Purani Swami Dharmanandan Dasji v Daveen Mavji Bhudia & Ors

Continuation of the existing rights of the Membership of the charity?

Power in Directors to retire

Need for Board to implement scheme

This is my judgment following the trial of this claim.

The claim concerns the English registered charity named Shree Swaminarayan Satsang (“the charity”).

By his Part 8 Claim Form the Claimant sought the following relief:

The charity was established in or around 2001 and 2002. It was registered as a charity by the Charity Commission on 28 June 2002.

In legal form the charity is an unincorporated association or trust.

The objects of the charity are specified in clause 2.01 of its existing constitution:

“To advance the Sanatan Dharma (religion) in accordance with the teachings and principles of Shree Swaminarayan sect founded and ordained by Lord Shree Sahajanand Swami.”

Clause 5.01 of the existing constitution of the charity provides that a Board of Directors shall administer and manage the Organisation.

Under the terms of the existing constitution of the charity, the Claimant, as Head Priest of the Bhuj Temple, Gujurat, India, is the ex officio Chaiman of the Board of Directors.

The Claimant has been the Mahant Swami of the Bhuj Temple since 2006. That translates as Head Priest. From 1998 to 2006 the Claimant was the Deputy Mahant Swami; he having been appointed to take over some of the administrative burdens of the then Mahant Swami as the Mahant Swami got older. The translation of the trust deed of the Bhuj Temple in the evidence calls the Deputy Mahant Swami the “Vice Mahant”.

The existing constitution of the charity provides for 11 directors in addition to the Head Priest.

The 1^st Defendant, Daveen Mavji Bhudia, filed an acknowledgment of service stating that he did not intend to contest the claim and asking the court to approve the Claimant’s draft scheme. He also asked for an order that the Defendants who oppose the Claimant’s draft scheme pay the Claimant’s costs and the supportive Defendants’ costs of and occasioned by the proceedings. He has not taken an active part in the proceedings. The 1^st Defendant was appointed a director on 25 September 2007. He may have resigned in 2018.

The 2^nd Defendant, Hari Jadavi Halai, filed an acknowledgement of service to the same effect at the 1^st Defendant’s. He has not taken an active part in the proceedings. The 2^nd Defendant was a founder director of the charity. He may have resigned in 2018.

The 3^rd Defendant, Jadavji Ramji Hirani, was served with the proceedings, but has not acknowledged service or taken an active part in the proceedings. He was a founder director of the charity. He may have resigned in 2018.

The 4^th Defendant, Manji Jina Hirani, filed an acknowledgement of service stating that he did not intend to contest the claim. He was a founder director of the charity. He may have resigned in 2018.

The 5^th Defendant opposes the Claimant’s draft scheme, or parts of it. He proposed his own scheme for the charity. He was represented before me by Mr Seal. The 5^th Defendant was one of the original directors of the charity. The minutes of a directors’ meeting of 26 June 2020 record his resignation and non-reappointment as a director. The 5^th Defendant did not accept this. He criticised the process and pointed out that what, in substance, was his removal, was not approved by the Head Priest.

Until the second afternoon of the trial, the 6^th to 12^th Defendants opposed the Claimant’s draft scheme and proposed their own scheme. After the short adjournment on the second day of the trial they stated, by their counsel Mr Cardew, that they did not resist the Claimant’s draft scheme and that they thought it was religiously, spiritually and morally wrong to subject the Claimant to further questioning or examination.

The 6^th Defendant, Devshi Dayalal Gami, was one of the original directors of the charity, and he remains one.

The 7^th Defendant, Punit G Patel, was purportedly appointed as a director on 13 February 2021.

The 8^th Defendant, Lalji Mawji Vekaria was appointed as a director of the charity at a meeting on 25 September 2007.

The 9^th Defendant, Jitendra Manji Vekaria, was purportedly appointed as a director on 13 June 2021.

The 10^th Defendant, Mansukh Mawkji Vekaria, was purportedly appointed as a director on 13 June 2021.

The 11^th Defendant, Prakash Manji Vekaria, was purportedly appointed as a director on 13 February 2021.

The 12^th Defendant, Khimji Ramji Patel, was one of the original directors of the charity, and he remains one.

The 13^th Defendant, Mitesh Bhimji Patel, filed an acknowledgment of service stating that he did not intend to contest the claim and asking the court to approve the Claimant’s draft scheme. He also asked for an order that the Defendants who oppose the Claimant’s draft scheme pay the Claimant’s costs and the supportive Defendants’ costs of and occasioned by the proceedings. He may have resigned in 2018.

The 14^th Defendant, Parbat, Kanji Varsani, was served with the proceedings, but has not acknowledged service or taken an active part in the proceedings. He was appointed a director on 25 September 2007. He may have resigned in 2018.

The 15^th Defendant, HM Attorney General, filed an acknowledgement of service stating that she did not intend to take an active part in the proceedings or make representations. Neither the Attorney General at the time of the acknowledgement of service, nor her successors have done so.

It is clear from the terms of the charity’s existing constitution and from the evidence that the charity has always been closely associated with the Shree Swaminarayan Temple, Bhuj-Kutch, Gujarat, India (Nar Narayan Dev). I refer to this Temple as “the Bhuj Temple”. “Nar Narayan Dev” is frequently abbreviated to “N N Dev”.

The Bhuj Temple is one of the six original and senior temples in the Swaminarayan Branch of Hinduism.

The Swaminarayan faith is based on the teachings of its founder, Lord Swaminarayan.

Before his death Lord Swaminarayan established two “gadis” for the entire religion. The gadis are seats of leadership.

Every Swaminarayan temple falls within one of the two gadis.

Each gadi is led by an Acharya. One is based in the original Ahmedabad Temple. The other in the original Vadtal Temple.

Over the last 200 years, about 1,000 Swaminarayan Temples have been built around the world. The majority of these newer temples are created “under” one of the original six Temples.

The charity is established “under” the Bhuj Temple. In this context “under” does not mean that the charity is wholly under the control of the Bhuj Temple.

The charity is a substantial charity. Its financial statements for the year ended 31^st March 2024 show total funds of £10,077,574. These include the building and land known as the Stanmore Temple. This appears in the Financial Statement with a value of £4,243,828. The financial statements show cash in the bank or in hand of £4,010,467.

The directors of the charity are frequently referred to interchangeably as “trustees” in the evidence and by the parties and the witnesses and by me in this judgment. The directors are not “directors” in the company law sense of that word (the charity is not a company). They are not or are not all “trustees” in a narrow sense of the word because they do not or do not all hold property on trust for others or for the purposes of the charity. They are “charity trustees” within the definition of “charity trustees” in s.177 Charities Act 2011 because under the charity’s existing constitution they are the persons having the general control and management of the administration of the charity.

A scheme is essentially a document which amends the constitution of a charity. There are two types of scheme. The first, commonly called a regulatory, managerial or administrative scheme amends the administrative provisions of a charity’s constitution. The second, generally called a cy-près scheme, amends the purposes of a charity. There is no suggestion in this case that the purposes of the charity need to be changed. This case is only concerned with the first type of scheme.

In this judgment I refer to the first type of scheme as a managerial scheme. I do not call that type of scheme an administrative scheme because doing so can lead to confusion. The possibility for confusion arises because s.69 Charities Act 2011 refers to both types of scheme as schemes “for the administration of a charity”.

The court’s jurisdiction to make a managerial scheme remains part of its inherent jurisdiction in respect of charities. The essence of the jurisdiction was explained succinctly by Peter Gibson J in his judgment in Re J W Laing Trust [1980] Ch 143 at pp.153F and 154E as arising when, taking into account all the circumstances of the charity, it was expedient in the interests of the charity to regulate the administration of the charity, but that in doing so the court “should be slow to thwart the settlor’s wishes.” I consider some elements of the law in more detail below; but that detail is not needed in order to decide the jurisdiction questions or whether a scheme is required.

Proceedings in the court for a scheme in relation to a charity such as those before me are an example of “charity proceedings” within the meaning of s.115 Charities Act 2011. Accordingly, by reason of s.115(2) Charities Act 2011, the taking of the proceedings was required to be authorised by the Charity Commission. They were authorised by an order of the Commission dated 27 June 2023. That Commission order provided:

“The Commission by this order authorises:

Purani Swami Dharmanandan Dasji being a charity trustee and person interested in the Charity to take proceedings as he may be advised in the Chancery Division of Her Majesty’s High Court of Justice, for the following relief:

(1)

an order to approve the Draft Scheme put forward by Purani Swami Dharmanandan Dasji or make a scheme in such other terms as the Court thinks fit;

(2)

an order that Purani Swami Dharmanandan Dasji can recover his costs out of the assets of the Charity;

(3)

an order for costs against Naran Harji Gami;

(4)

such further or other relief as the Court thinks fit.”

The relief sought in para.8 of Part 8 Claim Form is the same as that authorised to be applied for by the Commission’s order.

The English courts have no jurisdiction to make schemes in respect of institutions established under and in accordance with law of a foreign state. That is not this case. It is apparent from the terms of the charity’s constitution and the background to its establishment that it was and remains established under and in accordance with the law of England and Wales.

Further, and in my view conclusively, the charity is registered as a charity by the Charity Commission of England and Wales. Under s.37(1) Charities Act 2011 an institution is, for all purposes other than rectification of the register, conclusively presumed to be or to have been a charity at any time when it is or was on the register. The charity is therefore conclusively presumed to be a “charity” within the meaning of the Charities Act 2011. Under s.1(1) Charities Act 2011, for the purposes of the law of England and Wales, “charity” means an institution which (a) is established for charitable purposes only, and (b) falls to be subject to the control of the High Court in the exercise of its jurisdiction with respect to charities. The combined effect of ss.37(1) and 1(1) Charities Act 2011 is therefore that the charity is conclusively presumed to be a charity established for charitable purposes only and subject to the control of the High Court in the exercise of its jurisdiction with respect to charities.

Mr Mills raised for my consideration the fact that one of the twelve directors (the Head Priest) was resident in India. That does not cause the charity not to be established under and in accordance with the law of England and Wales; nor does it prevent ss.37(1) and 1(1) Charities Act 2011 from having the effect outlined in the immediately foregoing paragraph. Nor does it oust the court’s scheme jurisdiction.

Even if the scheme was to provide for the appointment and removal of the directors by the Mahant Swami or the trustees of the Bhuj temple, the persons controlling and managing the charity would not be those appointors, but would be the directors and the charity would remain subject to the control of the English High Court.

Mr Mills and Mr Cardew both raised the possibility that, by reason of no counterclaim having been made, I could not make a scheme other than the one sought by the Claimant. Mr Cardew did not agree with that proposition. In the circumstances of the present case I consider that I can make a scheme which is different from that sought be the Claimant. I do not consider that s.115(4)(a) Charities Act 2011 assists in this regard. S.115(4)(a) Charities Act 2011 provides that s.115 does not require an order for the taking of proceedings in a pending cause or matter. In the present case no proceedings, by way of counterclaim, application or otherwise seeking an alternative scheme have been taken by any of the Defendants, so there is no “taking of proceedings in a pending cause or matter” to which s.115(4)(a) could apply. If there was a counterclaim or application for an alternative scheme, there would at least be considerable doubt whether such a counterclaim or application came within the scope of s.115(4)(a). I do not have to decide that. In deciding whether to make a scheme and if so on what terms on the Claimant’s claim, I am engaged in considering, amongst other things, what is expedient in the interests of the charity. Having regard to the submissions made by the other parties I could decide that, in some respects, different provisions from those proposed by the Claimant in his proposed scheme would be expedient or would be more expedient. If I did so, I consider that generally I would be free to depart from the specific scheme which the Claimant has proposed. Even if I was wrong on that in general, the particular form of relief authorised by the Commission to be applied for and that applied for by the Claimant in the present case makes it clear that in this case I can do so. In paragraph 8.2 of his Part 8 Claim Form the Claimant asks, as authorised by the Commission by its order dated 27 June 2023, for an order approving his draft scheme or that I should “make a scheme in such other terms as the Court thinks fit.”

Mr Mills raised and dismissed the possibility that the Attorney General’s presence (by counsel) might be necessary in order for the court to have jurisdiction to make a scheme. He was right to dismiss the possibility. Generally the Attorney General is a necessary party to charity proceedings. He has correctly been joined as a defendant in these proceedings.

