MULLAJI CASE (CHANDABHOY GULLA CASE)-19l8-19l9   The case known as the "Mullaji's Case" or " Chandabhoy Gulla Case", is among the longest and most remarkable cases ever tried in the High Court of Bombay.  The suit was filed about 1918 or 1919 by the Advocate-General at the instance of certain relators, against the Mullaji Saheb, the High Priest of the Dawoodi Borah Community, as the principal defendant.  It lasted for about six months before Mr. Justice Marten, and was heard during its most interesting and important stages, not in the High Court premises, but at first for a few days at the Judge's residence, and latterly in a private bungalow specially hired for the purpose.   As Sir Thomas Strangman, the Advocate-General, who filed the suit and appeared for the plaintiff throughout the trial, observes in his book "Indian Courts and Characters",  the case is remarkable not only for its length, but for the amazing claims put forward on behalf of the Mullaji, the like of which have never been put forward in any Court of Law.  The suit related to a mosque in Bombay known as the Chandabhoy Mosque and the tomb of Chandabhoy.  There was no evidence to show that this man Chanda bhoy was anything but an ordinary trader like the rest of the Dawoodi Borahs; but for some mysterious reasons, after his death, his tomb came to be venerated as the shrine of a saint, whose intercession with God, purchased by means of prayers and donations offered at his tomb, would effect miraculous cures making the sick sound, the blind see, and the halt and lame move about, which belief had prevailed among the masses of the community for over a century at the time of the suit.  The devotees made voluntary offerings at the tomb in cash and kind, placing them in a "gulla", or till, kept near the tomb. In course of time, these offerings amounted to very large sums of money; and after meeting the expenses of maintaining the mosque and the tomb, there remained large surpluses which were invested in various immoveable properties.   The main question in the suit was whether the mosque, the tomb, the offerings and the investments made from the surplus funds were charitable in the legal sense.  Normally, there would be no question that they would constitute a public charity amenable to the jurisdiction of a civil tribunal.  The position, however, was hotly contested on behalf of the Mullaji Saheb who was in charge of the mosque, tomb, funds and properties relating thereto.  The question turned upon certain peculiar religious tenets of the Dawoodi Borahs and the peculiar position of the Mullaji Saheb in the eyes of his followers.  According to the contentions put forward on his behalf there could be no trust enforceable in a Court of Law in regard to these properties, for the Mullaji, as ultimate representative of God on earth, was infallible and immaculate; he was accountable only to the "Imam in seclusion", whose immediate representative he was.   Incidentally, it was denied that Chandabhoy was a saint, and it was contended on this account and for other technical reasons that neither the tomb, nor the offerings, nor the investments could form the subject of a charitable trust.  Strangman remarks that the main contention raised a question not only of great importance but of the greatest interest, viz., whether there could be a trustee of earthly assets accountable for his trust to no earthly tribunal.   The case created considerable excitement in the community.  Matters had come to such a pass that the Mullaji had excommunicated the persons who put the Advocate-General in motion, and who, although members of the Dawoodi Borah Community, were hostile to the Mullaji Saheb.   "Naturally enough" says Strangman, "with feeling running so high and the vast bulk of the community solidly behind the Mullaji, it was difficult for me to obtain evidence, either oral or documentary, in support of my case.  Although from first to last the Mullaji kept his people in strict check, it required considerable courage for any member of the community, what ever his belief, to go into the box and face a Court crowded with the more fervent element of the Mullaji's supporters."   Summing up his position, Strangman remarks that "when I closed my case, I felt there were so many gaps that it was doubtful whether, even if the evidence stood alone and unchallenged, it would suffice for a decree in my favour.  The Mullaji and his supporters were, however, all anxious to give evidence.  The defendants' counsel were reluctant to take the risk of leaving the record as it stood: the Mullaji and many of his principal supporters, a vast host, went into the box.   My case was proved with their aid and that of a number of documents which began to filter into the hands of my solicitors."   Strangman shortly summarises the peculiar religious beliefs of the Dawoodi Borahs, who, although Shiah Muslims, held their head priest or spiritual leader in profound and peculiar veneration as a divine or semi-divine personality.  It appears that Almustansir, the Eighth Fatimite Khalif of Egypt, regarded by his followers as the Eighteenth Imam, and who reigned about the time of William the Conqueror, sent a missionary to Yemen in Arabia, not only to preach the Shiah Faith of the Fatimite Khalif, but also to rule over the country.  The missionary and his successors were known as the "Sultanis" or  "Dais" of Yemen.  On the death of the Eighteenth Imam, a dispute arose regarding his succession, and the Sect was divided into two.   According to the Borah faith, the last revealed Imam was Tayeb, who succeeded as the twenty-first Imam in the early part of the twelfth century, and subsequently went into  "seclusion", i.e., withdrew himself from the world.  According to this faith, there has been a regular succession of Imams since the death of Tayeb, though all of them have been in seclusion.  The Imam as representative of the Prophet, and through him the representative of God, having withdrawn from the world, someone must represent him, and so ultimately the Deity on earth.  The Dai, according to their belief, is that representative.  In the 16th century the Dai ceased to be Sultani in Yemen and migrated to Guzerat.  The Mullaji against whom the suit was filed was the Fifty-first Dai, the line having been carried on by the holder of the office appointing, during his lifetime, his successor.  As Sultanis in Yemen the Dais no doubt had sovereign powers: it was not claimed that any of these sovereign powers survived after their migration to India.   During the trial, the plaintiff gave up the prayer to have fresh trustees appointed or to deprive the Mullaji of his management of the suit properties.  It was not alleged that there had been any misapplication of the Gulla funds, nor that there had been any breach of trust, apart from the denial of the trust.   