[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Shergill & Ors v Khaira & Ors [2017] EWHC 883 (Ch) (03 March 2017) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2017/883.html Cite as: [2017] EWHC 883 (Ch)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Priory Courts, 33 Bull Street Birmingham B4 6DS
		3rd March 2017

JUDGE PURLE:

1. The principal question in this case is whether or not the ninth claimant is the Third Holy Saint in relation to an "institution", a word I use neutrally, in India, known as Nirmal Kutia Johal, which was set up to promote the Sikh religion under the guidance of a Holy Saint.
2. There have been, including the ninth claimant, four persons claiming to be Holy Saints of Nirmal Kutia Johal. I shall not set their names out but shall refer to them in the following order: the Original Holy Saint, who was succeeded by the First Holy Saint, who was in turn succeeded by the Second Holy Saint. No one disputes that any of those was entitled to be described as "Holy Saint" in relation to Nirmal Kutia Johal. The issue before me is whether the ninth claimant is so entitled. There are also issues as to whether he was in that capacity entitled to appoint and remove trustees of charitable bodies in England, which turns upon the construction of those bodies' constitutional documents and, depending on that construction, his status or otherwise as the Third Holy Saint.
3. The Original Holy Saint died now a very long time ago, in November 1971. He had been instrumental in setting up the institution to which I have referred, Nirmal Kutia Johal. There are a number of such institutions in India, especially throughout the Punjab. Indeed, there are said to be a very large number of such institutions with which this particular one is affiliated under a body in Kankhal, which is said by some (including some on the claimants' side) to be the chief body to which adherents at Nirmal Kutia Johal turn. There is no doubt that there is some such affiliation. Its significance is less easy to judge.
4. The First Holy Saint had been married with a family, whereas it is part of the tradition of this particular branch of the Sikh religion that a Saint should be celibate. He therefore gave up his family life so as to become the First Holy Saint. When he died, which was in November 1991, he left a will which nominated effectively the Second Holy Saint as his successor, to whom the assets of the institution were left. There was, however, no previous will conferring any status or property upon the First Holy Saint by the Original Holy Saint. The matter is significant because under Indian law the property in the case of this particular institution has been held to devolve from one Holy Saint to his assistant upon the latter's appointment as the next Holy Saint, or, as it is sometimes put, from "Guru to Chela". That is evident from proceedings that I have seen in the Indian courts, using such language.
5. I should say something about the concept of a guru. Any Sikh will know that there are no longer any living gurus. There were ten gurus, the last of which transferred the status of eternal guru to the Sikh scriptures, Guru Granth Sahib. Accordingly, anyone who sets himself up as a guru is guilty of blasphemy and, arguably, cannot be regarded as a Sikh. However, sometimes the language is used unguardedly where Saints are concerned.
6. The Nirmala tradition, of which Nirmal Kutia Johal is an example, refers to institutions which typically consist of a head as chief, or holy man, usually known as a "Saint", and his assistant, to whom his authority passes on death, and are seen by many as perpetual institutions unaffected by the death of the particular incumbent in office. Difficulties, of course, can arise where there is, as in the present case, no clear ground of succession laid out in any constitutional documents. I understood from Mr. Bains, the claimants' expert in this case on Sikh matters, that this is quite often the case.
7. In the present case, there was, as I have said, on the occasion of the succession of the First Holy Saint to the Second Holy Saint, a will, but that does not appear to have been conclusive and was not regarded by either of the experts called to give evidence in this case as a necessary precondition of succession. What has been a consistent feature of the admittedly limited number of successions in this case, is that the death of one Holy Saint has been followed by an appointment, in a Dastar Bandi ceremony, of that person's successor, who has usually been nominated during his lifetime and endowed with a formal robe, known as a "Gaati". Dastar Bandi refers to the ceremony at which the turban is tied upon the head of the new incumbent, 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. That happened on the occasion of each succession, including the alleged succession of the Third Holy Saint.
8. The ceremony is no mean affair. By all accounts thousands of people attend, both adherents to this particular institution globally and also from other allied, including Nirmala, institutions across the Punjab and possibly elsewhere in India. The evidence suggests that in the case of the Dastar Bandi ceremony concerning the Third Holy Saint, upwards of 10,000 and possibly as many as 15,000 people attended. At all events, it was a very large number. So the ceremony in question is plainly of considerable importance and significance. There are many thousands of followers of Nirmal Kutia Johal across the globe.
9. The Original Holy Saint was much revered. He established Nirmal Kutia Johal, and the individual who became the First Holy Saint settled there in 1920. It is a tradition for young men to be taken from their families, sometimes even in childhood, and brought up in the environs of, in this case, Nirmal Kutia Johal (Nirmal Kutia Johal is not unique in this respect) and to devote their lives to religious work in a state of celibacy.
10. The Third Holy Saint went there as a young man in, he says, 1975. Estimates of his age have varied. He certainly appears to have been under 20. The Third Holy Saint visited the United Kingdom at the beginning of 1980, or thereabouts. His teachings were very popular and many Sikhs were baptised by him in this country. He inaugurated a Gurdwara, which is a temple, in 1982 for a community of followers in Bradford. There are, in fact, now three Gurdwaras in this country which follow, or have followed, the Holy Saints of Nirmal Kutia Johal. The Bradford Gurdwara does not appear in these proceedings though I have heard witnesses from that Gurdwara and the history of the three Gurdwaras is intimately connected with them.
11. The two Gurdwaras with which these proceedings are concerned, are Gurdwaras in Birmingham and High Wycombe, which were established in September 1987 and September 1993 respectively. All three Guardwaras were supported by financial contributions from the local Sikh community, sometimes very substantial ones, including, in the case of the first defendant, who is intimately connected with the Birmingham Gurdwara, the taking out of a substantial mortgage on his own property which the congregation has, over time, discharged.
12. There were no formal trust deeds at first. The property was taken in the name of trustees, and in due course, in accordance with the implied authority recognised in Attorney-General v Mathieson [1907] 2 Ch 383, the management committees of the Gurdwaras, who included the trustees, executed both trust deeds and constitutions to regulate the affairs of the Bradford, Birmingham and (later) High Wycombe Gurdwaras.
13. The First Holy Saint was so highly revered that he was treated as having more or less absolute authority over the affairs of the Gurdwaras, though he did not in fact interfere, unsurprisingly, in the day-to-day running of the Gurdwaras. He appointed the trustees and management committee and was recognised as having the right to effect changes in that and other respects. There are, in the case of Birmingham, written memoranda dating from 1987 which confirm the First Holy Saint's status and powers. They did not, however, look beyond the First Holy Saint's lifetime.
14. The Birmingham trust deed came to be executed on 15^th January 1991. The parties to it were the trustees. The document is a relatively short one.
15. Clause 1 declared that that the parties were the "duly appointed Trustees of [the Birmingham Gurdwara] (hereinafter called 'the Society') a religious organisation preaching and practising the Sikh faith following the teachings of [the First Holy Saint, who was named] at [Nirmal Kutia Johal] (hereinafter called "the Saint") or his successor".
16. In clause 3 it was provided as follows:

"3. THAT we hold the Property as Trustees for the Society to be dealt with as may be directed in writing by the Saint or his successor.

