TaxTMI 
TaxTMI 
1995 (6) TMI 200
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.... unto him, All these things have I kept from my youth up: what lack I yet? 21. Jesus said unto him, if thou wilt be perfect, go and sell that thou hast, and give to the poor, and thou shalt have treasure in heaven: and come and follow me. 22. But when the young man heard that saying, he went away sorrowful: for he had great possessions". Turning 'away sorrowful', is the long and short of this litigation between two rival groups of Jacobite Christian Community of Malabar which has been going on for more than hundred years apparently for religious and spiritual supremacy over the Church but really for administrative control and temporal powers over vast assets which have accumulated out of 3000 star pagodas created in Trust in 1808 for charitable purposes by one Moran Mar Marthoma VI popularly called `Dionysius the Great'. This is the third round between the parties in this court, the two earlier being in 1954 and 1959. While deciding the appeal in 1959 this Court had observed that the dispute had been going on for a considerable length of time which has brought in its train protracted litigation involving ruinous costs. The effect of the decision was....
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....ty is `a religion that traces its origins to Jesus of Nazareth, whom it affirms to be the chosen one (Christ) of God' [Encyclopedia Britannica, Volume 5, Page 693]. `It is embodied both in its principles and precepts in the Scriptures of the Old and New Testaments, which all denominations of Christians believe to be a Divine revelation, and the only rule of faith and obedience' [Faiths of the World by James Gardner, Volume 1, P. 516]. It is `a historical religion. It locates within the events of human history both the redemption it promises, and the revelation to which it lays claim' [The Encyclopedia of Religion, Volume 3, p. 348]. `In its origin Christianity is Eastern rather than Western. Jesus was a Palestinian Jew, and during the early, formative centuries of the church's life the Greek and Syriac East was both numerically stronger and intellectually more creative than the Latin West. Christianity came to India many centuries before it reached Europe as it is believed that St. Thomas, one of the original apostles of Jesus Christ, visited India in 56 A.D. and found the first Christian settlement in the South' [Religion in India by Dr. Karan Singh]. In A.D. 3....
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....gint translation of the Old Testament (3rd-2nd centuries B.C.) the term ecclesia is used for the general assembly of the Jewish people especially when gathered for a religious purpose such as hearing the Law (Deut. ix, 10, xviii, 16; etc.) In the New Testament it is used of the whole body of believing Christians throughout the world (e.g., Matt.xvi, 18), of the believers in a particular area (e.g. Acts v, 11) and also of the congregation meeting in a particular house - the "house- church")' [Encyclopedia Britannica, Volume 5 page 739]. `The four marks or characteristics by which the church is said to be distinguished are recited in the creed - holy, catholic and apostolic'. Coming to the history of Jacobite Syrian Church it is, both, fascinating and eventful. The long period stretching from A.D. 51-52 can be conveniently divided in three one, the religious and the formative period which saw the foundation of the church and the vicissitudes through which it passed. The second can be said to be the golden period, a period of affluence and prosperity, in which the church not only acquired assets and became financially rich but is also marked for administrative efficiency im....
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.... in the Christian world attended the Synod. Christians of India were represented by their bishop or metropolitan known as Johannes, metropolitan of Persia and India. The council among other matters was concerned with matters relating to the revival and establishment of Christianity, revision of the scriptures and framing a Code of faith and rituals. But the most important decision, of far reaching consequence was that the ecclesiastical jurisdiction of the Christandom was settled under four ecclesiastical heads and four Patriarchs were appointed over four sees - Rome, Constantinople, Alexandria and Antioch. India was placed under the Patriarch of Antioch. The other decision taken was that the great metropolitan of the East was proclaimed as the Catholicos of the East. It was laid down that the Catholicos appointed at Tigris (Baghdad) shall manage the affairs of the Eastern churches subject to that Patriarch of Antioch was common and could exercise all the functions of Patriarchs. These decisions were enforced and the Patriarch of Antiouch started taking action upon it. Till about A.D. 1599 Bishops (who were called `episcopas' or Metropolitans) were deputed to Malabar from time ....
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....atriarch of Antioch through his delegate. From 1665 onwards, therefore, the ordination of the Malankara Metropolitan was carried on by the delegate of Patriarch of Antioch. The second important event took place in A.D. 1808 when a trust for charitable purposes was created by the then Malankara Metropolitan Mar Thoma VI (Dionysius the Great) by investing in perpetuity 3000 Star Pagodas (equivalent to Rs. 10,500/-) in the British Treasury on interest @ 8% per annum. During this period the Church Mission Society, a missionary society of Protestant with headquarters in London, had come to Malabar and collaborated with the Malankara Church and had jointly acquired some properties. Disputes arose between this Society and the Malankara Church with regard to those properties and also to the beneficial interest arising out of the charitable deposit of 3000 Star Pagodas which were referred to arbitration and were settled by what is known as the `Cochin Award of 1840', which was the third important event of this period. This Award divided the properties between the two bodies allotting among other items 3000 star Pagodas to the Malankara Church. The properties so allotted to the Malankara....
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....n the two forced the Patriarch to come to Malabar, as the conduct of Athanasius amounted to denial of his authority, and call a meeting of accredited representatives of all the Churches at Mulunthuruthy in 1876. It is popularly known as `Mulanthuruthy Synod'. This is the most important event not only of this period, but in the entire history of Syrian Church. Many resolutions taking important decisions were adopted. At the Synod the Syrian Christian Association popularly called the `Malankara Association' was formed to manage the affairs of the Churches and the community. It constituted the Malankara Metropolitan as the ex-officio President and three representatives from each Church. A Managing Committee of 24 was to be Standing Working Committee of the said Association. The Synod affirmed the orthodox faith. Joseph Dionysius who had earlier been ordained by the Patriarch was accepted as the Malankara Metropolitan. Whether it was re- assertion of supremacy of Patriarch or not cannot be said as the election of Joseph Dionysius was preceded by two factors, one, that he had been persuaded by the local people, earlier, and he got himself ordained by the Patriarch and second tha....
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....licos. But the fifth and the last suits were filed by the Catholicos for reasons which shall be explained later. In the Encyclopedia of Religion, Vol. 14, P. 226, the history from creation of Patriarch of Antioch till 1970 is traced thus, The church in Antioch became practically the mother church of Christendom......The leadership of the Syrian church was decimated by the Diocletian persecution that broke out around 304. The persecution also led to the development of Syrian monasticism through the Christians who fled into the wilderness. The spirit of Syrian Christianity was shaped more by worship, martyrdom, and monasticism than by theology......In the twelfth century the Syrian church was at the peak of its glory, with 20 metropolitan sees, 103 bishops, and millions of believers in Syria and Mesopotamia......The turbulent thirteenth century, wracked by invasions of Latin Crusaders from the West as well as of Mamluk Turks and Mongols from the East, produced such great leaders as Gregory Bar Hebraeus (1226-1286), a Jewish convert to Syrian Christianity, a chronicler and philosopher, and primate of the East.....The nineteenth and twentieth centuries have been turbulent times for the....
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.... the Church in Malabar has extended only to spiritual matters. The Patriarch or his Delegates when they sojourned in this country, attended only to spiritual affairs of the Church leaving the management of the temporal affairs to the local Metropolitan and the trustees. The former never interfered with temporal affairs; and where in two or three instances they (the Delegates) tried to have some control over, or interference with, the temporal affairs, the Metropolitan and the community resisted them successfully. On a review of the whole History and evidence, we arrive at the conclusion that the Patriarch of Antioch has been recognized by the Syrian Christian community all through as the Ecclesiastical Head of their Church in Malabar; that consecration by him or by his Delegates duly authorised in that behalf was and has been felt absolutely necessary to entitle a man to become a Metropolitan of the Church in this country in matters spiritual that the man so consecrated should be a native Syrian Christian of Malabar acceptable to the community: that the Patriarch's power in spiritual affairs of the Church has been supreme: and that the Patriarch or his foreign Delegates have....
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.... authority the majority declined to do so. He, therefore, approached the Parish Churches individually and succeeded in getting submission deeds (Udampadis) from some including one Mar Paulose Athanasius. In token of it, he ordained him as a Metropolitan. This led to dispute between M.G. Dionysius and M.P. Athanasius the one ordained earlier at Syria and the other ordained in Malabar over the administrative and temporal control of the churches. In 1911 Abdulla-II the Patriarch ordained one Mar Coorilos as the Malankara Metropolitan so as to make him automatically the ex-officio President of the Malankara Association and one of the trustees of the trust property. The two of the other trustees also acknowledged the new nominee as the Malankara Metropolitan but Mar Gheevarghese Dionysius did not give up and in retaliation convened a meeting of the Malankara Association which declared his excommunication invalid and removed from trusteeship the two trustees who had gone over to the side of the Patriarch. The Committee further decided to suspend payment of Ressissa to the Patriarch so long it was not ascertained as to who was the Patriarch, Abdul Messiah or Abdulla-II. Abdulla-II left Ma....
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....olitan of Malankara. [Emphasis supplied] The declaration of Abdul Messiah that ex-communication of Dionysius was invalid led to serious dispute between rival groups claiming their authority over the temporal affairs of the Church. Two rival groups were formed one led by Mar Gheevarghese Dionysius and the other by Mar Coorilos. Consequently, the Secretary of State for India filed the interpleader suit in 1913, in the District Court of Trivandrum, impleading both the sets of rival claimants as defendants and seeking a declaration from the court as to which of the two rival sets of trustees were entitled to draw the interest on the amount standing in the credit of the Malankara Jacobite Syrian Christian community in the British treasury. The suit was decided in favour of M.G. Dionysius. The decree was reversed by a Full Banch of the Travancore High Court in 1923. The judgement was reviewed at the instance of M.G. Dionysius and the net result was that M.G. Dionysius and his two co-trustees became finally entitled to withdraw the money deoosited in the Court as the lawful trustees of the Church properties. On 16th August 1928 the Managing Committee of the Malankara Association ....
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....d gone out of the Church by establishing a new church because of the specific acts and conduct was not correct. The Constitution framed in 1934 and the Kalpanas issued by Abdul Messiah were considered by this Court in 1959. The claim of the Patriarch, that the supremacy of the Patriarch had been taken away by the mere adoption of the new Constitution was not permitted to be raised as it was not raised in the pleadings. The Court further did not permit them to raise the question about the privilege of the Patriarch, alone, to ordain metropolitans and to consecrate Morone. It was also held that Ressissa which was a voluntary and not a compulsory contribution made by the parishes collected by the committee of the Malankara Association and sent to Patriarch was not forbidden and its non-payment did not amount to neresy on the party of the Catholicos. The declaration sought by the Patriarch that they were trustees of the property and the Catholicos were neither trustees nor in possession of the trust property, based on their election at a meeting held on August 22, 1935 was not accepted. The Court held that the meeting was, admittedly, held without any notice to the members of the Ca....
