To? 2030512068 Pace:1/20 A3-MAY-2013 @1:32 From: HBR BRITANNIC MaJusT¥'s COURT FOR ZANZTBAR IN THE HIGH COURT HOLDEN aT ZANZTBAR CIVIL CASE NO. 18 OF 1956, M.D. KBraali Haji Raza RaShid Nathani. Gulaubusein Rajabali. Mohauedali Fazal, yPP PLAINTIFFS, versus 1, Mussa G, Dhalla. d 2. He. D. Kermali. 3 3. M.A, Saleh. ) 4. Abdulracul Kergali Hasbap - President and Secretary respectively of the Rhoja Shia Itbnasheri Kuwatul 3 Islan Jamat, Zanzibar. - Trustees of Datubhai Hemani Trust. SUDEME HD This action concerns an internal dispete within the Khoja Shia Ithnasheri Kuvatul Islem Jamat of Zanzibar, and the gain question for decision 4s whether auong that coauanity a person can in certain circumstances properly claim to be a Ehoja who was not born a Khoja, or whother that tera embraces only those persons who are Khojas by Didth, tliat iu to san l yhose Parents, or at least whose fathers, were Khojas. ‘The * question aris és in the following manner. On 17th October, 1911, acertain Datubhai Hemani, who di, ugtispited was a Khoja of’ the Shia Ithnasheri faith’ executed a written and registered instrugent of Wakt ie Gujerats which has been produced a8 exhibit B, an English transle ites gt which is attached as annexturo "A" to the plaint, By tot instrument Datubhai Hemani, after reciting it to be “my intention at ay expense to make one Imambara { religion place ) in the , down of Zanzibar". and after further reciting that with thee object he had bought the site for the erection of the Imaubara, cocghatt its construction had already begun and that he had aiso bought & house at its mear to serve as a hall and kitchen for it) and that ‘the Inasbara and house shouls henoaforwacd be keovn oh, Auiuakan", procesdad to dedicate it ae Wakf in teras of which he Following passage from the deed contains all that is relemon for the pwrpose of this action, “The srid above-mentioned place have been purchased in my name and are being made at my expense. From to-day 1Fr To? 2030512068 Pace:2/2aa A3-MAY-2013 @1:33 From: i ili consider it ay complete duty to aake it as Wakt for Khoja Shia Ithnasheries, according to my intention, because thore iS not any reliablity in the lize of the human being, whereot by this Wakf deed I hereby declare that tle said atove-mentioned both places are as "Waki" for Khoja Shia Ithnasheries, that is, all of them have qqual right. I’ayself or ay heirs or attorneys Ball not have any right whatsoever, but for the purpose of jooking after these places, for effecting repairs ani for keeping Strounts of receipts and payments, and besides that, if any other person or persons give any gift or pay any sus for current agintenance or give any imgovable property, then for looking after that, and to carry out the work the following four Mutta- wallis have been selected (and) appointed. i, Datubhai Hemani. 3. Hashambhai Alibhai, 2. datferbhai Hameer. 4. Hashambhai Bhaleaina. Thus 4 persons as its Mutawellis ave appointed. _ The object of it is that they will one aftor another by turn super~ ang gparse with the accounts of that year to another Matawalils aad obtain bis signature, By this way, and by turn, Mitheallis will carry out the work. God forbid, of the Mutavallis, if any pyrewalli dies or changes faith, then'the rouaining Matevattie by wajority within one month appoint to the Vacancy of the Mutawalli @ fit gentleman, who should be a Khoja following the faith of Shia Ithnasheri, his appointment should be wade, and ph future the number of Mutawallis shoula not be reduecd’bevew four." it ,18 clear frou the teras of the above dedication that g11 Khoja Shia Ithnasheries are beneficigried of the ware, The four plaintiffs are 11 indisputably Khoja Shia Ithnasheries qpie tent in Zanzibar, and it is as such that they have brought ghis action, in which the validity of tne appointment os oe 3rd and 4th defendants in 1949 as two of the four Mutawallis has been challenged. Until 1949 tho replacements of the ser original Mutewallis and their successors appear to have bean carried out pigperly and regularly in gecordance with the directhess in the Wakt deed, that is to say by the reauining three Mutawallis or heir survivor filling the vacancies frou tige to tine by appoint- ané2 Tit gentleman, who should be a Khoja following the faith pnts Ithnasheri".” In 1945 the Ist defendant wavese appointed his appointment as Mutawalli is not challenged in this action, and he has kata foraally boon made a defendant in Mes capacity as che Cae the tisting four Mutavallis. In 1949 the dat aefoncene wpe mae the Sole surviving Mutawalli, appointed as his chaos corMutawallis the 2nd defendant (by mane) and "tps President ant pecretary for the tine being of the Khoja Shia Ithnacberd Kuwatul islam Jawat". The President at that tine was the 1st Plaintify bimself. In 1952 the 3rd and 4th defendants becaue respectively ihe said President and’ secretary, and they still hola shece respe~ gtive offices. As such they automatically becam, and still are, ‘the rewaining two Mutewallis of the Wak?. The Pleiniefe ae notTo? 2030512068 Pace: 3/20 A3-MAY-2013 @1:33 From: es Challenge the appointaent of the2nd defendant ao a Mutawalli, and like the Ist defendant he in fact supports ‘the plaintifrs and has been werely joined formally as one of the fone exist- ing Mutawallis. Bul the Plaintiffs do Challenge the appoint~ wont of the 3rd and 4th defendants, as being not an accordance with the Wak? Deed. First, the apnointaent of both of them is cha2lenged on, the ground that it was an appointaent by victue of their poegine certain oftices and not as individuale, chescas the vakf Deed requires that a "fit gentleuen" shali be appointed ge the hey Mutawalli by thesurvivors each tine that on oxist— ing Mutawalli dies or changes faith, This, it is contended ang does nar oob ana individual appoiataent of each oceneenee and does not empower the surviving Mutawallic tc @ppoint who- time, eines Sf become the holder of the office tron tine te surviving trustees tor the tine being having as such, any control over their appointwent as President or Secretary of the Jamat, or, in consequences, any control over theis succession to Mutawalliship, This ground of objection Gay, however, be isposed of briefly, in view of a concession Which tenined To mater ty 2, thet the succession of the 3rd and 4th defentarts 10,litta Alliship not as individuals but ag holderstor che time being of certain offices in the jamat, and not oven ce the Bat meg yias not in accordance with the verus of the Wake Dios, But he contends that the plaintiffs’ prayes fer’ane relief on that footing is time-barred by virtue of article 436 of the Schedule to the Limitation Deeree (cap.11), which prescribes g luitation period of six years from tha date chon ane right Tests eocrued. The prayer under this head is "tor an order be cancelled" and that "fit and proper Persons who should be Khojas professing the Shia Ithnasheri faith be appointed to £11] up the said vacancies", The cause of action upon which this Fron the 303884 accrued, as is rightly conceded, not in 1952 when the 3rd and 4th defendants becae President and secretary defendant) as Mutawallis was wade, for that the appointuent ybich the plaintizfe are asking this court to canes) seen declare void. | This sult was filed on 16th March, 1956, end Arug gore thaw six years had elasped since the plainvions could have Sued for such a declaration, ~The plaintisre! suit, in 80 far as it seeks such a declaration, must therefore be disuéssed on the ground of limitation. That disposes of the reliz