4. THAT the Trust for Sale upon which we as joint tenants by law hold the Property shall not be exercised by the Trustees for the time being thereof without the consent in writing and the direction of the Saint or his successor.

5. THAT the Saint or his successor may at any time remove the Trustees or any of them and appoint new trustees or a new trustee to take the place of those who are thereby removed.

6. THAT in case any dispute shall arise between the Members of the Society the Trustees and the Managing Committee of the Society or any of them in any matter relating to the use of the Property or upon the construction of this Deed or the constitution of the Society or any matter or thing herein contained such dispute and difference shall be submitted to the Saint or his successor whose decision upon the matter referred to him shall be final and conclusive between the parties.

7. THAT in the event of the Society being wound up or ceasing to exist then the Property and all other assets vested in the name of the Trustees for and on behalf of the Society shall be held in trust for the Saint or his successor".

17. That is as far as that particular trust deed went. It was followed, not long after, by a constitution of both the Bradford and Birmingham Gurdwaras, which appears to have been executed on 24^th February 1991.
18. There is also a minute of a meeting of 24^th February 1991 which appeared to stress that only the First Holy Saint or someone nominated by him could exercise the power of appointing new trustees or of changing the constitution. That reflected the undoubted fact that those who were holding the property and administering the affairs of the Gurdwara had confidence principally in the particular identity of the First Holy Saint and the person who was known to be his likely successor.
19. As to his successor, that is the individual who became the Second Holy Saint. His identity was known widely in February 1991 because he was the First Holy Saint's chosen assistant and it was assumed that he would succeed him, though, in fact, he might not have done so because he might, for example, have predeceased the First Holy Saint. As things turned out, the Second Holy Saint only survived the First Holy Saint by a matter of months.
20. The first issue which arises in relation to the trust deed of 15^th January 1991 is as to the construction of the words "or his successor". This is a trust deed which dealt with property acquired in 1987 for use as a Gurdwara, and which was no doubt intended to be held and used in the very long term as a Sikh Gurdwara. The deed nonetheless made provision, as it had to do, if the trust should for some reason fail or be terminated. That provision was made in clause 7, in which the property and the assets, in the event of the Society being wound up or ceasing to exist, would then be held in trust for "the Saint or his successor". In addition, the power of removing and appointing trustees, and of deciding disputes, was vested in "the Saint or his successor".
21. Normally, the use of the singular is taken as indicating the plural as well. That is expressly confirmed by the Law of Property Act 1925, s.61(c), which reads as follows:

"In all deeds, contracts, wills, orders and other instruments executed, made or coming into operation after the commencement of this Act, unless the context otherwise requires—

…

(c) The singular includes the plural and vice versa".

Applying that here, if it is right so to apply it, then the word "successor" would extend to "successors", and that would mean, most pertinently, that not just the first successor but subsequent successors including the Third Holy Saint (if validly appointed) could at any time remove trustees and appoint new trustees in their place.

22. That is what the Third Holy Saint has done in this case and it is an issue whether he was entitled to do so (either under the original trust deed or the constitution) because it is in issue: (1) whether or not the singular does here include the plural and (2) whether he has validly been appointed as the Third Holy Saint or (3) whether he has in some way forfeited his rights by his conduct to seek the assistance of this court in the exercise of his powers. There is also an issue as to whether a later constitution of February 2004 was validly adopted, to which I shall come.
23. I am presently concerned only with the first question. It was urged upon me that I can take into account the minutes of the meeting in February 1991 which emphasised the limiting of those powers, on one reading, to the First Holy Saint and anyone appointed by him, meaning the Second Holy Saint in the events which occurred. This demonstrates (it is said) that what the parties had in mind was to limit the exercise of those powers to those 2 individuals, whom they knew. Nonetheless, anyone who gave a moment's thought must have realised that the First Holy Saint and his successor (if confined to the singular) would not live forever and it would be bizarre if the default trust in clause 7 (and the other powers set out in the trust deed) should cease to have any effect as soon as those two had departed this earth in the case of the trusts affecting a building which was clearly intended to stand and be used as a Gurdwara for a very long time.
24. In my judgment, the February minutes (and there is more than one version of them) should be read as dealing with the current position and one must look at the trust deeds unfettered by considerations derived from those later minutes, which I will assume for this purpose are admissible as an aid to construction, to determine the long term position in relation to the trusts affecting the Birmingham Gurdwara, which the trust deed must be taken to be dealing with. In the longer term, the powers were clearly meant to apply throughout the life of the trust (and the gift over was clearly intended to take effect if the Association ceased to exist) and can only sensibly be construed as referring to successors of the Second Holy Saint and not just of the First Holy Saint. My conclusion in that regard is unaffected also by the constitution, to which I shall now come, of 24^th February 1991.
25. That constitution related to both Gurdwaras, in Birmingham and Bradford. It gave the institution, consisting of both temples, a name, Gurdwara Amrit Parchar Dharmik Diwan, and 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 …". The constitution then set out, in further fulfilment of the implied authority of its makers, detailed aims and 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".

26. I mention those individually, and at length, because one of the issues in this case is whether or not the Third Holy Saint lives by those aims and objects. Clause 3 dealt with "management" and provided as follows:

"In accordance with the Pious blessings and approval of [the First Holy Saint, who was named], the management of the Gurdwara will consist of five members that will look after the affairs of the Institution. Four Trustees and one member will form the five member committee. The Office Bearers of the Gurdwara Committee will be as under:-

1. President…………………………………………..Trustee

2. General Secretary………………………………….Trustee

3. Cashier……………………………………………Member

4. Jathedar Langar/Registrar…………………………Trustee

5. Bhandar/Builidng Incharge………………………..Trustee"

27. Thus, all the holding trustees were also on the management committee. Clause 4 provided:

"All members of the Management Committee mentioned above must be Baptised (Amrit Dhari) and adhere to the code of conduct prescribed by Guru Gobind Singh Ji [that is the tenth Guru]. All members of the committee must wear proposed dress (BAANA) at all programmes and they must be Vegetarian and Tea Tottalers".

