Jamshed A. Irani vs Banu J. Irani

N.A. Mody, J.—I am, however, feeling a great difficulty in following that judgment [ Sarwar Merwan Yezdiar Vs. Merwan Rashid Yezdiar, ]. Before proceeding further I may state that the question whether Iranian; Zoroastrians are Parsis or not for the purposes of the said Act has become a question of great importance. Lam told that it had greatly agitated the minds of Iranian Zoroastrians in. India and particularly in Bombay, The importance attached is so great that the Iranian Zoroastrian Anjuman took, out, a Chamber Summons, before me in this suit for being added as a party to this suit. In support of that summons-it was pointed out to me and with great emphasis, that the decision as to whether Iranian Zoroastrians are Parsis or not for the purposes of the said Act will have very important and, grave repercussions on the members of that community. I was told that over a large number of years Iranian Zoroastrians, on the basis that they were Parsis, have contracted marriages as Parsis under and in accordance with the provisions of the said Act. The decision of the instant point would, therefore, reflect on the validity or otherwise of their marriages. Incidentally it would necessarily reflect on the legitimacy or otherwise of their children. Incidentally it would also reflect on intestate successions which have taken place in the case of deceased Iranian Zoroastrians of Bombay and India. I was also told that in India fire temples and places of religious worship as also Dakhmas or burial grounds for Zoroastrians are mostly, if not exclusively, for members of the Parsi Zoroastrian community and that Iranian Zoroastrians as Parsis are having the benefit thereof. I was also told that there are rich and varied endowments and charitable trusts for the benefit of Parsis and Iranian Zoroastrians as Parsis are receiving benefit there under and that the determination whether Iranian Zoroastrians are Parsis or not would affect the ability of Iranian Zoroastrians to take advantage of those places of religious worship, burial grounds, endowments and trusts. I have been given all this information not only by Mr. Khambatta who is the counsel for the Anjuman but also by Mr. Banaji who himself is one of Trustees of the Parsi Panchayat. I have mentioned all this merely for the purpose of bearing in mind that the question raised is of great importance to a community which, I am told, numbers in thousands. So far as that application for adding the Anjuman as a party was concerned, I however pointed out to Mr. Khambatta, the learned counsel for the Anjuman, but only on a prima facie view at that time, that in the case of an individual dispute between a particular plaintiff and a particular defendant it may not be possible for me to grant Mr. Khambatta''s application to make the Anjuman a party to this suit. I however stated to Mr. Khambatta that as it appeared that the legal point involved may vitally affect a large community, I would hear submissions on law not only on behalf of the plaintiff and the defendant but also on behalf of the said Anjuman. In view of that statement made by me Mr. Khambatta did not press his summons. Mr. Khambatta has, however, continued to appear at the hearing of this suit and I have indeed allowed Mr. Khambatta even to make submissions on the present objection raised by Mr. Chhatrapati.

Turning back to the said judgment of Chagla C. J. in Sarwar Merwan Yezdiar Vs. Merwan Rashid Yezdiar, , as I have already stated, I have studied that judgment with great care and anxiety. It has become my duty to analyse that judgment and to find out for myself how far I am bound by the same and whether I should follow the same. Needless to say, on the principle of stare decisis, I would be bound by that judgment. It is a judgment of a Division Bench. It is a judgment of the Appeal Court. It is a judgment delivered in an appeal from a decision of the Parsi Chief Matrimonial Court, the Court of which I am at present the sitting Judge. It is a judgment of a very eminent Judge. But having studied and analysed that judgment with great respect and with utter humility I have with great hesitation come to the conclusion which I will presently mention. The position in that case was rather peculiar. The case was tried in the trial Court only on one preliminary issue, viz. whether the Court had jurisdiction in view of the fact that the defendant in that case was not domiciled in India. The trial Court answered only that issue, the answer being in the negative. But the trial Court''s judgment, as already noted earlier, makes it amply clear that the trial Court did not hold that it had no jurisdiction because the parties were not Parsis or that the said Act was not applicable to the facts of that case. Now, the judgment of the Appeal Court, however, does not appear to deal with that point at all and it does not certainly decide the appeal on that point. The appeal was decided on a different point, viz. that the parties were not Parsis and, therefore, the said Act did not apply and, therefore, the said Court constituted under the said Act had no jurisdiction. As pointed out both by Mr. Banaji and Mr. Khambatta, it is quite clear that the point whether either the plaintiff or the defendant was a Parsi or not was not raised at all in the trial Court. That was not a point taken in the pleadings. It was not a point put in issue. It was not a point argued before or decided by the trial Court. Naturally the parties did not lead evidence on that point nor did they urge their contentions in respect thereof before the trial Court. That point appears to have been taken for the first time only in the appeal. From the judgment it does not appear that the counsel for the appellant even drew the attention of the Appeal Court that the point had not been raised or argued or decided in the trial Court. It appears that the counsel for the appellant chose to argue the point raised for the first time in the appeal. Possibly, I say with due humility, the importance of the point which was being decided was not fully realised by the Appeal Court and certainly not by the counsel for the appellant in that case. In the said case of Sir Dinshaw M. Petit v. Sir Jamsetji Jijibhai ILR 33 Bom. 509 = (1908) 11 Bom. L. R. 85, Davar J. came to the conclusion that the Iranis from Persia professing the Zoroastrian religion, who come to India, either temporarily or permanently, would be included amongst Parsis. Now, so far as that part of the judgment of Davar J. is concerned, Chagla C. J. has pointed out that it was obiter because the question that Davar and Beam an JJ. had to consider in that case was whether by conversion to the Zoroastrian faith a person could become a Parsi. As regards the judgment of the Privy Council in the said second case AIR 1925 298 (Privy Council) Chagla C. J. also points out that the question which they had to consider in the said case of Yezdiar v. Yezdiar (3) did not arise directly for decision in the Privy Council case. That again was so because in the Privy Council case also the point was whether a Juddin, i.e. a non-Zoroastrian, upon conversion or initiation into the Zoroastrian religion, could be said to be a Parsi. In neither of the said two cases of Sir Dinshow M. Petit v. Sir Jamsetji Jijibhai ILR 33 Bom. 509 = (1908) 11 Bom. L. R. 85 and AIR 1925 298 (Privy Council) the point directly arose whether an Iranian Zoroastrian was a Parsi, but the point was directly considered by the Appeal Court only in the said case of Sarwar Merwan Yezdiar Vs. Merwan Rashid Yezdiar, and it was decided that Iranian Zoroastrians may not be Parsis. That judgment, however, expressly states that it was not necessary for the Appeal Court to decide the larger question as to whether an Iranian by being domiciled in India could become a Parsi. That point is, therefore, still open and has not been decided by that judgment. But so far as the main point is concerned, the Divisional Bench in that case has decided as aforesaid. How far am I bound to follow it? That is the question which has considerably agitated my mind. In my humble opinion such a question of great importance and involving wide repercussions was decided by the judgment of the Appeal Court without the same having been raised in the trial Court and without any evidence on that question having been recorded on either side. It appears, if I may say so, that it was a point raised only at the time of the hearing of the appeal and the counsel in that case did not even point out to the Appeal Court that the point had not been raised or considered in the trial Court, and may have required evidence. In such circumstances, I feel myself not bound to follow the ratio of that judgment. As I have said earlier it is with greatest hesitation that I come to that conclusion. But I am of the opinion that justice requires that parties must get a proper opportunity to lead evidence and to fully argue that point before it can bind not only the parties but the entire community. It may be that if in that case evidence had been led or an issue raised and decided, it would not have been open in a subsequent case for a trial Court like the present one not to follow the judgment in that case on the ground that proper evidence had not been led or that proper arguments had not been presented. In this case, however, I am not following that judgment because the point was not even raised. It was certainly not argued. There was no evidence whatever led and it was not decided by the trial Court. It was merely a point raised for the first time in appeal without the attention, of the Appeal Court having been drawn to the fact that it was entirely a new point which would necessitate taking of further evidence.

