Varsani v Jesani
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MORRITT,LORD JUSTICE CHADWICK,THE PRESIDENT |
| Judgment Date | 03 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0403-7 |
| Docket Number | CHANI 97/1067 CMS3 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 April 1998 |
[1998] EWCA Civ J0403-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE CARNWATH)
Royal Courts of Justice
Strand
London WC2
The President
Sir Stephen Brown
Lord Justice Morritt
Lord Justice Chadwick
CHANI 97/1067 CMS3
and
MR C A BRODIE QC with MR D GERRANS (Instructed by Messrs Bhardwaj & Co Solicitors, London WC1X 1DD) appeared on behalf of the Appellants
MR J McDONNELL QC with MR R PEARCE (Instructed by Messrs Bindman & Partners, London WC1X 8QF) appeared on behalf of the First and Second Respondents
MR W HENDERSON (Instructed by the Treasury Solicitor) appeared on behalf of the Attorney-General
Friday, 3 April 1998
This appeal from the order of Carnwath J made on 20th May 1997 concerns the jurisdiction of the Court to make a scheme for the division of the funds of a religious charity when the adherents to the faith for the promotion of which the charity was established have been divided by a schism. Carnwath J considered that he had the necessary jurisdiction and gave directions to enable a suitable scheme to be prepared for the consideration of the Court.
The charity concerned was constituted by a Declaration of Trust made on 15th April 1967 by three of the four parties to these appeals, namely Mr Jinabhai Ramji Jesani, Mr Mavji Karsan Patel and Mr Premji Devraj Varsani. The fourth party is H.M.Attorney-General whose duty it is in representing the Crown as parens patriae to intervene for the purpose of protecting charities and to afford assistance to the Court in the administration of charitable trusts. The Declaration of Trust recited that there had been a general expression of desire on the part of many persons professing the faith of Swaminarayan and living in the neighbourhood of Hendon, London, N.W.4. to promote such faith. By clause 1 it was provided that the charity, to which I shall refer as "the Charity", should be called "Shree Swaminarayan Sidhant Sajivan Mandal London". Clause 2 stated that
"The objects of the charity are to promote the said faith of Swaminarayan."
Clause 3 directed the Trustees, who were and still are the three parties to the Declaration of Trust, to hold the freehold property specified in the schedule "upon trust to use and maintain the same for the use of the said faith as aforesaid". The remaining clauses contained administrative and other ancillary provisions commonly found in such a declaration of trust. The schism to which I have referred occurred in 1985. At that time the assets of the Charity comprised Temples in North London and Bolton, Lancashire, to a then aggregate value of £540,000 and an endowment fund of about £26,600. Since the schism further assets have been acquired by each of the two groups of adherents.
The background relevant to the consideration of the issues which have arisen was fully described by Carnwath J. It is unnecessary for me to do more than quote the relevant passage from his judgment. He said:
"At the date of the 1967 Deed the plaintiffs and the defendants were both followers of a Hindu sect, Shree Swaminarayan Gadi, based in Maninagar, Gujarat, India. The sect was one of several which follow the faith of Swaminarayan. The faith of Swaminarayan was founded in the early 19th century by Shree Swaminarayan Bhagwan ("the founder") in Gujarat in India. It is a Hindu religion with a large following in India and elsewhere. An essential tenet of the faith is that the founder is believed to have been the incarnation or manifestation of the Supreme Being. The founder established a structure involving two classes of adherents, ascetics ("sadhus") and lay members. He organised his followers into two groups, one at Vadtal and the other at Ahmedabad in Gujarat.
After the founder's death, there were divisions among his followers, concerned particularly with the identity and nature of his successors. The sect with which I am concerned originated from the Ahmedabad centre. They believe that there has been a direct line of succession from the founder through three other successors to Shree Muktajivandasji Swaminarayan ("Muktajivandasji"). Until the 1940s he was a sadhu in the Ahmedabad temple, which followed the principle of lay succession. At that time he broke away from the Ahmedabad temple and declared himself to be the true successor. His group established a temple in Maninagar, Ahmedabad. That was and remains the headquarters of the sect.