There are then provisions in relation to the meetings of the management committee. None of that is particularly relevant. Then under clause 6, the "Duties and Powers of the Office Bearers" were set out, which included under (d):

"To seek 'Hukam Namas' Orders from the Holy Saint [the First Holy Saint, who is named] and his successor regarding affairs of Gurdwara".

Once again, the word "successor" was in the singular, giving rise to the potential application of s.61(c) of the Law of Property Act 1925.

6(f) provided:

"The President will be answerable to the Holy Saint for the efficient running of the Management of the Institute".

There was no reference there to the Holy Saint and his successor. The reference was to "the Holy Saint" only. The expression "the Holy Saint" derived from clause 1, where it appeared not as a definition but as a description of the First Holy Saint. Looked at as a whole, there was no definition of the Holy Saint as such. In the previous sub-clause (d), the First Holy Saint was mentioned by name. The reference to "the Holy Saint" without definition or elaboration gives rise to the possibility that the later reference in (f) was a reference to the Holy Saint for the time being. I will consider that more relevantly in relation to another clause to which I shall come.

28. Clause 8, going forward, required the Management:

"… to employ a permanent well qualified, Baptised, Keertania Granthi with the approval of the Holy Saint and his successor".

The "Holy Saint" there clearly meant the First Holy Saint because the reference to successor would otherwise be otiose. The expression "his successor" is, in the light of a PS to which I am about to refer, open to some doubt. As we have seen, the singular would, because of s.61(c) of the Law of Property Act 1925, unless the context otherwise required include the plural. However, it was known, as I have said, who the immediate successor was likely to be as he had been chosen by the First Holy Saint. Further, these words were added at the end of this document:

"P.S. Word 'successor' in the above text means [the named individual, who later became the Second Holy Saint]".

That individual was at that time the assistant of the First Holy Saint. I shall consider the relevance of that PS later.

29. Clause 10 provided for change in the management committee, which:

"… can only be made by [the First Holy Saint – who was named] or his successor".

That again gives rise to the problem of construction to which I have referred, namely whether the singular "successor" includes the plural.

30. Under "General", clause 12(a), it was provided:

"Amendments and additions in the constitution can only be made in the joint meeting of both Gurdwara Management Committee (APDD Bradford and APDD Birmingham) and approval taken of the Holy Saint".

Again the Holy Saint was not defined there, or named as such, as he could have been, and the Clause is capable of the construction of referring to the Holy Saint for the time being. This may be very significant in the light of subsequent amendments to the constitution that have been purportedly made in February 2004.

31. Moving ahead, clause 12 (f) provided:

"In the event of Gurdwara compelled to wind up, the whole property and assets will be handed to Nirmal Kutia, Johalan …". (which is the same as Nirmal Kutia Johal).

That, of course, was the institution of which the First Holy Saint was the head. This confirms, which must have been the case anyway under the earlier trust deed of January 15^th 1991, that the gift over to the First Holy Saint or his successor, was in truth meant as a gift over to the institution, which, it seems to me, is a clarification of the point which would be permissible under the implied authority recognised in Mathieson. In any event, no one has ever challenged this clause.

32. Clause 12 (g) provided:

"To run the affairs of Gurdwara efficiently and smoothly the President will be empowered to exercise special authority given to him by the Holy Saint".

Thus, the Holy Saint had the power to endow the President with special authority. That was not limited by reference to any successor, but was ostensibly a reference to the position of Holy Saint generally. The reference here and elsewhere to "the Holy Saint" could be a limitation to the First Holy Saint, but it is difficult to see why that limitation would be desirable when, in other important respects, there was no such limitation, but there was a reference to the named Holy Saint and his successor. Looking at the document as a whole, it seems to me that it is more appropriate to attribute to the parties the intention, where the expression "the Holy Saint" is used without definition or elaboration, and without referring to a successor, to confer powers on the Holy Saint for the time being. Nirmal Kutia Johal cannot have been expected to come to an end (as Clause 12(f) implicitly recognised) upon the deaths of the Holy Saint and his immediate successor, and the parties, looking at the matter objectively, would have wanted to provide for later successions and thus to be referring to the Holy Saint for the time being. That being so, it is easier to construe any reference to "the successor" as meaning the "successors" as well, because that construction achieves the same harmonious result as the construction of bare references to "the Holy Saint" as meaning the Holy Saint for the time being.

33. However, there is the PS and the contemporaneous minutes to which I have referred. Again, it seems to me that the PS, like the contemporaneous minutes, was referring only to the immediate future and cannot properly be read as cutting down the effectiveness of this constitution so that it worked only for the lifetimes of the two Holy Saints at most. It was clearly meant to last a lot longer and what must have been in the contemplation of the makers of this document, if they ever turned their minds to it, was that there would inevitably be the need to appoint further members of the management committee, (including a cashier, who could not be appointed under the trust deed) after the death of one or other, or both of the known Holy Saints, and that the constitution might cease to be practicable unless construed so as to include "successors" in the plural, and to construe "the Holy Saint" where those words stood alone as meaning the Holy Saint for the time being. Further, the minutes are in at least one respect contradicted by the constitution, as the Holy Saint did not have power to alter the constitution; the two management committees had that power with his approval.
34. It will be evident from the above that I have decided that the word "successor", wherever it appeared in either of those two documents, included the plural and I so hold. Likewise, references to "the Holy Saint" alone (when not linked to a named individual) were references to the Holy Saint for the time being.
35. There was a parallel trust deed relating to the Bradford Gurdwara. This was executed contemporaneously with the constitution. It was dated February 1991. The trial bundle index seems to give a date erroneously, I think, of January 1991, but it was contemporaneous with the constitution. It was substantially the same as the trust deed for Birmingham and the same observations and conclusions apply.
36. When High Wycombe came to be added to the mix, which was in 1993 (the First Holy Saint having inaugurated the High Wycombe Gurdwara in September 1993) the existing deeds were followed closely, though not identically. The trust deed, dated 20^th September 1993, provided in clause 5:

"The present and any future Trustees may only be removed or appointed by the said [First Holy Saint by name] or His successor".

Further, as before, the only power of removal was said to be vested in the named First Holy Saint "or his successor".

Again "successor" in these provisions was capable of being read in the single or the plural and, for the reasons I have given, I read it in the plural.

37. The constitution for High Wycombe was effected by adding the new Gurdwara to the existing constitution of the Institution known as Gurdwara Amrit Parchar Dharmik Diwan. That is the constitution which, when it consisted only of Bradford and Birmingham, I have already considered.
38. The aims and objectives were the same. Clause 3 also provided, as before, for a five member management committee, of which 5 were the 4 trustees, and one, the cashier, was simply a member. There were detailed provisions which were the same as before and there was the same PS at the end. So it seemed merely to have been the case of lifting the previous constitution and extending it to High Wycombe. Under clause 12(a) the provision for changing the constitution was as follows:

"Amendments and additions in the constitution can only be made in the joint meeting of the three Gurdwara Management Committees [APDD Bradford, APDD Birmingham and APDD High Wycombe] and approval taken of the Holy Saint".