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....ights amount to a rejection of the Patriarch? (e) Have they instituted the Catholicate for the first time in Malankara? Do the above acts, if proved, amount to heresy?31 16. (a) Have the defendants ceased to be members of the Ancient Jacobite Syrian Church ? (b) Have they forfeited their right to be trustees or to hold any other office in the Church ? (c) Have they forfeited their right to be beneficiaries in respect of the trust properties belonging to the Malankara Jacobite Syrian community ? 19. (a) Have the plaintiffs and their partisans formed themselves into a separate Church in opposition to Mar Geevarghese Dionvsius and the Malankara Jacobite Syrian Church ? (b) Have they separated themselves from the main body of the beneficiaries of the trust from 1085 ? The Court held that the same objection was raised by the Patriarch in the suit filed in paragraphs 19 to 26 and, therefore, the finding recorded on the aforesaid issues having been raised and decided in the interpleader suit and having been decided by the Travancore High Court on review in favour of M.G. Dionysius and his co-trustees (Catholico group) it operated as res judicata. It was on this reason....
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.... and should have been put forward in the earlier suit (O.S. No.94 of 1088) and that not having been done the same are barred by 'res judicata' or principles analogous thereto. We accordingly hold, in agreement with the trial court, that it is no longer open to the plaintiff-respondent to re- agitate the question that the defendant-appellant had 'ipso facto' become heretic or alien or had gone out of the church and has in consecuence lost his status as a member of the Church or his office as a trustee." [Emphesis supplied] The Court also examined whether the election of the Catholico group in the meeting held on December 26, 1934 was in accordance with rules or not and it answered the question in their favour. The Court, therefore, set aside the judgment of the Kerala High Court and dismissed the suit filed by the Patriarch group. The one good effect of judgment delivered by this Court in 1959 after nearly 50 years of litigation was that good sense appears to have dawned on both the groups and on 9th December 1958 Patriarch Yakub-III issued a letter marked as Ex.A-19 one relevant portions of which are extracted below : "It is not secret that the dis....
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....e. We, for the sake of peace in the church, are pleased to accept Moran Mar Ignatius Yakub III as patriarch of Antioch subject to the constitution passed by the Malankara Syrian Christian Association and now in force. We have also pleasure to accept the Metropolitans under him (patriarch) in Malankara subject to the provisions of the said constitution. Let the abundant grace and blessings of God Almighty be with you always. Let it be through the prayers of St. Mary the mother of God, Mar Thoma Sleeba, the Patron saint of India and all the saints. Amen. Our father that art in the heavens etc. etc." After the exchange of these letters, Ex.A-19 and Ex.A-20 dispute started between the Patriarch and the Catholico over the use of the word 'Holiness', 'Throne of St. Thomas', and 'Church of the East' and 'Catholicos of the East' etc. as the expressions according to the Patriarch could be used by the supreme head, that is, Patriarch of Antioch and not by Catholico to which the reply was that this was not new and it was provided for in the Constitution of 1934. It is not necessary to extract the various points of differnce raised in the letters ....
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....ch 1963. The letter was sent requesting the patriarch Yakub-III for the installation ceremony. He did come in 1964 and installed Mar Ougen I. Then there are letters and other memoranda Ex.A-36 and A-37 submitted to the Catholicos regarding prevailing discontentment amongst some sections. The exchange of these letters and their contents indicate a simmering discontent which surfaced in June, 1970 when the Patriarch once again dug up the closed issue of use of expression 'Holiness' and, 'Throne of St. Thomas' by the Catholico. The initial anxiety of reconciliation and peace got set back with vengeance as the Catholico openly challenged the authority of Patriarch. Events moved swiftly, thereafter, when the Patriarch ordained Metropolitan who in his turn ordained Bishops started interfering resulting in filing of suits by Catholico against Patriarch ordained Bishop, obtaining of injunction sharply reacted by the Patriarch by issuing show-cause notice, starting disciplinary proceedings, summoning the Synod at Damascus and ex-communicating the Catholico. The breakaway was complete. There was vertical split. The two groups once again were up in arms. Two hundred suits were....
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....o leading to ordination by the Patriarch of one of the appellants who was impleaded as defendant no.1 in Suit No.4/79. Thereafter as stated there was no end. When the Catholico succeeded in obtaining injunction from Civil Court in 1973 restraining the appellant from interfering, the Patriarch issued chargesheet in June 1974 which was not only objected but asserted to be without jurisdiction. Various ordinations followed. Each was challenged in courts. And when on 5th January 1975 the Catholico in their Synod declared that Malankara Association was autocephalous then the Patriarch in a Synod held at Damascus from 16th to 20th June 1975 decided that the only apostolic see of the Syrian Orthodox Church in the world was the See of Antioch founded by St. Peter, that the Malankara Church was an indivisible part of the Syrian Orthodox Church dependent on the Patriarch in all spiritual matters, that acknowledgment of Patriarch's and position by those ordained was essential, and the Catholicos having repelled against the Patriarch stood disqualified from their ecclesiastical grade and also guilty of violation of fundamental faith. It was followed by letter dated 23rd June 1975 asking th....
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....dicata between the parties. The Bench further held that there was no independent evidence on the basis of which it could be held that either of the versions was binding on the Malankara Orthodox Syrian Christian Community and since finding in the previous litigations were not res judicata neither version of the Canon was proved to be binding on the community. In respect of Question Nos. 4-6, which read as under. "(4) Whether the Catholicate established under Ext. A14 by Patriarch Abdul Messiah with powers as provided for in Ext. A14 is valid and binding on the entire Malankara church? (5) Whether by such establishment of the Catholicate the Patriarch was deprived of his powers to ordain Metropolitans, consecrate/send morons or to exercise any other spiritual power over the Malankara church thereby reducting his powers to a vanishing point? (6) Whether contentions in points 4 and 5 are barred by res judicata against parties in Patriarch's group by reason of the decision of the Travancore High Court in Interpleader suit (45 TLR 116) and by reason of the decision of the Supreme Court in Samudayam suit (AIR 1959 SC 31)? it was held that the Catholicate established under Ex....
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....he finding recorded in Moran Mar Basselios (supra) as well. It has not been challenged, therefore, it has become final. Some of the churches claiming to be socially and culturally different, for instance, Knanaya Church or the Kanandra Church established in pursuance of Royal Charter issued by the Queen or registered under societies Registration Act or having their own bye-laws claimed to be independent and autonomous. Their claim was under Question Nos. 23, 24 and 25 and the answer given was that except Simhasana Churches and Evangelistic Association Churches the others were constituents of Malankara Sabha. The appellants are the members of Patriarch Group. Separate appeals have been filed by those churches which claim to be independent. The Catholic Group is aggrieved by the decision in respect of Churches of Evangelistic Association and Simhasana Churches. Factual canvas having been spread out the stage is now set for grappling with intricate issues of jurisdiction and law which have been canvassed neatly, by, both, the learned senior counsel, Mr. K. Parasaran for the appellant and Mr. F. Nariman for the respondents, without expression of any emotion, admirable understandi....
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....r Deacon from performing any other sacramental services and prohibit the defendants from interfering with of the Malankara Church? How would the bar of jurisdiction operate if only part of relief is cognisable? To appreciate these aspects it is necessary to set out the Section itself and examine its scope and then advert to facts: "9. Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II-For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place." One of the basic principles of law is that every right has a remedy. Ubi jus ibi remediem is the well known maxim. Every civil suit is cognisabl....
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....suits are cognisable which are not only civil but are even of civil nature. In Article 133 of the Constitution an appeal lies to this Court against any judgment, decree or order in a `civil proceeding'. This expression came up for construction in S.A.L. Narayan Row & Anr. etc. etc. v. Ishwarlal Bhagwandas & Anr. etc. etc. AIR 1965 SC 1818. The Constitution Bench held `a proceedings for relief against infringement of civil right of a person is a civil proceedings'. In Arbind Kumar Singh v. Nand Kishore Prasad & Anr. AIR 1968 SC 1227 it was held `to extend to all proceedings which directly affect civil rights'. The dictionary meaning of the word `proceedings' is `the institution of a legal action, `any step taken in a legal action.' In Black's Law Dictionary it is explained as, `In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like'. The word `nature' has been defined....
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....ecclesiastical law'. (Halsbury Laws of England Vol. 14 para 315). In ancient or medieval India the courts were established by King which heard all disputes. No religious institution was so strong and powerful as church in England. The Indian outlook was always secular. Therefore, no parallel can be drawn between the administration of the churches by ecclesiastical courts in England. Religion in India has always been ritualistic. The Muslim rulers were by and large tolerant and understanding. They made India their home. They invaded, ruled and became Indian. But Britishers made it a colony. However, that did not interfere with religion. Disputes pertaining to religious office including performance of rituals were always decided by the courts established by law. As far back as 1885 Justice Mehmood in Queen Empress vs. Ramzan & Qrs. 1885 (7 ILR) Allahabad p. 461 repelled the argument that the courts were precluded from considering Muslim Ecclesiastical Law and observed at page 468 as under:- "I am unable to accept this view, because, if it is conceded that the decision of this case depends (as I shall presently endeavour to show it does depend) upon the interpretation of ....
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....uits relating to religious offices cannot be entertained." In Srinivasalu Naidu v. Kavalmari Munnuswami Naidu AIR 1967 Madras 451 it was observed, "The explanation certainly does not confine the limits of the nature of suits contemplated by the main section. What the Explanation states is only that though religious rites and ceremonies may form the basis of a right that is claimed, such right being a right to property or to office, a suit to establish such right would be a suit of a civil nature. The Section takes within its broad sweep all questions where one person claims any privilege in himself as against others. There is no doubt that such a question would be one of a civil nature." On the plain phraseology of the Section, therefore, it is clear that a suit filed after coming into force of the Constitution for vindication of rights related to worship of status, office or property is maintainable in civil court and it would be duty of the court to decide even purely religious questions if they have a material bearing on the right alleged in the plaint regarding worship, status or office or property. In Nagar Chandra Chatterjee & Anr. v. Kailash Chandra Mondal & Ors.....
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....2) SCR 836, it was held that right to worship is a civil right which can be subject matter of a civil suit. The Court observed : "It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature." That the right to conduct worship is also a civil right has been recognised by the courts in T.A. Aiyangar Swamigal & Ors. v. L.S. Aiyangar & Ors. 31 Madras Law Journal 758. In Devendra Narain Sarkar & Ors. v. Satya Charan Mukerji & Ors. AIR 1927 Calcutta 783 it was held that a suit by a person claiming to be entitled to a religious office against an usurper, for a declaration of his right to the office is a suit of a civil nature. Similarly in S. Ramnuja Jeer (supra) this Court observed as under: "From the aforesaid passage it is clear that so long as the holder of a purely religious office is under a legal obligation to discharge duties attached to the said office for the non-observance of which he may be visited with penalties, a civil court could grant a declaration as to who would be or could be the holder of such office." It was vehemently urged that declaration of the character of a church, viz., whet....