In coming to the above conclusion there is another factor which has weighed with me. Undoubtedly the decision in Sarwar Merwan Yezdiar Vs. Merwan Rashid Yezdiar, is a decision of a Division Bench constituted of two Judges and that decision is not obiter dicta. But there is a contrary decision in the said case of Sir Dinshaw M. Petit v. Sir Jamsetji Jijibhai ILR 33 Bom. 509 = (1908) 11 Bom. L. R. 85. Of course, that decision is obiter dicta. But that is a decision or rather an observation, of Sir Dinshaw Davar whom Chagla C. J. himself in his said judgment has called a very great authority on Parsi law. That decision is also a decision, not of a single Judge, but of a Bench of two Judges. That is a decision which has been given, although obiter, in an attempt at ascertaining the complete connotation of the word "Parsi". Moreover,.it appears that Davar J, made those observations after evidence was recorded in that case on that very point as to whether Iranian Zoroastrians were Parsis or not. A reference to the judgment of Davar J. appearing at pp. 113 and 115 of the said report shows that evidence in that behalf was led of one Jamsetji Dadabhai Nadershah and also of Beram Sheriar, an Irani priest. Indeed Beram Sheriar''s testimony was as follows:

Some Mahomedans in Persia call us Parsis; some call us Zarthostis. The word Parsis is in common use in Persia. It means Zarthosti Mussalmans in Persia use the word Parsis commonly to designate our people-the Zarthostis.

There is, therefore, this conflict. Undoubtedly, the conflict is between the judgment in one case which was on a point which directly disposed of the appeal and certain observations in the judgment in another which were merely obiter dicta. As said earlier, although the point was directly responsible for the decision of the appeal in Sarwar Merwan Yezdiar Vs. Merwan Rashid Yezdiar, , the point was not argued and evidence was not recorded, whereas the said observations of Davar J. are merely obiter dicta, but as against the same they were in the process of formulating a definition of "Parsi" or rather in the process of formulating the full connotation of the word "Parsi" and the same were made after recording of evidence, l am, therefore, of the opinion that this point is open for decision by me by permitting further evidence.

[The judgment proceeds -] At the stage of address, both counsel agreed that each of the plaintiff and the defendant is a national of Iran and professes and has always professed the Zoroastrian religion and is registered as a foreigner under the Registration of Foreigners Rules, 1939.

Both the plaintiff and the defendant have given evidence. The plaintiff is 30 years old and he was born in Yezd in Iran. He was living in Iran with his father, mother, brothers and sisters. He came to India, according to him, from Iran, in 1947 for residing permanently in India. He married the defendant in Bombay on July 20, 1951. Ever since he came to India, he has not gone back to Iran at any time. The defendant is 32 years old. She was born in Yezd in Iran. She was living in Iran. She came to India in 1950, accompanied by her father. Since her marriage she has not gone back to Iran at any time.

Turning to the said first group of issues, the main question is what is the meaning of the word "Parsi". As pointed out by me earlier, neither section 2 (7) nor any other provision of the Act defines or states what is meant by that word "Parsi". The Act contains no other provisions or guidance as to what is meant by "Parsi". The defendant contended that "Parsi" meant only "Racial Parsis" and, as a matter of fact, it was because of that contention urged by Mr. Chhatrapati that issues Nos. 1 and 3 were cast in the present language. Mr. Chhatrapati''s contention was expressly stated to have been based on certain earlier judgments of this Court. But, in view of the ruling which I gave when I admitted oral evidence it is not necessary for me to refer to those judgments. The defendant''s contention is that Iranian Zoroastrians whether temporarily, or even permanently, residing in India are not "Parsis" within the meaning of the Act. The plaintiff, on the other hand, contends that the Zoroastrians living in Iran are, and for centuries have been, known even in Iran and also in India as Parsis and that they would, therefore, be "Parsis" within the meaning of the Act. On the question of interpretation of the word "Parsi" evidence has been led. The material evidence on the subject is that of Rashid Irani, Mr. P. B. Vachha, Dastoor Mirza and Mr. Jamshed Tarapore and the various documents exhibited through them.

Rashid was born in Bombay and is about 55 years old. He has visited Iran four or five times, his stay in Iran being for short periods aggregating to 2 or 21/2 years. He is a scholar of the Persian language, and has done research work in religion, philosophy and history of Parsis in Iran after the invasion of the Arabs. He has written some books on the subject which have been published through various associations. He has also translated the Ramayana into Persian under the orders of the Government of India. At the invitation of the Government of Iran he attended the international conference in Iran in 1954 as a delegate from India.

Mr. Vachha is an advocate of this Court of 48 years standing. Before he was enrolled as an advocate he was in the educational service of the Government of Bombay from 1906 to 1912. During that period he was for some time a lecturer in Persian in the Elphinstone College. He has published certain translations of certain Persian classics with his commentary thereon He has also published a book in English being "A Study of the Great Iranian ''Historical Epic of Firdausi". He has visited Iran twice, first in 1934 in connection with the millenary celebrations of Firdausi and next in 1954 to participate in the thousand year celebrations of the great Persian physician and philosopher known to the west as Avicenna. The second visit was made by him at the invitation of the Government of Iran as a delegate from India. He has stated that he has read a large number of books on the history of Iran, both ancient and modern, published in English, Persian, Gujarati and Urdu. In 1956, on the occasion of the then impending visit of the Shah of Persia to India, he, at the request of the then Consul-General of Iran in Bombay, wrote a book entitled "Iran, Ancient and Modern".

