1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINATING SUMMONS NO.1909 OF 2009 IN SUIT NO.3091 OF 2009 WITH CAHMBER SUMMONS NO.362 OF 2010 IN ORIGINATING SUMMONS NO.1909 OF 2009 IN SUIT NO.3091 OF 2009 Jamsheed Kanga & Anr. .... Plaintiffs. V/s Parsi Punchayet Funds & Properties, a trust registered under the Bombay Public Trust Act, 1950 & Others ... Defendants. ---- Mr. I.M. Chagla, Senior Counsel a/w Mr. F.E. D’Vitre, Senior Counsel a/w. Mr. J.P. Avasia a/w. I.C. Pereira a/w. Ms. Yugandhara A. Khanwilkar i/b Dastur Dadhich & Kalambi for Plaintiffs. Mr. A.A. Kumbhakoni i/b M/s KRY Legal for Defendant No.1. Mr. R.A. Dada, Senior Counsel a/w. Mr. Peray Gandhy i/b. M/s KRY Legal for Defendant Nos. 2 to 8. Mr. Minoo Siodia i/b Mr. V.P. Sawant for intervener in Chamber Summons No.362 of 2010. ---- CORAM: V. M. KANADE, J. DATE : 5th March, 2010 2 P.C.:- 1. On 07/01/2010, an application was made by Plaintiffs for granting an ad-interim relief in the Originating Summons. However, by consent of parties, it was agreed that all issues including preliminary issue raised by Defendants should be decided finally and, accordingly, the matter was fixed on 15/02/2010 at 3.00 p.m. for final hearing of the Originating Summons along with other preliminary objections raised by Defendants. 2. However, on 15/02/2010, Counsel for Defendant Nos. 2 to 8 sought further time to file reply which was vehemently opposed by the learned Senior Counsel appearing on behalf of Plaintiffs. He revived his application for ad-interim relief and submitted that the question of granting or refusing ad- interim relief was not taken into consideration on the earlier date since both the parties had agreed that the matter should be finally decided on 15/02/2010. He, however, submitted that if Defendants wanted further time to file their reply, in that event, he may be permitted to revive his application for ad-interim relief. 3 3. This Court, however, granted two week’s time to Defendant Nos. 2 to 8 to file their reply and fixed the matter for final hearing on 02/03/2010 at 3.00 p.m. Accordingly, I have heard the parties. During the course of hearing, Chamber Summons has been filed by one Framroze Mirza – applicant. The relief claimed by him in the Chamber Summons is that his affidavit in support should be taken on record and he should be excluded from the present proceedings. FACTS: 4. Brief facts are as under:- 5. Plaintiffs have taken out this Originating Summons under Chapter XVII of the Bombay High Court (Original Side) Rules. The Originating Summons has been filed by Plaintiffs for determination of questions relating to powers/authority of the Trustees and rights of the beneficiaries, the proper administration of the Trust, and consequential reliefs and 4 directions as prayed for therein, arising out of the purported ban imposed by the present Trustees on two Parsi Zoroastrian Priests, viz. Mr. Framroze Mirza and Mr. Khushroo Madon, for performing any prayer or religious ceremonies at the Doongerwadi (Tower of Silence) and the Agiaries (Fire Temples) vested in the Trust being the Godavara Agiary at Fort and S.F. Jokhi Agiary at Godrej Baug, Malabar Hill. 6. According to Plaintiffs, the purported ban had been imposted as a result of certain Zoroastrian religious ceremonies allegedly conducted by the said two Priests, which, according to Trustees were unreligious since they were (i) praying for the dead who were cremated; (ii) performing Navjote ceremonies of children of Parsi girls married to non-Parsi husbands; and (iii) performing marriage ceremonies as per Zoroastrian rituals of any one Parsi marrying a non-Parsi spouse. 7. It is the case of Plaintiffs that they came to know about the ban sometime in July 2009 through press reports. A 5 meeting was held on 09/06/2009 of the Board of Trustees of Defendant No.1 and, according to the minutes, Mr. Khojeste Mistree alleged that the said two Priests, viz. Framroze Mirza, who has taken out Chamber Summons No. 362 of 2010, and Khushroo Madon are ‘renegade mobeds’ (Priests). It is alleged that these Priests had performed unreligious ceremonies. He has also recorded that High Priest Dasturji Dr. Kaikhusroo Minocher Jamasp Asa had earlier informed the Trustees that the two ‘renegade’ Priests should be boycotted from all religious institutions, such as Agiaries, Atash Behrams and Doongerwadi. Subsequently, a notice dated 11/09/2009 was also issued to that effect in English and Gujarati. The letter dated 27/8/2009 also was written by certain Priests to the Trustees to applaud the Resolution which was passed by the Board. Since this decision was not communicated to Khushroo Madon who prayed at Doongerwadi on 06/09/2009, he was asked by the Board of Trustees to meet them on 08/09/2009. In the said meeting, the said Khushroo Madon tried to explain to the Trustees that he has committed no wrong and cited teachings of Priests and Scholars in support of his arguments. However, 6 the ban was not retracted by the Trustees. Plaintiff No.2, therefore, wrote a letter dated 03/08/2009 to the Trustees objecting to the purported ban imposed on the said two Priests. In the said letter, he also stated that it was beyond the powers of the Trustees to impose such a ban. He also stated that there was no necessity for the Trustees to promulgate or endorse the ban on a particular practice especially when it pertains to the subject of religion. 