That again, subject to the addition of High Wycombe was identical to what was there before and, likewise, "the Holy Saint" was capable of more than one meaning. I construe that expression as meaning the Holy Saint for the time being.

39. On this document also I place no limiting effect on the inclusion of the PS because that was looking at the presently known position as to who the successor was likely to be.
40. There matters stood, with occasional outbreaks of disharmony among the congregations, until the death of the First Holy Saint. There was, as I have said, then a Dastar Bandi ceremony for the Second Holy Saint in November 2001. Unhappily, the Second Holy Saint only lived until March 2002, following which the 9^th claimant's Dastar Bandi ceremony was held.
41. It is not disputed that there was such a Dastar Bandi ceremony. It is however said on the defendants' side that the appointment of the Third Holy Saint was only as a caretaker. That seems a little surprising as the caretaker has been in office now for nearly 15 years. In any event, the proposition needs examining more closely. It is based upon the translation of a letter of another Saint who officiated at the ceremony who, incidentally, was the same person who officiated at the Dastar Bandi ceremony of both the First and Second Holy Saints, Saint Roshan Ji, who used the word which, in one translation, is translated as "caretaker". However, it is impossible to read that letter as a whole without concluding that the word "caretaker", if that is the correct translation, was not being used in the sense of a temporary appointment. It is difficult to imagine why thousands of people would turn up to a ceremony which was merely putting someone in office until such time as someone else was chosen. It does appear that there was some discussion between Saint Roshan Ji and the Third Holy Saint about the desirability of setting up a formal trust, but that was certainly not put forward at the ceremony as a limitation on his appointment.
42. It seems to me that the evidence before me sufficiently establishes 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.
43. There have been proceedings in India where the issue was whether or not land had properly been transferred into the name of Third Holy Saint, and whether a receiver should be appointed over the assets of Nirmal Kutia Johal. The Third Holy Saint has hitherto succeeded in all the attempts that have been made to dispute his entitlement, as Third Holy Saint, to succeed to those properties and assets. I have read the Indian proceedings carefully. It should be said at the outset that it is clear from the judgments in the bundles that the courts have approached the ownership of the Third Holy Saint upon the footing that the property ultimately is in effect public property, of a charitable kind, to be applied only for the purposes of the institution. (That also was the finding of the lower courts in a case, considered later, which has gone to the Supreme Court concerning another similar Nirmala institution). The issue the court was deciding was on the appropriateness of the devolution of that property to the Third Holy Saint. As I have mentioned, he appears to have been recognised as such during the Second Holy Saint's lifetime and officiated at the Dastar Bandi ceremony celebrating the Second Holy Saint's succession, sitting next to the Second Holy Saint as his assistant. I do not suggest that, on the evidence, that was sufficient to endow him without more with the quality of Third Holy Saint, but the Dastar Bandi ceremony, which no one challenged at the time, was certainly sufficient, judged by the custom of this institution and the significance of Dastar Bandi ceremonies generally in India, to denote him as successor. This has been accepted by the Indian courts.
44. Some query has been raised, of a very serious nature, relating to the fact that a contemporary minute was used in the proceedings before the Indian courts which, it was suggested at one stage, might be a forgery. The minute book has been examined. It has to be said that the process of disclosure on the claimants' side was less than wholly encouraging, but it took place. The defendants' solicitor has examined the originals and so has an expert. No one who was involved in the writing up of or in the custody of the document has been called before me. The Saint who I have mentioned, Saint Roshan Ji, who officiated at the ceremony, appears to have signed it and, at one stage, made an affidavit saying that he had done so, but he has given inconsistent statements about the ceremony, since the Birmingham Gurdwara, and others on the defendants' side, came to follow his Nirmala tradition and not that of Nirmal Kutia Johal.
45. The expert has concluded that pages have become missing from the notebook which could indicate that the document is incorrectly dated, and which could suggest tampering with the notebook. But the notebook is very old and the pages may have come loose for other reasons. The expert's examination has not revealed the absence of missing handwriting, but it would not necessarily do that anyway. It has established that three signatures were added later than the remaining thirty-eight, but that is not necessarily indicative of a forgery. It is indicative merely that three others added their signatures later.
46. The allegation of forgery has not in my judgment been made good but it is, in any event, not especially material because the claimants do not rely upon that document as founding their claim that the 9^th claimant succeeded the Second Holy Saint. The ninth claimant, and those who support him, rely upon the actual ceremony which took place.
47. There was evidence on the defendants' side, especially from the first defendant, as to the discussions which did take place, which it was said in some way limited the effect of the ceremony, but I take those as referring to discussions which the first defendant had privately with Saint Roshan Ji and they appear, in the main, to have taken place after the ceremony and not in any way to have diminished the effect of the ceremony. In my judgment, the whole point of this public ceremony was to make known to the world that the Third Holy Saint had been appointed, as the previous assistant of the Second Holy Saint, to succeed him as Third Holy Saint. There was some suggestion that there may have been others who were equally well-qualified to have succeeded him. That may be so, but the Third Holy Saint had sat at the side of the Second Holy Saint as his assistant at the earlier Dastar Bandi ceremony for the Second Holy Saint, which would indicate his likely succession in due course. There is also much evidence that those of the defendants who were present at the Third Holy Saint's Dastar Bandi ceremony, including the first defendant, participated in the ceremony and garlanded at least the Third Holy Saint's assistant. I say "at least" because the written evidence is that it was the Third Holy Saint as well who was garlanded, but the photographic evidence is limited to his assistant.
48. I accordingly find that the Third Holy Saint was properly appointed in March 2002 as the Head of Nirmal Kutia Johal.
49. There was considered at one stage to be an issue that the Third Holy Saint was not qualified because of his departure from the tenets of mainstream Sikhism by the time of his appointment, but as the case developed, through the pleadings and argument, the allegation became that the Third Holy Saint, though a follower of Sikh mainstream discipline at the time of his appointment, had so departed from the mainstream since that he could no longer be regarded as qualified at all. It was thus said that the court should, in the exercise of its discretion, decline to grant any relief which would enable the Third Holy Saint to exercise any of his powers.
50. I am bound to say that if the evidence established that that truly was the position in relation to the Third Holy Saint, or, to take an extreme example, that he had ceased to be a Sikh at all and instead had become a Hindu, then I would be very reluctant to grant any relief, including declaratory relief, which put the Third Holy Saint in control of the Birmingham and High Wycombe Gurdwaras.
51. 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.
52. 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, and so on and so forth. 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.
53. Kulvinder Singh (a principal witness for the claimants) set out in his witness statement the core beliefs which are followed, and have been followed, he says, by the First, Second and Third Holy Saints regularly. No one put to him that the beliefs that he referred to were not Sikh beliefs. Many would say, amongst conservative Sikhs, that the Nirmalas generally, including this particular institution, were of doubtful legitimacy because of the Guru element, to which a Holy Saint may be said to be akin. But, as I have said, that could not be raised against this particular institution to disqualify the Third Holy Saint if he continues to follow the teachings and practices of the First Holy Saint. What needs to be shown is that the brand of Sikhism that has been practised under the Third Holy Saint has so changed since the days of the First and Second Holy Saints that it can be said to be something radically different, so as to give rise schismatically to a separate brand of religion that may not even be Sikhism. The defendants have not been so bold as to suggest in terms that the Third Holy Saint has ceased to be a Sikh, although the logic of their argument seemed to go that far sometimes.
54. I can demonstrate the difficulties that any Nirmala institution faces by reference to decisions of the Supreme Court of India. There are two decisions in particular in the bundle, the first being in 1967, concerning Nirmala Sadhus whose activities were challenged by Sikhs. They were held, in essence, not to be Sikhs at all. It was said as follows:

"Further, in this case there was material showing that this institution at Jhandawala was registered as one of the branches of the principal institution of Nirmala Sadhus known as the Panchayati Akhara situated at Kankhal near Haridwar. There was further evidence showing that in this institution the worship is primarily of a Samadh which is against all tenets of the Sikh religion. Nirmala Sadhus, it appears, as a class worship at Samadhs which goes to show that they can no longer be regarded as people following the Sikh religion. In their beliefs and practices, the Nirmala Sadhus are now quite akin to Udasis …".

(I say, as an aside, that I understand they were proscribed as Sikhs in the late 17^th century.)

"… and there is a series of cases which has laid down that members of the Udasis sect are not Sikhs. We need only mention the view expressed by the Privy Council in Hem Singh & ors. v BaSaint Das & anor. Shiromani Gurdwara Prabhandhak Committee v Ram Parshad & ors. holding that:

'Parallel with the growth of this movement there seems from the time of Sri Chand, Nanak's son, to have been a sect of Udasis who, while using the same sacred writings as the Sikhs, kept up much more of the old Hindu practices, followed asceticism, were given to the veneration of Samadhs and tombs, and continued the Hindu rites concerning birth, marriage and Shrard … the Udasis, so far as the matter can be decided by beliefs and practices, are, from the point of view of Sikhs, schismatics who separated in the earliest days of the movement and never merged thereafter.'

Relying on these observations of the Privy Council, the Lahore High Court in Bawa Ishar Das & ors v Dr. Mohan Singh & ors, held:

'It is clearly established in the present case that this is an Udasi institution and that Sikhs have nothing to do with it, except that they may have gone there to listen to the reading of the Sikh scriptures, which is also done by Udasis. These decisions clearly indicated the principle that, though the Sikh Guru Granth Sahib is read in the shrines managed by the members of the Udasis sect, that was not enough to hold that those shrines were Sikh Gurdwaras. In the case before us, the mere fact that at some stage there was a Guru Granth Sahib in this Dera cannot thus lead to any conclusion that this institution was meant for, or belonged to, the followers of the Sikh religion. Clearly the Dera was maintained for an entirely distinct sect known as the Nirmala Sadhs who cannot be regarded as Sikhs and, consequently, in their mere capacity of follows of Sikh religion residing in village Jhandawala, the plaintiffs/respondents could not be held to have such an interest as could entitle them to institute the suit […]".

55. I have read all that because it demonstrates that what one needs to focus upon is not simply the structure of an organisation, or what it calls itself, but the tenets and practises which its adherents follow. It has not been shown in this case, for example, that the adherents or followers at Nirmal Kutia Johal worship anything other than the Guru Granth Sahib, and nor has it been shown that they – which is the other side of the coin – worship graves, tombs or are guilty of any other form of idolatry. Nor is it shown that they have departed from the Sikh customs of, for example, baptism. Indeed, the evidence is that the Third Holy Saint holds himself out as being a baptised Sikh and has himself baptised thousands of Sikhs.
56. It was said in the later Supreme Court decision of 16^th September 2003:

"Sikh temples are not the place of idol worship as the Hindu temples are. There is no place for idol worship in a Gurdwara. The central object of worship in a Gurdwara is Shri Guru Granth Sahib, the holy book. The pattern of worship consists of two main items: reading of the holy hymns followed by their explanation by some learned man, not necessarily a particular Granthi and then singing of some passages from the Holy Granth … No idol or painting of any Guru can be worshipped.

Sikh worship in the Gurdwara is a congregational worship, whereas Hindu temples are meant for individual worship. A Sikh does the individual worship at home when he recites Gurbani daily. Some scriptures meant for this purpose are … [then they are set out] … Sangat is the collective body of Sikhs who meet every day in the Gurdwara".

Then it explains:

"Gurdwara is a place where a copy of Guru Granth Sahib is installed. The unique and distinguishing feature would always be the Nishan Sahib, a flagstaff with a yellow flag of Sikhism flying from it. This serves as a symbol of the Sikh presence. It enables the travellers, whether they be Sikhs or not, to know where hospitality is available. There may be complexity of rooms in a Gurdwara for the building may also serve as a school, or where children are taught the rudiments of Sikhism as well as a rest center for travellers. Often there will be a kitchen where food can be prepared though langar itself might take place in the yawning. Sometimes the Gurdwara will also be used as a clinic. But its pivotal point is the place of worship and the main room will be that in which the Guru Granth Sahib is installed where the community gathers for diwan. The focal point in this room will be the book itself.

The sine qua non for an institution, to be treated as Sikh Gurdwara, as observed in the said case, is that there should be established Guru Granth Sahib, and the worship of the same by congregation, and a Nishan Sahib. There may be other rooms of the institution made for other purposes but the crucial test is the existence of Guru Granth Sahib and the worshippers thereof by the congregation and Nishan Sahib".

Then later down reference is made to the Supreme Court's earlier decision, which concluded:

"… Nirmalas are Sadhus who cannot be regarded as Sikhs and consequently in the mere capacity of followers of Sikh religion residing in the concerned village cannot be held to have an interest as to entitle them to institute a suit … In other words, there was a categorical finding that Nirmalas are not Sikhs".