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.... purely religious matters as it may be handicapped to enter into the hazardous, hemisphere of religion. Maintainability of the suit should not be confused with exercise of jurisdiction. Nor is there any merit in the submission that Explanation I could not save suits where the right to property or to an office was not contested or where the said right depended on decisions of questions as to religious faith, belief, doctrine or creed. The emphasis on the expression 'is contested' used in Explanation I is not of any consequence. It widens the ambit of the Explanation and include in its fold any right which is contested to be a right of civil nature even though such right may depend on decisions of questions relating to religious rights or ceremonies. But from that it cannot be inferred that where the right to office or property is not contested it would cease to be a suit cognisable under Section 9. The argument is not available on facts but that shall be adverted later. Suffice it to mention that in Ugamsingh (supra) the plaintiff's claim was that they were entitled to worship without interference of the idol of Adeshwarji in the temple named after him at Paroli accordin....
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....h was held as coram non judice as he had no authority to hold an ecclesiastical court. The court held that where no Church was established by law it was in the same situation as any religious body, therefore, if any tribunal was constituted by such body which was not court then its decision would be binding only if it was exercised within the scope of the authority. In Dame Henriette Brown vs. Les Cure Et Marguilliers De L'Oeuvre Et Fabrique De Notre Dame De Motreal, 1874-75 (6) PC 157, the Privy Council while following the decision in Long (supra) held that where a Church was merely a private and voluntary religious society resting only upon a consensual basis courts of justice were still bound when due complaint was made that a member of the society was injured in any manner of a mixed spiritual and temporal character to inquire into the laws and rules of the tribunal or authority which inflicted the alleged injury and ascertain whether the act complained of was law and discipline of the Church and whether the sentence was justifiably pronounced by a competent authority. The decision in Long (supra) has been followed in this country in Anadrav Bhikaji Phadke & Ors. v. Shankar....
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....ut any of the church of Malankara and for the Malankara church or its constituent churches or institutions. H. To prohibit the defendants from interfering in any manner with the administration of the Malankara church." The appellant placed reliance on various averments in different I.As, written arguments and affidavits to demonstrate that the nature of relief sought was beyond the pale of Section 9. In fact this dispute was not seriously raised before the courts below. The dispute is going on since long and this is as stated the third round in this Court. But it appears that in earlier litigations in the Royal Court of Final Appeal and the Supreme Court no such objection was taken that the suit was not maintainable. The submission that the locus standi of the respondent was suspect as they having been ex-communicated by the Synod of the orthodox church with Patriarch as its head, did not have any substance as in Sardar Syendna Taher Saifuddin Saheb v. The State of Bombay (1962) Supp. 2 SCR 496 a Constitution Bench of this Court held that the exercise of the power of ex-communication by the religious head on religious ground form part of the management of its affairs in....
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.... Uqamsingh & Mishramal vs. Kesrimal & Qrs., 1971(2) SCR 836; Thiruvenkata Ramanuja Pedda Jiyyangarlu Valu vs. Prathivathi Bhayankaram Venkatacharlu & Ors. AIR 1947 PC 53; M. Appadorai Ayyangar & Ors. vs. P.B. Annanqarachariar & Ors. AIR 1939 Mad. 102; Kattalai Michael Pillai & Ors. vs. J.M. Barthe & Ors., AIR 1917 Mad. 431; E.C. Kent vs. E.E.L. Kent. AIR 1926 Madras 59 and Sri Sinna Ramanuja Jeer & Ors. vs. Sri Ranga Ramanuja Jeer & Anr., 1962 (2) SCR 509 would indicate that Explanation 1 to Section 9 saved only those suits where the right to property or to an office was contested. But where no contest was raised the suit would not be covered within the forecorners of the Section. Reference was made to paragraphs 301 to 304, 313 to 315, 318, 321, 332 to 339, 343 to 346, 352, 354, and 356 of Vol. 14 of Halsbury's Laws of England and it was urged that these paragraphs would show that the position of the crown in England in respect of Church was entirely different. The learned counsel submitted that passages which have been relied to deal with the Anglican Church relate to colonies where the supremacy of the Crown in ecclesiastical affairs still exists. He urged that those passage....
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....for declaration whether the Church was episcopal or congregational and whether the appellants could have been ordained by the Patriarch when it was contrary to the earlier decision given by this Court that the ordination was required to be approved by Synod, the court is not being asked to adjudicate on faith but whether the exercise of right in respect of faith was valid. The Grace no doubt comes from Patriarch and on that there is no dispute but whether the Grace came in accordance with the Canon or the Constitution is certainly a matter which would fall within Section 9 C.P.C. Status and office are no doubt different but what was challenged is not the status or faith in Patriarch but the exercise of right by Patriarch which interfered with the Office of Cathelico held validly. Apart from it, as stated earlier, after coming into force of the Constitution Article 25 guarantees a fundamental right to every citizen of his conscience, faith and belief, irrespective of cast, creed and sex, the infringement of which is enforceable in a court of law and such court can be none else except the civil courts. It would be travesty of justice to say that the fundamental right guaranteed by th....
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....uniterrupted apostolic succession of St. Peter through the Patriarch and that the spiritual grace emanates through such Patriarchs and, therefore, the declaration sought by the respondents could result in destroying the basic character of the religious denomination. It is not necessary to deal with these submissions at length as sub-section (3) of Section 4 is a complete answer to it. It reads as under:- "Nothing contained in sub-section (1) and sub-section (2) shall apply to,- (a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archeological site or remains covered by the Ancient Monuments and Archeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force; (b) any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2), finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act; (c) any dispute with regard to any such matter settled by the parties amongst themselves before such commencement; (d) any conversion of any such place effected b....
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....anised on a consensual basis - their rights apart from statutes will be protected by the courts and their discipline enforced exactly as in the case of any other voluntary body whose existence is legally recognised. Therefore, all religious bodies are regarded by courts of law in the same position in respect of the protection of their rights and the sanction given to their respective organisations. It is further settled that discipline of a church cannot affect any person except by express sanction of the civil power or by the voluntary submission of the particular person. But for purposes of enforcing discipline within a church religious body may constitute a tribunal to determine whether its rules have been violated by any other members or not and what will be the consequence of that violation. In such case the tribunals so constituted are not in any sense courts, they derive no authority from the statutes and they have no power of their own to enforce their sentence. Their decisions are given effect to by the courts as decision of the arbitrators whose jurisdiction rests entirely on the agreement of the parties. Consequently if any member of such body has been injured as to his ....
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....'Censures (Ecclesiastical)" is 'the various punishments inflicted by the Christian church upon delinquent members of her communion, in virtue of that authority which has been committed to her by Christ, the great King and Head of the church'. One of the effects of such action is that the person concerned is deprived of the risnt of worship. Under our Constitution it is a fundamental right. Any intemenace with it or its deprivation can be challenged in a court of law. Even in England the Courts extend protection regarding ecclesiastical matters if they affect the right as is clear from paragraph 337 of Halsbury's Laws of England, Fourth Edition, Volume 14. In the light of the law thus stated it may be examined if the ex-communication of Catholico by the Patriarch was valid as if the power of ex-communication was validly exercised then the suit filed by them was not maintainable. The specific case in this regard of the appellants was that, 'canonically' and, 'traditionally' the Patriarch of Antioch is the supreme head of the Holy Universal Syrian Orthodox Church and the Catholicos, is subordinate to the Patriarch of Antioch'. Therefore, the C....
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....e titles are here seen applied to the Patriarch and the Catholicos, alike, the later himself being called a Patriarch. The inference is that the titles proper to the Patriarch of Antioch are proper also to be Catholicos of the East. We also see that such epithets as Moran, Aboon, etc. are applied to both the prelates in common. Further this title has been in use here for long time. 4. The Throne of St. Thomas: Your Holiness says 'It is never heard that St. Thomas established a throne of the Catholicos or the Mapriano, either in India or in my other place'. I must, without presumption, ask your Holiness, whether for that matter, any apostle has established a throne anywhere. Is it not that such honours have been connected, with them in latter times. There is also no special thronal ascension for any dignitary of our church except the installation ceremony(......) done at the time of the consecration of Bishops and other prelates and at their acceptance by their respective dioceses. Besides, we see that this term 'throne' is added to the Patriarchs, Metropolitans and Bishops alike in the Hudaya Canon and other books (Canon Chap. VII, Section I) and t....
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....he Catholicos, the Catholicos did not take an oath of subordination to the Patriarch. None of them individually or collectively could attract the punishment of excommunication even if found to be true. The nature and the power to be exercised for excommunication have been indicated earlier. They are not lightly exercised as they deprive a person of his right of worship. The accusation that the Catholico was subordinate to Patriarch was not an accurate description. The Patriarch of Antioch was and is undoubtedly the highest ecclesiastical functionary. But the second highest dignitary was and is the Catholicate of the East. The concept of subordinate amongst such spiritual heads is out of place. They function in their own sphere according to religious canon. When Patriarch of Antioch was established in Synod of Nicea the Catholico of the East was established at Tigris. The two authorities in the hierarchy existed from 4th century. Therefore, the creation of Catholico in 1912 in Malankara conferring jurisdiction over India, Ceylon and Burma was neither against scriptures nor against faith. The exercise of power by the Catholico in pursuance of such creation and under the Constituti....
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....times they are referred to as the "sacred canons" or the "canonical order". The term ecclesiastical law refers to the civil law adopted in various nations to regulate church affairs. The term canon law is used in the Roman Catholic, Anglican, and Orthodox communions. Canon law is drawn from sources in scripture, custom, and various decisions of church bodies and individual church authorities. Over the centuries these have been gathered in a variety of collections that serve as the law books for various churches". Canons are thus the principal scriptural bases for the religious practices observed in a Church. Syrian Orthodox Church is very old. But its canon appears to have come in existence sometime in 13th Century collected and written by Bar Hebrew who was the Catholico of Tigris. In the appeal arising out of interpleader. suit this Court after examining the evidence in detail particularly of C. Philip, P.W.5, who was the Professor of the Sriram College, Calcutta and was examined, as expert on canon law held that there was no authorised edition of these canons even though one of the resolutions at the Mulunthuruthy Synod ran thus : "It will be very good if a ....
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.... the Malankara trustee. Justice Chatfield with whom Justice Pillay agreed that, 'he (that is catholicos) did not forfeit these positions afterwards by any heresy or schism. The meeting of the Malankara Association which removed the 5th & 6th defendants (that is Patriarch) was presided over bythe Malankara Metropolitan and the reason given in the original judgment of this court for holding that their removal was illegal cannot therefore stand'. On these findings it was held : "In the result therefore by reason of the decision on the contentions as to natural justice and apostacy the appeal must fail quite apart from the decision of the other questions in dispute in this suit. It would not be necessary to consider these other questions even if it were open to this court to do so in view of the orders already referred to." The effect in law of this order, on review, was that the finding recorded by the High Court on the authenticity of the canon etc. in its original order ceased to be operative. But the learned counsel for the appellant vehemently urged that since the Bench which admitted the review petition had restricted its scope and made it subject to the findi....