The third witness Dastoor Mirza is an M. A. of the University of Bombay and Ph. D. of the University of London. The principal subjects for his M. 4. degree were Avesta, Pehlvi and old Persian and for his Ph. D. he wrote a thesis in Pehlvi and his subject for the Ph. D. degree was Iranian languages. He has been taking active interest in Avesta, Pehlvi and Persian languages, both ancient and modern. He has taken part since 1941 in the Iranian section of the various sessions of the All India Oriental Conferences held in India. He was twice the President of the Iranian section of the All India Oriental Conferences. At those conferences he had read papers about his research in Avesta and Pehlvi.

Mr. Jamshed Tarapore is an M. A. and LL. B of the Bombay University and for his M. A. Examination his subjects were Avesta, Pehlvi and old Iranian languages. He has translated several Pehlvi texts into English and/or Gujarathi and most of the m have also been published. He also attended several sessions of the Oriental Conferences and at the Iranian section thereof he had read various papers, and had also presided over the same on two occasions. He is a member of the Managing Committee of the Iran League and is the editor of the Iran League Quarterly. He knows Sanskrit also and he has done research work in old Iranian languages and in Sanskrit.

These four witnesses were examined as expert witnesses. Each has however, mostly, by reason of his special study, produced relevant books and documents. Their own opinion evidence itself is very little.

Rashid has stated that the Achaemenid dynasty reigned over Iran from 500 B. O. to about 100 B. C. and the Sassanian dynasty from about 200 A. D. to 631 A. D. He has further stated that the Arabs invaded and conquered Iran in about 631 A. D. and that the Arabs were Muslims and since 631 A. D. there has been Muslim rule in Iran.

It is the plaintiff''s case that since very ancient times till the Arab conquest, almost all, if not all, the inhabitants of Iran were Zoroastrians. It is his case that since at least the commencement of the reign of the Achaemenid dynasty the residents of Iran were known as "Parsa", that during the Sassanian rule "Parsa" became "Parsik" and that after the Arab conquest "Parsik" became "Parsa" and it was applied only to the Zoroastrians of Iran and not to the Arab conquerors or to the Zoroastrians converted to Islam. It is his case that the Zoroastrians of Iran have, even till today, been continued to be called and known as Parsis.

Now, the Parsi Marriage and Divorce Act was passed in 1936. It replaced the earlier Act which was passed in 1865. It is the plaintiff''s case that in 1936 and even in 1865 the Zoroastrians of Iran also were commonly known and referred to as Parsis and that, therefore, when the Legislature used the word "Parsi" in the Act of 1936, and even in the prior Act of 1865 it was intended to include, and it must be construed to include, not only the Parsis of India, but also the Irani Zoroastrians, who happened to be in India, whether permanently or even temporarily.

Now, the evidence as to the use of the words "Parsa", then "Parsik" and later "Parsi" as aforesaid divides itself chronologically into two parts. The first part relates to the period commencing from the ancient times till about 100 years ago. This evidence is, I may at once say, rather vague. The second part relates to the last, about a hundred years and the evidence relating to the second period is fuller. I propose to deal with the evidence as regards these two periods separately.

I will briefly set out what cumulatively is the substance of the evidence of the said four witnesses as regards the use of the names "Parsa." "Parsik" and "Parsi" during the said first period, the documentary evidence relating to that period and certain contradictions between their testimony.

The evidence of these witnesses is that in the present day Iran there is a province called "Pars" or "Fars". I may state that in the Arabic alphabet there is no letter "P" and, therefore, the letter "F" is used instead, with the result that since the Arab conquest of Iran the letter "F" was used when written in Arabic in place of the letter "P" as used in Persian. That province was one of the important provinces of the country. That country roughly corresponds to the present day Iran. That province gave its own name to the whole country, to its people and to their language. During the reign of the Achaemenid dynasty the country over which they ruled was known as "Parsa" which is the present day Persia or Iran. Herodotus and Xenophon, the two Greek historians, who lived in the 3rd and the 4th centuries B. C, referred to Iranians as Parsis. Aeschylus who also lived at about the same time was one of the great Greek tragic writers. In one of his works he has described the great battle of Salamis which was fought between the Persians and the Greeks. "Persee" is the title given by Aeschylus to his said work and the reason, according to Mr. Vachha, is that the book deals, with the battle which the Greeks fought with the Persians. The words "Persia" and "Persian" in English and akin words in the European languages owe their origin to the word "Perses" as used by the ancient Greeks. The religion of the inhabitants of the country, i. e., of Parsa, from the beginning of the Achaemenid dynasty, and even prior thereto, till the end of the Sassanian dynasty, following upon the conquest by the Arabs was Zoroastrian. After the Arab conquest there was extensive conversion of the inhabitants from the Zoroastrian religion to the Musalman religion. In course of time the Zoroastrians were called Parsis and those who were converted to Islam were called Musalmans. The Arab conquerors persecuted the Parsis i. e. the original Zoroastrian inhabitants of the country. They also tried to destroy all the literature and the books of the Zoroastrian religion. Because of the persecution and the destruction a handful of Zoroastrians of Iran migrated during the seventh century A. D. from Iran into India. Those who migrated into India continued to call themselves Parsis because that was the name by which they had been known in their mother country Iran. One of the outstanding Achaemenid kings was Darius who, as stated by Dastoor Mirza, reigned from 522 B. C. up to 486 B. C. Many of his inscriptions are in existence till today. They are in the cuneiform script as used by the ancient Persians The cuneiform script was used by many ancient civilizations such as the Babylonian, Assyrian and the ancient Persian but the cuneiform script used by each of the civilizations varied. Transcriptions and translations in English of portions of some of the inscriptions of Darius have been put in as exhs. A-7, A-8, A-9, A-10 and another has been referred to in exh. A-11. Broadly stated, in these inscriptions, Darius states that "he is a Persian, son of a Persian".The actual word used by Darius is "Parsa" of which the word "Persian" is the English equivalent or translation. From these inscriptions it appears that the word "Parsa" was used during the reign of Darius for the inhabitants of Iran. Thereafter in the third and the fourth centuries the Greek historians Herodotus and Xenophon referred to the inhabitants of Iran as "Parsees".According to Rashid, during the reign of the Sassanian dynasty the word "Parsa" used in the inscriptions of Darius became "Parsik". Mr. Vachha, however, has stated that during the Sassanian times the inhabitants of Iran had come to be known as Parsis. Mr. Tarapore also stated that during the rule of the Sassanian dynasty the Zoroastrian inhabitants of Iran were called Parsis. There is, therefore, some inconsistency in the evidence of the three witnesses as to when the inhabitants of Iran came to be known as "Parsis", i. e., whether during the Sassanian times as stated by Mr Vachha and Mr. Tarapore or after the Sassanian times as stated by Rashid, the word during the Sassanian times being "Parsik", according to Rashid. That is but natural. The words in a language do not change over-night; nor does everybody start using the new word at the same time. The change is a gradual process and this particular change has taken place more than 1,000 or 1,500 years ago, of which time there is a paucity of material. The exact time when the change took place is immaterial. It is the evidence of these witnesses that the original word was "Parsa" and that after a lapse of time it changed into "Parsi", there having been, according to Rashid, an intervening change of the word into "Parsik".

