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Bumper Development Corp., Ltd. v. Commissioner of Police of the Metropolis and Others

(Union of India and Others, Claimants)

England, Court of Appeal, Civil Division, 1991.

In 1976, an Indian laborer named Ramamoorthi, who lived near the site of a ruined Hindu temple at Pathur in the Indian state of Tamil Nadu, was excavating sand when his spade struck a metal object. The object was part of a series of bronze Hindu idols from the Chola period (ninth to thirteenth century A.D.); among these was a major idol known as the Siva Nataraja (or Pathur Nataraja because of its place of discovery).[1] Ramamoorthi realized that he had discovered something of value and he eventually sold the Pathur Nataraja to a dealer in religious objects. The Pathur Nataraja was in turn sold several times, with the last identified buyer being a man named Valar Prakash, who could not be traced but was last seen in Madras.

About the time that these sales were occurring, state officials in Tamil Nadu learned of them and began criminal investigations. Statements were taken from Ramamoorthi and others about the discovery of the Pathur Nataraja and its subsequent history. As of 1982, however, the whereabouts of the idol was unknown.

Although the Pathur Nataraja was lost, several other artifacts found at the temple site in Pathur remained at that place. Among them was a stone object of religious worship known as a Sivalingam.[2] In the typical Chola-period Hindu temple, this stone would have been positioned in the sanctum and would have been the focus of religious worship. Following its discovery, the Sivalingam was reinstated as an object of worship at the site of the ruined temple in Pathur.

In June 1982, Bumper Development Corp., Ltd. (Bumper) purchased in good faith in London a Siva Nataraja (the London Nataraja) from a dealer named Sherrier, who had produced a false provenance[3] of the idol for the purpose of making the sale. Bumper then sent the idol to the British Museum for appraisal and conservation. While the London Nataraja was at the British Museum, it was seized by the London Metropolitan police in compliance with the British government’s policy of returning stolen religious artifacts to their owners. Bumper then brought this suit against the Commissioner of Police of the Metropolis of London and two of his officers seeking return of the London Nataraja.

At the trial, five claimants intervened in the case. They were the Union of India (the first claimant), the state of Tamil Nadu (the second claimant), and Thiru Sadagopan on his own behalf (as the third claimant) and on behalf of the temple itself (the fourth claimant). The Sivalingam, which had been reinstated as an object of worship at the temple site in Prathur after the trial had begun, was later added as an additional claimant (the fifth claimant). All of the claimants asserted that they were the rightful owners of the London Nataraja, which they claimed was one and the same as the Prathur Nataraja.

The trial court judge, Judge Ian Kennedy, held that the evidence of Ramamoorthi and others who had seen the Prathur Nataraja in 1976, as well as expert metallurgical, geological, and entomological evidence, proved that the Prathur Nataraja and the London Nataraja were one and the same. The judge also held that the temple at Prathur and the Sivalingam both had superior title to the Nataraja and that they were entitled to possession of the idol. Bumper appealed to the Court of Appeal.

The Court of Appeal first held that the evidence supported Judge Kennedy’s conclusion that the London and Prathur Natarajas were the same. It then held that the law of the state of Tamil Nadu regarded the temple at Prathur as a juridical entity that possessed the right to sue and be sued and to own and possess property. The Court of Appeal then considered whether or not English law would look upon the temple as a legal entity.

LORD JUSTICE PURCHAS:

* * *

Having held that the temple is a legal person under the law of Tamil Nadu acceptable in the courts of that state as a party which, with the third claimant acting as representative, could have sued for the recovery of the Nataraja, we must now decide whether, as the judge held, it is likewise acceptable in the courts of this country .

The question whether a foreigner can be a party to proceedings in the English courts is one to be determined by English law (as the lex fori).[[4]] In the case of an individual no difficulty usually arises. And the same can be said of foreign legal persons which would be recognized as such by our own law, the most obvious example being a foreign trading company. It could not be seriously suggested that such a company could not sue in the English courts to recover property of which it was the owner by the law of the country of its incorporation.

The novel question which arises is whether a foreign legal person which would not be recognized as a legal person by our own law can sue in the English courts. The particular difficulty arises out of [the] English law’s restriction of legal personality to corporations or the like, that is to say the personified groups or series of individuals. This insistence on an essentially animate content in a legal person leads to a formidable conceptual difficulty in recognizing as a party entitled to sue in our courts something which on one view is little more than a pile of stones.

