Gaudiya Mission and Others v Kamalaksha DAS Brahmachary

JurisdictionEngland & Wales
Judgment Date30 July 1997
Judgment citation (vLex)[1997] EWCA Civ J0730-3
Docket NumberCHANI 97/0581/B
CourtCourt of Appeal (Civil Division)
Date30 July 1997
Gaudiya Mission & Ors
Brahmachary & Ors
Sixth Defendant/Appellant

[1997] EWCA Civ J0730-3


Lord Justice Leggatt

Lord Justice Morritt

Lord Justice Mummery

CHANI 97/0581/B





Royal Courts of Justice


London WC2

MR W HENDERSON (Instructed by the Treasury Solicitors, London SW1H 9JS) appeared on behalf of the Appellant

MR P YAJNIK (Instructed by Messrs Markand & CO, E7 8LJ) appeared on behalf of the Respondent


Wednesday, 30 July 1997


The issue in this appeal is whether the first plaintiff, the Gaudiya Mission, is a "charity" within the meaning of the Charities Act 1993 ("the 1993 Act"). If it is, these are "charity proceedings" within the meaning of the 1993 Act and they require the leave of the Charity Commission or the Court to be taken or continued. It would also be proper to join HM Attorney-General as a defendant to the proceedings.


Mr David Oliver QC (sitting as a Deputy Judge of the High Court) held that the Mission was a charity and made the following Order on 14 March 1997:

"1. Her Majesty's Attorney-General be added as a Defendant to these proceedings

2. The Plaintiffs do forthwith lodge a statement containing the information required by Rule 3(3) of Order 108 of the Rules of the Supreme Court

5. The Plaintiffs do have leave pursuant to Section 33(5) of the Charities Act 1993 to take and continue these proceedings."


The Attorney-General was granted leave to appeal from that Order. By his Notice of Appeal dated 23 April 1997, the Attorney-General seeks an order that he ceases to be a party to these proceedings, and that it be declared that leave is not required for the taking or continuing of them.


Mr William Henderson, counsel for the Attorney-General, submitted that the Mission was not a "charity" within the 1993 Act, because it is established in Calcutta and not in England and Wales, and is not subject to the control of the High Court in exercise of its jurisdiction with respect to charities.


Mr Yajnik, counsel for the first defendant, contends that, as a result of its activities in England, the Mission is established here and that it is subject to the Court's control. He contends that the judgment below was correct and that the appeal should be dismissed. We are grateful to both counsel for their concise, helpful arguments. The other defendants have taken no part in the appeal.


The background to this dispute may be summarised as follows. The Mission maintains preaching centres and temples known as "Maths":

"…To spread the doctrines and philosophy enunciated in the Vaishnava Faith as preached and propounded by Lord Sri Chaitanya Mahaprabhu for the uplift, development and fulfilment of mankind at large through the preaching of the doctrines with—

(a) Spread of education,

(b) Medical Relief,

(c) Relief of the poor and

(d) Advancement of any other objects of general public utility not involving the carrying on of any activity for profit."


There are centres for those purposes throughout India. There is also such a centre at 27 Cranhurst Road, Cricklewood, NW2 ("the London Temple").


The Mission has a president, who is the second plaintiff, and a secretary, who is the third plaintiff. The Mission itself, joined in these proceedings as first plaintiff, claims that under the law of India it is a corporate body separate from its members. This is not challenged so far in these proceedings. It is registered in Calcutta as from 26 March 1940 under the Societies Registration Act 1860. It enjoys charitable status in India. It is not registered as a charity in England or Wales, but this case has so far proceeded on the basis that its objects are such that it would be entitled to charitable status for those objects in this country. We have heard this appeal on that basis, but we have heard no argument and make no decision on whether the assumption which has been made is legally correct.


The first defendant is the priest in charge of the London Temple. These proceedings are part of a long-running battle, which is also being litigated in the Courts in India, between rival factions within the Mission struggling for control of it.


By a Deed dated 1 July 1996, a Declaration of Trust was made by three trustees in London to establish a charitable trust, under the name Gaudiya Mission Society Trust, for the advancement of religion in accordance with the tenets of the Hindu Vaishnava Faith.