Chronologically speaking, the next piece of evidence relied upon on behalf of the plaintiff is the use of the word "Parsi" in certain Shlokas which Nairyogang, the leader of the first immigrants from Persia to Sanjan in India, addressed to the Hindu King then having suzerainty over the territory wherein Sanjan was situated. Mr. Vachha relied upon the translation of these Shlokas, or rather portions of such translation, as appearing in a book published in 1917. These portions have been put in as Exh. A-5. The original book is intituled as "Les Parsis" and is written by Mille Menant in the French language and was published in 1898. M. M. Murzban has translated that book into English and published the same with his own comments thereon. At the end of each of the Shlokas appear the words "those are we Parsi". The word as appearing in the book undoubtedly is "Parsi". That, however, is the translation firstly from French and the original writing is supposed to be in Sanskrit. Nairyosang is supposed to have addressed those Shlokas in Sanskrit. What was the actual word used in Sanskrit does not appear from the record before me. Even the date of Nairyosang is a matter of dispute. Under the circumstances, in my opinion, no importance can be attached to the word "Parsi" or "Parsis" as appearing in the English translation, Exh. A-5.

Mr. Vachha has stated that even after the conquest of Iran by the Arabs the original inhabitants of Iran were continued to be called "Parsis". He further stated that originally even the Zoroastrians of Iran who converted themselves to Islam were also continued to be called Parsis in some cases. He gave two illustrations. One of them was that of Salman-e- Farsee and the other that of Majuddin-e-Hangar-e-Farsee. According to Mr. Vachha Salman-e-Farsee was a contemporary and a close friend of Prophet Mahomed, and Majuddin-e-Hangar-e-Farsee flourished in the 13th century A. D. Mr. Chhatrapati contended that from this evidence it appears that even non-Zoroastrians were referred to as "Parsis". Mr, Vachha has, however, made it dear that these were exceptions and that Salman-e-Farsee was originally a Zoroastrian but was later on converted to Islam. Now, the word "Farsee" as used in Salman-e-Farsee appears to be an appellation and it was used after Salman was converted to Islam for the purpose of distinguishing which Salman was meant. Rashid has, however, stated that there is a difference of opinion amongst scholars, as to whether Salman e Farsee was originally a Zoroastrian. In view of this state of evidence it cannot be concluded, as contended by Mr. Chhatrapati, that all inhabitants of Persia including non-Zoroastrians were known as "Parsis" after the Arab conquest. These are but two exceptional cases and no generalisation can be made from the same that even Muslims of Iran were known as Parsis.

After the time of Salman-e-Farsee and before that of Majuddin-e-Hangar-e-Farsee, chronologically, comes the evidence as to Firdausi. Mr. Vachha has stated that in Firdausi''s writings there are a number of references to the Zoroastrians of Iran as "Parsis". Firdausi flourished between 025 A. D. and about 1020 A. D. According to Mr. Vachha, the original word used by Firdausi in his writings is "Parsi" with the plural thereof as "Parsiyan". In his cross-examination Mr. Vachha however stated that Firdausi, in his works, referred to the inhabitants of the whole country known as Iran or Persia as Iranians or Parsis. On this part of the evidence of Mr. Vachha, viz. that the inhabitants of the whole country were referred to by Firdausi as "Parsis", Mr. Chhatrapati has contended that all the inhabitants of Iran, whether Zoroastrians or Muslims, were referred to by Firdausi as Parsis and that the word "Parsis" therefore was not merely confined to Zoroastrians. From the writing of Firdausi it can be concluded that during the 10th century A. D. the word "Parsi" was in use with reference to the inhabitants of Iran. Unfortunately on the evidence as it stands there is no indication as to what period Firdausi''s writings referred to. Was he using the word "Parsi" in connection with the inhabitants of Iran of his own day, i. e. of the 10th century A. D., or was he using it in connection with the inhabitants of Iran of the times preceding his and if so what? In view of this deficiency, it is not possible to properly evaluate the point urged by Mr. Chhatrapati. Mr. Banaji argued that it is well-known that Firdausi in his writing deals with Iran of the period prior to 631 A. D., i.e. prior to the Arab invasion and that it is but natural that Firdausi should refer to the inhabitants of the whole country Iran as Parsis because prior to the Arab invasion all the inhabitants of Iran were Zoroastrians. Unfortunately for Mr. Banaji''s present argument there is no such evidence on the record. The fact, however, remains that as the record stands it is difficult to ascertain as to what period was referred to by Firdausi in his writings when he used the word "Parsi" in respect of the inhabitants of the whole country Iran.

The next in chronological sequence are certain Colophons. Dastoor Mirza has explained that "Colophon" means a post-script written by the author himself to his own manuscript writing. Three Colophons have been relied upon in this case and chronologically arranged, the same are Exh. A-20 (of which Exh. A-21 is the English translation), Exh. A-16 and Exh. A-15. Each of these three Colophons itself mentions its date, the same being S. Y. 1377, 1378 and 1379 respectively, the first corresponding to 1320 A. D. and the latter two to 1322 A. D. These three Colophons are in Sanskrit although the Sanskrit language as used is poor. From these Colophons it appears that one Meharvan Kaikhushru came from Iran to India and that he has written some books and to these books he has appended these Colophons. In these Colophons, Meharvan has stated that he was a Parsi priest and that he came from Persia to India on an invitation from India. In each of these three Colophons Meharvan uses the words "priest of the Parsi caste" in describing himself. The word in Sanskrit is "Parsi" and from the context it is clear that it was used in connection with the Zoroastrians of Iran. Dastoor Mirza has stated that Meharvan was a Parsi priest in Iran and that he was invited to India by one Chahil Sangan, who was a wealthy Parsi merchant at Cambay and that Meharvan flourished in about the beginning of the 14th Century A. D.