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....e earlier judgment by the High Court that Ex. 18 filed by the Patriarch group and relied as authentic canon survived, does not appear to be correct. Even assuming, although there appears no doubt, that the finding recorded by the High Court in its earlier judgment on the authenticity of the canon survived, there is yet another reason to disregard it. If the ex-communication of Dionysius was invalid for violation of principles of natural justice, as was found by the Bench reviewing the order, then the findings on earlier issues were rendered unnecessary and it is fairly settled that the finding on an issue in the earlier suit to operate as res judicate should not have been only directly and substantially in issue but it should have been necessary to be decided as well. For instance, when a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata. Consequently where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the T....
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....ving succeeded on the other plea had no occasion to go further in appeal against the adverse finding recorded against him [see Midnapur Zamindari Company Ltd. vs. Naresh Narayan Roy, AIR 1922 PC 241 ]. Mr. Parasaran, the learned senior counsel for the appellant, urged that this is not an absolute rule as there is mutuality in res judicata and even the succeeding party is bound by the question decided against him. Reliance was placed on Mt. Munni Bibi & Anr. vs. Tirloki Nath & Ors., AIR 1931 PC 114, V.P.R.V.Chockelingam Chetty vs. Seethai Ache & Ors., AIR 1927 PC 286, Sham Nath Madan vs. Mohammad Abdullah & Ors., AIR 1967 J&K 85 and Arjun Singh & Ors. vs. Tara Das Ghosh & Ors., AIR 1974 Patna 1. The two Privy Council decisions do not appear to be of any assistance as the first one, Mt. Munni Bibi (supra) , is the leading decision on the principle of res judicata amongst co-defendants. True the Patriarch and Catholico were co-defendants and there was lis too but in view of the finding on natural justice and apostacy the finding on other issues was rendered unnecessary. The rule of res judicata amongst co-defendants is also govened by those rules which apply to normal rule of res judi....
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....d does not operate as res judicata between the parties, is well founded. Could the finding on the authenticity of the canon be relied as a precedent? For that it must fall either under Section 42 or Section 43 of the Indian Evidence Act. Section 42 which makes any judgment relating to public nature admissible itself provides but `such judgments are not conclusive proof of that which they state'. Section 43 makes a judgment admissible if existence of such a judgment is in issue. In Kumar Gopika Raman Roy vs. Atal Singh & Ors. AIR 1929 PC 99, it was held that `the Indian Evidence Act does not make finding of fact arrived at on the evidence before the court in one case evidence of that fact in another case'. In Benode Lal vs. Secretary of State, AIR 1931 Calcutta 239 where the law was clearly explained, it was observed, `when an appeal is taken against a decree, the decree of the lower gets merged in the decree of the Appellate Court and so the judgment of the trial court is not final adjudication on the point in issue between the parties in the suit'. The Court further observed that even assuming that, `the existing judgment may be relevant, but the truth of it, by whi....
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....n behalf of the Patriarch group to support the judgment of the High Court. To appreciate it, it is appropriate to extract Issue No. 13 which reads as under: "13. Which is the correct and genuine version of the Hoodaya Canons compiled by Mar Hebraeus? Whether it is the book marked as Ext. A or the book Marked as Ext. XVIII in O.S.91 of 1088." Issues Nos.19 and 20 related to as to whether the defendants, that is, the Catholicos formed themselves into a separate Church and whether the acts mentioned under the Issues constituted separation. This Court did not permit the appellants, that is, Patriarchs to support the order of the High Court on the ground that insertion of Clause 5 in the Constitution of 1934 was contrary to canons, as it was not raised in the pleadings. Nor did the Court find any merit in the submission that Issues Nos.13 and 16 which related to loss of status as members of the Church was wide enough to include it. But it held that reference to pleadings would indicate why Issue No. 13 was raised. It further found that to decide Issue Nos. 16, 17, 19 and 20 it was, `absolutely necessary to determine which is the correct book of canons, for the plaintiff (tha....
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....s recorded by the Trial Court were not set aside, on merits but the canon filed by Patriarch was accepted as authentic since, `in the final judgment after review the question of natural justice alone was considered and decided and this means that the earlier finding on the question of canons, which was a matter directly and substantially in issue in the suit, was accepted as correct even for the purpose of the final decision on the question of natural justice. Thus by implication the finding on the question of the canons forms an integral part of the final decision in 45 T.L.R. 116 because, without maintaining that finding, the question of natural justice could not have arisen at all'. But that judgment did not and could not operate as res judicata for reasons explained earlier. The judgment of the High Court in The Most. Rev. Mar Poulose Athanasius & Ors. vs. Moran Mar Bassaelios Catholicos & Ors., 1957 KLT 63. was reversed by this Court. It was held that Catholico had not become heretic or separated from the Church. But for recording this finding the decision on Issue No. 13 was as observed by this Court necessary. Therefore, the appellate judgment of this Court precluded the....
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....ound that the sale was for a consideration not binding on the joint family. But what the Division Bench ignored was that the High Court did not look into the earlier judgment as the order was upheld on a different ground, therefore, it could not be held that it was express or implied approval of the decision of the Trial Court. In Narayanan Chetty v. Kannammai Achi & Ors. ILR Madras 1905 Vol. XXVIII which is more in point it was held: "An appellate judgment operates by way of estoppel as regards all findings of the lower Court, which though not referred to in it, are necessary to make the appellate decree possible only on such findings." This Court having held that Issue Nos. 14 to 20 could not have been decided without a decision on Issue No. 13 and set aside the order of the High Court and restored the decree of the Trial Court the finding recorded by the Trial Court on Issue No. 13 has to be read as part of appellate judgment rendered by this Court. Even otherwise there is no power in canon produced by the Patriarch for excommunicating a Catholico. In fact it could not be. All this controversy was raised, with respect, without having regard to it that the canon fr....
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....ercise of that power only. The power to ex-communicate can be exercised by a spiritual head either when the scriptures specifically permit it or it is in respect of the authorities which function under him and are subordinate to it. Normally in religious matters such decisions depend either on the text and if there is no text on the Constitution of the trust or on convention developed in course of time. From the history of Orthodox Syrian Church, it appears such important decisions are taken by the Synod that is a general body of bishops, vicars, clergies etc. and, therefore, before ex- communication can be held to be valid two things were required to be proved, one, that such power existed either in the spiritual head or in the general body and the power was exercised in respect of a person or holder of an office for whom it could be exercised. It has already been indicated that in consequence of Ex.A-14 the Kalpana issued by Abdul Messiah the entire power, spiritual or temporal, which was exercised by the Patriarch of Antioch was conferred on the Catholico of the East. The only relation which was to be observed in future was the communion of the two. In fact if the history is tra....
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....blished principle laid down by the courts for the same, sound and general purpose for which the rule of res judicata has been accepted, acted, adhered and applied, dictated by wisdom of giving finality even at the cost of absolute justice. In a recent English decision - Ampthill Peerage Case, [1976] 2 All England Law Reports p. 411, finality at cost of fallibility has been graphically described at pages 423 and 424 thus :- "Our forensic system, with its machinery of cross- examination of witnesses and forced disclosure of documents, is characterised by a ruthless investigation of truth. Nevertheless, the law recognises that the process cannot go on indefinitely. There is a fundamental principle of English law (going back to Coke's Commentary on Littleton) generally expressed by a Latin maxim which can be translated: 'It is in the interest of society that there should be some end to litigation'. This fundamental principle finds expression in many forms. Parliament has passed Acts (the latest only last year) limiting the same within which actions at law must be brought. Truth may be thus shut out, but society considers that truth may be bought at too high a price....
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....y means that what has been decided must be taken to be established as a fact, that the decided issue cannot be reopened by those who are bound by the judgment, that the clamouring voices must be stilled, that the bitter waters of civil contention (even though channeled into litigation must be allowed to subside". [emphasis supplied] Such is the principle of finality. True that the question must have been adjudicated stricto senso as observed by this Court. Conclusiveness according to the learned counsel applied to decree and not the judgment. For reasons given while discussing the authenticity of canons, it is difficult to agree that once decree of the trial court was resiwred it did not result in making the findings an effective which were basis of the decree, except to the extent it was expressly or impliedly set abld by this Court. Therefore, the judgment of this Court in Moran Mar Basselios (supra) would preclude the parties from agitating those issues which have been concluded. Effect of the judgment delivered by this Court in 1958 on the rights of Catholicos was twofold, one their status was defined and two, their relationship with Patriarch of Antioch was explained.....
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.... Catholicate in the Malankara Church are extracted below :- "1.The Malankara Church is a division of the Orthodox Syrian Church and the Primate of the Orthodox Syrian Church is the Patriarch. 2. The Malankara Church was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the East and the Primate of the Orthodox Syrian Church of the East is the Catholicos". The basis for it was the Kalpana issued in 1913 , the relevant portion of which is reproduced: "We commend you into the hands of Jesus Christ, our Lord, the Great Shepherd of the flock. May He keep you ! We rest confident that the Catholicos and Metropolitans -Your shepherds - will fulfil all your wants. The Catholicos,aided by the Metropolitans, will ordain melpattakkars, inaccordance with the Canons of Our Holy Fathers and consecrate Holy Morone. In your Metropolitans is vested the sanction and authority to install a catholicos, when a catholicos dies. No one can resist you in exercise of this right and, do all things properly, and in conformity with precedents with the advice of the committee, presided over by dionysius, Metropolitan of Malankara. We b....
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....he two. This communion meant that each was supreme, but if both of them were present then it was the Patriarch of Antioch who was higher in the hierarchy. In religious orders the two supreme authorities one highest and the other higher without the latter being subordinate is not unknown. This was the change in the power and prerogative of Patriarch as compared from 325 A.D. where he had the supreme power. But this change has been recognised, accepted and acted upon. Further, now the relationship is governed by a Constitution which has been held to be valid. This was fairly observed. Between 1912 to 1970 four Catholicos were appointed, the first B. Paulose I by Abdul Messiah in 1912, second Basselius Gheevarghese I in 1924, third in 1929 after the Vattipanam Suit, fourth Mar Ougen I in 1964. What is significant is that second and third were not installed by or with the consent of Patriarch. And the fourth was installed after the judgment of this Court in Moran Mar Basselios (supra) by the Malankara Synod presided over by the Patriarch Yakub III. But what led to filing of suits by members of the Catholico group and the Catholico himself and successors-elect was the wrongful consec....
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.... faith and the decision of the Universal Episcopal Synod and the Syrian Orthodox Church held from 16.6.1975 was not in accordance with the rule of the Church. The judgment thus in Moran Mar Bassilios (supra) and the findings recorded by the trial court to the extent it was not set aside by this Court, operates as res judicata. Two more issues remain, one the nature of Parish Churches whether they are congregational, episcopal, voluntary association or autonomous bodies, public charities or private charities and their relation with the Malankara Association; second, legal status of the Patriarch of Antioch whether he is a corporation sole as argued by Ms.Lily Thomas, the learned counsel for the intervener, and if so, his rights, privileges and prerogative. Taking up the issues of Parish Churches and whether they are autonomous units, the constitution and the status of the Parishes may be discussed first. A Parish Church is a, 'district committed to the charge of one incumbent having the cure of souls in it'. [Halsbury's Laws of England, Vol.14 para 534]. 'The ancient parishes appear to have been gradually formed between the 7th and 12th or 13th Centuries. Their....
