Catalogue of Uncommon Legal Precedents
Hindu Religious Artefacts and Cross-Cultural Jurisprudence: Breaking the Person/Property Barrier
by Mario Michas
In the two major Western legal traditions, the common law and the civil law, legal or juristic personality is, as the English philosopher Thomas Hobbes averred, the legal instrument that allows a person to be the author of their own actions.[note 1] As physical or ‘natural’ persons, human beings are endowed with legal personality and a set of legal rights.[n2] Inanimate physical objects are not typically endowed with their own legal personality and are not considered as distinct legal entities. Instead, they are considered as property. However, two judicial decisions illustrate that there are exceptions to this principle: Mullick v. Mullick (hereinafter “Mullick”),[n3] and Bumper Development Corporation v. Commissioner of Police (hereinafter “Bumper”). [n4]
In these two cases, British courts, applying Hindu legal principles, held that religious artefacts are distinct juristic entities with legal rights and that they cannot be owned. These two decisions are groundbreaking because they departed from typical Western legal views on property and recognized that what might otherwise be regarded as inanimate objects [n5] can have their own legal personhood and rights. In both cases, English courts held that Hindu religious artefacts are not objects according to the common law, but rather living spiritual entities with their own rights and appointed caretakers, ass indicated. This probe analyses the two decisions by summarizing their facts and explaining the methodology the courts employed to arrive at their conclusions. It shows that the principles enunciated in Mullick and in Bumper are not entirely foreign to Western legal orders. This probe, however, does not explore the latter issue in depth due to limits on length. The author suggests that additional research on this point would enrich discussions on “cross-cultural jurisprudence,” as defined by David Howes - that is, our understanding of what it is like to be on either side of a legal or cultural divide, and/or both sides at once. [n6]
Part I: Mullick v. Mullick
Mullick v. Mullick was a 1925 case from India that reached the highest level of court in India at the time, the Judicial Committee of the Privy Council of the United Kingdom, sitting in Westminster. The Judicial Committee is an adjudicative body whose decisions have often had a cross-cultural dimension to them on account of the provenance of the cases. [n7] Formally created in 1833 by statute, [n8] the Judicial Committee served as the court of final appeal for the British Empire, and later the Commonwealth. [n9] This made it what Rosalie Jukier and David Howes call a “mixed jurisdiction court”: not strictly common law, though certainly not civil, and indeed having to sort out cases arising from an extraordinarily diverse catchment area: the Empire. [n10] It still serves as the court of final appeal for 29 jurisdictions that are mostly either British overseas possessions or military bases. [n11] In Mullick, the Judicial Committee was tasked with applying Hindu religious legal principles in order to determine whether a Hindu idol was its own legal entity and could not be the property of the family who served as its custodians.
Overview
The dispute in Mullick opposed members of the Mullick family as to who should take up the role of Shebait, a Hindu term referring to the caretaker of a religious artefact or idol (Mullick page 3). An ancestor of the Mullick family, Mutty Lal Mullick had founded the idol, that is, consecrated it, in the early 19th century. According to Hindu Law, since that ancestor had founded the idol, he served as its Shebait (2-3). Upon Mutty Lal Mullick’s death, his widow, served as the idol’s Malik, that is, its temporary caretaker, until her son Jadulal became 20 years old (3). Jadulal eventually became the idol’s Shebait until his death in 1894 (4-5). Upon Jadulal’s death, a dispute arose between his three sons as to who would have the role of Shebait. After arbitrating the dispute, an arbitrator issued a decision in 1899 dividing the role of caretaker between the three sons. According to this decision, each son would act as Shebait in turn (6). After the turns had gone smoothly for several years, a dispute arose in 1917 because one of the sons refused to hand over the idol to his brother so that he may take his turn as caretaker (3, 7). The Mullick family was split over the issue and decided to litigate the matter. The case was of such legal significance that it reached the highest court of appeal in India at the time, the Judicial Committee.
