14. Mr Desai puts his case like this: If the right to sue survives, the suit will not abate. If it does abate, and that can only be if the right to sue does not survive, then a fresh suit on the ‘same cause of action’ would be barred. Taher Fakhruddin’s claim is, of necessity, derivative or inherited — he has no stand-alone claim or right he can assert independent of his late father’s claim. This means, as a logical inevitability, that if his father’s suit is held to have abated, then no fresh suit by Taher Fakhruddin is possible; Taher Fakhruddin cannot seek that which died with his father; and without seeking that, he cannot maintain his own claim. We thus pass through the filters of O.22 Rules 1, 2 and 9 and arrive at O.22 R.10. This is not a case of assignment of any interest. It is also not, strictly speaking, a case of a ‘creation’ of an interest. It is a case of devolution of an interest, and that devolution is traced in this suit back to the 52nd Dai. His interest in any estate of the Dawoodi Bohra community was one he held qua the Dai, in that capacity and no other. Khuzemabhai claimed to have succeeded to that interest by virtue of no other ‘right’ other than that which attached to his appointment or nomination as the successor (53rd) Dai by the 52nd Dai. Again, there was no personal interest involved in the sense of there being an interest that inhered in Khuzemabhai as an individual de hors his appointment as the 53rd Dai. Taher Fakhruddin’s claim is drawn from his father’s. Syedna Mohammad Burhanuddin’s ‘interest’ qua the undisputed 52nd Dai is the wellspring of all rights, privileges and entitlements. Thus, Taher Fakhruddin’s claim is one under a process of devolution (as was his father’s), and the suit must