I need read no more of that.

57. The evidence before me also confirmed the essential characteristics of a Gurdwara, or Sikh temple, in line with the passages I have just read. Nirmal Kutia Johal itself has what to the outsider appears to be a Gurdwara with Guru Granth Sahib at the centre of worship, a collection box for the benefit of the Gurdwara and, perhaps as significant as anything, the Sikh flag which flies over it. These features were observed by the claimants' expert, who went to Nirmal Kutia Johal and attended (anonymously) what he thought was a Gurdwara. What is significant for present purposes is that if upon entry into the building he had observed idolatry or other Hindu practises, he would surely have said so, but he was quite clear that he was at a Sikh institution which he thought was a Gurdwara. The evidence, which was not in his report but which was given in answer to questions from myself, was, in my judgment, very illuminating on the point. If I ask myself what religion today is being practiced at Nirmal Kutia Johal then the answer is: the Sikh religion as laid down in the constitution and trust deeds, in substantially the same way in it which has always been carried on at Nirmal Kutia Johal. This is also in line with Mr. Kulvinder Singh's evidence, who has considerable knowledge of the institution, and whose evidence I accept on these points, which was consistent with all other evidence I heard.
58. It may be that the claimants' expert, who confessed, if that be the right word, to having little direct knowledge of the Nirmala tradition but who based his report on detailed researches, was misled into thinking that this was really a Gurdwara because it has also, and has in India, been the case on the claimants' side that the institution is said to be a Dera. To the uninitiated, however, the difference is not easy to perceive but this must not be allowed to mask the question: what religion is being practised there? One difference is said to be that the donations are made not to the Gurdwara but are made in recognition of the services performed by the Holy Saint and his helpers. That, of course, may be said to smack of Guru worship rather than devotion to the Guru Granth Sahib alone. But that is a feature of the Nirmala tradition and can not defeat this English trust, which was established by reference to a Nirmala institution, nor does it deprive the Third Holy Saint of his powers and authority under the trust deeds and constitution or disentitle him to seek the aid of the court to recognise and enforce his powers and authority. Moreover, the Third Holy Saint does not claim the collections as his own but acknowledges that they are held for the benefit of Nirmal Kutia Johal.
59. The defendants' expert was highly doubtful of the legitimacy of the Nirmala tradition, and thought that he detected signs that the Third Holy Saint had moved over to what the Supreme Court held was Hinduism in the two decisions to which I have referred, because the Nirmala at Kankhal is something to which Nirmala Kutia Johal is affiliated if not subservient. In fact, the evidence is that all the Dastar Bandi ceremonies were attended by the head of the Kankhal institution and so it is quite clear that there has been a friendly relationship going back over many years. That does not mean that this particular Nirmala has departed from being a Sikh institution for the purpose of the English trust deeds and constitution, or has taken up a different brand of Sikhism from that practised by the First Holy Saint.
60. As I have said, the actual evidence of what is practised there is Sikhism, subject only to the doubt that could be put in anyone's mind by the presence of a Holy Saint, which is a doubt which many conservative Sikhs apparently hold about the Nirmala tradition generally. There is certainly no suggestion that the Third Holy Saint has ceased worship of the Guru Granth Sahib. Mr. Bains, the claimants' expert, would have noticed that, as would others giving evidence before me.
61. There is a suggestion that the Third Holy Saint has been guilty of heresy by turning what was a Gurdwara into a Dera. It is important not to overstate this. This Dera, as those on the claimants' side have called it in India, has often been called a Gurdwara in the past, and one only needs toread the Indian proceedings to see constant reference to a Dera "sometimes known as a Gurdwara", or words to that effect.
62. A "Dera" means "house" or "abode", and reflects the fact that this institution came from humble beginnings, with the Original Holy Saint setting up a home there, which has now developed into what is indistinguishable, to the uninitiated, from a Sikh temple or Gurdwara. The word "Dera" seems to be used quite generally in the Nirmala tradition to describe the seat where the Holy Saint has his abode, and that can take on the appearance, as it has done in this case, of a Gurdwara.
63. Why does the name matter? Under Indian law a Gurdwara has separate legal personality and so the succession would not be from one Saint to another, or, as it is sometimes put, from Guru to Chela. Moreover, there is legislation in India, passed in 1925, which enables State intervention in the case of Gurdwaras more readily than in the case of other institutions. The legislation was apparently enacted, so I was told by the claimants' expert, to protect Sikhs but has, in fact, become very unpopular among many Sikhs because it is thought to amount to state interference. One can see, therefore, why the distinction between "Dera" and "Gurdwara" mattered in the proceedings before the Indian court involving the Third Holy Saint, though as far as I can tell the 1925 legislation did not feature in those proceedings, which were about succession and the appropriateness of appointing a receiver.
64. What the distinction between a Gurdwara and a Dera did not affect was the brand of religion being practised at Nirmal Kutia Johal. What was being practised was Sikhism. In answers to various points that were raised in the Indian proceedings, it was said on behalf of the 9^th claimant that the collection was not like that made in a Gurdwara but was made in recognition of the services rendered by the Third Holy Saint, his assistants and helpers. That may, looked at strictly, give rise to an impression that what was being worshipped was the Holy Saint, but that made no difference to the destination of the money. The money still belonged to the institution. As I have said, the Third Holy Saint has throughout accepted that he is not free to treat the money as his own, to spend as he thinks fit. He has to spend it for the purposes of the institution, thus recognising, in effect, that it is a charitable institution.
65. The defendants' expert considers that the Third Holy Saint has veered away from Sikhism because people revere him and bow to him and not to the Guru Granth Sahib. That again is something that is inherent in the reverence of Holy Saints and why they are to some, in particular to the defendants' expert, objectionable. I do not consider, however, on the evidence as a whole that the Third Holy Saint has departed from the primacy of the Guru Granth Sahib. He, on the contrary, acknowledged his adherence to the fundamental tenets of Sikhism in the Indian proceedings, and the Indian court did not gainsay him. He appears also to be revered today by a large number of Sikhs across the globe and to have the respect of other Sikh institutions, which he regularly attends.
66. It is also said that there was inappropriate use of the word "Guru" in the Indian proceedings. The word "Guru" did appear in the context there of a dispute over succession to property, and resisting the appointment of a receiver. As I have said, even the judges appeared to recognise that use of language, without adverse comment. The line of succession from one Holy Saint to his assistant, as opposed to ownership vesting in the institution itself (as in the case of a Gurdwara which has legal personality) can be likened to succession from Guru to Chela, the Chela thus succeeding to the property and having the right to control that property as the succeeding Guru. It is unfortunate language but I do not consider that the use of such language, which the Third Holy Saint appears to have been called upon to explain, which he did (by his letter dated 28^th March 2007, to a religious authority), should detract from the totality of the evidence which shows him to be a devout Sikh. Equally, it cannot be said that he has changed what was a Gurdwara into a Dera and has thereby committed an act of blasphemy. As I have said, the collections there belong to the institution, whatever it is called, and the institution practices Sikhism.
