The ‘London Nataraja’
R.Smalley, January 2010. Copyright.
In August or September 1976 an Indian labourer who lived near the site of a ruined Hindu temple at Pathur (Arul Thiru Viswanatha Swamy Temple), in the state of Tamil Nadu, uncovered a metal object (the ‘Pathur Nataraja’) while excavating foundations for a new cow shed. This object was known locally as a Siva Nataraja and was shown to belong to a family of bronze Hindu idols called the Pathur Bronzes. It was subsequently dated to the Chola period (9th to 13th Century) and was probably buried to prevent discovery by invading Muslims. The farmer sold the idol to a dealer in religious artefacts and eventually it ended up with a Bombay dealer (who was untraceable at the time of court proceedings).
State officials in Tamil Nadu had learnt of the various sales associated with the idol and had begun their own investigations but by 1982 the whereabouts of the object was still unknown. In June of that year Robert Borden, of the Bumper Corporation of Canada, bought a Nataraja in good faith from a London dealer called Sherrier (who later produced what was found to be false provenance documents for the object). Bumper obtained a permit to export the bronze from England but did not do so as they were advised it required conservation. The ‘London Nataraja’ was taken to the British Museum for assessment and conservation but later seized by the Metropolitan Police as part of an operation to return stolen religious objects to their rightful owners. Bumper then brought a claim against the Police for the return of the object and damages.
There were five claimants in the case: 1. Union of India 2. State of Tamil Nadu 3. Thiru R. Sadagopan, claiming as the fit representative of the Temple 4. Arul Thiru Viswanatha Swamy Temple 5. Sivalingam. This was another surviving object of religious worship from the Temple. It is a sculptured stone phallus and in a temple of its period would have been positioned in the sanctum to be the focus of worship. It was restored as an object of worship at the Temple after its rediscovery
There were two main issues: 1. Identity – that the ‘London Nataraja’ was the one and the same as the ‘Pathur Nataraja’ 2. Title – If they were the same, who of the claimants had the superior title to the object
The case stating that they were the same object was supported by expert evidence on stylistic grounds of similarity between the ‘London Nataraja’ and the Pathur Bronzes and expert evidence of a metallurgical, geological and entomological nature.
Bumper’s case was supported by Dr. Presencer (considered an honest witness) who stated that he’d seen the antique object (note that it was agreed that the item was antique and showed signs of having been buried for many centuries) in London in May 1976, before the other was unearthed, and therefore they could not be the same. Metallurgical evidence was also produced to show dissimilarities between the ‘London Nataraja’ and the Pathur Bronzes.
The English trial judge, Mr Ian Kennedy, found that the ‘London Nataraja’ was the same as the one uncovered in India in 1976. He believed Dr. Presencer to have been mistaken to the date on which he’d seen the antique Nataraja.
The Judge concluded that the institution comprising the Temple (the 4th claimant) had title to the Nataraja. If it had not been the 4th than the 5th, then the 3rd had good claims for title and the 2nd would have also had title under provisions of the Treasure Trove Act and/or Tamil Nadu law (H.R. and C.E. Act).
The precedent for this was in a case from India in 1925 – Mallick v Mallick. The legal principle says “A Hindu idol is according to the long established authority founded upon the religious customs of the Hindus and the recognition thereof by the courts of law in India and the Privy Council, a juristic entity. It has judicial status with the power of suing and being sued.” This had been an English decision – that a Hindu deity is a personality of its own and can sue or be sued in a court of law. They applied the principle that once a deity always a deity and so the principle continued to be relevant in the 1980s.
The Judge concluded “the pious intention of the 12th century notable.. who built the temple…remains in being and is personified by the Temple itself, a juristic entity which had title to the Nataraja superior to that of the defendant.”
Bumper appealed against both findings and wanted the Court of Appeal to consider if Mr Justice Kennedy was entitled to make the assessments that he made. The Court of Appeal stated that the Judge “was fully entitled to come to the conclusion which he reached on each aspect of… the case.”
Further evidence was admitted by Bumper which had not been previously available. An American dealer, Robert Ellsworth, testified that an antique Nataraja was being offered for sale in London in Easter of 1974. He had examined it briefly and he identified it as the disputed object bought by Bumper. They also included evidence of soil analysis showing that the size and colour of soil particles on the object differed from samples taken at the excavation pit at the Temple. The Court upheld Kennedy’s findings on the issue of identification.
The Court held that the Temple was acceptable as a party to proceedings and as such entitled to sue for the recovery of the Nataraja in the English courts through the 3rd claimant, although he himself was not a competent party.