8. Thereafter, Plaintiffs, through their advocates, sent a letter dated 16/10/2009 to the Trustees, objecting to the arbitrary, illegal and discriminatory ban which, according to Plaintiffs, was beyond the powers of the Trustees and they called upon the Trustees to desist from acting in furtherance of the aforesaid purported Resolution. A reply was given by Defendant Nos. 2 to 8 dated 14/11/2009 and it was alleged that they were entitled to impose the purported ban in the performance of their duties as Trustees of Defendant No.1. Plaintiffs, therefore, have filed this Originating Summons. 9. It is alleged that Trustees do not have authority or 7 power under the Trust Deed or otherwise in law to prevent a Parsi Zoroastrian Priest from performing Zoroastrian religious rites and ceremonies in the Trust’s premises on the ground that the Trustees believe that the said two Priest have performed the aforesaid ceremonies. According to Plaintiffs, Trustees do not have an authority or power under the Trust Deed to dictate on religious matters and are, therefore, not competent or entitled to declare the abovementioned ceremonies as ‘unreligious’. In the context of the said controversy, Plaintiffs have asked this Court the questions which are mentioned in para 18 of the Plaint and requested this Court to answer these questions and give consequential directions to the Trustees of Defendant No.1 and also prayed for granting stay to the operation of the Resolution and direction dated 11/09/2009. SUBMISSIONS: 10. Mr. Chagla, the learned Senior Counsel appearing on behalf of Plaintiffs submitted that this Originating Summons has been taken out by Plaintiffs under Chapter XVII of the 8 Bombay High Court (Original Side) Rules. He invited my attention to Rule 238 which lays down who can apply for issue of Originating Summons. He submitted that in the said Rule, the questions which could be answered are enumerated in clauses (a) to (g) of the said Rule 238. He submitted that the questions raised in this suit are squarely covered by clauses (a), (e) and (g). He submitted that Plaintiffs are Parsi Zoroastrians and are, therefore, beneficiaries of the Trust which was established on 25th September, 1884. He further submitted that the said two Priests are also Parsi Zoroastrian duly ordained Priests. He submitted that the said two Priests are entitled to perform their prayers at the Trust’s property, viz. Doongerwadi (Tower of Silence) and the said two Agiaries. He submitted that the said two Priests were performing prayers for deceased who were also Parsi Zoroastrians. He submitted that Trustees did not have power or authority to exclude the duly ordained Priest from performing religious ceremonies at the Trust’s property. He submitted that the Trustees, by imposing a ban, had done some thing which was beyond their authority. Mr. Chagla, the learned Senior Counsel 9 invited my attention to the Resolution passed by the Board of Trustees on 09/06/2009 annexed to the compilation of documents tendered by Plaintiffs. He then invited my attention to other documents annexed to the compilation of documents tendered by Plaintiffs viz notice dated 11/09/2009, letter of Dr Kaikhusroo Dastur Minocher Jamasp Asa dated 27/08/2009, Article dated 21/09/2009 published in the issue of Parsiana, letter dated 03/08/2009 addressed by Plaintiffs to the Trustees of Defendant No.1, letter dated 16/10/2009 addressed by Plaintiffs to the Trustees of Defendant No.1, letter dated 12/11/2009 addressed by advocates for Defendant Nos. 2 to 8 to Plaintiffs’ advocate, typed copy of the news report published in the issue of Free Press Journal dated 24/07/2009 and a copy of the news report of the same date published in the issue of Free Press Journal. He then invited my attention to the Trust Deed. He took me through some of the recitals of the Trust Deed. He led particulars emphasis on the following recitals on pages 1, 2, 8 and 9 of the Trust Deed. “AND WHEREAS for very many years the management of the social and religious affairs 10 and the settlement of religious, matrimonial