The Judicial Committee had to determine the idol’s legal nature to decide whether the idol could be considered as property that belonged to one of the three sons in exclusion of the others, or whether the idol had its own legal personality and rights and did not belong to anyone. According to Hindu Law, an idol is a living entity, and from a legal perspective, is a distinct legal entity. It is considered to be living because it continues to incarnate the pious intention of the individual who originally consecrated it (3, 7). The Judicial Committee held that the idol had its own legal personality and was therefore its own legal entity, with its own rights. Lord Shaw, Baron Craigmyle who delivered the Judicial Committee’s decision explained the nature of the idol in the following terms:
“Their Lordships do not think that such cases form any ground for the proposition that Hindu family idols are property in the crude sense maintained, or that their destruction, degradation or injury are within the power of their custodian for the time being. Such ideas appear to be in violation of the sanctity attached to the idol, whose legal entity and rights as such the law of India has long recognised” (7, emphasis added)
To give effect to the idol’s distinct legal personality, a person was charged with exercising its rights: a custodian called a Shebait (3). The Shebait had significant responsibilities towards the idol such as sweeping the temple in which the idol resided; making oblations of rice, flower, and water; and cleaning the residue of past offerings.[n12] Lord Shaw described the role of the Shebait thusly:
“It must be remembered in regard to this branch of the law that the duties of piety from the time of the consecration of the idol are duties to something existing which, though symbolizing the Divinity, has in the eye of the law a status as a separate persona. The position and rights of the deity must, in order to work thus out both in regard to its preservation, its maintenance and the services to be performed, be in the charge of a human being. Accordingly, he is in the Shebait custodian of the idol and manager of its estate” (3, emphasis added)
Since the idol had its own legal personality and rights, it could not be an object of property and belong to any of the three sons. On the contrary, the three brothers had duties and obligations towards the idol (7-8). In disposing of the case, the Judicial Committee appointed a “disinterested next friend” to represent the idol’s interests pending the litigation and remitted the case to the High Court at Fort William to establish a schedule of worship for the idol (10).
Methodology
The Judicial Committee’s decision, as is typical of its practice, is short – it spans only ten pages. The decision begins with a brief account of the procedural history, that is, how the case ended up at the Judicial Committee. It then summarizes the facts and presents the legal issues or questions the Judicial Committee had to decide. The Judicial Committee then described the state of Hindu law relevant to the case by referring to its own past decisions and the decisions of local Indian courts. This methodology, known as stare decisis, is typical of the common law where judges rely on – and are bound by – past judicial decisions to determine the applicable legal principles [n13] given the moral authority the law attributes to the past. [n14]
Interestingly, the Judicial Committee did not refer to English decisions or rely on English legal principles. Rather, it used Hindu legal sources to justify its decisions. This raises a crucial point, which goes to the fact of the Judicial Committee being a mixed jurisdiction court. Given its “mixed” nature, as a matter of principle, the court needed to set its store by the English common law to one side, and be open to entertaining and applying the principles of other legal orders, rather than assimilate or override them – that is, rather than being “monojural.” [n15] The Judicial Committee has a chequered record in this regard: sometimes it got things right, other times wrong. [n16] In the instant case, it behooved the Judicial Committee to remain as open-minded as possible, and even of two minds, since it would not have been appropriate to rely on secular foreign law (i.e., the English common law) when adjudicating a dispute governed by religious legal principles steeped in a history of rituals and religious practice. If one did so, it would have the effect of obscuring the actual content of Hindu law and perhaps infusing it with new irreconcilable elements.
Another methodological point must be made: Mullick was by no means the first time an English court gave effect to the Hindu legal principle that an idol is a living entity with its own juristic personality and legal rights. Lord Shaw cites and quotes at length from the 1922 decision of the High Court of Calcutta in Chatterjee v. Banerjee where Mr. Justice Mukerji recognised that an idol was a living entity: “It is sufficient to state that the deity is, in short, conceived as a living being and is treated in the same way as the master of the house would be treated by his humble servant”. [n17]
A prior decision of the Judicial Committee in 1889 had also given effect to the Hindu legal principle that the male heirs of the original Shebait, the idol’s founder, typically assume that role upon his death. [n18] Thus, Mullick cannot be seen as the first time an English court respected Hindu legal principles.
Part II: Bumper Development Corporation v. Commissioner of Police
Bumper Development Corporation v. Commissioner of Police is a case from England with many facts arising in India. After a trial judgment from the High Court of Justice, Queen’s Bench Division in England, the case reached the Court of Appeal for England and Wales that rendered its final decision in 1991. In this case, English courts had to apply Indian law and Hindu legal principles to determine whether an Hindu idol had “standing,” [n19] that is, the legal status and ability to be a party in litigation in order to vindicate its own rights.