It considered whether a foreign legal person who would not be recognised as a legal person by our own law, could sue in the English courts? Here we had what was essentially little more than a ‘pile of stones’ wishing to sue. The Courts used Salmond in Jurisprudence (12th ed, 1966) as a reference, where it was considered possible that a foreign Roman Catholic Cathedral could have a legal personality in its own country and maybe given the ability to sue for the protection and recovery of its contents. “The touchstone for determining whether access should be given or refused is the comity of nations… - the courteous and friendly understanding by which each nation respects the laws and usages of every other, so far as may be without prejudice to its own rights and interest”. It would only enhance public policy to allow a Hindu Temple to sue here for recovery of its property to which it was entitled to recover by the law of its own country.
Note that the Court accepted that the Sivalingam would be recognised in Tamil Nadu as a juristic entity which could also sue through its representative at the Temple. However as the Court had decided in favour of the Temple it was not necessary to decide if the Sivalingam would be considered a juristic entity in the eyes of English law.
It was considered that the public policy of promoting the return of stolen artefacts, and those exported in breach of regulations, at least where the country is a friendly state and a member of the Commonwealth, was to be applauded and helps ensure the courts make a contribution to the international protection of cultural property.
Note that the Court found that the Treasure Trove Act did not apply – contrary to Kennedy’s decision – because it could only apply to items that were ‘ownerless’. As the Temple was determined to have remained in existence and that the bronzes had been hidden to prevent removal by invaders, it followed that the bronzes had never left the possession of the Temple and therefore had never been ownerless.
The Court of Appeal and the House of Lords awarded the Temple damages of £1000 and awarded the plaintiffs, jointly, costs totalling £303,489.67. The Nataraja was entrusted to the Indian High Commission in London and later returned to India.
Bumper then appealed to the Canadian courts. Bumper resisted enforcement saying that the judgement was contrary to the public policy of Canada, as reflected by its accession to the UNESCO Convention. Bumper counterclaimed for compensation from India for the loss of the bronze and for the English costs.
Bumper had five defences to the registration of the English judgements in Alberta: 1. that the judgements of the English courts were obtained by fraud on the English courts 2. that India could not, as a co-signatory of the UNESCO Convention, pursue its claim for costs and damages 3. that the English judgements were contrary to public policy 4. that one of the named Indian plaintiffs (the Temple) had no status in Alberta 5. that the Indians are not entitled to interest on the English judgement debts
The Alberta court felt there was no newly discovered facts which were not before the foreign court and from which it could be deduced that the foreign judgement has been obtained by fraud
The Alberta court rejected Bumper’s claims
This point is of interest to cultural property lawyers due to Canada’s status as a signatory to the UNESCO Convention. Although the UK was not a signatory the courts were able to justify the return of the object under common law principles – although at the cost of the innocent purchaser being left without the right to claim for compensation (it could have if the UK had been a signatory and had implemented the Convention).
Bumper argued that by bringing proceedings in England the Indian claimants should not be able to enforce their award in Alberta. The Court rejected this on the basis that there was good reason for the claimant to go to the English courts – not least the location of the item. The provisions of the UNESCO Convention don’t allow for a situation where property is returned by one state when its innocent purchaser resides in another.
Bumper argued that the Temple had no legal status in Alberta. The Court stated it was likely they would have dealt with the issue in the same way as the English courts did.
The Court dismissed this argument too. So long as the foreign judgement stipulated payment of interest, then interest was payable.
The UK Courts decisions caused apprehension in the antiquities market because if a religious artefact found in the UK could be traced to a ‘living temple’ then that Temple could pursue a claim to ownership.
The novel question was whether a foreign legal person who would not be recognised as a legal person by our own law could sue in the English courts. This was a first in the UK – where a Hindu Temple could sue for stolen property in England.
Also of interest is that the Sivalingam (a phallic stone idol) was ruled as having greater title than the Bumper Corporation.
The results show that the English courts will do what they can to ensure the return of cultural property to its rightful owner. The arguments themselves, the principle of comity and the criterion of public policy will ensure a wider application of the decision. It was therefore a welcome development in the arena of the international protection of cultural property.
BENNETT, W. 1990 Statue of Siva in landmark case for religious artefacts. The Independent, 5 July
CASEBY, J. 1991 Hindu temple wins back stolen God. Press Association, 14 February
GHANDI, S. & JAMES, J. 1992 The God That Won. International Journal of Cultural Property, Vol.1, Issue 2, pp.369-382
HERBERT, S. 1991 Law report: Hindu temple can sue for return of stolen property. The Guardian, 5 March
HUTCHESSON, P.(ed.) 1991 The all England law reports 1991. Volume 4. London: Butterworths
PATERSON, R.K. ? The 'curse of the London Nataraja'. Case notes from unknown publication - International Journal of Cultural Property?
RAKESH, M. 1991 British courts free Siva icon. Press release from unknown publication