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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Khaira & Ors v Shergill & Ors  EWCA Civ 983 (17 July 2012)
Cite as:  EWCA Civ 983,  WLR(D) 214,  PTSR 1697
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
HHJ DAVID COOKE
Case No 8BM30458
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE PITCHFORD
| MOHINDER SINGH KHAIRA & Ors
|- and -
|DALJIT SINGH SHERGILL & Ors
MR ROBERT PEARCE QC (instructed by Ford & Warren) for the Respondents
Hearing date: 18th May 2012
Crown Copyright ©
Lord Justice Mummery:
Removal and appointment of trustees
"…to determine whether the trusts imposed upon the property by the founders of the trust are being duly observed…the question in each case is, What were the religious tenets and principles which formed the bond of union of the association for whose benefit the trust was created?" (pp 644-5)
The judgment below
"22. Here the position is, in my view, that what is required is not an establishment of the propriety or the validity of a process by which the 9th claimant may or may not have succeeded to come to be regarded as holding the office of Holy Saint but whether, as a matter of fact, he has become sufficiently recognised as the holder of that office to be considered to be a person described as having a particular power in the English deed, the construction of which is before the court. Indeed, it seems to me that where interests in a property are defined by reference to the holding of a particular office the court is required to construe the document and to consider the question whether a particular person does or does not fit the description set out in the document. In doing so it does not make a judgment as to whether that person has been properly appointed in the sense that he satisfies the religious requirements of the institution whose office it is. It only asks the question and only answers the question whether, as a matter of fact, the members of the institution, whatever it is, may be said to have acknowledged or accepted that that person does fill that office.
23. If it is shown, it seems to me, as a matter of fact that the 9th Claimant has been accepted by a sufficient number of the adherents of the sect or organisation in question-I am being deliberately vague because the precise identity as that is a matter of some contention-then it seems to me that the court can make a finding of fact appropriately and consider whether, on its proper construction, the references to the holder of an office in the document apply to the 9th Claimant. It matters not whether the 9th Claimant has arrived at that position notwithstanding that he did not follow the procedure that led to the appointment of his predecessors, if, in fact, he has been, on the evidence, accepted as holding that position.
24. I am not in a position to evaluate what the evidence may be. It may be, for instance, that the division of opinion as to whether he is the holder of that office is so great that it cannot be said, once the evidence has been considered, that he has been accepted as the de facto holder of the office. On the other hand, it may be that-an emphasis that is, no doubt, the position taken by the Claimants-that the majority of the adherents of his organisation have accepted him in that position, notwithstanding that there is a minority view of which the Defendants form a part that he does not fulfil the proper religious criteria.
25. In those latter circumstances it seems to me that the construction of the English document would be likely to be that he is the person referred to in the document and the documents must be construed, therefore, as if the powers fall to be exercised by him."
(1) Whether the 1991 Trust Deed relating to the Birmingham Gurdwara was ineffective or validly made. It is submitted that this is a question of mixed law and fact.
(2) Whether the word "successor" in each of the Trust Deeds means "successors to the position of Mukhia of the Nirmal Kutia" or the Second Holy Saint only. It is submitted that this is a question of the construction of the trust instruments.
(3) If the answer to issue (2) is the former, whether, according to the custom by which successors to the position of the Mukhia of Nirmal Kutia Johal are appointed, it is an essential requirement for the Mukhia to be appointed by will. It is submitted that this is an issue as to the content of a custom, which is in principle capable of being determined on evidence.
(4) If the answer to issue (3) is no, whether the facts alleged by the claimants, if proved, establish that the Third Holy Saint is the Mukhia of Nirmal Kutia Johal and, for this reason, the person now entitled to exercise the powers conferred on the "successor" by the Trust Deeds. It is submitted that is no different in nature from the question whether any other individual occupies a position in an organisation. Custom constitutes the standard by which the validity of the appointment is to be judged.
(5) If the answer to issue (4) is yes, whether the Third Holy Saint has adopted beliefs which are inconsistent with the "bond of union" of the founders of the English charities. It is submitted that this and the remaining issues are of the same nature as the questions decided in such cases as the Free Church case in order to secure the due administration of a religious charity by ascertaining the principles, whether relating to faith or governance of the religion for which the charity was founded and the principles professed by those claiming to be entitled to the benefit of the charity .
(6) If the answer to issue (5) is yes, whether he has thereby ceased to be entitled to exercise the powers conferred on the "successor" by the Trust Deeds, and the powers conferred on him by name by the 2003 Constitution.
(7) If the answer to issue (5) is no, whether the defendants are nevertheless entitled to disregard decisions made by the Third Holy Saint relating to the English charities.
Discussion and conclusions
Lord Justice Hooper:
Lord Justice Pitchford: