without any member of such a class having made a grievance of it; and without giving him or her an opportunity to place all relevant materials before the court; and the judgment pronounced in these circumstances would not bind parties not before the court.
 
Having held, in effect, that the suit was not properly constituted, the learned judge nevertheless proceeded to deliver a lengthy judgment on the main question agitated in the suit.   He was conscious that the judgment may be obiter; but in his view, as the case had been heard at such a great length and I exhaustive and elaborate evidence had been given on the questions, involving heavy costs to the parties, it was advisable to deal with all the issues raised in the case, in order to provide against the possibility of a higher court holding that his view was wrong and remanding the case.
 
On this point, Beaman J. was of the contrary opinion.   His reasoning was more practical than legal.   He argued that, even if Mrs. Tata was made a party, it would make no material difference to the case.   She could give evidence as a witness, and her evidence whether as a witness or a party would be the same.   She could make a grievance of the denial of her rights from the witness box.   (In fact Mrs. Tata did not give any evidence.)   The judge observed, "I confess, this seems to me hypersensitive.  Eminent counsel have appeared on both sides; and everything that money, talent and energy could have done for the converts has been done, far more than they could have done for themselves.  The right was really an abstract right pertaining to all converts, present and future.   It was not as though any particular convert could have a case of his own.   It was a general right.   The question has to be answered by reference to matters finally settled before any person now living was born. "He concluded," the objection has no substance.  It is purely sentimental and academic." More cogently the judge observed, "the plaintiffs had under section 539, Civil Procedure Code, sought directions of the court which are necessary for the due administration of the trusts.   What directions could be more necessary for the due administration of the trusts than a clear enunciation of the scope and object of the trust funds and properties: whether the funds were intended for the use of converts?  If a person believing in his religion wishes to make converts, he would be directly interested in ascertaining whether the monopolists of the religious endowments were right or wrong in declaring  that they would not allow the converts to use the places of worship and burial."  Beaman J. accordingly held that from this point of view, the court in a suit under section 539, had power to go into the question whether the founders of the trusts had both converts and those born in the Parsi faith in mind.
 
On the main question whether Zoroastrianism allowed or enjoined conversion, both the judges agreed that the Zoroastrian religion enjoins conversion of the children of non Zoroastrian parents, although no instance was proved of such conversion in India.   Prerequisites of such conversion were that the candidate should seek conversion from religious conviction and not from any other considerations; and that he should be in all respects a fit and proper person to be admitted into the faith.  The necessary ceremonies were Navigate, Burushnum, and the repetition of the Investiture ceremony thereafter.
 
The main question still remained whether the converts were entitled to the benefits of the particular funds and institutions managed by the defendants; whether they were open to all those who professed the Zoroastrian faith, or whether they were restricted to members of the Parsi community professing that faith.
 
Numerous documents relating to the dedication of immoveable properties to charitable uses were put in evidence.   The language in general was "for members of the Zoroastrian community of Bombay", "Zoroastrian Anjuman ", "the Zoroastrian community of Hindustan", "the holy Zoroastrian Anjuman of Bombay", etc.   A trust deed of 1884 endowing the properties for the benefit of "the Parsi community professing the Zoroastrian faith" was produced.   With regard to this, the plaintiffs contended that this deed was at variance with the intentions of the original donors and should be rectified if necessary.
 
In the opinion of Davar J., the word "Parsi " had a racial and not a religious significance.   "Zoroastrian denotes religion, Parsi denotes community.   There is no Parsi religion in existence."  In 1884, at the time of the trust deed referred to above, since no one in India except Parsis professed the Zoroastrian faith, the words were synonymous.   The draftsman of the 1884 deed did not and could not have in mind  alien converts to Zoroastrianism; so the language used in the trust deed that the properties were for the benefit of the Parsi community professing the Zoroastrian faith, really meant that they were for the benefit of Zoroastrians, to the exclusion of converts, and there was, therefore, no variation with the intention of the founders.   Converts were not in the contemplation of the founders.   Non-Zoroastrians of any country could be converted; but how could they become" members of the holy Zoroastrian Anjuman of Bombay?"   If the founders had such converts in mind, they would have specifically excluded them.   If a Parsi corpse which is touched by a non-Parsi, or upon which a post-mortem has been performed, could not be disposed of in the holy Towers of Silence, how could the founders have contemplated the disposal of the dead body of a non-Parsi in those Towers?
 