In charity proceedings such as the present the Attorney General represents the Crown as parens patriae. The Attorney General represents the public interest in having charities properly administered. In particular it is the duty of the Attorney General:

The interrelationship between the courts and the Attorney General regarding charities is, broadly, and excluding the ancient “sign manual” jurisdiction, one in which the Attorney General calls things to the attention of the court and makes representations, while the court makes orders, directions or schemes in relation to the charity. The point is made by Sir Richard Scott VC in a longer extract from his judgment in Stanway v Attorney General than that quoted above, which longer extract is set out in Tudor on Charities (11^th ed) at para.13-005 as follows:

“The Crown is parens patriae of the charity and the judges of the courts represent the Crown in supervising what the charity is doing and in giving directions, such as those sought from me. The Attorney General's function is to make representations to the court as to where lies the public interest as he sees it.”

Thus, in a case such as the present, generally the court makes orders or gives directions, while the Attorney General makes representations. The absence of representations by the Attorney General does not invalidate orders or directions made by the court.

Further, as is explained in Tudor on Charities (11^th ed) at para.13-017, the existence of a duty on or power in the Attorney General in relation to charities does not require the Attorney General necessarily to take action in all cases to which that duty or power literally extends. The fact that in a particular case, such as the present, the Attorney General decides not to take any action should not prevent the court from exercising its inherent jurisdiction as to charities where it is satisfied that it is in the interests of charity for it to do so.

A scheme amending the constitution of the charity is sought because the existing constitution is unsatisfactory or unclear in a number of respects.

In summary its provisions do not expressly cover a number of more or less common or likely situations and in some respects its meaning is unclear. That imprecision has given rise to a number of issues between the persons who have been involved in running the charity. Many of those issues remain outstanding and mean, amongst other things, that there is uncertainty as to the current make up of the Board of Directors, and, consequentially, as to who should be controlling and managing the charity.

The affairs of the charity came before Mr Richard Snowden QC in February 2012 on a claim (HC10C04264) made by the individuals who in the current proceedings are the 1^st, 2^nd, 3^rd, 5^th, 12^th, 13^th and 14^th Defendants. The principal relief sought in claim HC10C04264 was a declaration as to the then composition of the Board of Directors. In the event that claim was not adjudicated upon by the Judge because a general meeting of over 200 of the members of the charity had been held on 4 February 2012 and, if that meeting had been validly called and the resolutions passed at it had been validly passed, the need for that relief would have disappeared.

By his judgment in HC10C04264 dated 23 February 2012 Mr Snowden held, following a 2 days trial of a preliminary issue, that the meeting of 4 February 2012 was not a validly convened AGM or EGM of the charity and that in normal circumstances a member who wanted a resolution put on the agenda for an Annual General Meeting or for an Extraordinary General Meeting could not themself convene the meeting.

Mr Snowden considered, but did not decide, that there was force in a submission that if a member requested a general meeting of the members to consider a constitutional amendment, then the Board of Directors would be obliged, by contract and/or their fiduciary duties, to give proper consideration to that request. If, in breach of such duties, the Board failed or refused to convene a meeting without good reason, then the member would have his remedy by way of an action in contract or equity seeking an order from the court to compel the Board to comply with those duties.

Mr Snowden considered, but did not need to and did not decide, that there was a default or residual power in the members to convene a valid general meeting and to pass resolutions without unanimous agreement if, without that power, the affairs of the charity would be completely stymied.

Mr Snowden did not determine many of the then outstanding points because the active parties to the litigation before him agreed to a form of Tomlin Order which was made on 15 June 2012. The Head Priest was not a party to the proceedings before Mr Snowden. The Attorney General was a party, but did not take an active role. The Attorney General did not object to the Tomlin Order.

The Tomlin Order stayed the proceedings on the terms set out in the Schedule to it, with liberty to apply in the event that the terms were not complied with and generally in relation to the subject matter of the Schedule. The order recited that by ordering a stay on the terms set out in the Schedule, the court was not making any judgment or decision in respect of the terms.

The terms of the Schedule to the Tomlin Order contained:

In the event, although there were discussions as agreed, they stalled on the issues of identifying the membership; whether a subscription should be required and, if so, what that subscription should be. No application was made to the Charity Commission for a scheme and no scheme was made.

It is apparent from its terms that the charity’s constitution was not professionally drafted.

The evidence was that the charity’s constitution was based on the pre-existing constitution of an English registered charity which some of the founders had been involved with called the International Swaminarayan Satsang Organisation (“ISSO”). So far as interpretation of the existing constitution is concerned, that evidence is inadmissible. Insofar as an attempt might be made to rely on it for that purpose for showing what the charity’s constitution was meant to provide, it would be evidence of the draftsman’s subjective intent. It would be one stage removed from the use of an accepted precedent because the constitution of ISSO is not a recognised precedent with an established meaning. In practical terms if the evidence was admissible for the purposes of interpretation of the charity’s constitution, any problem of interpretation would give rise to an issue of interpretation of ISSO’s constitution, and the original problem would become more complicated without taking the interpretation of the charity’s constitution significantly further forward.

Mr Snowden identified various difficulties with the charity’s current constitution.

The particularly important difficulties which I have identified, and which overlap with those identified by Mr Snowden are as follows:

In my judgment the difficulties with the constitution explained above make it expedient in the interests of the charity and its charitable objects that a scheme should be made with a view to disposing of most if not all of those difficulties.

Having reached that conclusion, it would also be expedient in the interests of the charity for a scheme to extend to a more comprehensive re-drafting of the constitution so as to make it more workable and resilient. Also to deal with various minor or drafting points which, if they had been the only difficulties with the existing constitution, might not of themselves have justified the making of a scheme. That approach is also supported by the consideration that the existing constitution itself contemplates that, with some exceptions, amendments might be made to it; thus indicating that the settlors and founders themselves intended that the provisions of the constitution might be changed in the future. I am encouraged in reaching this conclusion as to the appropriate approach by:

I have already summarised the relevant law as stated by Peter Gibson J in his judgment in Re J W Laing Trust [1980] Ch 143 at p.153F and 154E; that is to say: taking into account all the circumstances of the charity, the court should do what is expedient in the interests of the charity, though being slow to thwart the settlor’s wishes.

In my judgment the need to be “slow to thwart the settlor’s wishes” applies both to the question of whether a scheme should be made at all and to the contents of the scheme if one is to be made. However, once it becomes apparent that a scheme should be made, there is bound to be some departure from the settlor’s wishes as they were expressed in the constitutional document. Hence at that latter stage of the analysis, depending on the circumstances, it may often be appropriate to place greater weight on expediency and practicability, and less on the settlor’s wishes, at least as they were expressed in the constitutional document.

In Re Royal Society’s Charitable Trusts [1956] Ch 87 Vaisey J made a managerial scheme conflating and combining a number of special trusts and widening the trustees’ powers of investment. However, he said (at p.93 of the report) that the jurisdiction was one which “should be exercised sparingly and not indiscriminately”.

In the Jersey case of Trilogy Management Ltd v YT Charitable Foundation [2014] JRC 214, Commissioner Herbert QC saw the test as mainly one of expediency (paras.133-134). He equated it with the test for the removal of a trustee (para.138), but recognised (at paras.144-147) that in both cases the wishes of the settlor were a relevant, but not a dominant factor. I respectfully agree.

Mr Mills submitted that the intentions of the charity’s founders were one of the most important factors. Stated in those bald terms, I think that submission is too wide. In my judgment, in the context of the making or possible making of a managerial scheme the importance to be attached to the settlor’s intentions depends on the circumstances. At one extreme, if the particular administrative means specified by the settlor were integral to his or her design the court would be very slow to alter them. At the other extreme if the impractical provisions were plainly ancillary (an example might be an outdated power of investment), expediency would be more important than the original intentions.

The words “carry into effect the wishes and intentions of the founder of the charity” used by Sir John Romilly MR in Attorney General v Dedham School (1857) 23 Beav 350 at p.355 were relied on by Mr Mills in support of his submission that the function of the court was to carry into effect the wishes and intentions of the founder of the charity. Attorney General v Dedham School was a managerial scheme case. Nevertheless in the context of the making of a managerial scheme and except in the sense that the making of a scheme enables the charity to continue and hence in broad terms enables the charitable wishes and intentions of the founder to continue to be effected, I disagree with that submission of Mr Mills to the extent that its application might involve modifying the simple test enunciated by Peter Gibson J. That is for the following reasons:

A potentially more difficult question is: what “intention of the settlor” or “intention of the founder” is it which Peter Gibson J’s approach would require me to be “slow to thwart”? There are three possible issues in that regard:

I discount the approach apparently permitted in one of the Australian cases which Mr Mills referred to where the Judge appears to have taken account of the evidence of a witness as to what he thought the settlor would have wanted had the settlor been alive and able to express his wishes. That approach appears to me to be far too speculative to be relevant.

Mr Mills submitted that there was no restriction on the type of evidence which may be admitted in relation to the intentions of the settlors. If that submission is restricted to evidence of the settlor’s intention, I agree, though the weight (if any) to be attached to that evidence will vary with the circumstances. Insofar as that submission extends to any individual’s views as to what the settlor would have intended had he thought about the matter, I consider (i) that that is not evidence of the settlor’s intentions and (ii) that it is not a relevant consideration for the court. In that regard I disagree with the views of Hatley JA in the Australian case of Phillips v Roberts [1975] 2 NSWLR 207, as I explain below, after first considering Peter Gibson J’s approach in Re J W Laing Trust [1980] Ch 143.

In Re J W Laing Trust the settlor had, in 1922, constituted a charitable trust of 15,000 shares in his company, with the plaintiff company as trustee. The charitable trusts required, amongst other things, that the proceeds of the shares and any dividends were to be wholly distributed within the settlor’s lifetime or within 10 years of his death. The settlor died in 1978 and, by the time of the hearing before Peter Gibson J in January 1983, the capital of the trust had not been distributed. The trust’s investments had increased substantially and by 1983 were valued at £24 million. The income distribution policy had fostered Christian evangelical causes both at home and overseas which had come to depend on the charity. The greater part of the distributions had been made to individuals or bodies unsuited to receive large sums of capital, including the work of the Christian Brethren who did not accept any organisation as a governing or controlling body. The settlor had indicated before his death that he wished to withdraw the stipulation that the capital should be distributed within 10 years of his death. The scheme which Peter Gibson J ordered removed that stipulation.

At p.153G Peter Gibson J referred to evidence which showed that the settlor throughout his life was a man of strong religious convictions and particularly interested, and personally involved, in the activities of the religious group known as the Christian (or Open) Brethren. At p.154E, after stating that “the court should always be slow to thwart a settlor’s wishes”, Peter Gibson J continued:

“but in this case the settlor himself, as early as 5^th October 1932, indicated to the plaintiff by letter that he wished the plaintiff to be at liberty to disregard the requirement as to distribution. On 26 January 1939, the settlor wrote again to the plaintiff, referring to the capital value of his gift as then worth £30,000, and saying:

“considering that the capital value is more, and in view of many Christian activities, I wish to withdraw the stipulation that the capital should be distributed within 10 years after my death”

It is clear that even then, after that comparatively modest increase in capital value in that comparatively short period of the charity’s existence, the settlor appreciated that the requirement as to distribution was inexpedient.”

Those passages of Peter Gibson J’s judgment show that the settlor’s wishes, as they may have come to be after he founded the charity, are a relevant consideration. I consider that the amount of weight which should attached to them depends on the circumstances in which a scheme is sought.

In Phillips v Roberts [1975] 2 NSWLR 207:

In summary my views on Phillips v Roberts are that:

As regards the question raised above of who counts as a settlor or founder for the purpose of admissibility of such secondary evidence: by reason of Peter Gibson J’s adjuration to have regard to all the circumstances, I consider that the following would count as settlors or founders:

Even if persons in the last two categories (subsequent donors and persons doing voluntary work for the charity) were not “settlors” within the meaning of Peter Gibson J’s use of the word in Re J W Laing Trust, their donations, work and intentions could be taken into account in considering “all the circumstances”.

