Case Note & Summary
The dispute arose from a resolution passed by the trustees of the Parsi Panchayat Funds and Properties on 9 June 2009, banning two Parsi Zoroastrian priests, Framroze Mirza and Khushroo Madon, from performing prayers and religious ceremonies at Doongerwadi (the Towers of Silence) and at two Agiaries (Fire Temples) under the trust's control, namely Godavara Agiary at Fort and S.F. Jokhi Agiary at Godrej Baug, Malabar Hill, Mumbai. The trustees considered certain ceremonies conducted by the priests as irreligious, including praying for the dead who were cremated, performing Navjote ceremonies of children of Parsi women married to non-Parsi spouses, and performing marriage ceremonies according to Zoroastrian rituals for Parsis marrying non-Parsis. The ban was formalized through a board resolution and a notice issued on 11 September 2009, directing staff and Panthakis to prevent the two priests from officiating. Aggrieved, two members of the Parsi Zoroastrian community, Jamsheed Kanga and another, filed an Originating Summons under the High Court's ordinary original civil jurisdiction, seeking interpretation of the Deed of Trust of 1884 and a declaration that the trustees lacked the authority to impose such a ban. The appellants contended that the trustees' powers were confined to financial and administrative management of trust properties and did not extend to regulating religious practices or dictating which priests could officiate. They argued that every Parsi Zoroastrian had an absolute right to choose any duly ordained priest for ceremonies at the trust premises, and the ban violated the beneficiaries' rights under the trust. The appellants also pointed out that similar ceremonies performed for deceased Parsis from outside Mumbai, where dokhmenishini was not available, were not considered irreligious, highlighting inconsistency. The respondents, the trust and its trustees, defended the resolution on the grounds that the Originating Summons raised purely religious issues not amenable to adjudication, and that as the apex body of the community, the trustees had a duty to protect the tenets of the 3500-year-old faith. They argued that cremation and conversion of non-Zoroastrians were contrary to fundamental Zoroastrian beliefs, and that the two priests had engaged in heresy by promoting these practices. The trust deed, they submitted, was created specifically for the dokhmenishini system of disposal of the dead, and allowing priests who performed ‘irreligious rites’ would undermine the trust’s purpose. They relied on a previous Division Bench ruling in Sir Dinsha Manekji Petit vs. Sir Jamsetji Jijibhai emphasizing the importance of traditional rites. A letter from five High Priests supporting the ban was also cited. The court had to determine four questions: (a) whether the trustees could prevent any ordained priest from performing ceremonies at the premises; (b) whether the trust deed empowered trustees to restrict the community’s choice of priest; (c) whether the ban on the two specific priests was within the trustees' authority; and (d) whether the plaintiffs were entitled to an order directing the removal of the ban and withdrawal of all related instructions. The judgment text provided is incomplete and does not contain the court's analysis or final decision. Therefore, the outcome of the appeal is not known from the excerpt.
Issue of Consideration
Whether the trustees under the Deed of Trust of 1884 have the authority to ban duly ordained Parsi Zoroastrian Priests from performing religious ceremonies at Doongerwadi and two Agiaries on the ground that the priests performed ceremonies considered irreligious by the trustees, and whether the ban is within the trustees' powers.
Law Points
- interpretation of trust deed
- trustees' administrative powers
- beneficiaries' right to choose priest
- religious trust administration
- scope of originating summons
- justiciability of religious matters
- ban on priests for irreligious acts
- validity of trust resolutions
Case Details
2011 LawText (BOM) (03) 108
O. O. C. J. APPEAL NO.256 OF 2010 IN ORIGINATING SUMMONS NO.1909 OF 2009 IN SUIT NO.3091 OF 2009 WITH CHAMBER SUMMONS NO.854 & 1728 OF 2010
Dr. D.Y. Chandrachud, Anoop V. Mohta
I.M.Chagla, F.E.Devitre, Jimmy Avasia, Yugandhara Khanwilkar, R.A.Dada, Percy Ghandy, E.P.Bharucha, Karl Tamboly, N.G.Thakkar, R.G.Seth
Parsi Panchayat Funds and Properties and Ors.
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Nature of Litigation
Originating Summons for determination of questions relating to powers of trustees under Deed of Trust of 1884, rights of beneficiaries, and proper administration of trust.
Remedy Sought
Appellants (Parsi community members) sought declaration that trustees cannot ban priests from performing ceremonies at trust properties; and directions to remove ban, withdraw instructions.
Filing Reason
Ban imposed by trustees on two priests for performing ceremonies considered irreligious (praying for dead who were cremated, Navjote of children of mixed marriages, and interfaith marriages).
Issues
Whether under the Trust Deed the Trustees are entitled to prevent any duly ordained Parsi Zoroastrian Priest from performing Zoroastrian religious rites and ceremonies in the premises of the Doongerwadi and the said two Agiaries.
Whether the Trust Deed empowers the Trustees to restrict Parsi Zoroastrians in their choice of a duly ordained Parsi Zoroastrian Priest to conduct Zoroastrian religious prayers and ceremonies at the Doongerwadi and the said two Agiaries.
Whether the purported ban on the said Framroze Mirza and the said Khushroo Madon, was within the power and authority of the Trustees under the Trust Deed.
Whether the Plaintiffs are entitled to an order and direction of this Hon’ble Court that the Trustees of Defendant No.1 forthwith abstain from any action pursuant to the said purported ban or in the implementation thereof, and to forthwith remove all notices, and withdraw all instructions, in relation to the said purported ban.
Submissions/Arguments
Appellants: trustees lack authority to dictate religious matters; powers restricted to financial and administrative management; every Parsi has right to choose any priest; ban fetters freedom of choice; ceremonies not performed within trust premises; inconsistency in treating similar ceremonies elsewhere
Respondents: Originating Summons not maintainable as it raises religious issues; trustees as apex body must protect tenets; cremation and conversion contrary to faith; ban valid; trust properties settled for traditional rites; priests in breach of faith; letter from High Priests supports ban
Judgment Excerpts
Consideration to prevent renegade Priest from performing religious prayers at Doongerwadi, and, also in two Fire Temples under our control, namely Godavara Agiary and Godrej Baug Agiary.
The Plaintiffs, who are members of the Parsi Zoroastrian community residing in Mumbai moved the Court in an Originating Summons for the determination of questions relating to the powers/authority of the trustees of the Parsi Panchayat's funds and properties; the rights of the beneficiaries under a Deed of Trust of 1884; and for the proper administration of the Trust.
The Second Plaintiff protested against the ban imposed on the two priests and made an impassioned plea for harmony, in place of dissension, in the community.
We are pleased to learn that the new BPP Board has recently issued a directive in conformity with our earlier guidelines, whereby we have repeatedly said, that our good and upright mobed sahebs should not become hamsharik with renegade priests who encourage wrong religious practices such as cremation, and/or do the conversions of nonZoroastrians.
Procedural History
Appellants filed Originating Summons No.1909 of 2009 in Suit No.3091 of 2009 on the Original Side of the Bombay High Court seeking determination of questions under the Deed of Trust of 1884. Chamber Summons Nos.854 and 1728 of 2010 were also taken out. The matter came up as O.O.C.J. Appeal No.256 of 2010 before a Division Bench (Drs. D.Y. Chandrachud and A.V. Mohta, JJ.). The trustees filed a Written Statement contesting maintainability and on merits.