Overview
The author quotes from the Court of Appeal’s judgment for the facts and judicial history of the case. A laborer discovered a Hindu Idol, the Siva Nataraja also known as the Pathur Nataraja in India in 1976 at a ruined temple (Bumper, page 98). In 1982, Bumper Corporation purchased an idol known as the London Nataraja from an art dealer called Sherrier (101-02). The London police seized the idol because they believed it to be stolen and suspected Sherrier of having lied regarding the idol’s provenance (102). Bumper Corporation sued the London police, demanding the idol’s return and claiming damages (ibid.).
The Court had to determine, on a factual level, whether the idol in Bumper Corporation’s possession was the same as the one excavated in India in 1976. This mattered because the idol excavated in India was in the care of the Hindu temple (and its custodian) from which it was removed. Thus, Bumper Corporation could not own it. The Court had to consider complex expert reports on metallurgical, geological, and artistic analyses to determine whether the London Nataraja and Pathur Nataraja were one and the same (137, 139, 143).
The Court also had to consider Bumper Corporation’s argument that because the temple from which the idol was removed had fallen into disuse and ruin, the idol could no longer be considered as its own legal entity with rights (151). As mentioned above, an idol is considered to be the living incarnation of its founder's pious intention. [n20] In Bumper, the temple from which the idol had been excavated had fallen into desuetude going back centuries. Bumper Corporation argued that the passing of such extended periods of time had the effect of “de-sanctifying” the idol and consequently the Nataraja could not be considered to be a legal entity. This argument was novel; it was not established in Hindu Law (ibid.). The Court of Appeal, relying on testimonial evidence from experts on Hindu Law, rejected this argument. Disuse did not affect the idol as a legal entity (194).
Bumper Corporation also argued that simply because Hindu Law recognised that an idol was a legal entity with its own legal personality and rights, an English court was not bound to hold so as well (153). This argument was the crux of Bumper Corporation’s theory of the case. However, comity of nations, a principle of international law, dictated that an English court should, out of courtesy for the Republic of India, respect its legal order and give effect to its legal principles. The Court of Appeal, citing a dictionary, defined comity in the following terms: “[t]he courteous and friendly understanding by which each nation respects the laws and usages of every other, so far as may be without prejudice to its own rights and interests” (292). [n21] Accordingly, the Court had to determine whether following Hindu Law was prejudicial in some manner. If it was, it could refuse to apply the principle of comity. The Court of appeal did not find anything prejudicial and thus gave effect to Hindu law and held the idol was a legal entity with its own rights and legal personality (201-02).
The High Court of Justice also held that the Nataraja that Bumper Corporation had bought was the same one as the one excavated in India. Consequently, the High Court of Justice ordered Bumper Corporation to return the idol to the custodian of the temple from where it was removed in India and to pay damages. The Court of Appeal agreed with the High Court of Justice. The idol was returned to the temple in India and Bumper Corporation paid damages.
Methodology
In its decision, the Court of Appeal first detailed the facts and the procedural history. It also analysed the trial court’s decision at length. The Court then presented the parties’ arguments before turning to discussing the applicable legal principles. The Court relied heavily on the testimony of Hindu law experts to determine what the applicable law was. The Court then considered the legal sources the experts referred to which were decisions of Indian courts, legal textbooks, and Indian legislation.