Not all of those who were involved in arranging for the founding of the charity would necessarily be settlors or founders. The essential meaning of “settlor” is a person who puts assets into a trust or foundation. I consider that it was in this sense that Peter Gibson J used the word “settlor” in Re J W Laing Trust. The mere fact that a person was or became the first trustee of a charity would not make them a settlor or founder. Re J W Laing Trust is instructive in that regard. In that case the person who Peter Gibson J called the settlor was Sir John Laing (then Mr J. W. Laing) who was the individual who in 1922 transferred 15,000 shares in his company to Stewards’ Co Ltd as trustee to hold on a charitable trust. After the transfer, the Stewards’ Co Ltd executed a memorandum under seal addressed to Mr Laing which acknowledged receipt of the shares and specified very summarily the terms of the charitable trust. Peter Gibson J held ([1984] Ch at p.147F-H) that the charitable trust was completely constituted on 30^th August 1922, the date of the memorandum. There was no suggestion that the Stewards’ company as the first trustee and the party to the memorandum was the settlor. The settlor in that case was Mr Laing.

That approach is reinforced by reference to the common means of constituting a private trust by first setting up a trust with a nominal amount of money, typically £10, with the real settlor adding substantial sums of money or other assets at a later date. The £10 might or might not have been supplied by the true settlor (typically it might be provided by the true settlor’s solicitors or accountants, though one way or another the true settlor is likely to have been charged for it), but the supplier of the £10 would be merely a nominal settlor. Similarly, a charitable trust can and often is initially constituted with assets of relatively little value.

On the other hand in Re J W Laing Trust, although the Stewards’ company was not a settlor, it might have been called a founder of the charity because it was its execution of the memorandum which caused the charity to come into existence.

My above conclusions as to settlors or founders are subject to the very important proviso that the weight which should be given to the intentions of any settlor or founder will depend on all the circumstances. Thus, generally, the wishes of settlors or founders who made smaller and later contributions to a charity might weigh less heavily than the wishes of more substantial and earlier contributors. At one extreme a person who gives a small sum to a long established, large, national charity might be described as a “settlor”, but often such a person’s wishes would weigh nothing or only very lightly in determining what should be effected by way of a managerial scheme.

I consider that the answer to the third question posed by me as to how the intentions of settlors or founders is to be ascertained where there are several settlors/founders and they may not all have had the same intention, is that that depends on all the circumstances. The court might, depending on the circumstances, be swayed by the relative numbers having different intentions or by the time or times at which those intentions came into existence.

On the question of how the intentions of the settlors or founders should be determined, I consider that the primary and most important source for ascertaining those intentions is the governing document of the charity by which the original settlors or founders chose formally to specify their intentions, and on the terms of which, in the absence of evidence to the contrary, subsequent contributors to the charity can be presumed to have made their contributions. Such extrinsic evidence as to the intentions of the settlors or founders as is not admissible on any issue of interpretation of the founding document, but which is admissible in relation to the intentions which (per Peter Gibson J) the court should be “slow to thwart” is, in my judgment, generally of secondary relevance or weight. The weight to be given to such secondary evidence will also be affected by its nature.

The Claimant made 3 statements in Gujarati and 3 statements in English which were translations of his Gujarati statements.

The Claimant gave oral evidence through an interpreter on the first afternoon of the trial, starting at about 1:30 pm.

The Claimant is aged 91. He speaks very little English. He cannot read English. It was apparent that he was hard of hearing.

Some difficulty with language and hearing were immediately apparent to me in the course of the swearing in of the Claimant.

After being sworn and confirming the truth of his statements, the Claimant was cross-examined by Mr Seal for the 5^th Defendant.

The Claimant’s difficulties with understanding the questions asked of him became greater as Mr Seal’s cross-examination progressed.

The Claimant was asked about the views of the founders as to making amendments to the constitution. The Claimant said that when they started they wanted to do so in accordance with Lord Swaminarayan’s faith.

In relation to the appointment of new trustees, the Claimant said that new trustees were meant to be nominated every 5 years with the names of the nominees being sent to Bhuj, but that had not happened.

On the question of who could change the rules in the existing constitution, the Claimant said that they would come to him to give a “yes” or a “no”. They used to come to him to change the rules, but not later. The trustees would get together and say the change they would like to make and he (the Claimant) could decide. Depending on how it was interpreted, both by the interpreter and by the court, that was a surprising answer because, so far as the documentary evidence was concerned there had not been any changes made to the constitution of the charity after it was registered as a charity. The point was not explored in cross-examination or submissions, but it is possible that there was confusion between the provisions of the constitution, and rules made under the provisions of the constitution. Thus, clause 8.01(b) of the constitution provides that the Board of Directors will frame “further rules for the general administration of the Organisation”. Such rules not to be in contravention of the constitution or the rules of the Organisation or against the directive, if any of the Head Priest.

The Claimant was asked whether he wanted to change the rule under which changes to the constitution had to be made by a 2/3rds vote in favour by the members and a vote in favour by the Head Priest. The Claimant said that he was not sure. They always wanted to be part of the Bhuj Temple. The Claimant said that he was not sure that two thirds of the members’ support was needed to change the rules. He said he had not seen the rules of the charity previously.

The Claimant was asked whether he knew that someone on his behalf had put forward a different set of rules. The Claimant’s response was that they would have done; that he did not ask them to; that they did so on their own without a request. He said that if his signature was on a document, then what was said in the document had his consent.

After a little more questioning he said that he did not know what was in the scheme and that “right now” he did not remember.

Mr Seal politely pressed the Claimant on that. The Claimant’s response was that he was not educated and for 70 – 80 years had not been in education.

The Claimant then began to give such surprising responses to some of Mr Seal’s questions as to throw serious doubt on whether he understood what the proceedings were about. In particular:

As a result of those responses and the difficulty the interpreter appeared to have in explaining the questions to the Claimant in a way in which he understood, I was concerned that the Claimant was too tired for his cross-examination usefully to continue that afternoon. My concerns were reinforced when the Claimant told me that he had only arrived in England by air from India on the previous day.

The Claimant expressed the wish through the interpreter “to get on with it” (his cross-examination) that afternoon.

Mr Cardew drew my attention to CPR 21 and possible issues as to the Claimant’s ability to litigate.

At about 2:45 pm I rose for half an hour so that the parties and their advisers; in particular the Claimant and his advisers could consider (i) what further steps in the way of reasonable adjustment could be made with a view to enabling the Claimant to give his best evidence and (ii) possible issues of capacity to litigate. I gave the Claimant the customary warning not to discuss his evidence with anybody, but waived that requirement so as to permit the Claimant to discuss with his counsel and English solicitors the steps which might be taken by way of further reasonable adjustment with a view to enabling the Claimant to give his best evidence and for his solicitors and counsel to consider the possible issue of the Claimant’s capacity to conduct the proceedings.

At about 3:15, I heard further from counsel. I then adjourned the hearing until 10:00 on the following day with a view to (i) the Claimant’s solicitors if possible obtaining an expert report as to the Claimant’s capacity; (ii) depending on the outcome of that, possibly making an application for a litigation friend; and (iii) considering in more detail what arrangements might be made in respect of how the Claimant gave his evidence. My warning and its exception to discussing the case were to continue, but with the exception also extending to an interpreter and an appropriate expert.

At 10:00 on 12 November the hearing resumed. Earlier that morning the Claimant’s solicitors had filed (i) a letter from them to the court dated 12 November 2025; (ii) a third witness statement made by Mr Harrison, the partner at the claimant’s solicitors with conduct of the claim and (iii) a capacity assessment of the Claimant made by Dr Bharat Thacker. In summary:

In the light of subsequent developments during the hearing I do not need to go into detail or further detail concerning the 12 November letter; Mr Harrison’s 3^rd statement or Dr Thacker’s report.

When the hearing resumed at 10:00 on 12 November Mr Mills made submissions to the effect of what I have summarised above from the letter of 12 November. Mr Seal submitted that it was unsatisfactory that the Claimant should be called back at a later juncture. He submitted that the questions he had asked had not been susceptible to any misunderstanding and that the Claimant should come straight back to complete his evidence after he had been assessed. Mr Cardew did not resist Mr Mills’s proposal. He submitted that the Claimant appeared to have had some difficulties with the use of the wrong dialect by the interpreter. The use of a different interpreter might further the overriding objective. Mr Mills submitted in reply that Mr Seal’s objections would be answered by my giving such weight as I considered appropriate to the Claimant’s evidence bearing in mind what would have been the process and limited cross-examination.

In substance I gave effect to the proposals in the 12 November letter and in Mr Mills’s submissions and the hearing continued on 12 November in the absence of the Claimant. I also ordered under CPR 21.3(4) that in the event that it should prove that the Claimant did not have capacity to conduct the litigation, the steps taken in the litigation up to that time and to be taken on 12 November should be effective, so as to enable the trial to continue.

Before cross-examination of the Defendants’ witnesses began, Mr Cardew handed up a document which, on its face, appeared to be a copy of the minutes of an Extraordinary General Meeting held on 12 June 2002. These minutes listed the trustees present, all except one of whom signed against their name. The non-signatory was Devshi D Gami. The minutes recorded apologies from Nanji R Hirani. The minutes recorded as follows:

“Amendments to the original constitution including those made on 13 December 2001 fax were discussed and approved at the meeting.”

The following witnesses were then sworn and gave evidence until 12:50:

After Mr Jadavji Halai’s evidence was complete I adjourned until 13:50. Towards the end of that adjournment I was told that the parties were negotiating and they asked for some more time. This I gave them and the hearing resumed at 14:30

When the hearing resumed at 14:30 on 12 November Mr Mills informed me that subject to the approval of the Claimant himself a compromise had been reached between the Claimants’ advisers and the 6^th – 12^th Defendants. This was not truly a compromise, not only because at that time the Claimant himself had not agreed to it, but also because the nature of the proceedings were such that, whatever the parties might or might not agree, I would need to be satisfied that what was proposed in the way of a scheme was expedient in the interests of the charity did not involve an undue departure from the wishes of the settlors or founders.

Mr Mills informed me that what had been agreed at that stage between the Claimants’ advisers and the 6^th – 12^th Defendants was as follows:

Mr Cardew told me that the 6^th – 12^th Defendants did not resist that. He told me that the 6^th – 12^th Defendants thought that it was religiously, spiritually and morally wrong to subject the Claimant to further questioning or cross-examination.

Mr Seal submitted that the members alone should vote on future changes to the scheme; but that matters affecting spiritual guidance should not be subject to amendment, or at least not without the consent of the Head Priest.

Mr Cardew informed me that, of the 6^th to 12^th Defendants’ witnesses, he would only be calling the 8^th Defendant. The following witness statements had been served and filed by the 6^th - 12^th Defendants:

The general rule under CPR 32.2(1)(a) is that any fact which needs to be proved by the evidence of witnesses is to be proved at trial by their oral evidence given in public. However, CPR 32.2(2) provides that CPR 32.2(1)(a) is subject (a) to any provision to the contrary contained in the CPR or elsewhere; or (b) to any order of the court.

CPR 32.5(5) provides that if a party who has served a witness statement does not – (a) call the witness to give evidence at trial; or (b) put the witness statement in as hearsay evidence; any other party may put the witness statement in as hearsay evidence.

The statements of the 6^th and 12^th Defendants were not put in as hearsay evidence, or at least not separately from any reference to them which might be capable of being made pursuant to Master Clark’s orders.

The position in relation to the 6^th and 12^th Defendants’ statements as it would have been by reference only to CPR 32.2(1)(a) and 32.5(5) is affected in the present case by reason of the proceedings being CPR Part 8 proceedings and the orders made by Master Clark on 3^rd October and 25^th November 2024.

CPR 8.6 provides:

By her order dated 3^rd October 2024 Master Clark ordered, amongst other things, that:

By her order dated 25^th November 2024 Master Clark ordered, amongst other things, that the parties had permission to cross-examine witnesses on the subjects in the List of Issues for Cross-Examination annexed to the order.

I consider that the combined effect of CPR 8.6 and Master Clark’s orders was that a party could rely on the witness statements referred to in Master Clark’s order of 3^rd October 2024, even if they chose not to or could not call a particular witness to be cross-examined. In the event none of the parties sought to rely on the statements of the 6^th or 12^th Defendants.

At about 14:45 Mr Premji Ramji Bhudia, a witness for the 5^th Defendant, was called and gave evidence.

At about 15:30 Mr Seal informed me that he would not be calling Mr Naran Ganji Pindoria, a witness for the 5^th Defendant, because he was “unavoidably detained in India”. His statement was not put in as hearsay evidence and in the event none of the parties sought to rely on his statement.

At about 15:30 Mr Premji Patel, a witness for the 5^th Defendant, was called and gave evidence.

There was a short adjournment from about 15:55 to 16:00.

