Bumper Development Corporation v Commissioner of Police of the Metropolis and Others

JurisdictionEngland & Wales
JudgeLORD JUSTICE PURCHAS
Judgment Date13 February 1991
Judgment citation (vLex)[1991] EWCA Civ J0213-5
CourtCourt of Appeal (Civil Division)
Docket Number91/0285
Date13 February 1991
Bumper Development Corporation
Appellant (Plaintiff)
and
Commissioner of Police for the Metropolis
Respondent (Defendant)

[1991] EWCA Civ J0213-5

Before:-

Lord Justice Purchas

Lord Justice Nourse

and

Lord Justice Leggatt

91/0285

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

IAN KENNEDY J.

Royal Courts of Justice

Mr. D. CALCUTT Q.C. and MR. J. STEPHENS (instructed by Messrs Stewarts) appeared on behalf of the Appellant (plaintiff).

Mr A. HAMILTON Q.C. and MR. B. GHORPADE (instructed by Messrs Ziawella & Co.) appeared on behalf of the Respondent (Defendant).

LORD JUSTICE PURCHAS
1

This is the judgment of the court.

2

General Introduction

3

In August or September 1976 an Indian, variously described as a "coolie" or "landless labourer", called Ramamoorthi who lived in a hut near the site of a ruined Hindu temple at Pathur in the State of Tamil Nadu was excavating sand or similar material when his spade struck a metal object. There was a suggestion that it might have been a year earlier, but this was not accepted by Ian Kennedy J., whose finding has not been questioned. The place where he was excavating was close to the hut in which he lived and was either immediately adjacent to or formed part of the site of the Temple. The name of the Temple was the Arul Thiru Viswanatha Swamy Temple to which we shall refer as "the Temple". The object which Ramamoorthi struck formed part of a series of bronze Hindu idols later identified as members of a "family" and was a major idol known as a Siva Nataraja. We shall refer to the Siva Nataraja as the "Pathur Nataraja" and the assembly of idols as the Pathur "bronzes". The overwhelming probability is that they formed part of the religious objects in the Temple which had been endowed in the late 13th Century by a Hindu notable called Avui Thiru Viswanatha. It was later accepted by all parties that the Temple had lain in ruins and unworshipped for a matter of centuries.

4

Notwithstanding his lowly status Ramamoorthi realised that he had discovered objects of value. He reburied them temporarily in the same pit and contacted a friend called Dorai. Dorai came to Pathur, inspected the find and departed saying that he would find a buyer. A few days later Dorai returned with two men, Pillai and Meivel, who proposed to take the Nataraja away to sell it. This was not acceptable to Ramamoorthi unless he was paid for it. The three men departed but a few days later they returned again, this time accompanied by a dealer called Chandran for whom Meivel was a "runner". Chandran was not called to give evidence, but two others, who were in the party were called as witnesses. These were Hussain, who was a part-time dealer in stolen idols and a local government official and Balraj Nadur, who was a major dealer in stolen idols. Of the objects discovered by Ramamoorthi, the Nataraja attracted particular attention from the dealers and was quickly sold, first to Chandran who sold it on down the line via Hussain and Balraj Nadar. The last identified buyer was a man called Valar Prakash, who has not been traced but was last known to be in Madras.

5

Of the religious objects discovered by Ramamoorthi which were recognised as being of the Chola period it is necessary only to describe the Nataraja in detail. The Siva Natarajas are representations of the Hindu God Siva who is found in various forms. The Siva Nataraja can be described in a thumbnail sketch as the god standing with his right foot upon a dwarf and surrounded by a "halo" which represents the flames issuing from the mouths of two crocodiles situated to the left and right of the dwarf. At the top of the halo in some Natarajas there is to be found a design either in the form of a mask or a rosette or similar adornment known as a "Kurti Muka". Round the halo there are a number of "flames" issuing radially from the halo. Depending upon the period when and the area in which they were made the Siva Natarajas vary in many respects. The one with which this appeal is concerned is circular; but many others are oval in shape. The Nataraja with which this appeal is concerned had a lotus base mounted on a square-shaped peedam or pedestal.

