Disputed trusteeship: Shergill v Khaira yet again

The Chancery Division has handed down the latest judgment in the long-running saga about the disputed trusteeship of two Sikh gurdwaras in High Wycombe and Birmingham. In Shergill & Ors v Khaira & Ors [2017] EWHC 883 (Ch), HHJ Purle QC, sitting as a Judge of the High Court, found for the claimants.

An institution known as Nirmal Kutia Johal was set up to promote the Sikh religion under the guidance of a Holy Saint. The Original Holy Saint was succeeded by the First Holy Saint, who was in turn succeeded by the Second Holy Saint: no-one disputed that succession. The issue was whether or not the ninth claimant was entitled to describe himself as the Third Holy Saint and, as such, was entitled to appoint and remove trustees of charitable bodies in England [1&2]. The Third Holy Saint visited the United Kingdom some forty years ago and in 1982 inaugurated a gurdwara for a community of followers in Bradford. There were now three gurdwaras in the UK that follow, or have followed, the Holy Saints of Nirmal Kutia Johal – though the Bradford gurdwara did not figure in the present proceedings [10].

The issue before the Court was whether or not the ninth claimant was, in fact, the Third Holy Saint in relation to Nirmal Kutia Johal [1] and whether, therefore, as successor to the Original Holy Saint he had the power to appoint and remove the trustees of the gurdwaras in High Wycombe and Birmingham [22].

The constitutions of each gurdwara noted that it was “established by the auspices spiritual guidance of ‘The Holy Saint’ [meaning the First Holy Saint, who was named] Nirmal Kutia Johal …” and set out their objects as follows:

“a) To preach Sikhism, doctrine of Holy Shri Guru Granth Sahib and teachings of Ten Gurus from Guru Nanak Dev Ji to Guru Gobind Singh Ji.

b) To propagate, encourage and arrange Amrit Parchar (ceremonial baptism).

c) To discourage use of alcohol and smoking and condemn obsolete and derogatory social customs.

d) To encourage and arrange Panjabi (Gurmikhai) Education to both parents and children.

e) To perform marriages in accordance with the Sikh customs and rites as permitted by the English law.

(f) To establish Sikh information centre and operate libraries equipped with books and literature on history and teaching of Ten Gurus”. [25]

At each succession, including that of the disputed Third Holy Saint, there had been a Dastar Bandi ceremony, at which the successor was vested with a formal robe – a Gaati – and a turban tied on his head, “this being, not just in this context but in other contexts in the Sikh tradition, a means of conferring recognition of the authority of the head of a household or other institution” [7]. The Court concluded that the evidence was “that a general acceptance by a Dastar Bandi ceremony is sufficient to confer status upon a successor in India, such as the Third Holy Saint” [42] and found that “the Third Holy Saint was properly appointed in March 2002 as the Head of Nirmal Kutia Johal” [48].

It had been argued that the Third Holy Saint was not qualified because of his departure from the tenets of mainstream Sikhism by the time of his appointment and, as the case developed, that he had so departed from the mainstream since then that he could no longer be regarded as qualified at all [49]. Had that been the case, “or, to take an extreme example, that he had ceased to be a Sikh at all and instead had become a Hindu”, the Court would have been “very reluctant to grant any relief, including declaratory relief, which put the Third Holy Saint in control of the Birmingham and High Wycombe Gurdwaras” [50].

“However, I do not think the evidence does establish that. There has been a great deal of evidence in relation to what is or what is not mainstream Sikhism, but my starting point must be the terms of the relevant trust deeds and constitution. There was nothing in any of those documents which actually required in terms that the Sikhism which was to be followed was ‘mainstream’. That becomes important for this reason: it is clear from the expert evidence, especially the evidence from the defendants’ expert, that the Nirmala tradition under which there are Holy Saints, upon whom especial reverence is cast, is or may be abhorrent to some Sikhs because it suggests that the Holy Saint is the equivalent of a living Guru, which is sacrilegious. If that is an objection, it was just as much an objection to the First Holy Saint as it was, and is, to the Third Holy Saint [51].

It is necessary to go back to the objects, which were set out in the constitutions. They were, as already set out at length, to preach Sikhism, doctrine of Holy Shri Guru Granth Sahib and teachings of the Ten Gurus from Guru Nanak Dev Ji to Guru Gobind Singh Ji … The essential requirement was to preach Sikhism. No one could object that the particular brand of Sikhism that was being preached was that propagated under the spiritual guidance of the First Holy Saint, because the constitutions, as did all the trust deeds, expressly recognised that the institution was established under the auspices and spiritual guidance of the First Holy Saint, and mentioned Nirmala Kutia Johal expressly” [52].

The Court concluded that the attempts to disqualify the Third Holy Saint from acting as such, by reference to his change of beliefs and religious practices, could not succeed [67]; and the appointments made under the new constitution and existing trust deeds would have been validly made under the old constitution and trust deeds. The claimants were therefore entitled to the declaratory and injunctive relief sought [79].

Comment

When the matter came before the Supreme Court on the issue of whether or not the courts had jurisdiction in the dispute, in Shergill & Ors v Khaira & Ors [2014] UKSC 33, the questions before the Court were these:

“(i) the extent to which it is open to trustees to alter, or restrict, the terms of the trusts upon which they hold property, and

(ii) the extent to which the court can and should refuse to determine issues of religion or religious belief in legal proceedings” [1].

The Supreme Court concluded unanimously that:

“The jurisdiction of the courts is not excluded because the cause of the disciplinary procedure is a dispute about theology or ecclesiology. The civil court does not resolve the religious dispute. Nor does it decide the merits of disciplinary action if that action is within the contractual powers of the relevant organ of the association: Dawkins v Antrobus [1879] 17 Ch D 615. Its role is more modest: it keeps the parties to their contract” [48: emphasis added].

That is what the Chancery Division appears to have done here.

Cite this article as: Frank Cranmer, "Disputed trusteeship: Shergill v Khaira yet again" in Law & Religion UK, 21 April 2017, http://www.lawandreligionuk.com/2017/04/21/disputed-trusteeship-shergill-v-khaira-yet-again/

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