Interestingly, English law did not permit English judges to conduct their own research in order to determine what the content of foreign law was. From the perspective of cross-cultural jurisprudence, such a legal rule has the effect of avoiding a judge misunderstanding, misinterpreting, or obscuring the contents of foreign law. A judge trained exclusively in English Common Law with no knowledge of any of the languages spoken in India, nor of Hindu rituals and practices would have great difficulty in properly ascertaining applicable Hindu legal principles unassisted. Such a rule is not ideal, though. The proper conduct of cross-cultural jurisprudence entails more than that. [n22]
One final noteworthy element of legal methodology is that in determining whether following Hindu law according to the principle of comity would be prejudicial, the Court of Appeal considered whether recognising that a Roman Catholic Cathedral is a legal entity with its own rights would be prejudicial (201). Lord Justice Purchas, who delivered the Court’s decision, explained that if a majority Christian country’s legal order gave churches their own legal personality and rights the principle of comity would militate in favor of an English court giving effect to such a principle (ibid.). The Court explained that whether the religious institution, idol, or symbol was Christian or Hindu should not matter (202). Lord Justice Purchas’ comments make it clear:
Arguing from the example of a Roman Catholic Cathedral and in the belief that no distinction between institutions of the Christian church and those of other major religions would now be generally acceptable, we cannot see that in the circumstances of this case there is any offence to English public policy in allowing a Hindu religious institution to sue in our courts for the recovery of property which it is entitled to recover by the law of its own country. Indeed, we think that public policy would be advantaged (ibid., emphasis added). [n23]
Legal history supports Lord Justice Purchas’ point. Justinian’s Institutes, arguably the most important law book in the history of the Western world, [n24] stipulates that religious ‘things’ cannot be owned. The Institutes read thusly on this point:
Sacred, religious, and sanctified things are owned by nobody. Things under divine law cannot belong to individuals. Sacred things are those which have been ceremonially consecrated to God by priests, for instance churches, and also gifts solemnly dedicated to the service of God. [n25]
This passage illustrates that the principles laid out in Bumper and in Mullick as regards Hindu Law are not without precedent in Western legal orders. It is beyond the scope of this probe to examine the history of the common law and the civil law on the recognition of the juristic personality of religious artefacts. However, such an examination would enable a better understanding of the nature of the cultural divide between Western and non-Western legal orders such as Hindu law.
Conclusion: Further Research
This probe has problematized the notion that Western legal orders simply do not recognise that certain inanimate objects cannot be property. In some cases, such as the two cases considered here, the legal personality of “things” has been recognized (which makes it incongruous to go on referring to them as things). This research probe did not delve into the evolution of the law of property in civil law and common law on this point. However, examining this evolution is essential in order to engage in cross-cultural jurisprudence by allowing scholars to understand what being on the other side of the cultural divide is like. Studying early roman law, canon law, civil law, and common law sources would be useful in understanding how inanimate objects of a special nature such as religious artefacts were considered. As the famous Roman jurist Gaius noted, “(...) I must trace the law from the beginnings (...). And to be sure the most important part of anything is its beginning”. [n26]
Mario Michas is a graduate of the dual transsystemic B.C.L./J.D. program of McGill University’s Faculty of Law, and is currently a licensing candidate at the École du Barreau.
Notes
[1] Edwin Curley, ed, Hobbes Leviathan (Indianapolis, IN: Hackett, 1994) at 101. Justinian’s Institutes also imply this by stipulating that an important classification in the law of persons is dependent and independent persons, see Justinian's Institutes, trans by Peter Birks & Grant McLeod (Ithaca, NY: Cornell University Press, 1987) at 41 (JI 1.8).
[2] For a civil law illustration of this, see art 1 CCQ; art 18 CCLC; art 8 C Civ (France). For a common law illustration of this, see William Blackstone’s Commentaries on the Laws of England, Book I: of the Rights of Persons, reprinted ed by Wilfrid Prest & David Lemmings (Oxford: Oxford University Press, 2016) at 85, para 122.
[3] Mullick v Mullick and another, [1925] UKPC 33.
[4] Bumper Development Corporation v Commissioner of Police of the Metropolis and others, [1991] EWCA Civ J0213-5, 1 WLR 1362.
[5] See Yael Avrahami, The Senses of Scripture: Sensory Perception in the Hebrew Bible (New York: T&T Clark International, 2012).
[6] David Howes, “Introduction: Culture in the Domains of Law” (2005) 20:1 Canadian Journal of Law and Society 9 at 20, citing Clifford Geertz, “The Uses of Diversity” in Clifford Geertz, Available Light: Anthropological Reflections on Philosophical Topics (Princeton, Ct: Princeton University Press, 2000) 68 at 87 [Howes, “Introduction”].
[7] Ibid at 11; JW Cairns, “Development of Comparative Law in Great Britain” in Mathias Reimann & Reinhard Zimmermann, eds, The Oxford Handbook of Comparative Law, 2nd ed (Oxford: Oxford University Press, 2019) 111 at 114, 118.
[8] Judicial Committee Act 1833 (UK), 3 & 4 Will IV, c 41, s 1(1), 3.