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....ing in a specific area. But they are of a religious order. Their autonomy, their financial powers, their administrative control have been thus different in different ages depending on the terms of creation of the trust, the purpose and objective of its establishment, the personality of the person occupying it, the financial strength of it etc. The Syrian Churches, as the history narrated earlier indicates, were established for religious worship and public charity and every church, small or big, claimed that its spiritual head was the Patriarch of Antioch. DW-28- Gheevarghese Moran Mar Basselios II who was ordained as Metropolitan by Abdul Messiah and examined in O.S. No. 111/1113 and on whose testimony reliance was placed by the appellant, stated that the Churches are established after obtaining sanction of the Metropolitan and the Government. When the Malankara Association was formed in the Mulunthuruthy Synod a resolution was passed constituting 8 of the priests assemshed there and 16 of the laymen of the first class with the ruling Metropolitan as President entrusted with the complete responsibility of management for every matter connected with the common religious and commun....
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....7 with participation of Patriarch group and apart from reiterating what was said in 1934 it was provided in Clasue 120 that Vicar of every Parish Church shall collect Ressissa' at the rate of 2 annas every year from every male member who has passed the age of 21 years and shall send the same to the Catholico. The Constitution further contemplates entire hierarchy in which the Catholico and Metropolitan were placed at the highest. From the scheme unfolded by the Resolution passed in the Mulunthuruthy Synod read with the Constitution it appears every Syrian Parish Church even though established independently has necessarily to have relation with the Malankara Association. The relationship between the two that is, the Parishes and the Malankara Association has been subject matter of consideration in every decision which came up before the courts. Even in the suit out of which this appeal has arisen the issues framed were whether Parish Churches were independent and autonomous units and whether the administration and conduct of their affairs and their assets were to be under the immediate control, direction and supervision of the Diocesan Metropolitan as provided for in the Constit....
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....ctrines and creed followed by the Church. It was alleged that the Constitution of 1934 was binding on every Church and the temporal, ecclesiastical and spiritual powers of the administration vested in the Malankara Metropolitan who invariably is a native of Malankara or elected by a group by the community. In paragraph 19 it was averred that defendants were impleaded in their individual capacity and as representatives of Malankara Jacobite Syrian Christian Association. Permission to sue in representative capacity under Order 1 Rule 8 was also sought. In the written statement filed by different defendants the entire claim of the Catholicos was denied. The averments went to the extent of denying establishment or revival of Catholicate in Malabar. The basic claim was that the Catholicate of East was deputy to the Patriarch of Antioch. It was alleged that Syrian Christian Association formed at the Mulunthuruthy Synod was given the power to take decisions on common matters of the community but it was not vested with any power over the individual Parish Churches or their administration. It was alleged that no Parish Church has surrendered their powers of administration to the said Ass....
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.... vested in the Malankara Metropolitan subject to the provisions of this constitution'. Whether a particular Parish Church is a member of the Malankara Association is not relevant. Therefore, the submission that the non-impleadment of individual Parishes precluded the court from granting any declaration about the nature and status of Parish Churches, does not appear to be correct. 'Congregationalism' is defined in New English Dictionary of Historical Principles (By Sir John Murray, Vol.III, Part I, page 245) as under: "A system of ecclesiastical polity which regards all legislative disciplinary and judicial functions as vested in the individual church or local congregation of believers." 'Congregationalism' is defined in Chambers Encyclopedia, Vol.IV, page 12 as under: "Congregationalism is the doctrine held by churches which put emphasis on the autonomy of the individual congregations. Congregationalism has for its sign manual the words of Jesus: 'Where 2 or 3 are gathered together in my name, there am I in the midst of them'." In Black's Law Dictionary 'Congregation' isexplained thus: "An as....
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....se or district". 'Metropolitan' is defined in the same book at page 445 as under:- "the bishop who presides over the other bishops of a province. In the Latin church, it is used as synonymous with an archbishop. In England, the archbishops of Canterbury and York are both Matropolitans......The title was not in use before the council of Nice in the fourth century......The rise of the authority of Metropolitans seems to have taken place without any distinct interference on the part of the church. The council of Nice was the first to give an express deliverance on the subject, particular with reference to the Alexandrian Church. The sixth canon of that Council ran in these terms: 'Let the ancient custom which has prevailed in Egypt, Libya, and Pentapolis, that the bishop of Alexandria should have authority over all these places, be still maintained, since this is the custom also with the Roman bishop. In like manner, at Antioch, and in the other provinces, the churches shall retain their ancient prerogatives'." These definitions of 'congregationalism' and 'episcopal' have been extracted to give an idea how the expressions are understoo....
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.... of Malankara. Paragraph 95 of 1934 Constitution itself provides that, 'there will be an Episcopal Synod in Malankara'. Whether a public institution or a public Church unlike private religious places is autonomous or not depends on its trust deed, the intention of the members who found it, the purpose for which it was established. The establishment of a Church is normally understood as an institution established for public charities. Its objective is religious and spiritual. Whenever a charity is created it is either public or private. The latter is for individual, may be for fixed period or for determinate person. But public charities are of permanent character, the membership of which keeps on fluctuating. Lewin on Trust explained a 'charitable trust' thus, 'a public or charitable trust, on the other hand, has for its object the members of an uncertain and fluctuating body and the trust itself is of a permanent and indefinite character and is not confined within the limits prescribed to a settlement upon a private trust. These trusts may be said to have as their object some Purpose recognised by the law rather than human beneficiaries. Tudor on Charities at....
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....rs of public or public trust to appropriate trust properly for themselves. Under Hill on the Law of Trusts and Trustees has explained it thus, `However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the association for the time being. The members for the time being cannot under the association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the association for the time being'. None of the Parish Churches claim autonomy in the sense that they have changed their faith and belief. Each of them claims that their spiritual head is Patriarch of Antioch. That is they are the believers and followers of Syrian Church. So are the members of Malankara Association and Catholicate of East. Therefore, the existence or exercise of autonomy for Parishes has no meaning. Similarly the independence or autonomy in temporal matters is not of any consequence. The Parishes are bound by the Constitution framed in 1934. Mr. Parasaran submi....
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....into bringing into effect any voluntary association. The learned counsel submitted that if the exchange of Kalpanas are sought to be treated as legally binding on individual Parish Churches amounting to unification and acceptance of the Constitution on the basis that the Patriarch will bind the Parish Churches then necessarily Patriarch will have to be accepted as the supreme ecclesiastical and temporal superior. It was urged that it was so because the Constitution framed in 1934 deals with all the three aspects and can be imposed on the Parish Churches only on the basis that they did not have autonomy in respect of any one of the three and the Patriarch will have the power to impose such a constitution on the individual Parish Churches without obtaining their individual consent. According to learned counsel if Patriarch had such a spiritual, ecclesiastical and temporal supremacy such supremacy could not only be in regard to Parish Churches in the Patriarch section but also in regard to the Churches of the Catholico section. And otherwise the religious beliefs, practice etc. would be different in Parish Churches in the two sections and there cannot be any unification. It was urged ....
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....those who claimed to be Malankara Church would be contrary to original faith and character of the Sabha (Sabha means the Church as a whole) attached to the Parish which are established for worship according to the faith, custom and practice of the Sabha. Attention was drawn to Ex.B-269 and Ex.A-120 and it was claimed that the Constitution of these Parishes would indicate that they were part of the Malankara Church subject to superior authority of the Diocesan Metropolitan of the Malankara Metropolitan. The learned counsel submitted that according to the Orthodox teachings the Church or Sabha is a body with Christ as its head and together they form an integral whole and by consecration a Parish Church becomes the abode of God and becomes a part of the Sabha. Reliance was placed on the evidence of P.W.8 and admissions of D.W.2. It was urged that Church being a public trust of a religious nature the beneficiaries of which at a time have no right to deal with it as is clear from what has been stated by Lewin on Trusts. The nature of public charities has already been explained. None of the submissions appear to have substance. A Church is either episcopal or congregational. It cannot....
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....of the Rule Committee'. The Parish Churches are thus governed in their administration by the Constitution of the Malankara Church. The nature of relationship between the two bodies can be gathered either from the circumstances or from the documents if they are on record. The Resolution of the Mulanthuruthy Synod, the Constitution of 1934 and its amendment in 1967 unmistakenly demonstrate a close link between the Malankara Association and each Parish Church. A Church is established by followers of a religious faith. The mere establishment is not sufficient unless it assures the realisation of the ultimate goal that is salvation and that could come only when such a body has a link with the higher spiritual body which religiously is considered to be the one which could help in permitting a man to achieve the end. It is not the case of the appellants that the Parish Churches are independent in the sense that they have no link with any higher spiritual power. It is their specific case that they claim their spiritual link from the Patriarch of Antioch. The ordination of the Metropolitan-consecrate of Bishop even according to them has to be from Antioch. When D.W. 28 was asked whether....
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....ons and actions.' The claim, therefore, that the Patriarch Churches are autonomous and independent in temporal matters cannot be accepted. That would be contrary to the Mulunthuruthy Synod, the decision in the Royal Court of Appeal, the Arthat Case and the Constitution of 1934. A power which vested in Malankara Association could not be denuded merely because the spiritual power of the Patriarch descended on the Catholico, who could be Metropolitan as well, on the analogy that if Patriarch did not have temporal power then it could not be deemed to vest in Catholico. Temporal power always vested in Metropolitan. It could not be divested because even the spiritual power came to be vested in him. The extent of power also remains the same, namely, not to interfere in day to day administration of a member which is governed by its own bye-laws. Apart from the Syrian Orthodox Church there are various other churches such as the Evangelistic Association, the Simhasana churches the five churches established between 1951 to 1956 and Malankara Suriyani Knanaya Samudayan who claimed that though they are followers of Orthodox Syrian Christian tenets and beliefs but they have been establish....
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....f Antioch was always offered. Various other provisions were pointed out and it was urged that it was clear that it was an autonomous church. The followers of Kundara Church claimed that it was established by followers of Mar Cyrial who had come to India as prelate, of the Patriarch of Antioch who resolved the differences between Mar Athanasius and M. Dionysius, but failed in his attempt due to the Royal Proclamation which was in operation. It is claimed that it was at the instance of the Patriarch that the Queen of England issued a second proclamation permitting the followers to establish a new church. Therefore, their fore-fathers were associated with Kundara Old Church now called `Valiapaly'. According to them, this church was established as Athanasius denied spiritual supremacy of Antioch. However, it is not denied that once ex-communication of Gheevarghese was cancelled in 1912 and when I. Ibrahim Kathanan, the priest of the Church died his son Fr. J. Abrahim was ordained as priest by Gheevarghese Dionysius, the Metropolitan of Malankara. The claim of Kothamangalam Church was that it was only an Archdiocese of the Syrian Orthodox Church under the Patriarch of Antioch which ....