At about 16:00 Mr Cardew asked whether the 8^th Defendant, Mr Lalji Mawji Vekaria, could take with him into the witness box an annotated copy of his statement which showed the “updates” which he wished to make to it. I refused that request. The 8^th Defendant, was called and gave evidence.

After he had taken the oath and at the start of the 8^th Defendant’s evidence Mr Cardew took the 8^th Defendant to a copy of his statement made on 23 February 2024 and asked him whether there were any updates which he wished to make to that statement. The updates which the 8^th Defendant said he wished to make were as follows:

Subject to those “updates”, the 8^th Defendant confirmed the truth of his statement.

Much of the material in the parts of the 8^th Defendant’s statement which he wished to “withdraw” merely comprised references to and commentary on documents. Under CPR 32 PD 27.2 all documents contained in bundles which have been agreed for use at a hearing are admissible at that hearing as evidence of their contents, unless (a) the court orders otherwise; or (b) a party gives written notice of objection to the admissibility of particular documents. I did not “order otherwise” and no party gave written notice of objection to the admissibility of particular documents. Accordingly, the documents referred to by the 8^th Defendant in the parts of his statement which he wished to withdraw which are contained in the trial bundle are admissible as evidence of their contents.

Insofar as the material sought to be withdrawn would have constituted evidence of the 8^th Defendant had he confirmed the truth of that material, the analysis was simplified by an answer the 8^th Defendant gave in a question asked of him by Mr Seal in cross-examination. Under CPR 32.11 where a witness is called to give evidence at trial, he may be cross-examined on his witness statement, whether or not the statement or any part of it was referred to during the witness’s evidence in chief. In answer to a question from Mr Seal, the 8^th Defendant said, in effect, that the parts withdrawn were true at the time he made the statement, but that he no longer wished to make those statements. Insofar as the parts withdrawn comprised criticisms of or disagreements with the Claimant as to matters of fact or as to the Claimant’s statements and scheme, that was understandable having regard to the agreement made between the Claimants’ advisers and the 6^th – 12^th Defendants on 12 November explained above. However, statements as to matters of fact which the 8^th Defendant said were true statements when he made them do not cease to be true reason of his no longer wishing to make them because of his agreement with the Claimant, and are statements which, by reason of his answer to Mr Seal, are evidence of the facts so stated given by the 8^th Defendant in the witness box.

The cross-examination of the 8^th Defendant concluded at about 16:30 on 12 November and I adjourned the hearing until 10:00 on 13 November.

Shortly before midnight on 12 November the Claimant’s solicitors filed the following:

Dr Bhavika Vagani’s and Dr Nirav Varsani’s capacity report was not ideal because neither of them appeared to have a relevant professional specialty; but I was and remain satisfied by their written capacity assessment; by the earlier report of Dr Thacker and by the evidence of Mr Harrison and of Swami Ghanshyam Prasad Dasji in his statement of 11 November 2025 that the Claimant did have capacity to conduct the litigation.

Soon after 10:00 on 13 November 2025 I released the Claimant from his obligations not to discuss his evidence while he was under oath on the footing, assented to by all counsel, that there would be no further cross-examination of him, nor any re-examination.

Mr Mills informed me that accordingly no order was sought on the Claimant’s application dated 12 November 2025.

Mr Seal informed me that signed consents now existed for all of the trustees proposed by the 5^th Defendant except for Mr Dinesh Varsani whose consent had been sent by email and except for Ms Sheila Gorsia who had not yet consented.

Having regard to the fact that the 6^th – 12^th Defendants now agreed with or at least did not object to the Claimant’s proposed scheme and did not now propose their own rival scheme, while the 5^th Defendant still did so, I directed that Mr Mills should start the oral submissions; followed by Mr Cardew; then Mr Seal; then Mr Cardew in reply; then Mr Mills in reply.

Mr Mills then began his oral submissions.

The main issues are:

The distance between the parties was reduced by:

The concept of a Constitutional Committee was put forward by and on behalf of the 5^th Defendant in his draft scheme. Ultimately Mr Seal on behalf of the 5^th Defendant did not press for the inclusion of a Constitutional Committee. In his brief opening statement he said that the 5^th Defendant would be in agreement with any proposal which addressed the calling of general meetings, membership and the filing of accounts. In his oral submissions after the evidence, he said that he had “rowed back” from the proposal of a Constitutional Committee. He said that it was one way of solving the problems with the constitution and compliance with it.

With respect I think Mr Seal was correct to row back from the concept of a Constitutional Committee. I consider that the provision of a Constitutional Committee along the lines of that proposed in the 5^th Defendant’s draft scheme would not be expedient in the interests of the charity, or at least would be considerably less expedient than the alternative of dealing with the constitutional problems in other ways, including the ways which I will direct in the course of this judgment. That is for the following reasons:

As regards future amendments to the constitution: ultimately much of the substance of this issue fell away because of (i) the Claimant’s acceptance on 12 November 2025 that the power to make future amendments to the constitution should be vested in the membership, subject to the approval of the Mahant Swami or the Bhuj Temple; (ii) the non-objection of the 6^th to 12^th Defendants to that approach; and (iii) that approach matching the 5^th Defendant’s proposal. Subject to refining the drafting so as to make the position clear, this proposal reflects what in my view is the existing position and it is not expedient in the interests of the charity to change that position.

I read and heard a large amount of evidence. Much of it related to what the parties contended were the intentions or wishes of the settlors or the founders.

The parties all put emphasis on the importance of the intentions and wishes of the settlors or founders as expressed extrinsically to the terms of the charity’s constitution. I consider that generally such evidence is at most only of secondary relevance or importance. That is because:

It was common ground and is immediately apparent from the terms of the charity’s existing constitution that the charity was intended to have a close relationship with the Bhuj Temple and its Head Priest, currently the Claimant.

The relevant relationships between the Swaminarayan faith and the Swaminarayan Gadis (seats of leadership or dioceses), Mandirs (temples), Acharyas (leaders or archbishops) and Mahant Swamis (Head Priests) are as follows:

The existing constitution of the charity shows that the Head Priest of the Bhuj Temple was intended to be involved in both the religious and in the secular aspects of the administration of the charity. The existing constitution refers to the Head Priest at the following places in respect of the following matters:

Sub-clause 6.01(h) of the constitution is a strong indication that as regards the day to day running of the charity, the Head Priest’s role was or was principally to ensure that the charity was administered in accordance with the faith and with the charity’s objectives. However, the other clauses mentioned above which give the Head Priest various powers are not expressly constrained by that approach.

In his first statement the Claimant said that the majority of the newer Temples followed the faith in accordance with the teachings and traditions of one or other of the original 6 Temples. The Claimant said that the charity was established under the Bhuj Temple which, he said, meant that it followed the teachings and traditions the Bhuj Temple. He said it was “the clear intention” of everyone involved in setting up the charity that it would always closely follow the teachings and traditions of the Bhuj Temple. The Claimant was not cross-examined as to this.

In a part of the 8^th Defendant’s statement which he wished to withdraw, but which he said in cross-examination was true at the time he made it but no longer wished to make, the 8^th Defendant did not agree that establishment under the Bhuj Temple meant that it followed the teachings and traditions of the Bhuj Temple. In that part of his statement the 8^th Defendant said that:

The Claimant said that it was as a result of the charity being established under the Bhuj Temple that the charity’s constitution expressly gave the Mahant Swami (the Head Priest) powers in relation to the charity’s trustees, preachers, members and any amendments to its constitution.

In a part of the 8^th Defendant’s statement which he wished to withdraw, but which he said in cross-examination was true but no longer wished to make, the 8^th Defendant said that having spoken to the 6^th and 12^th Defendants as founding trustees of the charity, he could confirm that it was never intended that a Head Priest would have an active and hands-on role in the management of the charity, let alone any casting or veto rights/voting powers. The 8^th Defendant said that that had also always been his understanding.

In cross-examination by Mr Mills, the 5^th Defendant said that it was not true that he told the visiting Swamis in 2002 that the Bhuj Temple would have substantial rights. Mr Mills took the 5^th Defendant to a passage in an email dated 7December 2012 from Bhimji Bhudia to, amongst others, the 5^th Defendant. The passage reads:

“All the founding trustees would remember that when the Charity wanted help with the construction/refurbishment of Edgware mandir and the purchase and refurbishment of Stanmore Mandir, the Trustees – namely Khimji Patel, Manji Hirani, Naran Gami [....] told the public that this Charity and this temple belongs to Bhuj, in a way that Mahant Swami of Bhuj Mandir is an Ex-officio Chairman, Trustee and has a Full Veto in this Charity.”

The 5^th Defendant’s response was that the veto was only for faith guidance, not for management. When Mr Mills pointed out to the 5^th Defendant that in the draft constitution which he (the 5^th Defendant) was proposing, the Mahant Swami would become a trustee and that it would include a provision that resolutions of the Board would have to be considered by the Mahant Swami who could modify them if he felt that they were likely to create a situation in contravention of the faith, the 5^th Defendant responded to the effect that the Mahant Swami’s rights were that the Mahant Swami was there, as I understood the 5^th Defendant’s evidence, in both the existing constitution and in his proposed constitution, for spiritual guidance and his role was in respect only of that. He said that the Mahant Swami had a right of veto only on religious grounds and that is what the founders intended. I think that, as a matter of interpretation of the existing constitution, that describes the Mahant Swami’s current role too narrowly.

Sub-clause 6.01(h) of the existing constitution gives the Mahant Swami a right of veto in respect of directors’ resolutions not only if he feels that the resolution is likely to create a situation in contravention of the faith and objectives of the charity; but also if he feels that the resolution is not in accordance with the objectives for which the charity is founded. The objectives are the advancement of the faith. Thus, the latter ground of possible objection by the Mahant Swami under clause 6.01(h) would be on the ground that the resolution did not advance the faith. In my judgment that ground could reasonably be described as an objection on religious grounds even if the resolution objected to concerned secular matters. However, an objection to a resolution in respect of secular matters which advanced the faith indirectly by, for example, making the Temple more attractive to prospective worshippers or increasing the likely return on its investments could not be objected to by the Mahant Swami.

Further, the requirements in the existing constitution that, additionally to a decision by another body (i.e. the Board of Directors or the members), a vote or decision in favour by the Mahant Swami was required could be described as giving the Mahant Swami a right of veto in respect of the matter concerned. However, the constitution does not restrict the grounds on which the Mahant Swami could decide how to vote to religious grounds. Similarly with (i) his power under clause 4.02(C) to terminate the membership of persons engaging in conduct detrimental to the purposes of the charity; (ii) with the clause 8.01(b) power to give a directive in respect of further rules framed by the Board of Directors; (iii) his clause 9.01(a) power to approve disposals of properties; and (iv) his clause 9.01(b) power to approve the exercise of the default dissolution power of the giving of properties to any similar local, religious or charitable institution.

As I have already said, I consider that the differences between the written and oral evidence as to the intentions of the settlors and founders as to the intended role of the Mahant Swami and the Bhuj Temple can and should be resolved by reference to the terms of the existing constitution. Resolution of the differences in the evidence in that way does not mean that the relevant provisions of the existing constitution should remain unchanged. It may be expedient in the interests of the charity to change them and considerations of practicability may, in relation at least to some provisions, carry more weight than the need to be slow to thwart the settlors’ or founders’ intentions.

In his first statement the Claimant referred to an occasion in 2021 when one of the trustees proposed that the charity’s constitution should be amended to remove all references to the Bhuj Temple. In practice, said the Claimant in his first statement, this would have allowed the charity to stop following the faith as practised by the Bhuj Temple. As one of the senior guardians of the faith, the Claimant objected to that. “Therefore”, said the Claimant, he instructed counsel to draft a scheme to amend the charity’s constitution.

In his first statement the Claimant said that he feared that if the authority of the Bhuj Temple was lost, the trustees or members of the charity could move it in a new religious direction. He said that he believed that the role of a Mahant Swami in one of the original six temples was to practise and maintain their faith and traditions so that they could be passed on to future generations as they have been for the last 200 years. He said that in order to achieve that, it was common for the original six temples to have constitutional oversight over the newer and smaller temples. The Claimant referred by way of example to the constitutions of temples in Willesden and Oldham.

In his first statement the Claimant said that it was “the clear intention” of everyone involved in setting up the charity that it would always follow the teachings and traditions of the Bhuj Temple. However, that intention is not reflected in the objects clause of the charity.