In the late 1940s it became part of the beliefs of that group that he was himself the re-incarnation of the founder and had acquired divine status. It is common ground between the parties before me that the word Acharya (meaning "leader") is properly used to denote the founder's successors down to and including Muktajivandasji; and that the faith as it was understood by those who established the 1967 trust required recognition both of the supreme authority of these Acharyas and that they were "invested with divine attributes". The sect has a large following in India and much smaller groups elsewhere in the world, particularly East Africa, England and the USA.
Muktajivandasji remained the Acharya or leader of the sect until he died in 1979. In 1969 he had established a constitution governing the affairs of the sect, including his succession ("the 1969 constitution"). He chose as successor Shree Purushottam Priyadasji. He is the person whose status is now in issue. I shall refer to him as "the Successor".
The 1969 Constitution was promulgated by Muktajivandasji, with the approval of the sadhus and a committee of lay members, to deal with various matters relating to the management of the sect and in particular with the question of succession. It governs the community of the saints in the temple at Maninagar and is, as I understand it, the authoritative document governing the succession to the Acharyas and the status of such successors. In a preface to the Constitution it is stated that Muktajivandasji had laid down in the Constitution guidelines and limitations for future religious heads "that the successor may be given respect but not more than that which was given to the Oriental Religious Head". Clause 7 provides that Muktajivandasji —
"Is and shall ever be the Oriental Establisher and the Permanent Principal of this Mandal (congregation)."
It provides that, among his other privileges, he is to make appointments of his successor in office and of members of the "Helping Committee". Clause 8 is headed "Successor in office from time to time of the mandal." It provides that any member appointed as successor by the Acharya shall be deemed his successor in office and shall have the right in turn to appoint his own successor. Clause 8 (14) deals with misconduct of a successor. It provides
"Unfortunately, if at any time any successor in office from time:
1. Gets involved in any offence/criminal act;
2. Becomes defaulter, that is he violates the tradition;
3. Acts against the principles, the objects and the rules mentioned in the Constitution of this congregation;
4. Fails to conduct himself in accordance with the ordains of this Constitution or fails to get others conduct themselves in accordance with this Constitution —
in such circumstances and on aforesaid reasons, such successor in office from time to time shall be deemed unworthy to hold that office; and automatically of itself he will be deemed as removed from the office of the successor; and for the purification of his soul and if such successor in office confesses his guilt, such penance as may be decided by the Helping Committee shall be observed/suffered/undergone by such successor; and he is bound to undergo the said penance. However, if such a successor in office disregards the said decision of the Helping Committee and does not abide by it, the Helping Committee shall call a general meeting of the members of this congregation and if two thirds of the members present in such a meeting vote for removal such successor from his office, that shall be done. In such contingency a new successor in office shall be appointed in accordance with para 8 (3) of this Constitution….".
Clause 9 deals with the membership and role of the Helping Committee. It was to consist of five members appointed by the Acharya or his successor. They were to be members of the congregation who were "senior in asceticism"."
The events which gave rise to these proceedings were described by Carnwath J in the following terms:
"In 1985 the members of the sect both in India and in England split into two groups, the principal cause in division being allegations of misconduct made against the Successor arising out of events during his visit to England in 1984. A majority of members in India and England did not accept the allegations against the Successor. They continue to recognise his authority, and his divine status. The minority believed the allegations were true and that he had lost his right to the succession. They have not sought to assert that there is any other person enjoying the status of Successor to Muktajivandasji."
On 14th March 1985 the Helping Committee rejected the allegations and confirmed the Successor in his office.
The two groups into which the adherents of the faith divided have conveniently been referred to as the Majority Group and the Minority Group and I will so describe them. One of the trustees, Mr Premji Devraj Varsani, is a member of the Majority Group. The other two trustees, Mr Jinabhai Ramji Jesani and Mr Mavji Karsan Patel, are members of the...
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