The next in chronological sequence are the Rivayats which are, according to the evidence of Rashid, the letters written from time to time over the last three or four hundred years by various Parsis of Iran to Parsis of India. Dastoor Mirza has stated that the first Rivayat was received in 1478 A. D. and the last some time in the 18th century and that during this period there were received 22 Rivayats in all. In the book entitled, "Grundrisa Der. Iranischen Philologie" which was published in 1896-1904 there are collected various articles written, by various scholars. All the articles except one are in German. The one which is not in German is written in English by Dr. West, a well-known scholar, who was also a great Iranian scholar. Dr. West''s article appearing in the book is on Pehlvi literature and to that, article Dr. West has appended an appendix which deals with the modern Persian Zoroastrian literature of the Parsis. Dr. West has divided his article into various sections and copies of sections 123 and 124 of that article have been put in as Exh. A-13. In Exh. A-13 Dr. West has explained what these Rivayats are. In. the article when dealing with the Rivayats Dr. West has used the phrase "Parsis in Persia" or "lranian Parsis" or similar phrases. It is true that in Exh. A-13 Dr. West has used the word "Parsis" in connection with the Zoroastrians of Iran. Unfortunately there is no evidence before me to show what is the, word used in the Rivayats themselves. All that can be said from Exh. A-13, is that the word "Parsi" has been used for the Zoroastrians of Iran by Dr. West, but there is nothing to show that in any of the 22 Rivayats received at different times between 15th and 18th centuries that word has been used in that connection. Exhibit A-13 is, therefore, not useful to show that the word "Parsi" was used during the period of the Rivayats.

The next in the chronological sequence come Exhs. T and U which are two extracts from two articles written by Maulana Shibli Nomani in different Urdu Magazines. Maulana Shibli died in 1914. His articles were, however, subsequently collected and printed in a book form and that book is known as Maqalat-e-shabli. The said two extracts are from the 5th volume of that book. The first extract is Exh. T which is an article published in the Urdu magazine "An Nudva", Volume, II, No. 6 of September 1905 and Exh. U is an extract from another article of Maulana Shibli also published in the same issue of An Nudva. Exhibit T mentions that at the time when Akbar (the Mogul Emperor of India) formed the religious conference and invited to it the religious heads of every religion and faith from far and wide, he carried on epistolary correspondence with Iran and at that time the Chief religious head of the Parsees was Azar Kaiwan. Mr. Chhatrapati commented that this passage does not clearly show that Azar Kaiwan was the chief religious head of the Parsis in Iran and that it is possible to read that Azar Kaiwan was at that time the religious head of the Parsis in India. In my opinion, this would not be a fair reading of Exh, T because the first sentence mentions that Akbar carried on correspondence with the heads of every religion and faith from far and wide and then mentions particularly that he carried on especially correspondence with Iran. This first sentence suggests that the correspondence was carried on. by Akbar with religious heads outside India because Iran is specifically mentioned. The next sentence, therefore, when it mentions Azar Kaiwan as the chief religious head of the Parsis must, in the context, be read as meaning the religious head of the Parsis in Iran''. Moreover "Parsis" as occurring in Exh. T must have a reference to the Zoroastrians of Iran because the passage contemplates correspondence with the heads of each religion meaning thereby a religion different from that of Akbar. Akbar was a Mogul Emperor. Mogul Emperors were Muslims, although it is a historical fact that Akbar took a broader view of religion and tried to found a different religion. But still in this context I am inclined to take the view that the reference to "Parsis" is a reference to the Zoroastrians of Iran. So far as Exh. U is concerned, although Mr. Chhatrapati has offered no comment, it is quite clear that no special significance can be attached to it save that the word "Parsis" has been used in this passage in connection with religion, the words used in Exh. U being "articles of faith".

I will next refer to Exh. R which is the meaning of the word "Parsa" as appearing in Burhan-i-Quateh which is a Persian into Persian Dictionary. Exhibit R is the last piece of evidence relating to the first period. Rashid has stated that that dictionary was edited by Mahomed Husein-i-Tabreji, his surname being Burhan, and that the book mentions that it was edited in 1651 A. D. Now the dictionary is a Persian into Persian Dictionary and in giving the meaning of the word "Parsa" it says that the word "Parsa" is also used in the sense of "Parsee", the word "Parsee" having been used in this dictionary in the original Persian language. Exhibit R shows that the word "Parsee" was in such wide use in 1651 A. D. that it was used in this dictionary for explaining the word "Parsa". As regards Exh. R, Mr. Chhatrapati commented the though it is true that the word "Parsee" has been used, there is nothing to show that it was used in connection with Irani Zoroastrians. That comment is true but I have to take along with or in the context of the other evidence. The evidence relating to this period shows that the word "Parsi" had come into use in Iran at least since tine'' time of Firdausi. The word "Parsi" has been used in connection with Salman-e-Farsee and Majuddin-e-Hangar-e-Farsee and also by Firdausi in his writings and in the Colophons and in Burhan-Quateh.

On this evidence, in my opinion, it. is not clearly established that the word "Parsee" was used in respect of Zoroastrians or that it was used for Muslims only. I do not mean that there is any evidence that it was used for Muslims. There is no such positive evidence except in the two exceptional cases of Salman-e-Farsee and Majuddin-e-Hangar-e-Farsee. But even as regards those two exceptional cases Mr. Vachha has stated that the two persons were originally Parsis and were merely continued to be so-called. But the three Colophons. Exhs. A-20, A-16 and A-15 clearly show that the word "Parsi" was used in Iran in the beginning of the 14th century in connection with the Zoroastrians of that country. The last piece of evidence as regards this period is the Burhan-i-Quateh which is of 1651 A. D. I have analysed the evidence which has been led before me as regards this period, but I am really not concerned with ascertaining whether by 1651 A. D. the word "Parsi" was applied only to Zoroastrians or not. The evidence is meagre and is not quite clear. But it is also not material for me.

Before parting with the evidence relating to this period, it may be stated that during his cross-examination Mr. Chhatrapati attempted to show that the Zoroastrians of Iran were known in Iran as "Gabr", the word being variously spelt as "Gabr", "Guebre" and "Guevre". I do not think it necessary to refer to the same for the simple reason that even if the Zoroastrians of Iran were known as "Guebre", it would not lead to the conclusion that they were not known as "Parsis". Mr. Chhatrapati has also made a similar attempt to show that the Zoroastrians of Iran were known as "Iranis". But to my mind what I have said in connection with "Guebre" applies with equal force to "Iranis".

I will now deal with the evidence relating to the second period which covers the last about a hundred years.

The condition of the Zoroastrians of Iran under the Muslim rule was far from satisfactory. Prior to 1854 a society was formed in Bombay named ''The Society for the amelioration of the conditions of the poor Zoroastrians in Iran." In 1854 the Parsis of India sent an emissary, one Maneckji Hateria, to Iran and he tried to improve the condition and status of the Zoroastrians in Iran. Since long prior to 1854 there was a Zazia or Poll tax levied on the Parsis of Iran and one of the efforts made by Maneckji Hateria was to bring about its abolition. As a result of his efforts the Poll tax was ultimately abolished in about 1882 A. D. The said society has published two books, the first dealing with the period October 1, 1858 to March 20, 1861 which was published in 1865 and the second dealing with the period March 21, 1861 to March 20, 1864 which was published in 1866 A. D. Both these books are in the nature of the publication of its accounts of the said period and the report as to the work done by the society. There are certain letters appearing in these hooks and reliance is placed on those letters to show that in the sixth and the seventh decades of the nineteenth century the Zoroastrians of Iran were known as Parsis both in Iran and in India. The first of such letters relied upon is Exh. E which is dated August 10, 1858. That is a letter addressed by Maneckji Hateria to the Prime Minister of the Government of Iran and in that letter he refers to the members of his community, i.e. the Zoroastrians of Iran, as Parsis. The next is the letter, dated August 27, 1858, Exh. F, written by Maneckji Hateria to Mirza Shafi who, Rashid has stated, was the then Governor of Yezd. Then comes the letter, Exh G, which is dated August 31, 1860, and was written by Maneckji Hateria to Amin-Ul-Daulla-Farokh Khan who, according to Rashid, was one of the courtiers of the King of Iran at that time. In both Exhs. F and G Maneckji Hateria has referred to the Zoroastrians in the one of Iran and in the other of Yezd and Kerman, two Provinces of Iran, as Parsis.