The objects of the charity as specified in clause 2.01 of the existing constitution are to advance the faith in accordance with the teachings and principles of the Shree Swaminarayan sect, with no express reference in the objects clause to that faith as practiced by the Bhuj Temple. That the objects of the charity are not limited to the advancement of the faith in accordance with the traditions and practice of the Bhuj Temple is supported by the fact that the membership provisions extend to all those who are followers or devotees of Nar Narayan Dev Diocese at Ahmedabad or Laxmi Narayan Dev Diocese at Vadtal.

The objects clause for the Willesden Temple referred to by the Claimant, like that of the charity, makes no express reference to the Swaminarayan faith as practised by the Bhuj Temple. By way of contrast, the part of the objects clause of the Oldham Temple which deals with the advancement of the faith provides for the advancement of the Hindu faith based upon the original teachings of Lord Shree Swaminarayan “as propounded by the Nar-Narayan Dev Gadi”.

The Claimant himself was not the Mahant Swami (Head Priest) of the Bhuj Temple at or around the time of the founding of the charity in 2002. From 1998 to 2006 the Claimant was the Deputy Mahant Swami. It follows that having regard to my above conclusions as to who could be a settlor or founder, that the Claimant was not a settlor or founder of the charity. He does not say that he was. However, as a person who was involved in the creation of the charity he might give evidence as to the intentions of the settlors or founders.

In his first statement the Claimant said that the founders of the charity were 7 individuals who previously had been involved in charity called the International Swaminarayan Satsang Organisation (“ISSO”) which was an English registered charity which ran several temples in England. The chairman of ISSO’s board of trustees was the Acharya for the Ahmedabad Gadi.

The 7 individuals who the Claimant considered to have been the founders of the charity were:

In his first statement the Claimant said that those 7 individuals approached him in early 2002 when he was in England with the previous Mahant Swami. The Claimant said they told him that they were frustrated by the direction of the ISSO. He said they asked for his blessing to build a new temple in Edgware which was directly aligned with the Bhuj Mandir and would not be independent of the Bhuj Mandir.

In his first statement, the 5^th Defendant, Naran Gami, did not include Bhimji Patel as one of the founding directors, but otherwise his list of the founding directors of the charity was the same as the Claimant’s.

A chronology by reference to the more important documents is as follows

It was common ground that there should remain a strong connection with the Bhuj Temple. The real issue was: how strong or in what ways?

The Claimant’s evidence was to the effect that the very strong connection with the Bhuj Temple gave the members confidence in the charity and its administration and inspired them to give their time and money to the charity.

Under cross-examination by Mr Mills, Jadavi Halai agreed that he joined the temple because of its close association with the Bhuj Temple.

Premji Bhudia was an original trustee. He said in cross-examination that the Head Priest was there to control religious guidance.

In cross-examination Premji Patel said that he did not make his donations to the charity because of the connection to the Bhuj Temple. Premji Patel’s donations were substantial (see below).

I find that the position was simply that some donors were motivated to give by reason of the close connection with the Bhuj Temple; others less so or, as in the case of Premji Patel, not at all.

In his second statement the 5^th Defendant says that when the Edgware property was bought in 2002, both ordinary members and members who became members of the Board of Directors made contributions amounting to approximately £300,000 by way of interest free loans and gifts. Approximately £250,000 was raised by way of bank loan. The 5^th Defendant was not able to contribute money but he contributed long hours performing carpentry and general building work. He took time off work for about 2 months without pay. As a result he lost earnings of about £4,000 at that time. After the property was bought for the Stanmore Temple he worked at the Stanmore Temple full-time without pay for a year to convert it into a Temple. He put his loss of earnings for that year at £30,000.

In his statement Jadavi Halai said that he was a founding member of the charity. He found the building for the charity’s first temple in Edgware. It was a derelict church. He found the building; negotiated the price and with other members, organised the funding for its purchase. The members funded the purchase and refurbishing cost of approximately £500,000. He was fully involved in running the temple, but did not become a trustee. He attended all or most of the early meetings, some of which were held in his house.

In about 2005 the charity moved to Stanmore. In his statement Jadavi Halai said that it was he who looked for and found the new land and building, which was a leisure centre. He negotiated the price and, working with other members, organised the bank loan to fund the purchase. From 2013 to 2017 he and his wife were in charge of the kitchen department full-time, apart from a short break assisted by other members. With other members he was the organiser of Rath Yatra event in 2015 and in setting up the new Vaishnav takeaway restaurant which provided an annual income of about £100,000 for the charity. He opposed the Claimant’s scheme because it deprived the members of any say in the running of the temple.

In his statement Premji Bhudia said that he contributed £50,000 towards the Edgware Temple as an interest free loan which has since been paid back. He said he contributed £15,000 as a gift for the purchase of the god idols for the Edgware Temple. He contributed £6,000 as a donation on the occasion of the opening ceremony for the Stanmore Temple.

Premji Patel said that since 2002 his substantial donations or interest-free loans to the charity were as follows:

From the balance sheet figure of £10,077,574 for the year ended 31^st March 2024 it is clear that over the years there must have been substantial gifts and work done by others.

If too much power is vested in any one person or group, unconstrained by a requirement for the consent of another person or group, there is a risk that the charity’s assets could be removed from it or be made applicable at the discretion of a single person or group. Mr Mills criticised the 5^th Defendant and his counsel, Mr Seal, for being concerned about this possibility. Mr Mills submitted in effect that to have regard to it would involve approaching the issues on the basis that the power holders were going to misbehave in some way or another and that that was an unduly pessimistic approach. I do not agree with those submissions of Mr Mills. An unchecked concentration of power in one individual or group can lead not only to the possibility of the deliberate abuse of power, but also may result in the charity and its purposes not being fulfilled because of a genuine belief that a particular action would be beneficial, albeit that on analysis it might not be for the benefit of the charity or its charitable objects. There are two examples from the past history of this charity where a person or group of persons proposed changes which would or might not have been for the benefit of the charity or for the advancement of its charitable objects.

I have already referred to the Claimant’s concern that a proposal in 2021 that the charity’s constitution should be amended to remove all references to the Bhuj Temple would have allowed the charity to stop following the faith as practised by the Bhuj Temple. For the reasons I have explained above, stopping the charity from following the faith practised by the Bhuj Temple might not have been contrary to the objectives of the charity because the relevant faith was not defined by reference to the teachings and practice of the Bhuj Temple; but even if it was not contrary to the objectives of the charity to make such a change, amendments to the constitution removing all references to the Bhuj Temple would (i) very possibly have altered the implications or inferences which could be drawn about the faith from the terms of the constitution and (ii) would have involved a major departure from the intentions of the settlors and founders to establish an English charity with a Temple in England.

The second example is the Claimant’s proposal put forward by him, his solicitors and a minority of the then trustees in 2017 that the charity’s assets should be transferred to another charity, ultimately controlled by the Claimant.

On 12 August 2017 a letter from the Mahant Swami was sent to the trustees of the charity. In this letter the Mahant Swami, amongst other things:

The registered name of company number 10120963, the charitable company there referred to as Shree Swaminarayan Mandir Bhuj UK, is Shree Swaminarayan Mandir Bhuj. I refer to it as SSMB (UK).

In his first statement the Claimant said that in 2016 he suggested that the charity could be merged into the Bhuj Temple’s new charity, SSMB (UK). He said that unfortunately, even though SSMB (UK) was a successful charity, not all of the trustees agreed with the proposal.

In his statement dated 12 October 2023, the 5^th Defendant said that in 2017 Daveen Bhudia (D1), Hari Halai (D2), Mitesh Patel (D13) and Parbat Varsani (D14) who at that time were trustees of the charity expressed support for the transfer of the charity’s assets to SSMB(UK), controlled by the Claimant. He said that that was opposed by the majority of the Board of Directors and that the 4 who supported the transfer of the charity’s assets resigned. As a matter of fact it is unclear whether they resigned. Hari Halai, Daveen Bhudia, Mitesh Patel and Parbat Varsani, by letters dated 2 February 2018 addressed to the trustees, stated that they were willing to offer their resignations as trustees on terms that the trustees accepted that in full and final settlement of any and all claims the charity and others might have against them. I was not taken to any evidence that those conditional offers to resign were accepted.

In his statement dated December 2023 the Claimant said that it was incorrect to say that SSMB (UK) was a charity controlled by him. He said it had an independent board of directors who were indirectly appointed by the Bhuj Mandir.

In his statement dated 30 April 2024 the Claimant said that:

In 2017 when the Claimant wrote his letter asking the trustees of the charity to transfer the charities assets to SSMB (UK), SSMB (UK) was, on the Claimant’s evidence, controlled by him. Whatever the Claimant’s motives were in requesting the transfer, the very fact that he felt that he could make the request shows that without some checks, an attempt to transfer assets away from the charity is a real possibility.

A copy of a notarised translation into English of a certified copy of the Trust Deed of SSMB India was exhibited by the Claimant to his statement dated 30 April 2024. The Trust Deed is dated 6 September 2005. Its provisions are instructive, not only on the question of the Mahant Swami’s powers in respect of the appointment of SSMB India’s trustees, but also more widely in relation to the submissions as to the constitutional provisions of other Swaminarayan Temples in the UK which showed one way or another particular provisions which matched those which the party referring to them said should or should not be included in the scheme for the charity.

SSMB India’s Trust Deed provides, amongst other things:

In the circumstances as to his giving of oral evidence explained above, the Claimant was not cross-examined about the possible differences between his written evidence and the contents of the SSMB India Trust Deed; nor was I addressed in detail about the contents of the SSMB India Trust Deed in the course of submissions. The idiosyncrasies of the translation also mean that care needs to be taken in deducing too much from it. However, bearing those things very much in mind nevertheless I take from the SSMB India Trust Deed that:

References were made in the course of evidence and submissions to the terms of the constitutions of other English Temples which were “under” the Bhuj Temple with a view to showing that particular provisions were or were not to be found in them and hence, so the submissions went, that it would be appropriate for the constitution of the charity to contain similar provisions. Different temples’ constitutions favoured different parties on different points. I place no weight on them. There was no evidence that one set of provisions worked better than others. Insofar as the provisions reflected a closer or more remote connection with the Bhuj Temple and the Mahant Swami and in what respects, the differences merely emphasised that not all temples “under” the Bhuj Temple had the same provisions. Insofar as the administrative provisions of a constitution in some way reflected the tenets or practice of the faith, the constitution of the head Temple, SSMB India, is more likely to do that than one of the English Temples.

It is essential to the success of the charity and to the furthering of its objectives that it should have a substantial membership. For that reason alone the views of the current members are of some relevance to what the constitution of the charity should provide.

The parties and the witnesses are or were eligible to be members of the charity.

The only attempts to canvas the opinion of the broader current membership were those made by the 5^th Defendant.

In January 2021 consultation forms were handed out at the Temple. There were two kinds of form. One simply asked for feedback towards changing the current constitution and creating a new scheme. The other comprised a series of statements with single tick boxes after them, all of which statements favoured the 5^th Defendant’s approach to what should be in the scheme. It also contained a larger box for suggestions and comments. The 5^th Defendant said that because of Covid attendance at the temple was less than it had been before the pandemic, but nevertheless 125 forms were returned. He said that on the question of whether the selection of new trustees should be made at the AGM, the members strongly supported the choosing of the trustees at the AGM.

There was a further WhatsApp discussion on 23 January 2021 and outdoor meetings at the Temple on 30 January 2021 and 7 April 2021. The 5^th Defendant does not say how many people attended these meetings. He says that in accordance with the views expressed at these meetings he instructed Francesca Quint of Radcliffe Chambers to draft a constitution reflecting the views of the members.

The 5^th Defendant says that Ms Quint’s scheme was distributed to the members. After that outdoor meetings took place at the Temple on 17 April 2021, 1 May 2021 and 19 July 2021

The 5^th Defendant says that on 30 July 2021 he distributed copies of both his scheme and the Claimant’s scheme together with a comparison table summarising the differences between the two schemes and inviting the members to express their preference. The 5^th Defendant’s covering letter also contains a comparison between the two schemes and states that it enclosed a letter from Keidan Harrison on behalf of the Bhuj Mandir dated 16 July 2021 and a response by Julius Seal on “our” behalf dated 23 July 2021.

The 5^th Defendant said he received 90 responses, of which 89 expressed a preference for his scheme and one expressed a preference for the Claimant’s scheme. He did not attach copies of the responses which were received, citing data protection as the reason for his not doing so.