There is an illuminating treatment of legal personality in Salmond on Jurisprudence,[5] from which we take two passages:

Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases. Those which are actually recognized by our own system, however, are of comparatively few types. Corporations are undoubtedly legal persons, and the better view is that registered trade unions and friendly societies are also legal persons though not verbally regarded as corporations…. No other legal persons are at present recognized by English law. If, however, we take account of other systems than our own, we find that the conception of legal personality is not so limited in its application, and that there are several distinct varieties, of which three may be selected for special mention. They are distinguished by reference to the different kinds of things which the law selects for personification. 1. The first class of legal persons consists of corporations, as already defined, namely, those which are constituted by the personification of groups or series of individuals. The individuals who thus form the corpus[[6]] of the legal person are termed its members…. 2. The second class is that in which the corpus, or object selected for personification, is not a group or series of persons, but an institution. The law may, if it pleases, regard a church or a hospital, or a university, or a library, as a person. That is to say, it may attribute personality, not to any group of persons connected with the institution, but to the institution itself. Our own law does not, indeed, so deal with the matter. The person known to the law of England as the University of London is not the institution that goes by that name, but a personified and incorporated aggregate of human beings, namely, the chancellor, vice-chancellor, fellows, and graduates. It is well to remember, however, that notwithstanding this tradition and practice of English law, legal personality is not limited by any logical necessity, or, indeed, by any obvious requirement of expediency, to the incorporation of bodies of individual persons.

Thus Salmond recognizes the possibilities which may not be farfetched, of (say) a foreign Roman Catholic cathedral having legal personality under the law of the country where it is situated; and, in order to make the concept more comprehensible, let it be assumed that it is given that personality by legislation specifically empowering it to sue by its proper officer for the protection and recovery of its contents. It would, we think, be a strong thing for the English court to refuse the cathedral access simply on the ground that our own law would not recognize a similarly constituted entity as a legal person. The touchstone for determining whether access should be given or refused is the comity of nations, defined by the Shorter Oxford English Dictionary[7] as:

The courteous and friendly understanding by which each nation respects the laws and usages of every other, so far as may be without prejudice to its own rights and interests.

Arguing from the example of a Roman Catholic cathedral and in the belief that no distinction between institutions of the Christian church and those of other major religions would now be generally acceptable, we cannot see that in the circumstances of this case there is any offense to English public policy in allowing a Hindu religious institution to sue in our courts for the recovery of property to which it is entitled by the law of its own country. Indeed we think that public policy would be advantaged….

* * *

We therefore hold that the temple is acceptable as a party to these proceedings and that it is as such entitled to sue for the recovery of the Nataraja.

* * *

For the reasons set out in this judgment we dismiss the appeal on the ground that Judge Ian Kennedy correctly decided that the temple had a title to the Nataraja superior to that enjoyed by Bumper.

[1] A Siva Nataraja is a representation of the Hindu god Siva (or Shiva), the destroyer, who is one of the three chief Hindu gods (Brahma, the creator, and Vishnu, the preserver, being the other two). As the Court of Appeal said: “The Siva Nataraja can be described in a thumb-nail sketch as the god standing with his right foot upon a dwarf and surrounded by a `halo’ which represents the flames issuing from the mouths of two crocodiles situated to the left and right of the dwarf. At the top of the halo in some Natarajas there is to be found a design either in the form of a mask or a rosette or similar adornment known as a ‘Kurti Muka.’ Round the halo there are a number of `flames’ issuing radially from the halo. Depending upon the period when and the area in which they were made the Siva Natarajas vary in many respects. The one with which this appeal is concerned is circular; but many others are oval in shape. The Nataraja with which this appeal is concerned had a lotus base mounted on a square-shaped peedam or pedestal.

“Returning to Siva, the design again varies according to date and place. The Chola Natarajas have a number of identifying features. . . . The god has two right and two left arms and hands but only two legs, right and left. He has on each side of his head horizontally flowing hair described as jettas. Various objects and representations are imposed upon or incorporated in the jettas, including a particular one called a `ganga.’ In one of his right hands and around the wrist there is coiled a snake-a cobra. In one of his left hands he holds another flame. . . .”

[2] The Court of Appeal described it as “a carefully fashioned stone object representing a phallus.”

[3] From French provenir: “to come forth with” or “to originate.” A provenance is the history of ownership of a valued object, work of art, or literature.

[[4] Latin: “law of the forum.” The law of the state where the court hearing a case is located.]

[5] Pp. 306-308 (12th ed., 1966).

[[6] Latin: “body.” ]

[7] 3rd ed., 1944.

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