The next in chronological sequence are Exhs. C, D and B, the dates of Exhs. C and D not appearing on the record and the date of Exh. B being December 29, 1862. Exhibit C is a letter written by Maneckji Hateria to Amin-Ul-Shura Pasha Khan who, according to Rashid, was a Minister to the King of Iran. Exhibit D is a letter written by Maneckji Hateria to Ala Hazrat Akdash Humayun Nasruddin Shah, the then King of Iran. In both these letters Maneckji Hateria uses the word "Parsis" for the Zoroastrians of Iran. In his work Maneckji Hateria had taken the assistance of the then French Consul in Iran who was one Count Gobineau. It appears that a letter of thanks for the assistance rendered by him was sent to Count Gobineau to which he sent a reply. That letter in reply is in the French language but Count Gobineau himself made a translation thereof in Persian and copies of both, the original letter in French and his translation thereof in Persian are to be found in the second of the said two books. Count Gobineau''s said letter in French as well as in Persian and an English translation thereof are Exh. B collectively. Now, in Exh. B Count Gobineau uses the word "Parsis" in connection with the Zoroastrians of Iran. As regards Exh. B Mr. Chhatrapati commented that the original letter to which Count Gobineau sent his reply Exh. B has not been produced and that it may be that Count Gobineau happened to use the word "Parsis" of Iran, because that was the word used in the original letter of thanks sent to him. That is certainly a possibility, but in view of the word ''Parsis" having been used for the Zoroastrians of Iran in the said five other letters which are of about the same date, I am inclined to take the view that it may not be that it was because of the reason suggested by Mr. Chhatrapati that Count Gobineau used the word "Parsis" in his letter for the Zoroastrians of Iran.

The next in chronological sequence is Exh. S which is a portion from the introduction by Spiegel to a book on Avesta written by Arthur Henry Bleeck. This book was published in 1864. In Exh. S Spiegel has used the word "Parsis" for the Zoroastrians of Iran. From Exh. S there is no doubt that Spiegel used that word "Parsis" only for the Persians who were professing the Zoroastrians faith.

The next two pieces of evidence are Exhs. J and K. Exhibit J is a portion from the introduction by Dr. West to Volume V of "The Sacred Books of the East". Volume V was published in 1880. In the introduction Dr. West is dealing with Zoroastrian religion and he refers to the religion and the scriptures of that religion as "Parsi Religion" and "Parsi scriptures". The way in which Dr. West uses it clearly shows that he was equating Parsis with Zoroastrians of Iran. Exhibit K appears in a foot-note in Volume XVIII of "The Sacred Books of the East" which was edited by Max Muller, which volume was published in 1882. In this foot-note Max Muller has used the word "Parsi" for a Zoroastrian of Iran. He was editing a book and was referring to religion and conversion and in that context he used the word "Parsi" for an Iranian who was professing the Zoroastrian religion.

The next in time is Exh. A-14 which are various extracts, from the book "History of the Parsis", Vol. I, written by Dosabhai Framji Karaka published in 1884. Karaka has used the word "Parsi" or "Parsis" or "Parsia" in these passages, Exh. A-14. The context in which the word "Parsis" has been used in Exh. A-14 shows beyond the shadow of a doubt that the word was used by Karaka in 1884 for the Zoroastrians of Persia. In this connection the passages from pages 61, 65, 68 and 91 are very important. The passage taken from page 61 and the one at page 65 clearly show that it was used for Zoroastrians because in the same passages distinction has been made between Parsis and Mahomedans and Jews. What was being mentioned were the "believers" in various other religions and in that connection the word "Parsi" has been used. The passage at page 68 uses the word "Parsi" in connection with fire temples and towers of silence which can be associated only with those of the Zoroastrian faith. The passage at page 81 mentions the word "Parsis" of both India and the mother country, i. e. Iran, and the word "Parsis" has been used in the same sense both in connection with India and Iran.

The next in order come certain extracts from the book "Persia and the Persian Question" published in 1892 and written by Curzon who was later Lord Curzon and the Viceroy of India. It is the unchallenged testimony of Mr. Vachha that in 1889-90 Curzon went to Persia as a correspondent of the London Times and that he stayed in Persia for about six months and made a deep study of Persia and thereafter he wrote the said book. That book is in two volumes and certain passages from volume I have been put in as Exh. A-1 and others from volume II as Exh. A-2. These passages clearly show that Curzon has used the word "Parsi" in his book for the Zoroastrians of Iran. For example, the passage from page 240 (part of Exh. A-2) deals with the population of the different religionists, In the same passage Curzon has used the words "Jewish", "Hindu" and "Guebre" or "Parsi". In the passage from page 244 (part of Exh. A-2) the census figures of 1878 have been mentioned and this passage shows the number of people professing different religions and Curzon has used the word "Parsis" as if it was a religion and in the same sense as the other words used by him in that passage such as Mahomedans, Jews, Hindus etc. In the passage from page 493 (part of Exh. A-2) Curzon gives, under the heading "Creeds", the numbers of the population professing the various creeds and in classifying the various deeds he mentions Parsis as a creed along with Shias, Sunnis, Jews etc. It is clear that Curzon, after he stayed in Persia for about six months, used the word "Parsis" synonymously with the people of Iran who professed the Zoroastrian religion.

The next are the passages which have been marked as Exh. A-5 from Marzban''s book "The Parsis in India". When dealing with the first period I have already referred to these passages when I was dealing with the Shlokas addressed by Nairyosang in which he has stated "Those are we Parsis". As already pointed out by me, the original Sanskrit text is not available and, therefore, the Shlokas cannot be read in connection with the first period. However what Murzban has translated in Mlle Menant''s book "Les Parsis" which was published in 1898 and Murzban''s translation thereof was published in 1917. As there is no positive evidence that the word " Parsi" has been used by Mile Menant herself in her book although the title of her book itself suggests that she must have, I would place this evidence contained in Exh. A-5 not in 1898 but in 1917. The passage at page 21 of the book is-Murzban''s own commentary and in that he has used the word "Parsis" and in the context it appears that he has used it in... connection with Zoroastrians of Iran also. Exhibit A-5, there fore shows that in 1917 Murzban used the word "Parsis" for the Zoroastrians of Iran.