These attempts were subject to criticism by Mr Mills and Mr Cardew as to the methodology, in particular as to how the membership was determined by the 5^th Defendant; who was asked; the one-sided nature of the questions asked; the lack of evidence as to the numbers of questionnaires handed out; and the lack of detail as to the results.

In cross-examination by Mr Mills the 5^th Defendant said that in 2017 he was given a list of members’ names and telephone numbers by the then trustee, Bhimji Patel. In cross-examination by Mr Cardew, the 5^th Defendant said that the list was a list of the people who were at the AGM in 2012.

Mr Mills took the 5^th Defendant to a passage in a letter written on 12 November 2001 by Bhimji Patel to the Charity Commission. The letter was written with a view to providing the Charity Commission with the information it had requested in a letter dated 8 November 2001. The passage in the letter dated 12 November 2001 which Mr Mills put to the 5^th Defendant was the following:

“We have no paid or unpaid membership (as per our constitution clause 3.01), whoever believes in the teachings of Shree Sahajanand Swami founder of Swaminarayan sect is eligible to be a member (open membership). However we get a gathering of approximately 100 people during our congregations depending on various places.”

The 5^th Defendant’s comment on that part of that letter was: that was at the beginning, before the Temple was founded, when they were trying to put some ideas together. The 5^th Defendant continued by saying that he was not sure that the membership was intended to be casual. He said that the members formed the charity and that it was not the founders’ intention that the members should not have power to manage the charity.

The 5^th Defendant’s comment that the letter of 12 November 2001 was at the beginning, before the Temple was founded, when they were trying to put some ideas together, fits with the chronology in that minutes of what is termed an Extraordinary General Meeting on 12 June 2002 record that amendments to the original constitution including those made on 13 December 2001 fax were discussed and approved at the meeting. Further, I found the 5^th Defendant generally to be an impressive witness. He did not exaggerate and accepted factual points which were put to him and which might be thought to weigh against the terms of the scheme which he was proposing.

Earlier in his cross-examination by Mr Mills the 5^th Defendant had said that some 500 to 1,000 people now attended the Temple. The Claimant said in his statement dated 12 September 2022 that about 10,000 attended for the Diwali celebrations and that approximately 130 people actively volunteered in some capacity for the charity.

In cross-examination by Mr Cardew, the 5^th Defendant said that he had not shared the list of members, but he had it with him. He accepted that he went through no process to check that the people on the list were members. In re-examination the 5^th Defendant repeated that he had the list with him. He said he would produce it if necessary. None of the barristers asked him to produce it. The 5^th Defendant said that he had not produced the replies because the members did not wish to have them sent to everyone.

I accept the 5^th Defendant’s evidence that he received 90 responses to his letter or questionnaire of 30 July 2021, of which 89 expressed a preference for his scheme and one expressed a preference for the Claimant’s scheme. The process by which the 5^th Defendant obtained that result was unsatisfactory in terms of ascertaining views which were representative of the congregation of 500 to 1,000 members and I place very little weight on the result of the 5^th Defendant’s process.

Nevertheless, the overall outcome is not a surprising one. Put very broadly, given a choice between a scheme which gave more power to the members and one which gave less power to them, it is not surprising that members would prefer the scheme which gave them more rather than less power.

As a practical matter in the present case the witness evidence as to the settlors’ or founders’ intentions did not go to the particular or general points in relation to the constitution where clarification or addition is needed, except:

Having regard to those conclusions, it is not necessary for me to attempt an assessment of the quality or credibility of the various witnesses further than I have already done. In particular the circumstances and abbreviated nature of the Claimant’s cross-examination means that the inconsistencies between his statements and some of the documents were not explored and the Claimant was not given an opportunity to explain them. I suspect that many if not all of them may have been caused by difficulties or inexactitudes in translation or understanding.

Not only is it unnecessary for me to attempt any further assessment of the quality or credibility of the various witnesses, but it is undesirable that I should do so. All the witnesses remain members of the same religious community under the umbrella of the charity. The witnesses who are or were directors of the charity are or were respected members of the community. Many of the parties and witnesses will be working together in the future to benefit the charity and to advance its purposes. Any findings which I might make as to their quality or credibility as witnesses would be likely to interfere with that. Further, the parties before me minimised the amount of time spent exploring allegations of past failures or breaches of duty and, in my view properly and rightly, focussed on the future of the charity and its constitution. In those circumstances it would be unfair and contrary to the interests of the charity for me possibly to taint individuals or their reputations by making adverse comments on the quality or credibility of their evidence.

Various powers are given under the existing constitution of the charity to the Mahant Swami. In the Claimant’s proposed scheme it was proposed that similar and other powers should be vested in the trustees of SSMB India. In submissions Mr Mills said on behalf of the Claimant that he was not concerned whether the powers were vested in the Mahant Swami or in the trustees of SSMB India.

There are 26 or 28 trustees of SSMB India, including the Mahant Swami and the Chief Kothari. It was submitted by Mr Mills that if necessary they could reach decisions quickly. Mr Mills referred to an example where 20 of the 26 had done that in relation to the charity. I accept that that will usually be possible, but it may not always be possible. Even if it was, I consider that it is not in the interests of the charity for substantial powers in relation to its administration to be vested in a large body of trustees whose own constitution is governed by Indian law and might be changed with little or no regard to the interests of the English charity. Giving the same powers to the Mahant Swami as Head Priest of the Bhuj Temple is different and, as between vesting the powers on the trustees of SSMB India and the Mahant Swami, significantly more in the interests of the charity. That is because the Mahant Swami‘s role in relation to the Bhuj Temple is likely to continue, whatever happens in the way of changes to the body managing the Bhuj Temple. Similarly with the position of Deputy or Vice Mahant Swami. Those appear likely to be offices which will remain unchanged whatever re-arrangements are made in respect of the management of the Bhuj Temple. Further, the Mahant Swami is acknowledged to be the religious leader of the Bhuj Temple and of the Swaminarayan temples elsewhere which are “under” the Bhuj Temple.

The Mahant Swami is an elderly man and, it is apparent from what I have said above about the course of evidence, that when he is tired he may have difficulty in putting his mind properly to issues which are before him, particularly if they originate in documents or requests in the English language. SSMB India’s Trust Deed provides for a “Vice Mahant” to be nominated from the board of trustees to act as Mahant in the absence of the Mahant Swami and to work as per directions given by the Mahant Swami. The present Mahant Swami was himself the Vice Mahant Swami before he became the Mahant Swami. For those reasons I consider that it would be expedient in the interests of the charity and would not depart substantially from the intentions of the settlors and founders for the powers vested in the Mahant Swami by the constitution of the charity to be exercisable in the alternative by the Vice Mahant Swami, and the scheme should so provide.

There are and will remain three decision making bodies or individuals:

The existing constitution provides for the Board of Directors to comprise the Mahant Swami as ex officiodirector and chairman of the Board and 11 other members.

The Claimant’s scheme proposes that the Mahant Swami should have the option of relinquishing his position as ex officiodirector and chairman of the Board. That proposal is expedient in the interests of the charity. Insofar as it may thwart the intention of the settlors or founders, that thwarting is overridden by the expediency of not forcing the Mahant Swami to perform a role which he may not want or which he may come to consider that he has become unfit for. It should be included in the scheme.

Under the Claimant’s proposed constitution there would be between 4 and 11 trustees or directors additionally to the Mahant Swami. I refer to the Board members other than the Mahant Swami as “the Appointed Directors”. In comparison with a requirement that there be 11 Appointed Directors, the proposal that there be between 4 and 11 of them avoids the possibility that the death or resignation of an Appointed Director might make the Board incapable of functioning. That possibility should be avoided, but I consider that it should not be achieved by permitting there to be a Board of only 5 persons (the Mahant Swami and 4 Appointed Directors) on anything other than a short term basis pending the appointment or co-option of additional directors.

Until the disputes arose as to who were the directors, the Board and the charity appear to have functioned satisfactorily with 11 Appointed Directors, so subject to re-starting the Board with identified persons as its members and to dealing with the validity of decisions taken during periods when there is a vacancy, there is little reason to change the size of the Board. Further, I consider that a rolling programme of retirement of members of the Board is expedient in the interests of the charity so as to achieve both a substantial degree of continuity and experience and the possibility of the regular introduction of new directors with fresh enthusiasm or representative of newer members. That sort of rolling programme is more likely to be successful if more than one Appointed Director has to retire annually. Accordingly, I consider that it is expedient in the interests of the charity that the Board should comprise the Mahant Swami (subject to the possibility of his relinquishing his position) and 11 Appointed Directors but with:

The existing constitution provides that every 6 years the 3 “eldest” directors should resign. The Claimant’s proposed scheme proposes 3 year terms for the Appointed Directors. As does the 5^th Defendant’s proposed scheme. I consider that it is expedient in the interests of the charity for the terms of tenure of the Appointed Directors to be reduced to 3 years for the following reasons: (i) 6 years is a long time for an individual to bear the burden of being a director of as large an organisation as the charity has become since it was founded (ii) 6 year terms would not hold what in my view is the appropriate balance in the interests of the charity between (i) continuity and experience and (ii) possible new appointees.

In order to enable the possible turnover of Appointed Directors, the scheme should provide that once the Board has been established with 11 Appointed Directors, broadly 4 should resign at the AGM next after the initial AGM; 3 at the AGM held in the next year and 3 at the AGM held in the year after that; then 4; then 3; then 3 and so on in subsequent years. The drafting as to the grouping of Appointed Directors for resignation in that way will need to take account of the possibility of a member or members of a group have resigned or been removed or replaced in the period before their resignation by rotation becomes compulsory. I have in mind that for these purposes there should be three groups of Appointed Directors, with the drafting providing for the resignation of one group per AGM and with vacancies or replacements counting as members of the group which lost a director in the relevant period before the relevant AGM. Resigning Appointed Directors under these provisions should be eligible for re-appointment.

In recent years there has not been an advisory committee as required by the existing constitution. Neither the Claimant’s nor the 5^th Defendant’s proposed schemes include provision for an advisory committee or for a person to have been on the advisory committee or an equivalent for a period of at least 6 years before they are eligible to be a director. The requirement in the existing constitution weighs quite heavily in favour of its retention or in the retention of a similar system because of the experience it will provide to and individual before they take on the role of an Appointed Director. However, on this point I consider that the desirability of a balance in the interests of the charity between (i) continuity and experience and (ii) possible new appointees and the practical reality of the advisory committee having fallen into disuse overrides the benefit of keeping it or an equivalent in place means that, despite the departure from the intentions of the settlors and founders which it involves, it would be expedient for the scheme to remove the requirements as to an advisory committee, and I so direct.

Having regard to (i) the Membership’s rights under the existing constitution of the charity; (ii) the very large contributions made by its members to the charity, both in terms of money and work; and (iii) the concerns as to the possibilities of assets being hived off, I consider that it is expedient in the interests of the charity and substantially in accordance with the wishes of the settlors and founders that the Membership’s existing rights under the constitution should not be removed and the constitution should be amended to make it clear what they are.

The difficulties adverted to above with the provisions of the existing constitution which provide for the Boad appointing its own members mean that it is likely to be expedient in the interests of the charity for the scheme to provide for the primary appointors of the Appointed Directors not to be the Board itself.

Broadly the choice as to appointors is between (i) the Mahant Swami or the Deputy Mahant Swami (I have already directed that it is they rather than the trustees of SSMB India who should be the relevant decision makers so far as the Bhuj Temple is concerned) and (ii) the members in General Meeting. That choice is reflected in the rival proposed schemes of the Claimant and the 5^th Defendant respectively.

The following factors favour the members in General Meeting being the Appointors:

The following factors favour the Mahant Swami or the Deputy Mahant Swami being the appointor:

The Claimant’s proposed scheme proposed, and Mr Mills submitted, that if the Mahant Swami had the power to appoint new trustees, his power in that regard should only be exercisable after consulting the directors and (insofar as reasonably practicable) the members. Such a requirement to consult would mitigate the likely unfamiliarity of the Mahant Swami with candidates for a directorship. However, I consider that the degree of such mitigation would be fairly small because of (i) the depth of the required consultation might be limited or, if in great depth it would be difficult and time-consuming for an important man such as the Mahant Swami to conduct; (ii) the present Mahant Swami’s ability to conduct a meaningful consultation with English speaking consultees would be constrained by his lack of English; (iii) there would be no obligation to follow the views of the consultees.