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.... deal with them in any detail except to hold that they do not call for any interference. Suffice it to say that the parishes are the churches which cannot claim to be separate or autonomous bodies only because their racial and cultural origin was different. Once they were established whether they came from outside or they were local persons it did not make any difference as after the establishment of the church with the permission of the Government and the Metropolitan and acknowledging the spiritual headship of Patriarch of Antioch which follows the apostolic succession, the nature of these churches was episcopal and, therefore, it was not open to them to claim that they should be treated as autonomous bodies merely because they have their separate bye-laws. As stated earlier, the framing of the bye-laws in each church is necessary for purposes of governance and administration. But once a church is established then the property vests in the endowment and it becomes a public charity, the administration and control of which has to be governed in accordance with the objective of the endowment. Since the objective is to follow Syrian Orthodox Church of which Patriarch of Antioch is th....
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....ere the declaration sought may be what constitutes religious rite. 2. Places of Worship (Special Provisions) Act, 1991 does not debar those cases where declaration is sought for a period prior to the Act came into force or for enforcement of right which was recognised before coming into force of the Act. 3. The following findings in Moran Mar Basselious (supra) have become final and operate as resjudicata:- (a). The Catholicate of the East was created in Malankara in 1912. (b). The Constitution framed in 1934 by Malankara Association is valid. (c). The Catholicos were not heretics nor they had established separate church. (d). The meeting held by Patriarch Group in 1935 was invalid. 4 (a). The effect of the two judgments rendered by the Appellate Court of the Royal Court and in Moran Mar Basselios (supra) by this Court is that both Catholicos and Patriarch Group continue to be members of the Syrian Orthodox church. (b) The Patriarch of Antioch has no temporal powers over the churches. (c) Effect of the creation of Catholicate at Malankara and 1934 Constitution is that the patriarch can exercise spiritual powers subject to the Const....
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....led either by judicial decision or the Constitution and Kalpanas issued from time to time. Even when Patriarch of Antioch was constituted in the meeting of Nicea held in 325 A.D. the other higher spiritual authority was the Catholico of the East. It was agreed even at that time that the Catholico could perform every spiritual function but the Patriarch had the overall superiority. There is no deviation from that, except to the extent it is provided in the Constitution with consent of all and in accordance with the convention and custom which has developed for all these long years. Therefore, in order to bring down the curtain and avoid any future digging of the grave activated by personal prejudices and rivalry, it is necessary to hold that the Constitution of 1934 as amended from time to time accepted and acted upon till the spurt of activities in 1970 shall be taken as final, governing the right and relationship of all the parties. When hearing of these appeals commenced it was felt both at the outset and in the midst that if both parties agreed, the dispute could be referred to some high-powered committee of religious authorities. But probably the issue being less religious a....
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....ent written by Brother Jeevan Reddy,J., he has agreed, although for different reasons, that the creation of catholicate in 1912 was valid and that the Constitution framed in 1934 was binding and it JUDGMENT B.P. JEEVAN REDDY.J. Leave granted in Special Leave Petitions. These appeals represent the latest round of litigation between two rival sections in the Malankara Jacobite Syrian JUDGEMENT Christian Community. A brief reference to the earlier rounds of litigation is necessary for a proper appreciation of the questions arising herein. St.Thomas, one of the disciples of Jesus Christ came to Malabar in 52 A.D. to spread his message. He died in India. At the Council held at Nicea in 325 A.D. - First General Council - convened by the Roman Emporer Constantine, four Patriarchates were established spanning the Christendom as it was known then, viz., Rome, Constantinople, Alexandria and Antioch, each headed by a Patriarch. Within the jurisdiction of Patriarch of Antioch was established another office, viz., the great Metropolitan of the East, also known as "Catholicos". The office of Catholicate fell into disuse later and was revived in 628 A.D. Sometime later, it again fe....
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....ituted. Until 1876, the entire Malabar was comprised in one Diocese. But thereafter it was divided into seven Dioceses, each Diocese headed by a Metropolitan. One of them was to be designated as Malankara Metropolitan who exercised spiritual and temporal powers over all the Dioceses. SEMINARY SUIT: On July 4, 1879 Mar Joseph Dionysius claiming to be the properly consecrated Metropolitan of Malankara Jacobite Syrian Church and as the President of Malankara Association filed O.S.No.439 of 1054 in the Zilla Court of Alleppey against one Mar Thomas Athanasius. The main dispute between them was while the plaintiff asserted the supremacy of Patriarch comprised in consecrating and appointing Metropolitans from time to time to govern and rule over the Malankara Edavagai, in sending Morone (the sanctified oil) for baptismal purposes, in receiving the Ressissa (tribute) from the Community to maintain his dignity and in generally controlling the ecclesiastical and temporal affairs of the Edavagai, the defendants denied any such Patriarchal supremacy. The suit was ultimately disposed of by the judgement of Travancore Royal Court of Final Appeal in the year 1889. The Royal Court found tha....
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....ted in Abdul Messiah ceasing to exercise any and all the powers of Patriarch, the other view is that the said withdrawal did not affect the spiritual authority of Abdul Messiah. Be that as it may, there were now two rival claimants to the Patriarchate of Antioch and as we shall presently indicate it is this dispute between Abdul Messiah and Abdulla II which led to the formation of two groups in the Malankara Church. In the year 1907, Mar Geevarghese Dionysius was ordained as Metropolitan by the Patriarch Abdulla II at Jerusalam. In 1909, Mar Geevarghese Dionysius became the Malankara Metropolitan on the death of Mar Joseph Dionysius. Because of certain differences arising between Mar Geevarghese Dionysius and Abdulla II, the latter ex- communicated the former on March 31, 1911. A few months later, Abdulla II appointed one Paulose Mar Kurilos as the Malankara Metropolitan. Mar Geevarghese Dionysius responded by convening a meeting of the Malankara Syrian Christian Jacobite Church which declared his excommunication as invalid. In the year 1912, Patriarch Abdul Messiah came to Malankara and declared the excommunication of Mar Geevarghese Dionysius by Abdulla II as invalid. In addit....
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....im, will become guilty......". Coming to Ex.A.14, which is dated February 19, 1913, the third paragraph starts by saying "After bestowing on you our blessings a second time, we desire to make known to you our true affection that ever since your letters reached our weakness in midiat, we have been deeply grieved at the dissensions sown by Abdulla Effendi among our spiritual children in all our Churches in Malabar". A little later A.14 says: "Accordingly, we, by the Grace of God, in response to your request, ordained a Maphrian, that is, Catholicos by name Poulose Basselios and three new Metropolitans, the first being Gheevarghese Gregorius, the second Joachim Evanios and the third, Gheevarghese Philexinos. It appears to us that, unless we do instal a Catholicos, our Church, owing to various causes, is not likely to stand firm, in purity and holiness. And, now, we do realise that by the might of our Lord, it will endure unto Eternity, in purity and holiness, and more than in times past, be confirmed in the loving bond of communion with the Throne of Antioch. The Joy of our Heart is herein realised. Our children, abide ye now in peace. As for ourselves, we leave you. Rest ....
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....ed on November 25, 1915. No one was installed as the Catholicos till 1925, when one Mar Geevarghese Philixinos of Vakathanam was installed as the second Catholicos but without reference to the Patriarch. On the death of Mar Philixinos on December 17, 1928, Geevarghese Gregorius was installed as the third Catholicos, again without reference to the Patriarch. VATTIPANAM SUIT: Dispute arose as to the persons entitled to the interest on 3,000 Star Pagodas aforementioned. In view of the dispute, the Secretary of State for India instituted an interpleader Suit No.O.S.94 of 1088 in the District Court, Trivandrum. It was later converted into a representative suit between two groups, viz., defendants 1 to 3 representing what may be called the Catholicos group (i.e., the group owing allegiance to the Catholicos installed by Patriarch Abdul Messiah) and defendants 4 to 6 representing what may be called the Patriarch group (i.e., the group owing allegiance only to the Patriarch). The first defendant claimed to have been appointed as Malankara Metropolitan by Abdul Messiah and disputed the validity of the Bull of excommunication issued by Abdulla II. On the other hand, defendants 4 to 6 c....
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.... are prescribed by Exhibit 18 for observance by Patriarch before he exercises his powers of excommunication." Thereupon defendants 1 to 3 applied for review of the said judgment. The review petition was admitted subject to the condition that the reciew petitioners shall not question the following three findings recorded in the judgment under review - the three findings being: "(1) as to the authenticity of Ex.A.18, the version of Canon Law produced by defendants 5, 6 and 42. (2) as to the power of Patriarch to ex-communicate without the intervention of the Synod; and (3) as to the absence of an indirect motive on the part of the Patriarch which induced him to exercise his power of ex-communication." Accordingly, the appeal was re-heard by another Full Bench which by its judgment pronounced on July 4, 1928 upheld the decision of the learned District Judge and confirmed his decree. Under this judgment, the Full Bench held: "(i) The excommunication of Mar Geevarghese Dionysius (the first defendant) was invalid because of the breach of the rules of natural justice in that he was not apprised of the charges against him and had not been given a reasonable opportunity....
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.... which it is said, the first defendant deserted the Patriarch who had created him Metropolitan and supported his rival. Such conduct might amount to an ecclesiastical offence for which the offender could be deprived by his ecclesiastical superior but it could not be an offence for which the civil courts could try him or express any opinion as to his guilt.... In the circumstances it cannot be said that the Church to which the defendants 1 to 3 belong is a different Church from that for which the endowment now in dispute was made." DEVELOPMENTS SUBSEQUENT TO THE FINAL DISPOSAL OF THE VATTIPANAM SUIT: After the aforesaid judgment, it appears, both the parties tried to strengthen their respective positions. On August 16, 1928 the Managing Committee of the Malankara Association was formed which was authorised to draw a constitution for the Church and the Association. On the very next day, i.e., August 17, 1928, Mar Julius Elias, the delegate of the Patriarch who was then in Malabar, issued an order calling upon Mar Geevarghese Dionysius to execute an Udampadi (submission deed) within two days accepting the authority of the Patriarch and also suspending him for having committed se....
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....rd Catholicos, Mar Basselios Geevarghese II was elected as Malankara Metropolitan. The draft constitution was also adopted at the said meeting. THE CONSTITUTION ADOPTED BY THE MALANKARA ASSOCIATION HELD ON DECEMBER 26, 1934: The Constitution which was adopted on December 26, 1934 provides for various aspects concerning the Malankara Church and the Malankara Association. The relevant Articles, as originally approved in 1934, read thus: "(1) Malankara Church is a division of Orthodox Syrian Church. Primate of the Orthodox Syrian Church is Patriarch. (2) Malankara Church was founded by St. Thomas, the apostle and supremacy in the Orthodox Syrian Church of the East and the Primate of the Orthodox Syrian Church is with the Catholicos. (5) The approved canon of this church is Hudaya Canon written by Bar Hebreus (the same canon book as one printed in Paris in 1898). (90) The throne of the Catholicos was re-established in the Orthodox Syrian Church of the East which includes Malankara church in 1088 M.E. (1913) and this institution has been funtioning ever since then in the Orthodox Syrian Church of the East. (91) Catholicos shall have the right to Visit all churches in M....