"In earlier times," proceeded the judge, "the sentiment of the community, if anything, was more anti-convert".  Davar J., therefore, held that the funds in the hands of the defendants were founded for the benefit of members of the Parsi community, that is, the descendants of original Zoroastrian Persian immigrants, the Iranis from Persia settled in India, and children of Parsi fathers by alien mothers who have been duly and properly admitted into the religion.
 
Agreeing with the judgment, Beaman J. said that the word "Parsi"  had a caste and not a religious meaning.   The learned judge in a sarcastic vein observed:  "The defendants, representing orthodox Parsi view, are prepared to overlook immorality, bastardy-anything but alienage.  They are ready to admit any Iranian Zoroastrian about whose antecedents they cannot possibly know anything.  But will not admit the purest, most blameless foreigner.  Why?  Because the foreigner is outside the caste; and caste is an institution into which you must be born.  The consequence is that if the founders had the caste in mind, the defendants' contentions would have to be upheld.

"All this is mere frippery and shallow sophistry.  It is puerile to pretend that the admission of Mrs. Tata would do harm to a religion which opened all its doors to bastard children.  The plain point of the defendants is that, notwithstanding their sacred writings and Rivayats, they take their stand not on religion but on caste; and the practical test applied was that no one could become a member of the Parsi community except by birth.  It is idle to tell the orthodox Indian Zoroastrian that the converts had been formally admitted into the holy religion.  That might appeal to his reason; but his caste instinct will rebel.  It comes to this:  If undesirable converts are to be made, they must be segregated for purposes of worship and burial from those who are born in the faith.  Though exasperatingly presented, the case of the defendants must succeed so far as these trust funds are concerned, because it was not the intention of the founders to extend their benefits to anyone who was not in the most rigid sense a Parsi, that is, born into the community of Indian Zoroastrians, and born of an Indian Zoroastrian father:'
 
Sir Thomas Strangman in his book" Indian Courts and Characters", lays his finger upon the main consideration which influenced the community, in their opposition to the admission of alien converts to Zoroastrianism into the Parsi fold; and indeed ultimately had a decisive influence also upon the result of the case.  He says:  "The truth of the matter appears to be that, having the example of the rigid system of caste before them, they (the Parsis) came to regard themselves in many respects as a caste.  Certain it is that for many years they have taken no converts; and have regarded their community as being formed of persons professing the Zoroastrian faith, who are either the descendants of the original emigrants, subsequent emigrants or their descendants, or the offspring of alien women by Parsi fathers, or the descendants of such offsprings. "
 
Strangrnan further says that, "in the course of the trial, after the plaintiffs' evidence had been concluded, the judges handed to counsel on both sides certain terms on which they thought the case should be settled.   After looking at the terms, Lowndes for the plaintiffs said that he would place them before his clients and earnestly advise their acceptance.  I (Strangrnan) replied to the effect that I too would place them before my clients; but would advise against acceptance." He then proceeded to open his case.   "As the court rose in the evening," observes Strangman, "one of the judges remarked that if my clients did not accept the terms, they would, in his opinion, be very badly advised.  When I told my leader Inverarity of what had passed, he said, "never mind what the court may say; continue on with a picture ever before you of the Privy Council reversing their decision".   "At a later stage,"says Strangman, "while the court was continuing to press a settlement in the lady's favour, I stated that my clients were after all mere trustees; and that if it were the desire of the community that she should be regarded as one of them, the defendants would take no exception to her being so regarded."   An adjournment then took place for the community to be consulted at a public meeting.  The meeting was held and resulted in an overwhelming majority against the inclusion, not on account of anything personal regarding the lady it was realised that if converts were to be admitted, she was in every way desirable-but because it was considered that once the principle of taking converts were accepted, a number of undesirable alien paupers might gain admittance, with a view to share in the vast charities set apart for the community."
 
Strangman concludes by observing that "the case was instructive as showing that, in matters of religion, particularly in the East, it is well for the reformer to go slow.   Never should he go full tilt on a doctrine or belief; for, however unreasonable it may appear to be, the only result of attack will be increased support".   And Strangman proceeds to underline the moral by reference to the then recent troubles in Afghanistan, where Amir Amannulla's and his queen Sorayya's vaulting ambition to reform and civilize the wild Afghans overleapt itself, and led to his own overthrow.
 

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