Mr Mills submitted by reference to a Report of the Charity Commissioners (Report of the Charity Commissioners 1991 (1992), para.41) and Charity Governance (2^nd ed, 2014) paras. 8.25, 8.27 and 8.163, that it was not uncommon for a third party to have power to appoint and/or remove trustees of a charity. Indeed, but it does not follow from the fact that it is not uncommon that it would be appropriate for or in the best interests of this charity.

Taking into account the matters mentioned in this part of this judgment under the heading “Who should appoint the Appointed Directors?”,I consider that it is expedient in the interests of the charity for the primary appointors of the Appointed Directors not to be the Board itself, but for the primary power of appointing the Appointed Directors to be vested in the Members in General Meeting and that on these questions expediency overcomes the need to be slow to thwart the settlors’ and founders’ intentions. I direct that the scheme should so provide.

It is expedient in the interests of the charity and does not significantly depart from the intentions of the settlors and founders that the Board should have power to fill casual vacancies, such casual appointees’ appointments only to last until the next AGM unless the appointee concerned is re-elected. I direct that the scheme should so provide.

I consider that it is expedient in the interests of the charity and does not depart significantly from the wishes and intentions of the settlors and founders for the provision at the end of clause 5.01 of the existing constitution which provides for Directors to cease to be Directors in certain circumstances, in substance to continue and to be extended as follows: the Mahant Swami or the Deputy Mahant Swami and, separately and additionally, the Board, shall have power, subject to procedural safeguards, to remove directors who they consider:

Having regard to the same matters as I have considered above on the question of who should appoint the Appointed Directors, together with the consideration that if a significant number of members have real concerns about an Appointed Director they should be able to do something about that concern without having to rely on the Board, the Mahant Swami or his Deputy or go to the Charity Commission (though of course they would be able to do that if they thought fit), I consider that it would be expedient in the interests of the charity and that such expediency overrides the departure which it involves from the wishes and intentions of the settlors and founders, for the constitution to include a provision broadly to the effect of clauses 5.15 and 5.16 of the Claimant’s proposed scheme, but with some changes.

In this and the subsequent parts of this judgment, where I have put a provision in square brackets that indicates that the provision in square brackets represents my provisional view and that if asked, I would consider a different provision either at the Consequentials Hearing or at a later hearing.

The changes which I direct to the effect of clauses 5.15 and 5.16 of the Claimant’s proposed scheme are as follows:

The Directors should have power to retire and thereby to cease to be Directors by giving written notice to the Board, unless their retirement will cause there to be fewer than 5 Directors (including the Mahant Swami).

The Claimant has proposed the 4 persons who were or remain directors of the charity, that is to say: Devshi Dayalal Gami, Naran Harji Gami (the 5^th Defendant), Khimji Ramji Patel and Lalji Mawji Vekaria. The 5^th Defendant in his proposed scheme has proposed the same 4 persons plus an additional 8. The 5^th Defendant said that there were written consents of 7 of the 8 to act. However, there were no statements of their fitness to act before me. In those circumstances I am not willing to appoint them as new trustees of the charity. If they remain willing and able to act, they can stand for election at the initial AGM which I am going to direct.

Pending the holding of that initial AGM the Appointed Directors shall comprise Devshi Dayalal Gami, Naran Harji Gami (the 5^th Defendant), Khimji Ramji Patel and Lalji Mawji Vekaria plus such other persons, if any, as the Board may, but shall not be obliged to co-opt under the power co-opt which I have directed above.

Clause 5.02(b) sets out a list of 9 officers which the Board of Directors should elect from among themselves.

After the initial AGM has been held and there is a sufficient number of Appointed Directors to fill the specified offices, no reason was advanced to me as to why that position should be changed. It should continue but with the Board being obliged to re-elect the officers after each AGM and in the event of a vacancy.

During the interim period pending the holding of the initial AGM when there may be significantly fewer than 9 Appointed Directors, an abbreviated list of officers should apply. My provisional view is that it should comprise [a President, a Vice President, a Secretary and a Treasurer].

Clause 6.01(d) of the existing constitution provides for a quorum of at least one third of the members of the Board.

In order to prevent the risk of such an important decision making body as the Board being quorate with a very small number of persons present, by reason of possibility that the Board will comprise substantially fewer than 12 persons, and will do so for some of the time between the scheme coming into force and the initial AGM, it is expedient in the interests of the charity that the quorum should be whichever is the larger of 3 persons or one third of the number of members of the Board. I so direct.

The provision in the existing constitution as to eligibility for membership is workable and it is not expedient to change the substance of it except (i) to clarify it and (ii) possibly to exclude persons under the age of 18.

By way of clarification, the following wording, taken from some of that in the Claimant’s proposed scheme would be satisfactory:

“Any person, irrespective of caste, colour or creed, shall be eligible for membership of this organisation if he or she:

(1)

is a follower or devotee of Nar Narayan Dev Diocese at Ahmedabad or Laxmi Narayan Dev Diocese at Vadtal, India and believes in the original teachings of Shree Sahajanand Swami the founder of the Swaminarayan sect; and

(2)

does not owe allegiance to any diocese or institution or temple which is not recognised by either of the Dioceses at Ahmedabad and Vadtal.”

The existing constitution does not require that persons should have reached any particular age in order to be eligible for membership. The Claimant’s proposed scheme proposes a minimum age of 18. The 5^th Defendant’s proposed scheme proposed a minimum age of 21.

The existing constitution does not expressly provide for any benefits or rights for members except for rights to attend General meetings and to vote in General meetings concerning changes to the constitution and dissolution. The existing constitution contains no provision making membership a pre-condition to eligibility to worship at the Temple or to participate in other activities of the charity. In recent years, having regard to the fact that no attempt has been made to keep an up to date list of members, in practice it has not been necessary to be a member in order to be able to attend at the Temple for worship or for other activities of the charity. On the evidence before me I do not consider that it is necessary or expedient to introduce such a requirement. Having regard to that and to the need for votes under the constitution to be cast responsibly, it is expedient in the interests of the charity and not greatly against the intentions of the settlors or founders that there should be a requirement for voting rights of members under the constitution only to be capable of being exercised by members who are aged 18 or over. I specify 18 rather than 21 because 18 is the age of majority and, generally, of legal capacity in civil law in England.

In order to reduce the possibility of AGMs or EGMs being taken over by persons who have not previously been involved with the Temple, it is expedient in the interests of the charity and not significantly contrary to the wishes of the settlors or founders that there should be a minimum period of membership before a member becomes eligible to vote. The Claimant’s draft scheme proposed a minimum period of 3 months. I consider that a minimum of 6 months without a break would be more in the interests of the charity and I direct that the scheme should so provide. I direct that “Voting Members” should be defined as members who have been registered as members for at least 6 months without a break in their membership during that period and who are at least 18 years old. My reason for adding the requirement that the registration should be without a break is to make it clear that a person who might have been a member some time previously cannot rejoin only days before a General meeting and count the period of their previous membership as part of the 6 month eligibility requirement.

Issues which caused difficulties with implementing the terms of the of 2012 Tomlin Order and which remained issues before me were whether payment of a subscription should be a pre-condition of membership and, if so, what the subscription should be and/or how it should be set.

A common reason for institutions with a membership charging members a subscription is so that the subscriptions provide money to run or to contribute towards the running of the institution. It is apparent from the healthy financial situation which the charity has achieved without subscriptions in the approximately 24 years of its existence, that this reason bears little weight in the present case.

It is not necessary for a person to have to pay a subscription as a term of their agreeing to become a member on the terms of the constitution in order that they should become contractually bound by the terms of the constitution. The consideration consists of the mutual promises (Clarke v Earl of Dunraven, The Satanita [1897] AC 59).

It was submitted by Mr Mills that even a fairly nominal subscription would introduce a degree of formality to the membership process and would also make it easier to define when a person had lost their connection with the charity and when they had ceased to be a member. Against that, Mr Seal submitted that the charity had never charged a subscription; charging a subscription would discriminate against poorer devotees of the Temple and that it was unnecessary to charge a subscription. I would add to the arguments against charging a subscription, the fact that it would add to the administrative burden and costs of running the charity.

Mr Mills sought to answer the discrimination point by submitting that the trustees could be given power to waive or reduce the subscription in appropriately deserving cases. I do not consider that the creation and possible exercise of such a power would be in the interests of the charity. It could well be embarrassing for a member of the congregation to have to declare his poverty to the trustees and they might choose not to do so and thereby not to become a member in order to avoid that embarrassment. I consider that such a possibility weighs heavily against charging a substantial subscription. The figures mentioned in the Claimant’s proposed scheme were £100 for three years or £1,000 for life. For a person at or near the poverty line, I consider that those figures are substantial; though if the £100 for three years was payable at the rate of £33.33 per year it would be less so.

A drawback with charging a smaller subscription is that the costs of administering the receipt of the subscriptions, including bank charges, would absorb a larger proportion or the whole of the subscription, particularly if the subscriptions were allowed to be paid in cash.

I consider the detriments of charging a small or any subscription outweigh the benefits and that it is not expedient in the interests of the charity to change the constitution so as to provide for the charging of a subscription.

In order that the identities of Voting Members can be ascertained at AGMs and EGMs, the constitution needs to provide for the registration of members and for the production and maintenance of a complete, up to date, list of members. It is expedient in the interests of the charity that it should do and does not involve any significant departure from the intentions of the settlors and founders. It is an almost purely practical provision as are the following subsidiary provisions which it is expedient in the interests of the charity to specify in the constitution provided for by the scheme:

It is expedient in the interests of the charity and such expediency overrides any departure which it involves from the wishes and intentions of the settlors and founders for the constitution to make the following provisions in respect of meetings of members.

The Board must convene an Annual General Meeting (“AGM”) within 12 months of the scheme coming into effect. This will be the initial AGM referred to above.

The Board must convene an AGM in each subsequent year and not more than fifteen months may elapse between successive AGMs.

The business of the AGM shall include, but need not be limited to:

The Board may convene an Extraordinary General Meeting (“EGM”) of the Members at any time.

The Board shall convene an EGM when required to do so by the above directed provisions in respect of requests for investigations of Appointed Directors.

The Board shall within [28 days] after receiving a request in writing from no fewer than [50] Voting Members stating the business that is to be discussed, convene an EGM to consider the business specified in the request:

If the Board fail to convene a meeting as required by the foregoing provisions, any member or group of Members may proceed to convene the relevant meeting, but in doing so they must comply with the above provisions as to notice.

There will be no proxy voting. Only Voting Members physically present at the AGM or EGM may vote and each Voting Member shall have one vote. There shall be no remote voting by video link or otherwise.

The President, or in his absence the Vice President, shall chair an AGM or EGM. If there is no President or Vice-President or they are not present within 15 minutes after the time specified for holding the meeting or if there is a dispute as to who the President or Vice-President is or whether they are directors, the Voting Members present must choose one of their number to chair the meeting.

In the case of an equality of votes, whether on a show of hands or a poll, the chair of a meeting of an AGM or EGM shall be entitled to a second or casting vote.

The scheme must specify a quorum for an AGM or EGM (as to the quorum, see below).

If: (i) a quorum is not present within 30 minutes from the time appointed for the meeting; or (ii) during an AGM or EGM a quorum ceases to be present, the meeting shall be adjourned to such time and place as the Board shall determine, provided that if the Board does not give notice of the re-convened meeting within [14 days] of the date of the adjournment, any member or group of Voting Members may proceed to convene the re-convened meeting, but in doing so they must comply with the following provisions as to notice.

At least [7 clear days’] notice of the re-convened meeting must be given, stating the date time and place of the meeting.

If no quorum is present at the re-convened meeting within 15 minutes of the time specified for the start of the meeting the Voting Members present at that time shall constitute the quorum for that meeting.

The members present at an AGM or EGM may resolve that the meeting shall be adjourned.

The person who is chairing the meeting must decide the date time and place at which meeting is to be re-convened unless those details are specified in the resolution for adjournment.

No business shall be conducted at an adjourned meeting unless it could properly have been conducted at the meeting had the adjournment not taken place.

If a meeting is adjourned by a resolution of the members for more than [7 days], at least [7 clear days’] notice shall be given of the re-convened meeting stating the date, time and place of the meeting.

In accordance with what Mr Mills accepted on the Claimant’s behalf, in broad terms the power to amend the constitution should be vested in the membership, subject to the consent of a representative of the Bhuj Temple. For the reasons also given above, that representative should be the Mahant Swami or the Vice Mahant Swami.