[9] See e.g. Frederick Pollock, “The Jurisdiction of the Privy Council” (1906) 7:2 Journal of the Society of Comparative Legislation 330 at 330–31; RB Haldane, “The Work for the Empire of the Judicial Committee for the Privy Council” (1922) 1:2 Cambridge Law Journal 143 at 144. India abolished appeals to the Judicial Committee upon the enactment of the country’s constitution in 1950 that established the Supreme Court of India as the court of final appeal, see Constitution of India, (1 May 2024), s 141.
[10] See Rosalie Jukier and David Howes, “Judicial Dialogues in Mixed Jurisdiction Courts: How Civilian and Common Law Judges Converse on Canada’s Supreme Court” (2024) 11,2 Journal of International and Comparative Law 159
[11] The Judicial Committee of the Privy Council, “The Committee and Jurisdiction: Jurisdiction Map” (last consulted 17 September 2025), online (pdf): <https://jcpc.uk/uploads/jurisdiction_of_the_jcpc_fb7f7434ee.pdf>.
[12] Mullick citing Rambrahama Chatterji v Kedar Nath Banerji (1922), 36 CLJ 478 at 483, 72 Ind Cas 1026 (Calcutta HC) [Hereafter Chatterji].
[13] Stare decisis is a Latin expression meaning “To stand by things decided”, Jonathan Law, Oxford Dictionary of Law, 10th ed (Oxford: Oxford University Press, 2022) sub verbo “stare decisis”. For a philosophical discussion of stare decisis, see Sebastien Lewis, “On the Nature of Stare Decisis” in Sebastian Lewis, ed, Philosophical Foundations of Precedent (Oxford: Oxford University Press, 2023) 35. For a description of how stare decisis functions on a practical level, see Robert J Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018) at 153–154; Malcolm Rowe & Leanna Katz, “A Practical Guide to Stare Decisis” (2021) 41 Windsor Review of Legal and Social Issues 1 at 5–6.
[14] For a discussion of this topic, see Gerald J. Postema, “On the Moral Presence of Our Past” (1991) 36:4 McGill Law Journal 1153.
[15] David Howes, “From Polyjurality to Monojurality: The Transformation of Quebec Law, 1875-1929” (1987) 32:3 McGill Law Journal 523 at 525.
[16] On how the JCPC could get certain points of law (hopelessly) wrong at times, see Howes, “Introduction”, supranote 6 at 11-13. See also, Jukier & Howes, supra note 10 at 169.
[17] Chatterji, supra note 12 at 483.
[18] Gossamee Sree Greedharreejee v Rumanlolljee Gossamee and others, [1889] UKPC 14 at 6.
[19] Standing is defined as “The legal right to initiate a legal proceeding with respect to a specified cause of action”, see Kevin P McGuinness, The Encyclopedic Dictionary of Canadian Law, vol 3 (Toronto: LexisNexis, 2021) sub verbo “standing”.
[20] The Court of Appeal undertakes a detailed analysis of Hindu Law on this point, see ibid at 152–94.
[21] Ibid at 202, citing Shorter Oxford English Dictionary, 3rd ed (Oxford: Oxford University Press, 1944) sub verbo “comity of nations”.
[22] This is how Howes puts it:
Culturally-reflexive legal reasoning is increasingly necessary to the meaningful adjudication of disputes in today's increasingly multicultural society. It involves recognizing the interdependence of culture and law (i.e., law is not above culture but part of it). Judges ought to acknowledge and give effect to cultural difference, rather than override it. Deciding cases solely on the basis of some abstract conception of individuals as interchangeable rights-bearing units would have the effect of undermining our humanity. It is our cultural differences from each other that actually make us human. However, in extending judicial recognition to such difference, judges must be careful to take cognizance of their personal culture, and not just that of “the other.” Reflexivity, not mere sensitivity, is the essence of cross-cultural jurisprudence (Howes, “Introduction”, supra note 6 at 10)
[23] Bumper, supra note 4 at 202.
[24] Peter Birks & Grant McLeod, “Introduction” in Justinian’s Institutes, trans by Peter Birks & Grant McLeod (Ithaca, NY: Cornell University Press, 1987) 7 at 18.
[25] Justinian’s Institutes, supra note 1 at 55 (JI 2.1.7-8), emphasis added.
[26] Gaius, Twelve Tables, Book 1, D 1.2.1., cited in Peter Birks & Grant McLeod, “Introduction”, supra note 24 at 17.