The next piece of evidence is Exh. A-13 which, as already seen, is Dr. West''s article with an appendix attached thereto from the book ''Grundrisa Der Iranischen Philologie". The book is a collation of various articles published during the period 1896 to 1904 A. D. In section 123 which is reproduced in Exh. A-13 Dr. West has used the words "Parsis in Persia" as on a par with the Parsis in India, which suggests that by the words "Parsis in Persia" he was referring to the Zoroastrians in Persia.;

The next in sequence. are certain portions of the article written by Zokaul Mulk Forooghi published in the newspaper Tarbiyat of Iran which extracts have been put in as Exhs. P and Q. Both the issues of the Tarbiyat were seen by Rashid in two libraries in Iran, which are not issuing libraries. Rashid, however, made notes of the relevant passages from the original newspapers and he has given secondary evidence of his notes. Exhibit P is the copy as made by Rashid of a portion of an article appearing in the Tarbiyat of January 27, 1905 and Exh. Q is the copy of the notes as made by Rashid of the Tarbiyat of October 18, 1906. Both these Exhs. P and Q show that in 1905 and 1906 the word "Parsi" has been used for the Zoroastrians of Iran. The value of Exh. Q is comparatively greater because therein the word "Parsi" has been used in connection with the inhabitants of Iran in contradistinction to the Muslims of that country and, therefore, the use of the word "Parsis" for the Zoroastrians of Iran is brought out quite distinctly.

The next piece of evidence is Exh. A-4 which are extracts from the book "Five Years in a Persian Town" written by Napier Malcolm and publisher! in 1905. Mr. Vachha has stated that Napier Malcolm was an English missionary who lived in "Yezd in connection with his missionary work for five years in about beginning of the 20th century and thereafter he published his said book recording his experiences. The various extracts, Exh. A-4, clearly show that Malcolm has used the word "Parsis" for the Zoroastrians of Iran. That he used the word "Parsis" for the Iranis who professed the Zoroastrian religion is made abundantly clear because; for example, in the passage at page 44 he refers to the Zoroastrians as Parsis whereas he specifically mentions Jews and Mahomedans as such separately.

The next piece of evidence appertains to the book "Persia, Past and Present" by Jackson. Copies of certain passages from that book are Exh. L. It is Rashid''s evidence that Jackson was in Iran in 1903 A. D. and the statements made by him in the first three passages reproduced in Exh. L refer to the period when Jackson was in Iran and in each of those passages he is referring to the Parsis then living in Yezd or in Iran as mentioned in those passages. The two passages from page 378 of the book clearly show that Jackson has used the word "Parsis" from the point of view of the Iranis professing the Zoroastrian religion, because in the first passage he is comparing the Irani Parsis with their co-religionists in Bombay and in the second passage he is thinking in terms of Mahomedans and Parsis from the point of view of their religion. Exhibit M are two photographs from Jackson''s said book and the writings appearing under those photographs. The writings show the use of the word "Parsi" for the women appearing in those photographs. Exhibit A-6 is another extract from Jackson''s said book and in this passage, when referring to certain persons of Isfahan and Yezd, Jackson says that it was he who had used the word "Guebre" for them, but that those persons themselves designated themselves as Zoroastrians or again as Parsis. This leaves no doubt that Jackson used the word "Parsis" for the people in Iran who professed the Zoroastrian religion. Moreover Exh. A-6 shows that those people who professed the Zoroastrian religion called themselves Parsis.

The next in the order of date comes Exh. A-l8 which is a Farman issued by the Shah of Iran in September-October 1906. Rashid has stated that in about 1896 the Society which I have referred to earlier, which was established in India for the amelioration of the conditions of the poor Zoroastrians in Iran, sent another emissary named Ardeshire Reporter to Iran and he approached the then King of Iran, Muzaffaruddin Shah, for abolishing the pasture and cattle tax which was being collected from the Zoroastrians of Iran and as a result of his efforts the King issued the said Farman abolishing that tax. It is Rashid''s unchallenged testimony that the tax was being collected by the Muslim rulers from the Zoroastrian inhabitants of Iran. It was that tax which was levied on the Zoroastrians, which was abolished by this Farman and in this Farman the word used is "Parsis" which clearly shows that the then ruling King when abolishing the tax used the word "Parsis" in connection with Zoroastrians who were the persons who were liable to pay the tax.

In the review of the evidence relating to this second part, I will pause here momentarily. It is to be noted that the last piece of evidence which I have referred to is of 1906. In the chronological sequence, then comes the judgment of a Special Bench of this Court which was delivered in 1908. I am referring to the judgment in Sir Dinshaw M. Petit v. Sir Jamsetji Jijibhai ILR 33 Bom. 509 = (1908) 11 Bom. L. R. 85. One of the Judges of that Special Bench was Sir Dinshaw Davar who was himself a Parsi and who has been acknowledged by Chagla C. J. as "undoubtedly of very great authority on Parsi law". In that case the question which Sir Dinshaw Davar considered was what was meant by the word "Parsis" who were the beneficiaries of certain charitable trusts and the passage from his judgment appearing at page 128 of the said report shows that according to Sir Dinshaw Davar the Parsi community included, amongst others, "the Iranis from Persia professing the Zoroastrian religion, who come to India, either temporarily or permanently". It is obvious, even on a casual reading of the judgment of Sir Dinshaw Davar, that his Lordship came to that conclusion after considering the evidence led in that case in that behalf. In any event what is to be noted is that an eminent Parsi Judge well-versed in Parsi law, gave a judgment in a case which has attracted great controversy in those days and in which the public had taken great interest that Irani Zoroastrians who were in India, permanently or even temporarily, were Parsis.

The next in the chronological sequence come Exh. A-3 which are extracts from the book "The History of Persia" by Sir Percy Sykes which was published in 1915. These extracts show that Sykes used the word "Parsis" for the Zoroastrians of Iran. There are in Exh. A-3 extracts from four different pages of the said hook. In respect of one of the said passages, viz. the one occurring at page 5 of the book, Mr. Chhatrapati commented that the use of the word "Parsis". in that passage was restricted to the inhabitants of the Province of Fars and that it showed that it did not apply to the whole or any other part of Iran. That, comment of Mr. Chhatrapati is not justified, because the extract from page 109 specifically refers to Kerman which is not situated in the province of Fars and in that passage which refers to the time when Sykes was living at Kerman, he has used the word "Parsis" in connection with the Zoroastrian religionists of Kerman.