This case is not concerned with that Trust, though its existence has been noted in these proceedings, and has featured to some extent in the arguments. It is a registered charity. Three of the defendants are sued as present trustees of that Trust. It is claimed within these proceedings by the plaintiff Mission that assets held by the Gaudiya Mission Society Trust are in fact assets to which the plaintiff Mission is entitled. It is also claimed that the Gaudiya Mission Society Trust is passing itself off as and for the plaintiff Mission.


It is claimed in this action, begun by a writ issued on 23 October 1996, that a declaration should be granted that the London Temple, its premises, and all monies and funds donated, raised and acquired on its behalf, are the property of the plaintiff Mission, and are subject to directions given by the plaintiffs. Injunctions are sought restraining the defendants from conducting the affairs of the London Temple, and using those premises otherwise than in accordance with directions given by the plaintiffs and from withdrawing or dealing with money in the Mission's bank accounts. Consequential orders for accounts and inquiries are sought.


On a motion for interim relief, Robert Walker J granted a temporary injunction on 7 November 1997 over the hearing of the motion by order. That motion came before Mr David Oliver QC on 14 January 1997, along with a further motion issued on 9 January 1997, seeking additional interlocutory injunctions. Judgment was given on 20 February on the basis of certain undertakings offered by the first defendant. But the motion was adjourned to enable the consent of the Charity Commissioners to be sought. This step was taken because it had been submitted by the first defendant's counsel that the Court had no jurisdiction to entertain these proceedings, or the application for relief, as the consent of the Charity Commissioners was required under section 33 of the 1993 Act, and had not been obtained.


At the adjourned hearing on 7 March, counsel for the Attorney-General submitted that the Mission was not a "charity" within the meaning of section 33(2) of the 1993 Act, and that, though the Commissioners were willing to give their consent if it was necessary, it was not in law necessary.


Before turning to the decision of the Judge and the arguments on this appeal, it is necessary to refer to the relevant provisions of the 1993 Act. Section 33 deals with proceedings and provides:

"(1) Charity proceedings may be taken with reference to a charity either by the charity, or by any of the charity trustees, or by any person interested in the charity, or by any two or more inhabitants of the area of the charity if it is a local charity, but not by any other person.

(2) Subject to the following provisions of this section, no charity proceedings relating to a charity (other than an exempt charity) shall be entertained or proceeded with in any court unless the taking of the proceedings is authorised by order of the Commissioners.

(5) Where the foregoing provisions of this section require the taking of charity proceedings to be authorised by an order of the Commissioners, the proceedings may nevertheless be entertained or proceeded with if, after the order had been applied for and refused, leave to take the proceedings was obtained from one of the judges of the High Court attached to the Chancery Division.

(8) In this section 'charity proceedings' means proceedings in any court in England or Wales brought under the court's jurisdiction with respect to charities, or brought under the court's jurisdiction with respect to trusts in relation to the administration of a trust for charitable purposes."


Section 96(1) contains provisions for the construction of references to a "charity" in the Act. The relevant parts can be extracted as follows:

"(1) In this Act, except in so far as the context otherwise requires—

'charity' means any institution, corporate or not, which is established for charitable purposes and is subject to the control of the High Court in the exercise of the court's jurisdiction with respect to charities…"


Section 97 contains general interpretation provisions:

"(1) In this Act, except in so far as the context otherwise requires—

'charitable purposes' means purposes which are exclusively charitable according to the law of England and Wales;

'the court' means the High Court and, within the limits of its jurisdiction, any other court in England and Wales having a jurisdiction in respect of charities concurrent (within any limit of area or amount) with that of the High Court, and includes any judge or officer of the court exercising the jurisdiction of the court;

'institution' includes any trust or undertaking;

'trusts' in relation to a charity, means the provisions establishing it as a charity and regulating its purposes and administration, whether those provisions take effect by way of trust or not, and in relation to other institutions has a corresponding meaning."


Finally, section 100 provides:

"(2) Subject to subsection (3) to (6) below, this Act extends only to...

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