The current constitution provides for a 2/3rds majority vote in favour of a proposed change to the constitution, with the Mahant Swami voting in favour of the proposed change. For the reasons given above the voting rights of the membership should be limited to Voting Members.

The Claimant’s proposed scheme proposed a 75% majority. That would make it less likely that an amendment could be made. 75% is the majority which is required under s.280A Charities Act 2011 (introduced by the Charities Act 2022) and hence can be presumed to be the default position approved by Parliament. However, I consider that it would not be expedient in the interests of the charity to introduce that higher hurdle to the making of amendments to the constitution under the constitutional provision. The requirement in the constitution will remain a 2/3rds majority of the Voting Members present at the meeting.

A practical difficulty with requiring a vote in favour by the Mahant Swami in this context and more generally is that it means that for a change to the constitution to be effected the Mahant Swami would have to attend the AGM or EGM where the resolution for the change was being put. Alternatives would be (i) to permit the Mahant Swami to cast a written or electronic vote; (ii) to require the prior written consent of the Mahant Swami or the Deputy Mahant Swami; (iii) to require either the prior or subsequent (within as specified period) written consent of the Mahant Swami or the Deputy Mahant Swami; (iv) to provide that a proposal, if passed with by the 2/3rds majority of the Voting Members present at the meeting, would be effective unless the Mahant Swami or the Deputy Mahant Swami voted against the proposal; or (v) to provide that a change to the constitution resolved upon by the 2/3rds majority should only be effective if the Mahant Swami or the Deputy Mahant Swami within a specified period (say 28 days) after the passing of the resolution did not object in writing to the resolution. The last two of these alternatives would put an onus on the Mahant Swami which does not exist in relation to changes to the constitution under the existing constitution. Putting that onus on the Mahant Swami or the Deputy Mahant Swami would lead to a possibility that a resolution changing the constitution might become effective when, for good reason or bad, the Mahant Swami and the Deputy Mahant Swami were unable to vote against or veto the proposal in time. The casting of a vote in writing or electronically might be difficult to work into the mechanics of an election which was being held in person. Requiring the prior written or subsequent consent of the Mahant Swami would make little difference to the position under the current constitution. The main difference it would make is that the Mahant Swami or the Deputy Mahant Swami would be able to give or refuse their consent after they knew the result of the vote of the members. Having regard to these considerations I consider that requiring the prior or subsequent written consent of the Mahant Swami or the Deputy Mahant Swami, with the subsequent written consent required to be given, if at all, within [28 days] after the vote at the AGM or EGM concerned (i) is expedient in the interests of the charity; (ii) is more expedient than maintaining the requirement of a positive vote in favour; (iii) is more expedient than the other alternatives; and (iv) is so much more expedient than those things that expediency in this context overrides the requirement to be slow to thwart the settlors’ or founders’ intentions. Accordingly, the scheme should provide for future changes to the constitution (other than any which might be made by the Charity Commission or the court) to require a 2/3rds majority vote in favour of the Voting Members present at the relevant AGM or EGM and the prior or subsequent written consent of the Mahant Swami or the Deputy Mahant Swami, with the subsequent written consent required to be given, if at all, within [28 days] after the vote at the AGM or EGM concerned.

The provisions as to notice in clause 8.01(a) of the current constitution shall cease to apply. The general procedural provisions as to AGMs and EGMs specified above will apply to the convening and holding of meetings to amend the constitution.

The existing constitution provides that no amendment may be made to the objects clause without the prior written consent of the Charity Commission. There is no reason to change this requirement.

The existing constitution provides that no amendment may be made to clause 9.01 without the prior written consent of the Charity Commission. I direct certain changes to clause 9.01 below. With those changes effected, there is no reason to change the requirement that no amendment may be made to clause 9.01 without the prior written consent of the Charity Commission.

The existing constitution provides at the end of its clause 8.01 that no amendment may be made to clause 5.01(A) (National Office) or clause 9.01(A) (Disposal of Organisation Properties).

The reference to clause 5.01(A) (which must be the intended reference in the proviso at the end of clause 8.01) is to the provision that the Head Priest of the Bhuj Temple will be the ex-officio Chairman of the Board of Directors. It was proposed by the Claimant and I have directed that the Mahant Swami (Head Priest) will be given the option of not being a Director or Chairman of the Board. Accordingly, the effect of clause 5.01(A) in keeping the Mahant Swami in post might be avoided by the Mahant Swami himself. It follows that the purpose of clause 5.01(A) of protecting the position of the Mahant Swami may be waived by him. Once that position is reached the proviso at the end of clause 8.01 as to clause 5.01A or (A) will not serve any real purpose because the Mahant Swami could prevent a change to the constitution which might affect his powers by not giving his prior written consent to the change. For that reason and so as to simplify the constitution it is expedient in the interests of the charity and I direct that the proviso at the end of clause 8.01 as to clause 5.01(A) should be removed.

Clause 9.01(a) (which must be the intended reference in the proviso at the end of clause 8.01) provides that the Board may with the approval of the Head Priest and the appropriate legal formalities dispose of any of the charity’s properties. I can see little reason why the partial entrenchment of this provision should not remain, and a good reason why it should. That good reason is that the requirement for the Mahant Swami’s consent to the sale of the charity’s properties would enable him as Head Priest of the Bhuj Temple “under” which the charity exists to maintain some control over where the charity has its Temple, which may well be relevant to obtaining a reasonable geographical spread of Temples “under” the Bhuj Temple.

Clause 7.01(a) of the existing constitution contains an apparently very wide definition of “the properties” of the charity. I have already said that it is so wide that it may be that it extends to the most trivial of assets. I am not over-concerned about that in other contexts in the constitution, but in clause 9.01(a) I consider that it is expedient in the interests of the charity and that such expediency overrides any departure which it involves from the wishes and intentions of the settlors and founders, that the constitution should have added to it a provision making it clear that the “properties” referred to in clause 9.01(a) means only the land owned or leased by the charity.

The constitution should have added to it a provision that no amendment shall be made to it which would cause the charity to cease to be a charity within the meaning of the Charities Act 2011.

The constitution should provide that the power of amendment contained in it is additional to and does not exclude the s.280A Charities Act 2011 power of amendment.

Clause 9.01(b) of the existing constitution deals with possible dissolution and its consequences. To repeat, it is in the following terms:

“Notice of 21 days shall be given to the members for a special meeting to be called for the discussion on the Organisation to cease to function or exist. For such resolution shall be decided by the casting vote of at least two thirds of the present members. Discussions and suggestions shall be taken into account as to the arrangement of the Organisation and its assets and properties, but shall not be passed and belong to any member but to Shree Swaminarayan Temple Bhuj ( N N Dev ) (after paying off all its liabilities). In case it is not possible ( due to legal reasons) to pass the remaining assets and properties to Shree Swaminarayan Temple Bhuj (N N Dev), the Board of Directors with the prior approval of the Head Priest of Shree Swaminarayan Temple Bhuj ( N N Dev ) shall be entitled to give it away to any similar local, religious or charitable institution. If this not possible it may be passed to any local, religious or charitable institution.”

The Claimant’s proposed scheme does not suggest any changes to clause 9.01(b). I have explained much earlier in this judgment why I interpret the first part of clause 9.01(b) as referring to members of the Board of Directors.

The 5^th Defendant’s proposed scheme would modify the first part of the clause so as to refer to an EGM rather than a “special meeting”.

In deciding whether it is expedient in the interests of the charity to change the body which decides on a dissolution from the Board of Directors to the general membership I have regard to the same considerations as stated above which favoured the general membership having the primary power to appoint the Appointed Directors and to the administrative costs and difficulties with holding elections by the members, particularly if the charity is in danger of becoming insolvent. In the context of a decision to dissolve the charity, there is a further important consideration. That is that if the charity should in the future fall into financial difficulty, it will be the Directors who will be primarily liable for the debts. In legal form the charity is an unincorporated association or trust and generally has no legal personality of its own. It is the directors with whom contracts will be made and who will be liable for debts which may arise. It would give directors and future directors some comfort if they knew that if the worst appeared to be coming to the worst, they could terminate the operations of the charity; wind it up and use the proceeds of sale of its valuable assets to pay off the debts before it became insolvent. Having regard in particular to that consideration, I consider that it is not expedient in the interests of the charity to change the body which decides whether or not there should be a dissolution. That body should remain the Board of Directors acting by a 2/3rds majority of those present at the relevant meeting.

Under the existing constitution, the destination of the net assets following a dissolution is the Bhuj Temple unless that “is not possible” due to legal reasons. Having regard to the considerations which I had regard to on the question of who should have the primary power to appoint the Appointed Directors and in particular to the very large contribution made by its members to the charity, both in terms of money and work, and to the concerns as to the possibilities of assets being hived off, I consider that it is expedient in the interests of the charity and that the departure from the intentions of the settlors or founders as expressed in the existing constitution should be overridden, so that the destination of the net assets on a dissolution of the charity should be determined, subject to the prior written approval of the Mahant Swami or the Deputy Mahant Swami, at an EGM in accordance with the general provisions directed above in respect of changes to the constitution. I so direct.

Clause 8.01(b) provides:

“The members of the Board of Directors will frame further rules for general administration of the Organisation. Such rules, however, shall not be in contravention of its constitution and rules of the Organisation, and against the directive, if any, of the Head Priest of Shree Swaminarayan Temple Bhuj (N N Dev).”

I was not shown any rules made under this provision. Except for tidying the grammar and clarifying the clause, there is no reason to change it.

The Claimant suggested that the name of the charity should be changed from “Shree Swaminarayan Satsang” to “Shree Swaminarayan Mandir Stanmore”. Mr Mills submitted that “Satsang” and “Mandir” meant similar things, broadly “a sacred gathering”. Except in very broad terms I am not willing to take judicial notice of that, particularly because insofar as the matter is within my own knowledge, the word “mandir” tends to indicate a holy place or temple, while “satsang” has the broader meaning. Mr Mills also submitted, which I accept, that adding the word “Stanmore” would help to identify which Swaminarayan Temple in the UK the charity relates to. However, the Claimant said in his statement dated 30 April 2024 that the change of name was only a suggestion at that time and that he was happy not to pursue the point.

The existing constitution does not identify Stanmore as the area of operation of the charity.

In those circumstances I consider if the name is going to be changed, the change should be effected by a change of the constitution by the members at an AGM or an EGM. I will not make a direction that the name be changed.

Many of the provisions in the constitution as it will exist pursuant to the scheme will provide for the giving or notice to or the making of requestions to the Board of Directors. A provision should be included as to how that can be done as a practical matter, with ancillary provisions as to the dates or times when the notice or requestion is to be treated as having been received.

Ancillary provisions as to the dates or times when notices are to be treated as received by others, such as members, should be included.

The generally preferred method is for the Attorney General by his counsel to draft the scheme. However, the Attorney General has not played any part in these proceedings and I consider that it would be likely to delay matters further to the prejudice of the charity to take time at this stage attempting to order him to do so.

It is the Claimant’s case. A considerable amount of drafting has already been carried out on his behalf. Accordingly, my provisional view, subject to any submissions which may be made at the Consequentials Hearing, is that I should direct the Claimant (by his solicitors and counsel) to draft a scheme giving effect to the directions in this judgment.

I have already indicated that there should be a comprehensive re-drafting of the constitution and why. I so direct. The scheme will bring into effect a complete constitution contained in a single document; possibly, but not necessarily, with schedules dealing with particular matters such as any detailed interim provisions pending the holding of the initial AGM. It will not merely provide for the amendment of existing clauses. The re-drafted constitution need not and probably should not follow the same format or numbering system as the existing constitution. The draftsperson should bear in mind that the constitution is a document which will need to be read by persons such as new Appointed Trustees who are unlikely to be lawyers and may have less knowledge of the history of and background to the charity than the parties to this litigation.

It may be that when the comprehensive re-drafting of the constitution comes to be done in accordance with this judgment, that it will become apparent that some further additions or some minor variations or additions are required or are desirable in order for the constitution to be clear and workable and in order to avoid any inconsistencies. The draftsperson may deal with these in his or her draft. Insofar as necessary they can be considered at the hearing at which the scheme is finalised.

At the Consequentials Hearing a timetable will be fixed for the serving of the draft scheme; comments on it by the other parties and provision to the court of a time estimate and dates to avoid for a later hearing at which the scheme can be finalised.

When the order for the scheme constitution is made, the order may require the Board to take the steps required by it pending the holding of the initial AGM after the scheme comes into effect.