67. I accordingly do not think that the attempts to disqualify the Third Holy Saint from acting as such, by reference to his change of beliefs and religious practices, can succeed. The alleged changes of beliefs and practices have not been made good on the evidence.
68. There is one other point I should mention in this connection. I have mentioned the institution at Kankhal which the Supreme Court has held, in effect, to be a Hindu institution. There clearly is an affiliation between Nirmal Kutia Johal and that institution, but there is no evidence which suggests that the brand of Sikhism which is practised by the Third Holy Saint at Nirmal Kutia Johal is significantly different from that practised by the First Holy Saint. Kulvinder Singh regarded the Kankhal operation as being the head of 33 allied Nirmala institutions (other witnesses said likewise, most notably Surap Singh) and there is some support for that from the fact that a validation certificate, wrongly described in part of the evidence as a "registration" certificate, was obtained from that institution, clearly showing an affiliation and a respect for that institution which might be seen to put it above others. But there is no evidence that the Kankhal organisation in any way interferes in the running of the Johal organisation or lays down the worshipping practises or rites which have to be followed and which are said to be contrary to Sikhism.
69. I understood from the claimants' expert that the decision that the Kankhal organisation is not a Sikh organisation is perhaps questionable. But it must be taken to be the law for the purposes of the legislation that the Indian court was considering, because that is the highest court in India. Even so, it does not touch upon the question which I have to decide, which is whether or not the Third Holy Saint has so departed from the principles of Sikhism as to disqualify him from discretionary relief.
70. The defendants' expert also relied upon certain publications which suggested that the relationship between Nirmal Kutia Johal and Kankhal was more obviously and openly stated since 2005 than previously. I do not consider that that matters in the absence of any evidence, of which there is none, showing that the practises at Nirmal Kutia Johal have changed to such an extent that they have departed from the brand of Sikhism which is referred to in the constitutional documents in this case.
71. I would add that if, as they are entitled to do, the defendants rely upon Kulvinder Singh's evidence for the purpose of showing the adherence of the Johal institution to a proscribed institution at Kankhal, they have to accept that he equally understands that the Nirmal institution to which they are now affiliated, being Saint Roshan Ji's organisation, is also under the auspices of Kankhal. That may not be accepted, I think, by the defendants, but if they do not accept that, I do not see why I should accept that Nirmal Kutia Johal has been taken over and transformed by the Kankhal institution if Saint Roshan Ji's organisation has not.
72. I would also add that, on the defendants' complaint that the Gurdwara at Nirmal Kutia Johal is now treated as a Dera, the difficulties of language and scope for misunderstanding seem to me to be demonstrated by the defendants' own minutes of a meeting of 8^th February of the Birmingham management committee, which refer, in the context of a meeting which I infer took place in Johal (as other minutes of 31^st December 2003, and the opening words of the new constitution, appear to confirm) to the Nirmal Kutia Johal institution as a "Dera". That was before the complaints about the Third Holy Saint, which are now made, had emerged.
73. I now need to finish the chronological history in outline in order to identify the issues which remain for decision. There have been further amendments to the constitution, followed by the purported removal and appointment by the Third Holy Saint of trustees. In light of the construction I have put on the original trust deeds and constitutions, these acts would all be valid under those trust deeds and constitutions. However, a revised constitution was considered in 2003 and accepted by all those present (including some but not all of the defendants) at a meeting on 31^st December 2003 in India. This constitution was to be taken back and considered by the joint management committees of the Bradford, Birmingham and High Wycombe Gurdwaras. It will be recalled that they could decide on changes to the constitution with the approval of the Holy Saint, which was given at the meeting of 31^st December 2003.
74. On 8^th February 2004 everyone from the joint management committees who had not already signed up to the revised constitution did so. It is said that this was done, according to the defendants, subject to proof of the Third Holy Saint's appointment being produced. This was somewhat confusing because the required proof veered from a will, when it was known there was none, to other documentary proof of appointment, when the defendants were perfectly aware of the Dastar Bandi ceremony, which some of them attended. The matter was referred to in the minutes of the meeting of the Birmingham Gurdwara of 8^th February to which I have already referred. However, the minutes of the joint committee meeting held on 8^th February refer to no such limitation and the evidence before me on the claimants' side was that the constitution was all agreed and signed without condition, which is consistent with the joint committee minutes.
75. The evidence on the defendants' side, however, was different but I am afraid to say that I found it wholly unconvincing, just as I found the evidence of the appointment of the Third Holy Saint in the presence of thousands as some sort of conditional, or short-term appointment, to be unconvincing.
76. It is quite right that there was correspondence initiated, so it would seem, at the instigation of a cautious solicitor for the defendants requiring some proof of his appointment, but I consider that this request for proof has been used to build a case which simply is not there. The fact is that all the members of the management committee knew of the Third Holy Saint's Dastar Bandi ceremony. They also all signed the new constitution at some stage, either in India or when it was confirmed again at the joint committee meeting, and that must be taken, in my judgment, to be effective. What seems to have happened thereafter is that umbrage was taken against the Third Holy Saint. Mr. Kulvinder Singh, who for a long time held a power of attorney, though he does no longer, for the Third Holy Saint, produced yet further declarations of trust in February 2004 which appeared, at least in the eyes of the defendants, to give the Third Holy Saint even greater powers than before. They have not been signed (though one in relation to Bradford, with which I am not concerned, has) so we can leave them to one aside. This appears to have triggered the schism that has now occurred. None of that, in my judgment, invalidates the new constitution, which everyone signed, I find unconditionally.
77. The new constitution, as signed, recorded the deaths of the First and Second Holy Saints, and named the Third Holy Saint to be "the sole chairman of all the three Gurdwaras in the UK". That constitution then provided that amendments and additions could only be made by the Third Holy Saint and his successor through a written communication to all the Gurdwaras. It provided also for the management committee to work under the orders and instructions of the chairman, who was the Third Holy Saint, but otherwise left the committee structure largely as it was before. There was the same provision for the president to seek orders from Nirmal Kutia Johal, as and when necessary, but it did not actually mention any particular individual there. It was provided that the president would be answerable to the Third Holy Saint and his successor for the efficient running and the management of the institution. Changes in the management committee could be made under clause 10 by the chairman, that is to say the Third Holy Saint, "at any time at his discretion". Then it was said how that was to come about and also provided that, in the event of a change in the committee, the member who ceased to be an office-bearer of the management committee would also cease to be a trustee. That was, therefore, in line with the previous regime under which trustees and committee members were all the same, apart from the cashier. There was finally the winding up clause, which said:

"In the event of Gurdwara compelled to wind up/dissolution the whole property and assets will be handed over to the Chairman, His Holiness …".