and other social disputes of, and between, Parsees in Bombay were entrusted by the Community to a Punchayat or Committee selected from amongst the most influential or leading members of the said community AND WHEREAS the said Punchayet also acted as and were the recognized custodians and managers of the property so from time to time given for relgious benevolent and other purposes and objects by members of the said community as aforesaid” “....AND WHEREAS...... to be the Trustees or custodians of all the said funds and immovable property therefore given for religious and benevolent purposes as aforesaid.....” “AND WHEREAS.........the said four Trustees were and their successors have been usually styled or known as the “Trustees of the Parsee Punchayat” but are more correctly styled “the Trustees of the Funds and immoveable property of the Parsee Punchayet.” “AND WHEREAS the remaining portions of the said compound have in the uninterrupted and undisputed possession of the Members or 11 Trustees of the said Parsee Punchayet as the custodians or managers thereof ever since the dates of their respective enclosure hereinbefore mentioned and from the several dates aforesaid the said lands have been and are now used by the whole Parsee community of Bombay as a place for the exposure of their dead and for the performance of other religious rites and ceremonies” He then invited my attention to certain portion of the Second Schedule. He then laid more emphasis on the following paragraph on on page 88 the Trust Deed:- “FIRST upon trust from time to time and at all times for ever hereafter to permit and suffer the said piece or parcel of land and the several Towers buildings and erections thereon standing and being first described in the said first Schedule hereto to be used and frequented as heretofore by every member of the Parsee Community professing the Zoroastrian religion as a place for exposure of the dead and for the performance of religious rites and ceremonies.” He also invited my attention to the following paragraph on 12 page 90 of the Trust Deed:- “SECONDLY, upon trust from time to time and at all times for ever hereafter to permit and suffer the said hereditaments secondly described in the said first schedule hereto to be used or appropriated for such charitable benevolent or religious purposes or objects as the Trustees for the time being of these presents or a majority of them shall think proper........” 11. Mr. Chagla, the learned Counsel appearing on behalf of Plaintiffs submitted that in the entire Trust Deed, no power is vested in the Trustees to impose a ban on Parsi Zoroastrian duly ordained Priest or to prevent Parsi Zoroastrians to choose their own Priest for the purpose of offering prayers for the dead at the Doongerwadi (Tower of Silence). He submitted that the Trustees are merely custodians of the funds and the property of the Trust and did not have an authority to decide the questions pertaining to ecclesiastical matters. He submitted that by passing a Resolution and imposing ban, they had acted beyond their authority which was given to them under the Trust Deed. He submitted that 13 Towers of Silence are available only at three places in India and at all other places deads are either buried or cremated and this practice is accepted by High Priests. He submitted that even at the Towers of Silence due to unavailability of vultures and other such creatures, the dead bodies remain in the Tower of Silence for indefinite period and it raises stench and pollutes the air and, therefore, large number of Parsees are preferring other modes of disposal of bodies viz either by cremation or burial. He submitted that the said two Priests also, relying on scriptures, had performed ceremonies of cremation in Bombay outside the Doongerwadi premises in other crematorium and were praying for the dead in Doongerwadi (Tower of Silence). He submitted that Trustees have no authority to impose a ban to prevent them from offering such prayers for the deceased Parsi Zoroastrian. He invited my attention to the Resolution passed by the High Priests in 1985 where they had specifically accepted other modes of disposal of dead bodies viz burial or cremation. He, therefore, submitted that it cannot not be said that cremation of parsees is unreligious. He also submitted that the another allegation which was leveled against these two 14 Priests was that they had permitted conversion of Non- Zoroastrian to Zoroastrian Religion. He submitted this also is an accepted practice in Zoroastrian Religion. He submitted that the grand-father of the present High Priest had, in fact, converted a French Lady into a Zoroastrian Religion who married Mr. J.R.D. Tata and the Division Bench of this Court