Although the defendants admitted that on the death of the Dai the properties passed on to his successor in office, they still argued that there was no charitable trust enforceable in a court of law, and that the Mullaji Saheb was not accountable to anybody except the Imam in seclusion.  The argument was based on the tenet that the Mullaji Saheb was the representative of God on earth and as such was infallible and immaculate; he was also the Master not only of the property, but also of the mind, body and soul of each of his followers who were bound to obey him implicitly and could not question his acts.  The defendants contended that infallibility was inconsistent with accountability as a trustee, and mastership was inconsistent with trusteeship.  The Dai was the absolute owner of the Gulla offerings given to him as  "Dhani",  "Malik" or owner.   In the earlier stages of the trial, it was contended for the defendants that the Mullaji Saheb was in fact God, or for all practical purposes God, and that this suit was a sacrilege.  This contention was, however, eventually withdrawn.   Marten J. who tried this protracted suit, held that it was incorrect to say that Mullaji Saheb was in effect God, or for all practical purposes God, or that it was a sacrilege to bring the present suit.  He said that the Dai's powers were at least thrice delegated: viz. by God to the Prophet, by the Prophet to the Imam, and by the Imam to the Dai-ul-Mutlak.  The Judge wound up this part of the defendants' case with the trenchant remark, "spiritual heads of communities are not generally remarkable for the modesty with which they state their pretensions".   Referring to the religious books on which the defendants relied, the judge observed that in none of those books was there any indication of the claim, which the Mullaji was specifically putting forward, as regards the Dai being the absolute owner of everything appertaining to the community.  Reliance was placed on certain texts of the Koran. Referring to them, Marten J. observed that he was not satisfied that the scriptures substantiated the claims of the Mullaji to ownership of the minds and properties of the followers.  He referred to the evidence in a Surat case given by the defendant's father, the 49th Dai, to the effect that he claimed not the slightest interest in the property; and observed that the attitude taken up by the 49th Dai was totally inconsistent with the claims put forward by his son, the present Mullaji.   Moreover, the defendants could not produce a single instance of such extreme claims having been exercised by any Mullaji prior to the present suit; and the defendants' own witnesses made it clear that these claims were at best purely theoretical.  The judge concluded that the defendants' claims were the result of the stress of the suit, and that it they ever existed before the trial, nobody regarded them seriously or as giving any legal rights.   Proceeding, the judge observed "high-ranking people could be trusted not to commit criminal breach of trust; but that did not mean that they were beyond the pale of the law.  For example, His Grace the Archbishop of Canterbury, could not conceivably commit a criminal offence; but he was nevertheless subject to the criminal law, and this fact involved no slur.  So, too, in theory the Mullaji Saheb was amenable to the criminal and civil law of this country, though it was unthinkable that he would commit any offence. But the existence of this civil restraint is no more a slur upon an honest trustee, than the existence of criminal restraint is upon an honest citizen.  The test of a trust is not whether the alleged trustee can ever commit a breach of trust, which is what the defendants' contention in effect amounts to."   The judge then referred to a book published by the Borah community, of which the latest edition was edited by the Mullaji.  In this book, the Dai was referred to as "the trustee of the public funds of the community which it is his duty to dispose of economically as directed by the sacred laws of Islam".   Considering all the circumstances, the judge held that all the properties in respect of which the declaration was sought were devoted to charitable purposes and that the Mullaji was a trustee thereof.   The contention that there could be no Wakf of moveable property was rejected.   As regards non-accountability, he observed: "this claim is all the more surprising, because in effect it involves the infallibility of some 266 Amils (higher officials) and numerous other managers and officers under the Mullaji.  No man can manage personally 648 mosques, to say nothing of 69 gullas.  The Mullaji must therefore act by agents.  If then any such agent is corrupt or negligent, why should the community be without a remedy against him?"   He, therefore, held that the Mullaji was theoretically accountable; but that no case had been made out for interfering with the management of the properties or for directing any accounts against him.   An appeal was presented against this judgment by the Mullaji Saheb, but the same was allowed to be dismissed on an adjustment being made in the decree of the trial court by the insertion of a proviso to one of the clauses: "Provided that the said third defendant Sirdar Saiyedna Taher Saifuddin Saheb and his successors in office may at any time place a box or other receptacle at any place outside the actual area covered by the enclosure in which the said tomb (of Chandabhoy) is situate, and indicate on or in the neighbourhood of such box that any offering placed therein is at the absolute disposal of the Dai-ul-Mutlak of the Dawoodi Borah community for any purpose charitable or not charitable as the said Dai-ul-Mutlak may direct.  Declare that the decree in no way decides whether any other gulla funds or the general Dawat (administration) funds are charitable funds or not charitable funds."  This clause was probably meant to be a face-saving device which would give the Dai-ul-Mutlak the right of absolute disposal as regards certain offerings.  The language proposed ,to be written on the box however made it obvious that in so far as the absolute authority was limited to the box in question, the Dai-ul-Mutlak had no such authority over the other trust funds.   Concluding his account of this extraordinary case Strangman remarks:  "Looking back on the proceedings, I think what impressed me the most, even more than the extravagance of the claims, was the personality of the Mullaji, a frail looking figure possessed nevertheless of an iron will, great determination, and organising capacity.  At the time he assumed office the administration must have been extremely slack.  Yet he managed in a very few years not only to pull the administration together but to obtain a hold upon his followers greater perhaps than that of any of his predecessors."   * * * * *