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....properties. Certain ancillary reliefs were also asked for. The plaintiffs in the said suit based their title on the proceedings of the Karingasserai meeting aforesaid, whereat the plaintiffs therein were elected as Malankara Metropolitan and co-trustees and the trustees belonging to Catholicos group (defendants to the suit) were removed. The suit was dismissed by the Trial Court on January 18, 1943, against which the plaintiffs therein preferred an appeal to the Travancore High Court being A.S.I of 1119. On August 8, 1946 the appeal was allowed and the suit decreed by a majority of Judges (2:1). The defendants (Catholicos group) thereupon applied for review which was rejected. The matter was carried to this Court in Civil Appeal No.193 of 1952 which was allowed on May 21,1954. This court directed the High Court to re-hear A.S.I of 1119 on all the points. Accordingly, the High Court took up the appeal for hearing and allowed the same by its judgement dated December 13,1956. The suit was decreed accordingly. On a certificate being granted by the High Court, the defendants (catholicos group) filed an appeal in this Court which was allowed on September 12, 1958 (reported in A.I.R.1959 ....
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....he was opening his heart for peace and unity. It appears that this desire of the Patriarch was reciprocated by the Catholicos group. The judgement of this Court delivered on 12th September, 1958 affirming that the Malankara Church remained a single unified church and rejecting the contention that the defendants in the said suit (Samudayam Suit) had become heretics and had established a separate Church away from the Jacobite Syrian Church appears to have given an impetus to the drive towards unity between the two groups. On December 9, 1958, the Patriarch issued a Kalpana dated December 9, 1958 (Ex.A.19) stating inter alia: "It is no secret that the disputes and dissensions that arose in the Malankara Church prevailing for a period of 50 years have in several ways weakened and deteriorated it. Although right from the beginning several persons who loved the Church and devout of God desired peace and unity putting an end to the dissension, they departed in sorrow without seeing the fulfilment of their desire. We also were longing for peace in the Malankara Church and the unity of the organs of the one body of the Church. We have expressed this desire of ours very clearly i....
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....h the canons of the Church and the constitution now in force." On December 26, 1958 a meeting of the Malankara Association was held. Ex.A.43(a) is the copy of the minutes of the said meeting. It shows that the meeting was attended by Bishops, Clergy and laity of both the groups and was presided over by the Catholicos. This meeting was held after due notice intimating all concerned that new trustees of the Malankara Association would be elected at the said meeting. The Patriarch's delegate, who was then in India, also attended the meeting by special invitation. At this meeting, new trustees were elected. Ex.A.44, the newspaper report, contains a group photograph of the Metropolitans of both the groups and the delegate of Patriarch. A meeting of the Bishops of both the groups was held on January 12, 1959. Ex.A.153 is a copy of the minutes of the meeting.It was attended by six Metropolitans of Catholicos group and three Metropolitans of Patriarch group.The meeting resolved to unite various rival organisations, youth leagues, students' organisations and womens'organisations under one Association. Committees were formed to devise ways and means of unification. It was deci....
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....n Malankara. Before effecting the said arrangement, it was necessary to decide the limits of the relationship between Malankara Church and Patriarchate. The new arrangement of dioceses could have been made only thereafter and that too with my knowledge. You also seem to have assumed the management of Simhasana Churches which are directly under my rule. Without my authority you could not have assumed the administration of the said churches. On June 8, 1959, the Catholicos replied to the Patriarch (Ex.A.24). In this letter, the Catholicos stated that the letters Ex.A.19 and A.20 were exchanged by him and the representative of the Patriarch, Mar Julius Elias, Metropolitan, on 16th December at the old Seminary before an august gathering consisting of Bishops, Priests and laymen of both the parties. Before the said exchange, there were negotiations between the two parties in which it was made clear that the acceptance of Patriarch shall be subject to the Constitution. It was only after the acceptance of the same by the Patriarch's representative, Mar Julius Elias, that the letters, A.19 and A.20 were exchanged. Protesting against the same after four or five months is not justifie....
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....developments including the enactment of the Constitution and its acceptance by the Supreme Court. With reference to the Patriarch's proposal to accept only his followers as members of the true faith, the Catholicos expressed a doubt whether a Patriarch can continue as such once he recognises schismatics into the fold. He closed the letter by saying that he expected full cooperation from and recognition of the Constitution by the Patriarch. The correspondence went on like this with the language and accusations in each letter becoming more and more shrill with each exchange. With the above correspondence was going on, following developments took place in Malankara: On September 16, 1959 a meeting of the Malankara Association was held wherein members of both the groups participated [Ex.A.43(a) is the minutes of the meeting]. The strength of the Managing Committee was fixed at ninety, of which seventy four were to be elected and sixteen to be nominated by Malankara Metropolitan. Several other decisions were taken. Ex.A.98 shows that the elected members of the Managing Committee took oath to abide by the Constitution. Pursuant to the decision of the Managing Committee of the M....
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....ng our people irrespective of party opinions about our connection with the apostolic see of Antioch. Even in our worst period of controversy, that sense of attachment was not lost to us. The Catholicate was never visualised as a rival to the exalted Throne of Antioch. On the other hand it is the symbol of real cooperation with that Throne while it signifies the Church's right and freedom to carry out God's purposes in the land in the footsteps of the saints and the faith of the Fathers". Ex.A.48, A.49, A.52, A.178, A.179 and A.189 series show that a new Managing Committee was elected for the Malankara Association and that the Committee was composed of representatives of both the groups and that the newly elected members took oath affirming the 1934 Constitution. More significantly in the year 1970, a meeting of the Malankara Association was held (on December 31, 1970) participated by representatives of both the groups, whereat one Mathew Athanasius was elected as the successor Catholicos to Mar Ougen I. [It may be recalled that Mathew Athanasius was ordained as Metropolitan in 1951 by Basselios Geevarghese II, (first defendant in the Samudayam suit); Mathew Athanasius is....
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....s Bishop. We unequivocally object to such action if contemplated by your Holiness as uncanonical and as a clear violation of 1958 peace agreement. (Letter follows)." In the confirmatory letter, the Catholicos stated that there was no necessity for the Patriarch to send a delegate to Malankara and added further: "The Catholicate of the East is an autocephalous which consecrates its own Bishops and its own Morone. This autocephaly is a fact quite independent of the name of our Throne. The autonomy exercised by the Catholicate over Malankara has been well established. It was for no other reason that your Holiness in May, 1964 expressed a desire to delimit the geographical jurisdiction of this heirarchy". (Emphasis added) The Catholicos then referred to the re-definition of the geographical jurisdictions of both the Patriarch and the Catholicos prior to installation and to the installation of the new Catholicos by the Patriarch on May 22, 1964. He also referred to the activities of Mar Thimotheos, the delegate of Patriarch whom the Catholicos described as a troublemaker. The Catholicos stated that the activities of the delegate would have constituted a sufficient g....
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....ers on the same day to several Bishops in Malankara condemning the several actions of the Catholicos which according to him were contrary to the faith. On May 22, 1975, another meeting of Malankara Episcopal Synod was held reiterating the independent nature of Malankara Church and disputing the authority of the Patriarch. All these minutes were duly communicated to the Patriarch including the minutes of the meeting held on June 5, 1975. On June 16, 1975 the Universal Synod met at Damuscus to consider the charges against the Catholicos. The Synod met on several subsequent dates upto December 20, 1975, the proceedings whereof are enclosed to the letter Ex.A.22 dated June 22, 1975 addressed by the Patriarch to Catholicos. The Universal Synod concluded that the Catholicos Ougen I is guilty against the faith and the laws of the Church and has violated the oath taken by him at his consecration as the Catholicos of the East and as the Metropolitan of Malankara and must be considered to have become an apostate to the Syrian Orthodox Church. Accordingly, he was stripped off all the offices, authority and privileges of the said office. The Synod authorised the Patriarch to announce the....
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....persistent interference by the Patriarch in the affairs of the Church compelled the community to feel the need for re- establishment of Catholicate. Accordingly, it was revived and re-established in 1912. The seat of Catholicate was transferred from Tigris in Persia to Malankara. After the establishment of Catholicate, "Practically no residuary power (was) left with the Patriarch of Antioch over this Episcopal Church". There are about 1,000 Parish Churches comprised in the Malankara Church. They are under the authority of Malankara Metropolitan. The Malankara Church is neither a union nor a federation of congregational autonomous units, but a Church with a unique solidarity derived from apostolic succession. The 1934 Constitution governs and regulates all the affairs of this Church. The Constitution enables the Malankara Metropolitan to hold the office of Catholicos as well. "Thus in the Malankara Metropolitan-cum-Catholicos converge all temporal, spiritual and ecclesiastical powers without mitigating the exalted position and status of the Patriarch, the Primate of the Orthodox Syrian Church". After the judgment of the Supreme Court the Patriarch and his group accepted the Catholic....
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....rom performing any religious service or sacraments whatsoever in or about any of the church of Malankara and for the Malankara church or its constituent churches or institutions. H. To prohibit the defendants from interfering in any manner with the administration of the Malankara Church." The defendants in their written statements denied and disputed the several averments, assertions and claims made in the plaint and reiterated the supremacy of the Patriarch in the affairs of the Malankara Church. According to them, the Catholicos and the members of his group have become apostates to the faith on account of their acts and declarations and are not entitled to any of the reliefs prayed for. A number of issues were framed on the basis of the pleadings. The learned Single Judge dismissed the suits. On appeal, the Division Bench of the Kerala High Court reversed. The Division Bench re-formulated the issues in controversy into 31 issues. Of them issues 1 to 22 and 27 to 31 pertain to the main dispute now under discussion, whereas Issues 23 to 26 pertain to certain individual churches to which we shall advert later. The Division Bench has upheld the claim of the Catholicos ....
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....uced in several earlier suits and whose authenticity is not disputed by the Patriarch group before us) and A.13 which precedes A.14, empower the Catholicos to ordain metropolitans and other officials of the Church in accordance with the canons of the Church and also to consecrate holy Morone. A.14 states expressly that the power to instal a Catholicos on the death of the incumbent is vested in the Metropolitans. It is in this manner that the power of ordaining Metropolitans and melpattakkars and consecrating holy Morone, which hitherto vested in Patriarch, came to be vested in the Catholicos by the Patriarch himself. Further, the power to instal a Catholicos on the death or disability of the incumbent was also vested in the Metropolitans of Malankara Church and it is in exercise of this power that on the death of the first Catholicos installed by Patriarch Abdul Messiah in 1913, the second Catholicos Basselios Geevarghese I (Mar Geevarghese Philixinos) was installed in the year 1924 by the Malankara Synod without reference to the Patriarch. Again in 1929, Basselios Geevarghese II was elected as the third Catholicos by the Association and was installed as such. In the M.D. Seminary ....