had given a finding that conversion is permissible according to Zoroastrian Religion though it was not practiced for about 1200 years. He invited my attention to the Article which appeared in Jam-e-Jamshed on 9/3/2008 and to the judgment of Division Bench of this Court in Sir Dinshaw M. Petit, Bart v. Sir Jamsetji Jijibhai Bart1. He also invited my attention to judgment in Saklat and others v. Bella2. He then invited my attention to the Division Bench Judgment of this Court in Mazda Theatres, Limited v. Gordhandas Tribhuvandas Mangaldas3 and submitted that Division Bench of this Court in the said judgment had made the following observations:- “Rule 241 of the Rules of the High Court 1 (1908) XI BLR 85 2 (1925) LIII Indian Appeals 42 3 (1954) LVI BLR 1080 15 of Bombay, 1950, must be very broadly and liberally interpreted. The right contemplated by that rule is any right, and the whole object of that rule is to make a procedure available to parties which is both cheap and expeditious for determination of disputes as to construction of a written instrument, which dispute could be settled by the Court interpreting the instrument and determining what the rights of the parties are.” “One would have thought that Rule 241 was precisely intended to cover a case like this where a lessor and lessee are disputing their mutual rights and the question of those rights can be determined effectively and finally by the Court construing the relevant provision of the lease and deciding what the rights 16 of the parties are.” He also invited my attention to the judgment of this Court in Dinar Rashid Wadia and another v. Kersy Eruch Lalkala and others1 12. Mr. Dada, the learned Senior Counsel appearing on behalf of Defendant Nos. 2 to 8 raised a preliminary objection regarding maintainability of the Originating Summons in this case. He submitted that the procedure prescribed under Chapter XVII of the Bombay High Court (Original Side) Rules is, essentially, summary in nature and in cases where there is a disputed question of fact, it would not be possible for the court to decide the complex issues and complicated facts. He invited my attention to Chapter XVII and the Rules framed thereunder. He submitted that Plaintiffs have called upon this Court, indirectly, to decide whether a particular practice is in accordance with the Religion or not and the object is to establish by indirect method that the practices undertaken by the said two Priests were not contrary to the Religion. He submitted that 1 AIR 2004 BOMBAY 159 17 the controversy raised in the Originating Summons is not even a dispute of civil nature and the rights which are claimed by Plaintiffs are not even civil rights. He submitted that the ordinary disposal of the dead is sacrosanct and is a part of the Religion. He invited my attention to the Written Statement in which extracts from the holy scriptures are produced and on the basis of the said extracts he submitted that in the Zoroastrian Religion, the only accepted practice which has been followed for disposal of the dead is exposure of the dead body to the elements in the Tower of Silence. He pointed out the procedure which has been followed for disposal of the dead from various paragraphs in the Written Statement. He explained the status of the High Priest and submitted that the said two Priests had been removed from their Anjuman and their actions have been declared to be unreligious by the High Priest. He submitted that one of the Priests had performed conversion ceremony. He submitted that there is sufficient material on record to show that the said two Priests are unfit to act as Priests. He further submitted that Plaintiffs have to prove that they have a right to enter these Agiaries with a particular Priest of their choice 18 and assuming that they did have a right, could they insist for exercising their right by bringing the two Priests who are unfit to act as Priest. He lastly submitted that the Court should not go into this question since it involves religious issues. 13. In support of his submission, Mr. Dada, the learned Counsel appearing on behalf of Defendants, relied upon the Judgment in Vithaldas Cursondas v. Dulsukhbhai Vadilal1. He also relied upon the judgment of the Division Bench of this Court in Sir Dinsha Manekji Petit, Bart and others v. Jamsetji Jijibhai, Bart and Others2. He then relied upon the judgment of the English Court in Re Sir Lindsay Parkinson & Co. Ltd’s Trusts Deed, Bishop and Others v. Smith and another3 He then invited my attention to the judgment of the learned Single Judge of this Court in Rama Aziz Parpia and others v. Balkrishna K. Mehta and others4 and to the judgment of the Division Bench of this Court in Lyla Darius Jehangir v. Bakhtawar