Then it named the Third Holy Saint and added: "and his successor". There was then provision to seek guidance from the chairman and his successor, and "successor" was said in a note to mean the person who is now the Third Holy Saint's assistant.

78. As I have said, what then happened is that a deed of trust was produced. That deed of trust, which has not been put into effect except in relation to Bradford, referred to "successor or successors".
79. Following the adoption of the new constitution, there have been a number of appointments purportedly made by the Third Holy Saint in relation to the management committee and trustees. It seems to me that all those appointments are validly made under the new constitution and existing trust deeds and would have been validly made under the old constitution and trust deeds. It follows that the claimants are entitled to the relief they seek, both declaratory and injunctive. I will not go through the details here. The series of appointments are not in dispute, only their effectiveness. I hold them all to be effective. I hope that drawing up an order will be a relatively straightforward process.
80. There are said to be a number of reasons for withholding relief in favour of the 9^th claimant, of which the main one may be summarised as his departure from mainstream Sikhism. I have dealt with this. There is additionally said to be misconduct generally. This refers to matters such as the general dissent which has been engendered in Birmingham, High Wycombe and elsewhere in relation to the Third Holy Saint. There have indeed been some ugly incidents but they cannot be and are not laid at the door of the Third Holy Saint. Complaint is made of matters such as the appointment of Kulvinder Singh under a power of attorney and the uses to which the power of attorney has been put. I do not see how any of that could possibly justify the court in declining to carry out its duty to grant appropriate relief once the legal issues have been decided.
81. In considering the various discretionary factors against the grant of relief, which were sometimes referred to, not always entirely accurately, as an "unclean hands defence", I have had regard to the fact that the 9^th claimant has chosen not to come here to give evidence, although he gave evidence in the Indian proceedings. He made that decision (or the decision was made on his behalf, on advice no doubt) based upon the pleaded case and the fact that the defendants eventually disclaimed any suggestion of there being an automatic bar because of some lack of eligibility on his part. The original proposed amendment to the pleadings to raise the unclean hands defence was wider but was narrowed in the course of argument. I have to hold the defendants to their pleadings in the light of that history. However, I am not deciding this case on a pleading point, as I have decided on the facts that the unclean hands defences are not made good. I have however in reaching that conclusion had to weigh in the balance the fact that there has been no evidence from the 9^th claimant, and that this may itself give rise to adverse inferences.
82. In my judgment, the principle justifying the drawing of adverse inferences from silence does not apply in this case. The defendants have not raised a case which cannot be answered by reference to other evidence on the principal issue, which I have already decided, on departure from the Sikh faith. All other matters, outside the ones I have mentioned, have not been pursued earnestly in argument and, unless I have missed something, could not possibly justify my declining to grant the relief sought. I therefore do not need to make any detailed findings upon the individual pleaded paragraphs. It is sufficient to say that nothing adverse has been established about the Third Holy Saint which would come anywhere close to disentitling him to the appropriate relief.
83. There was one other point which was raised on the pleadings, and referred to in the Supreme Court at an interlocutory stage, which is that it was beyond the powers of those who established the original trust deeds and constitution to confer authority on the Third Holy Saint. In my judgment, I need not consider that because the point was abandoned, and seemed barely to survive the earlier hearing in the Supreme Court.
84. I will now hear counsel as to the appropriate consequences of my rulings.

MR. BARLOW: My Lord----

JUDGE PURLE: You can agree an order, can you not? I have said I am going to grant you your declaratory relief----

MR. BARLOW: Yes, absolutely. I think that should be----

JUDGE PURLE: -- and injunctions.

MR. BARLOW: It may be----

JUDGE PURLE: I have got this right, that no one disputes what the purported appointments have been?

MR. BARLOW: No.

JUDGE PURLE: No, and once I have held that you have power to make them then they take effect.

MR. BARLOW: Yes.

JUDGE PURLE: There is your resignation, which I have not dealt with in the judgment, but clearly that was it. The resignation was effective.

MR. BARLOW: Yes. The form of the order, I hope, will not give rise to----

MR. THROWER: No, I think the resignation amendment was overtaken by express appointment.

MR. BARLOW: By express appointment, yes.

JUDGE PURLE: Yes, it was. Yes.

MR. BARLOW: So there is no problem there. I think my friend has indicated that he would like to consider the implications of the judgment.

JUDGE PURLE: Yes, I think that is fair enough.

MR. BARLOW: Also the fact is that this case was started nearly five years ago and I think there may be some dispute about the costs.

JUDGE PURLE: Are you ready to deal with consequentials today or do you want to----

MR. BARLOW: No. I think perhaps if your Lordship would----

JUDGE PURLE: If that is so, then what I will do is – you will not be appealing – you might have instructions to seek permission to appeal.

MR. THROWER: Indeed, I do.

JUDGE PURLE: I think, in those circumstances, I should adjourn that. I think it has to be made when I give judgment but I can adjourn it and I will extend the time for appealing to 21 days after such time as I have ruled upon the question of permission to appeal. Is that all right, Mr. Barlow?

MR. BARLOW: That is fine, yes.

JUDGE PURLE: The two go hand in hand.

MR. BARLOW: Perhaps we could deal with the other consequentials?

JUDGE PURLE: Yes. Are you all in London?

MR. THROWER: Yes.

JUDGE PURLE: I just wondered whether for that really you might not need a full house, as it were, whether----

MR. BARLOW: If that is convenient to your Lordship, that would certainly be convenient for me.

JUDGE PURLE: I have got to come down to London for an outstanding judgment and an unfinished case. We will keep that open as an option. If the consequentials are going to be short, and I do not expect that they will be, then also it could be by telephone, but that is only if it is – It is not satisfactory normally.

MR. BARLOW: No, I think not actually, my Lord.

JUDGE PURLE: Especially when there are bundles like this.

MR. BARLOW: If your Lordship would adjourn it to a date to be fixed with your clerk and our clerks?

JUDGE PURLE: Yes, well, through the Listing Offices but anyway the clerk will help you. Through the usual channels.

MR. BARLOW: Yes.

MR. THROWER: I am much obliged.

JUDGE PURLE: Whatever they are. Yes, I will do that then. Thank you very much.

MR. BARLOW: I am very much obliged to your Lordship.

_________________