6

Returning to Siva, the design again varies according to date and place. The Chola Natarajas have a number of identifying features, some of which are relevant and to which it would be convenient to refer in outline. The god has two right and two left arms and hands but only two legs right and left. He has on each side of his head horizontally flowing hair described as jettas. Various objects and representations are imposed upon or incorporated in the jettas including a particular one called a "ganga". In one of his right hands and around the wrist there is coiled a snake—a cobra. In one of his left hands he holds another flame. This very brief description will suffice for the moment.

7

Between 1974 and 1977 there were circulating in London at least two and almost certainly more Siva Natarajas. It was common ground that throughout the world there are many hundreds if not thousands of Siva Natarajas; most of which were, of course, associated with the many Hindu temples and which over the centuries have been objects of worship both in India and in other places where the inhabitants embraced the Hindu religion. There were and are Siva Natarajas in many leading museums and in the present century at least they have been recognised and valuable artefacts dealt in by those who specialise in Eastern religious items. However, it may fairly be assumed that there were not very many Siva Natarajas circulating in the London market in the 1970s and fewer which showed signs of having been buried for centuries. There were certainly two which had been traced as having been stolen from temples in India in current worship and which were impounded by the Metropolitan Police and returned to their appropriate owners. The Siva Nataraja or Natarajas with which this appeal is concerned were, however, objects which had long been buried and had accordingly deteriorated as a result.

8

Returning to the position in London in the years 1974/77 an "antique Nataraja", that is to say one which had been buried and had suffered accordingly, was, according to the evidence of Dr. Presencer, shown to him in May 1976 in London. We will refer to this as "the London Nataraja" since there seems to be little dispute that this was the same Nataraja that was bought by Bumper. If this was true then it would establish that the London Nataraja could not have been the one excavated by Ramamoorthi. There is now, as a result of additional evidence which was admitted during the appeal, further evidence of an antique Nataraja being offered on the London market as early as Easter 1974. This evidence came from an American dealer who specialised in these objects named Robert Ellsworth.

9

Information came to the State officials in Tamil Nadu as a result of which criminal investigations were put in hand. Statements were taken from Ramamoorthi and the others about the discovery and subsequent history both of the Pathur Nataraja and of the Pathur bronzes. The statements taken in India from Ramamoorthi, Hussain and others have formed part of the evidence at the trial from which this appeal results.

10

On the 10th June 1982 the Bumper Development Corporation ("Bumper") purchased in good faith the London Nataraja from a dealer called Sherrier. It is common ground that Sherrier produced a false provenance of the Nataraja for the purpose of the sale. It was whilst it had been sent to the British Museum for appraisal and conservation that the London Nataraja was seized by the Metropolitan Police as part of a policy of returning religious artefacts, which it was thought had been stolen, to their owners in India. Bumper brought the action against the Commissioner of Police for the Metropolis and two of his officers in detinue and conversion claiming the return of the Nataraja and damages. The present proceedings result from the position taken by the defendants as interpleaders and the addition of others as "claimants" to the London Nataraja. Returning to the Temple site at Pathur, amongst the surviving ruins and materials there was a stone object of religious worship known as a Sivalingam. In the normal Hindu temple of this period this stone would have been positioned in the sanctum and would be the focus of religious worship. It is a carefully fashioned stone object representing a phallus. It has survived and was discovered amongst the ruined remains of the Temple. Since the inception of these proceedings it has been reinstated as an object of religious worship at the site of the Temple.

11

Current proceedings

12

The court has before it an appeal by Bumper from an order of Ian Kennedy J. made on the 17th April 1989 as a result of a judgment delivered by him on the trial of a preliminary issue. The claimants are: the Union of India as first claimant, the State of Tamil Nadu as second claimant, Thiru Sadagopan who claims as the "fit person" of the Temple on his own behalf as third claimant, and on behalf of the Temple itself as fourth claimant. The Sivalingam was added as fifth claimant at a late stage of the trial of the issue. The nature and locus standi of the fifth claimant will be described subsequently in this judgment. Although the Union of India now makes no claim to the London Nataraja, it underwrites any liability in costs which may be incurred by the other claimants in the present proceedings.

13

The issue which was tried by the judge related to the title possessed by the various parties to the London Nataraja. The matter fell for consideration into...

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