Lentin & Ors5. He then relied upon the 1 (1919) XXI BLR 972 2 (1908) XXXIII ILR (Bombay) 509 3 [1965] 1 ALL ER 609 4 1993 (1) Bom.C.R. 267 5 2007(1) Bom.C.R. 915 19 judgments in Ratilal Panchand Gandhi and others v. State of Bombay and others1 and in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay2 reported in AIR 1962 page 90 and finally he relied upon the judgment of the Apex Court Sri Sinha Ramanuja Jeer alias Sri Vanamalai Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer and others3 14. Mr. Dada, the learned Counsel for Defendant Nos. 2 to 8 also invited my attention to various portions of the Trust Deed and submitted that it is a mandate given by the Trust Deed to Trustees to uphold the religious practices which are to be performed in the property owned by the Trust and as such it is a bounden duty of the Trustees to ensure that unreligious practices are not performed in the premises owned by Trust. 15. Mr. Kumbhakoni, the learned Senior Counsel appearing on behalf of Defendant No.1 adopted the arguments made by Mr. Dada, the learned Senior Counsel appearing on behalf 1 AIR 1954 SC 388 2 AIR 1962 SC 853 3 AIR 1961 SC 1720 20 of Defendant Nos. 2 to 8 and also made submissions on the same lines. 16. Mr. Chagla, the learned Senior Counsel appearing on behalf of Plaintiffs, in rejoinder, submitted that the expression “Defrock” used by Counsel Mr. Dada during the course of his arguments while referring to the said two Priests would not be used against the said Priests since the word “Defrock” practically meant excommunication of the Priests. He submitted that, in fact, Trustees under the guise of imposing a ban by passing Resolution have indirectly tried to excommunicate these two Priests though it is not permitted under the Zoroastrian Religion. He then, in response to the submission made by Counsel Mr. Dada that the burden is upon Plaintiffs to prove that they have right to choose their own Priest to perform prayers, submitted that the question of burden of proof does not arise in the Originating Summons and the only question which arises is regarding interpretation of the instrument which, in the present case, is the Trust Deed for the purpose of finding out whether on interpretation of the Trust Deed, action of the 21 Trustees is permissible or not. He then distinguished the judgments on which reliance is placed by Mr. Dada, the learned Senior Counsel appearing on behalf of Defendants. He submitted that so far as English Judgment is concerned, ratio of the said judgment is not binding on Indian Courts. He further pointed out that three judgments on which reliance is placed by Defendants’ Counsel on the point of maintainability of the Originating Summons, in fact, supported the Plaintiffs’ case. He finally concluded by saying that Plaintiffs have asked this Court whether Trustees have power to prevent Parsi Zoroastrian duly ordained Priest to perform religious ceremonies in the properties owned by the Trust. 17. I have heard Mr. Chagla, the learned Senior Counsel appearing on behalf of Plaintiffs, Mr. Dada, the learned Senior Counsel appearing on behalf of Defendant Nos. 2 to 8 and Mr. Kumbhakoni, the learned Senior Counsel appearing on behalf of Defendant No.1 at length. 22 FINDINGS: 18. Chapter XVII of the Bombay High Court (Original Side) Rules lays down the procedure which has to be followed in the case of Originating Summons. Under the said procedure, Rule 238 lays down who can apply for issue of Originating Summons and circumstances under which it can be issued. The said Rule lays down that the executors or administrators of a deceased person or any of them and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought such as beneficiary under the trusts could apply for issue of an Originating Summons. Clauses (a) to (g) of the said Rule lay down the questions which can be considered by the Court. Clauses (a) to (g) of the said Rule 238 read as under:- “(a) any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or legal representative or beneficiary; (b) the ascertainment of any class of creditors, devisees, legatees, heirs, legal 23 representatives, beneficiaries or others; (c) the furnishing of any particular accounts by the executors, administrators or trustees and the vouching (when necessary) of such accounts. (d) the payment into Court of any money in the hands of the executors, administrators or trustees; (e) directing the executors, administrators or trustees to do or abstain from doing any particular act in their character as such executors, administrators or trustees; (f) the approval of any sale, purchase, compromise or other transaction; (g) the determination of any question arising in the administration of the estate or trust.” Rule 240 lays