Next in the order of dates comes Exh. 5 which is the solitary exhibit relied upon in this connection on behalf of the defendant. It is an extract from the book "Zoroastrian Civilization" by Dastur Dhalla published in 1922. In that extract the word "Parsi" has not been used. But on the contrary it is stated that the Zoroastrians living in Persia were called Iranis. Based on this evidence Mr. Chhatrapati contended that the Zoroastrians of Iran were, at least in 1922, called Iranis and not Parsis. In this connection I must bear in mind the evidence of Rashid when he states that Dhalla merely relied upon western scholars. In any event it is not Dhalla''s statement that the word "Parsi"- was not used in Persia and it, therefore, cannot nullify the positive evidence of the various other exhibits referred to by me. In any event even quantitatively this is one solitary exception against the reliable evidence of so many persons such as Dr. West, Jackson, Curzon and Napier Malcolm, some of whom wrote their books and used the word "Parsis" after having spent a long time in Persia.

Then comes the oral testimony of Rashid and Mr. Vachha. Both of them had visited and stayed in Iran before 1936 when the Act was passed and even thereafter. Mr. Vachha had paid his first visit in 1934 and the second in 1954. It is the evidence of both these witnesses that during their stay in Persia they personally learnt that the Zoroastrians of Iran were called Parsis in Iran, that they were referred to as Parsis and that, they themselves referred to themselves as Parsis. I have not the slightest hesitation in accepting their testimony. Mr. Vachha has even stated that on one occasion he was introduced to an official in Persia as "Parsi-e-Hind", i.e. the Parsi of India. The use of. the phrase "Parsi-e-Hind" would only be for the purpose, of. bringing out the distinction between the Parsis of India and the Parsis of Iran but that distinction is only as regards the country. But what is important is that the Zoroastrians both of India and of Iran were referred to as Parsis. Both of them had met Zoroastrians of Iran in different parts of Iran and Mr, Vachha has stated that he had even stayed at two places in Iran with local Zoroastrian families.

Mr. Banaji has relied upon the meaning of the word "Parsi" as appearing in Heim''s Persian into English Dictionary which was published in 1934 One of the meanings given in that dictionary, which is Exh. O, is that "parsi" means a fire worshipper. I do not propose to place much reliance on Exh. O because the meaning given therein is of the Persian word "Parsi", whereas I am concerned with that word as used in the English language, Of course the word "Parsi" as used in Iran would be in Persian and to that extent Exh. O would be useful because it gives the meaning of the word "Parsi" as fire worshippers and, therefore, co-relates the word with a person professing the Zoroastrian religion, because so far as I know it is only the Zoroastrians who are generally referred to as fire worshippers. As against the dictionary meaning given in Exh. O Mr. Chhatrapati has relied upon the meaning of the word "Parsi" as given in Murray''s Dictionary, 1909 Edn., Vol. VII which is as follows:

One of the descendants of those Persians who fled to India in the 7th or the 8th century to escape Mahomedan persecution and who still retain their religion Zoroastrianism; Guebre.

A similar meaning has been given in the Oxford Shorter Dictionary. Mr. Chhatrapati relied upon the meaning of the word "Parsi" as given in these two dictionaries to show that "Parsi" means only the Zoroastrians of India and not those of Iran. It is true that according to both these dictionaries "Parsis" mean the Zoroastrians of India. The first thing to be noted is that neither of the two dictionaries specifically mentions that the word is not applicable to the Zoroastrians of Iran. I am, however, conscious that if it was applicable the dictionaries would, in normal course, have mentioned it and the absence of the mention of the Zoroastrians of Iran indicates that according to the persons who compiled those dictionaries the word "Parsi" was not applicable to the Zoroastrians of Iran. Rashid who is a scholar of the Persian language has, however, stated that the meaning of the word "Parsi" as given in those two dictionaries is not correct. His opinion has also to be taken into account. But, in any event, I have to evaluate the meaning as given in these two dictionaries in reference to the actual use of the word "Parsi" for the Zoroastrians of Iran by people like Curzon, Jackson and Napier Malcolm who had lived in Iran and who used the word "Parsi" after their personal knowledge and experience in Iran and the actual use in common parlance by the people of Iran as deposed to by Mr. Vachha and Rashid.

Mr. Banaji has also brought on the record Exhs. H. I and V which were published in 1951, 1955 and 1960, respectively. He argued that the word "Parsi" has continued to be used even till to-day for the Zoroastrians of Iran. In my opinion, however, this evidence is not relevant as it pertains to a period subsequent to the Act. of 1946 and I cannot construe the word "Parsi" as used in the Act by referring to what is meant by the word "Parsi" after the said Act was passed.

On this evidence relating to the second period, the position is that when the Act of 1936 was passed the word "Parsi" was in use in respect of not only the Parsis of India but also in respect of the Zoroastrians of Iran. As I have said earlier, the evidence in respect of the first period is not material for my purposes save perhaps to a very limited extent to show that the word "Parsi" was derived from the original word "Parsa" which original word with the passage of time became "Parsik" and thereafter "Parsi". The evidence as regards the second, however, shows that the word "Parsi" was used in respect of Zoroastrians as distinguished from other religionists like Muslims, Christians, Jews etc. Many of the Exhibits already referred to are published books by scholars of repute. The evidence shows that since about the middle of the 19th century the Parsis of India had strived for the amelioration of the condition of their coreligionists in Iran and an Association had been formed for that purpose. That could not have been something which was not known to the public. On the contrary such an association could not have been formed unless the Parsi public in India took interest in it. The Statement of Objects and Reasons of the said Act of 1936 shows that in respect of that Act public opinion was sounded and suggestions had been made in the press, on the platform and by associations and individuals. A judgment of an eminent Parsi Judge, viz. Dinshaw Davar. had construed the word "Parsi" about, 30 years prior to the passing of the Act as including Irani Zoroastrians. Moreover, Sir Dinshaw Davar had construed the word "Parsi" not as occurring in any statute but as used by a Parsi founder of charity who would have used the word in its ordinary common meaning and not in any specific meaning in which sometimes a common word is used in a particular statute. In such circumstances, it cannot be said that at the time when the said Act of 1936 was passed the Legislature was unaware that the word "Parsi" was used in India not only for that community in India but also for the Zoroastrians of Iran. A word in a statute must ordinarily be given the same meaning in which it is commonly understood. On this evidence I have not the slightest hesitation in concluding that the word "Parsi" was used long prior to 1936 as meaning Zoroastrians both of India and of Iran and that it was so used both in India and in Iran. As a matter of fact it was so understood not only before 1936 but even before the Act of 1865. I may state, though it is not relevant, that it has been so understood even after the passing of the said Act of 1936. On this evidence I unhesitatingly come to the conclusion that the word "Parsi" as used in the Act includes not only the Parsi Zoroastrians of India but also the Zoroastrians of Iran.

[The rest of the judgment is not material to this report. The appeal filed against this decision was withdrawn.]