“The Petit case is...”

I was amused reading Rustom Gae and Jamsheed Kanga’s treatise titled "The Petit case is binding” (Parsiana, August 2004) where the authors argue that the historic judgment by Dinshaw Daver and Frank Beaman is not obiter dicta.

In any legal case one must learn to distinguish the ‘judgment’ on an issue or issues under dispute from ‘obiter dicta.’

Davar and Beaman’s judgment, not recognizing Suzanne R. Tata as a Parsi, despite her so-called conversion through a ‘navjote’ and marriage to Ratan Tata by Parsi Zoroastrian rites and rituals was certainly not obiter dicta.

However, I reiterate that the so-called definition of a Parsi given by Daver and Beaman, [as reported in (1909) 33 ILR 509 and 11BLR 85] is an obiter (i.e. a collateral opinion/observation of the judges, which is not binding). I hasten to add that this is not a personal opinion but the considered view of several courts in subsequent litigations after this historic case.

It is clear as daylight that Justice Co-yajee as also Justices Chagla and Gajen-dragadkar [(1950) 52 BLR 876)] and much later Justice Mody [(1966) 68 BLR 794] have not given much importance to this so-called definition. Chagla was of the view, "Now, in the first place this observation of Sir Dinshaw Daver, undoubtedly a very great authority on Parsi law, is an obiter.” Mody also concurred with the views held by Chagla, "Now so far as that part of the judgement is concerned, Chagla has pointed out that it was obiter...”

In their treatise Gae and Kanga have not disputed the fact that Coyajee, Chagla, Gajendragadkar and Mody have viewed the so-called definition as obiter. However, they have tried to argue that an obiter can be binding and has the force of law. This is where, with great respect to both these learned gentlemen, I beg to differ.

The Concise Oxford Dictionary of Current English defines the term obiter dictum as:

a judge’s expression of opinion uttered in court on giving judgment, but not essential to the decision and therefore without binding authority

an incidental remark

The American Heritage Dictionary of the English Language (Fourth Edition 2000) defines the term obiter dictum as:

an opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding

an incidental remark or observation; a passing comment

According to the noted US based Legal Information Institute, the term is Latin for "something said in passing. When judges put comments in opinions that are extraneous to the line of reasoning that leads to the decision in the case, the comments are said to be ‘obiter dictum’ or ‘dicta.’ Comments such as these are not binding authority [see Shalala v. Schaefer, 509 US 292 (1993)].

On the internet if one would care to visit www.legal definitions.com the term is once again defined as "something said in passing. In legal terms, it is a judicial comment made while delivering a judicial opinion that is unnecessary to the decision in the case.”

I leave it to the enlightened and discerning readers of Parsiana to draw their own conclusions.

NOSHIR H. DADRAWALA

Jamsheed Kanga replies

I am glad that my friend Noshir has at least been amused by the article, because he has certainly not been enlightened by it. Rustom Gae has tried to explain the various decisions given after the Daver-Beaman judgment in a simple step by step manner, so that even a layman can understand. I do not doubt Noshir’s intelligence, and so I must conclude that he is deliberately misleading the gullible Parsis again and challenging the opinions of eminent legal experts such as Justice Jal Vimadalal and Gae. A case of supressio veri and suggestio falsi.

After considering expert evidence in the Petit case Daver came to the conclusion that the Parsi community consists of:

Parsis descended from the original Persian immigrants, if both of their parents were Parsi Zorastrians, and are professing the religion

Zoroastrian Iranis coming to India permanently or temporarily

Children of Parsi fathers by alien mothers who are admitted into the Zoroastrian religion.

Noshir has referred to the Bombay High Court’s decision in Sarwar Yezdiar v. Merwan Yezdiar [(1950) 52 BLR 876] where the issue was whether Iranian Zoroastrians not domiciled in India are Parsis. Chagla held that the term ‘Parsi’ had a racial and not religious significance and is restricted to those who are descended from the original Zoroastrians of Iran who migrated to India; and an Iranian Zoroastrian, who temporarily resides in India and whose domicile continues to be Persian, does not become a Parsi, unless he changes his domicile and becomes an Indian subject. Hence it is clear that only the second clause in Daver’s judgment referring to Zoroastrian Iranis coming to India permanently or temporarily are Parsis was obiter, and NOT the first and third clauses of the judgment defining the Parsi community.

Noshir also conveniently fails to mention the latest case on this issue [Jamshed Irani v. Banoo Irani (1966) 68 BLR 794]. Here both parties were Irani Zoroastrians and were domiciled in India. Mody allowed the evidence to be taken on the meaning of the term ‘Parsi’ because he felt that this issue had not been considered properly by Chagla as it was not raised by either party. Mody did not consider the decision of Chagla in Yez-diar’s case as correctly laying down the law on the subject and followed the principle laid down by Daver in Petit’s case. This decision being a later one is therefore binding.

Petit’s case decided about a century ago is a binding force of law so long as it is not overruled or set aside by a decision of the Supreme Court. It is not therefore correct to say that the definition of a Parsi pronounced by Daver in Petit’s case "is merely obiter and has no binding force of law.”

Noshir has stated that it is not his personal opinion but the considered view of several courts in subsequent litigation after this historic case. May I request him to enlighten us as to which are these cases?