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....2 under A.14 and as described and affirmed in the 1934 Constitution. Moreover, the Kalpanas A.19 and A.20 were not issued in an abrupt fashion - they could not have been - but were preceded by a good amount of discussion and negotiations between members of both the groups. Under his Kalpana Ex.A.20 dated December 16, 1958, from the Catholicos to the Patriarch, the Catholicos accepted the Patriarch subject to the Constitution passed by the Malankara Association and as then in force. The Metropolitans ordained by Patriarch duly accepted the authority of Catholicos and participated in several proceedings. There was re-allotment or dioceses among the Metropolitans of both the groups. The members of the erstwhile Patriarch group swore loyalty to the 1934 Constitution. (These events have been detailed hereinabove). After all these developments, and after a lapse of four months after A.20, the Patriarch raised an objection to the use of certain expression employed in Ex.A.20, viz., the Catholicos claiming to be seated on the Throne of St. Thomas and also to the qualification added by he Catholicos to his acceptance to the Patriarch, viz., "subject to the constitution...." But even this ob....
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.... Church of which the Malankara Church is said to be a part - though it is true, all the effective powers exercised by the Patriarch prior to 1912 were vested in the Catholicos under Ex.A.13 and Ex.A.14. 120. In this view of the matter, the submissions of the Patriarch group that the 1934 Constitution was not put forward by the Catholicos group as one of the bases of their claim in Samudayam suit or that no finding as such was recorded by this Court in the said suit regarding the validity of the Constitution are of little consequence. We are not relying upon the rule of estoppel in this behalf but are only pointing out that having conceded, recognized and affirmed all the above things, the Patriarch group cannot make a legitimate grievance of these very things. They cannot be heard to say so. Nor have they made any effort to explain the said acts and conduct of the Patriarch and of the persons owing allegiance to him. They must be deemed to have given up and abandoned all their objections to the aforesaid events and documents. THE VALIDITY OF THE EXCOMMUNICATION OF THE CATHOLICOS: In the Vattipanam suit, the High Court found that of the two versions of Hudaya Canon put forw....
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....accept the delegate sent by Patriarch to Malankara and has also changed the oath administered to the members of the Church wherein he substituted himself for the Patriarch. The proceedings of the Malankara Association were also cited as one of the charges. Having revived the Catholicos with the powers under Ex.A.13 and 14 and having accepted (by necessary implication) the Constitution of 1934 under his Kalpana Ex.A.19 and having installed the Catholicos in 1964 notwithstanding his objections raised in his letters written during the years 1959 to 1962, it was not open to the Patriarch to seek to excommunicate the Catholicos on those very grounds. Ex.A.13 speaks of Throne of St. Thomas. Ex.A.13 and Ex.A.14 specifically vest the Catholicos with the power to consecrate Metropolitans and other officials of the Church and to consecrate Morone. A.14 empowers the Metropolitans to elect their own Catholicos. In these circumstances, it is difficult to understand how could the use of the expression "Holiness" or the assertion of being seated at the Throne of St. Thomas in the East or the claim that the Malankara Church is an autocephalous Church can be treated as heresy when the very Constitu....
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....halous division of the Orthodox Syrian Church which traces its origin to Jesus Christ and his apostles", the relief asked for in the plaint is for a declaration "that the Malankara Church is Episcopal in character and is not a union or federation of autonomous church unit.... The expression "Episcopal" appears to have been used in contrast to the expression "congregational". In the absence of any material brought to our notice with respect to the meaning of these expressions, we may refer to Para 66 of the judgment under appeal where the meaning of these expressions has been explained. It reads thus: Episcopalism is defined in the New English Dictionary of Historical Principles - By Sir John Murray Vol.III as Theory of Church Polity which place the supreme authority in the hands of Episcopal or pastoral orders'. The same dictionary defines the word Congregationalism as 'A system of ecclesiastical polity which regards all legislative disciplinary and judicial functions as vested in the individual church or local congregation of believers'. Chambers Dictionary Vol. 4 defines Congregationalism as 'the doctrine held by churches which put emphasis on the autonomy of t....
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....luding the Malankara Church is Episcopal in spiritual matters, in temporal matters it is not Episcopal. It referred, in our opinion rightly, to the judgment of the Royal Court of Final Appeal of Travancore in Seminary Suit where it is observed: "parties agree that head of Syrian Church in this country or its Metropolitan should be a properly ordained Bishop and that regarding temporal affairs acceptance of Malankara Metropolitan as such by the community is necessary". It was further held in the said judgment that "while the ecclesiastrical supremacy of the Patriarch has all along been recognised, authority of Patriarch never extended to Government of temporalities of the Church. The Division Bench at the same time clarified that it does not mean to hold that the Metropolitan has the jurisdiction over the day-to-day management of temporal affairs of Parish Churches. The Division Bench has also referred to the Mulanthuruthy Synod resolutions which say that the Parish Churches have a degree of autonomy with certain supervisory powers along being vested in the Managing Committee of the Association or Catholicos or the Malankara Metropolitan, as the case may be. The Division Bench has h....
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....le 10(2) of the Civil Procedure Code to implead themselves as defendants to the suit. All the applications were dismissed by the Trial Judge against which a batch of Civil Revision Petitions was filed before the Kerala High Court being C.R.P. Nos. 1029/75 and batch. It was contended by the revision petitioners (Parish Churches who were seeking to be impleaded in the suit) that if the first relief prayed for in O.S. 142/74 (O.S. 4/79) is granted, it will affect the autonomy and individuality of the individual Parish Churches and, therefore, they should be impleaded as defendants to the suit. This argument was repelled by Khalid, J. (as he then was) in the following words : I do not think that this apprehension is well founded. Even under Order I Rule 10 a party does not have any inherent right to get himself impleaded; that lies in the discretion of the Court on being satisfied that the petition is well founded on merits. The counsel for the contesting respondents (plaintiffs) would contend that all that the plaintiffs want is for a declaration of the supervisory and spiritual control over the Church. (Emphasis supplied) Accordingly, the revision petitions....
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....iew of the subsequent developments and their effect, as accepted by us. (2). The Catholicate was revived and re-established by Patriarch Abdul Messiah in the year 1912. The powers and functions of the Catholicos are set out in Ex.A.14. Moreover by virtue of their acts and conduct subsequent to the judgment of this Court (in A.I.R. 1959 S.C. 31), the defendants in the present suit (i.e., the members of the Patriarch group) cannot now dispute the validity of the revival of the Catholicate or of Ex.A.14. (3). It may be that by conferring upon the Catholicos the powers of ordaining Metropolitans, consecrating Morone and to exercise other spiritual powers over Malankara Church, the Patriarch may not have denuded himself completely of the said powers which he enjoyed until then. But in view of the fact that he had himself created another center of power in India with the aforesaid powers, it would be reasonable to hold that thereafter the Patriarch cannot exercise those powers unilaterally, i.e., without reference to the Catholicos. He can exercise those powers only in consultation with the Catholicos. Moreover, the person to be appointed as Metropolitan or ....
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....stalled and consecrated the new Catholicos on May 22, 1964. It is also worth noticing that a day before such installation/consecration, the Patriarch took care to have the territorial jurisdiction of Catholicate duly defined and delimited by excluding certain areas in the Middle East from the jurisdiction of the Catholicos. (8). So far as the declaration of the Malankara Church being Episcopal in character is concerned, all we need hold is that it is episcopal to the extent it is so declared in the 1934 Constitution. The said Constitution also governs the affairs of the Parish Churches and shall prevail. (9). The excommunication of Catholicos by the Patriarch and/or by the Universal Synod is invalid for the reason that the grounds/charges on which the excommunication has been effected are not permissible or relevant grounds. The denial of Patriarch's spiritual authority by the Catholicos and his group and similarly the Patriarch's refusal to recognise the Catholicos or the 1934 Constitution in the correspondence that passed during the years 1972 to 1975 are attributable to the personal differences and the mutual bickering between the two dignit....
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....esire of every well meaning member of that Church. Before, however, we set out the bases of reconciliation between the two groups, we may indicate the approach we are adopting in this case. 125. The resolutions passed by the Mulanthuruthy Synod establish that to prevent mismanagement of the Church affairs and to check the autocracy of the Metropolitans, it was thought necessary that there should be an organisation for the entire community called "Syrian Christian Association", of which Patriarch should be the Patron and the ruling Metropolitan its President. For transacting the business of the Association, a Chief Committee consisting of eight priests and sixteen laymen with the ruling Metropolitan as the President was formed. This Committee was "entrusted with complete responsibility and management of every matter connected with religious and communal affairs of the entire Syrian Community". Neither party before us disputes the validity of these resolutions. In Seminary suit, it was held by the Royal Court of Final Appeal on the basis of the said resolutions and other material placed before it that the Metropolitan of the Syrian Christian Church in Travancore should be a native....
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....tion is not a true representation of the will of the members of the Church as such. He suggests that while some Churches have a large body of believers running into several thousands, there are Churches having as little as fifty members and yet each of them has equal representative in the Malankara Association. On this account, the learned Counsel says, the proceedings of the Malankara Association cannot be said to be reflecting the will of the majority of the Malankara Christians truly. It cannot be said that there is no substance in this submission. If the Malankara Association is to be vested with the control over the religious and communal affairs of the entire Malankara Christian community, it must truly and genuinely reflect the will of the said community. For ensuring it, its composition must be so structured as to represent the entire spectrum of the community. A powerful body having control over both spiritual and communal affairs of the Malankara Church should be composed in a reasonable and fair manner. Judged from this angle, Clause (68) of the 1934 Constitution cannot be said to be a fair one. [After 1967 amendment, the corresponding clause is Clause (71) which reads, ....
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....hurch, the Division Bench has modified the decree in the following terms: "decree is granted declaring that Catholicos is the spiritual superior of Knanaya community and Knanaya Metropolitan and in regard to temporal matters as long as the parties do not harmonise the provisions of the Knanaya Constitution and the Constitution of the Malankara Sabha, the latter can be implemented with reference to Knanaya diocese and parishes only subject to the terms of the Knanaya Constitution". 127. The Division Bench has arrived at its finding regarding the Knanaya Church being a part of Malankara Church and the Knanaya Metropolitan being subject to the spiritual superior of the Catholicos on the basis of the following facts mainly, apart from other material, viz., (a) in the Manarcadu meeting of the Malankara Association (after the judgment of the High Court in Samudayam suit declaring Catholicos group as heretics) convened pursuant to the directions of the High Court, not only the Knanaya Churches participated therein but the Knanaya Metropolitan, Mar Clemis, was elected as the Malankara Metropolitan; and (b) after the judgment of this Court in A.I.R. 1959 S.C. 31, Knanaya Churches partici....