Subject:

 

Ecclesiastical and Canonical Law-Dispute between the Catholicos group and
the Patriarch group in the Malankara Syrian Christian community-
Constitution recognising spiritual but not temporal supremacy of the
Patriarch of Antioch over the Malankara Church-Excommunication of
Catholicos of the East by the Patriarch-Whether valid-Held, per curiam, the
excommunication was invalid.

Ecclesiastical and Canonical Law-Dispute between the Catholicos group and
the Patriarch group in the Malankara Syrian Christian community-Revival of
Catholicate of the East in 1912 with temporal powers over Malankara Church-
Whether Patriarch's power over the Malankara Church reduced to a vanishing
point-Held, per curiam, the Patriarch continues as supreme head of the
Syrian Orthodox Church of which the Malankara Church is a division; he is
spiritually superior to the Catholicos although he has no temporal power
over the Malankara Church or its properties.

Code of Civil Procedure, 1908, s.9-Ecclesiastical Law-Constitution of the
Malankara Christian Association of 1934 -Whether Malankara Church is
episcopal in nature-Held, per curiam, it is episcopal to the extent
declared in the 1934 Constitution the validity of which cannot be
questioned now.

Code of Civil Procedure, 1908, s.9 r/w O.1 Rule 3-Ecclesiastical Law-
Whether parish churches are congregational-Held, per majority, can-not be
decided without impleading parish churches; per curiam, all churches except
those of Evangelistic Association, Simhasana or St. Mary are under
spiritual and temporal control of the Malankara Association in accordance
with the 1934 Constitution-Words and Phrases-'Episcopal', 'Congregational'.

Code of Civil Procedure, 1908, S.9--Ecclesiastical and Canonical Law-
Dispute between the Catholicos group and the Patriarch group in the
Malankara Syrian Christian community-Patriarch group questioning the
creation of the Catholicos of the East and the 1934 Constitution adopted by
the Catholicos group-Held, after issuing a Kalpana in 1958 accepting the
Catholicos and consecrating him in 1964 the Patriarch group deemed to have
abandoned all objections-Evidence Act, 1872 s.114-

Code of Civil Procedure, 1908, s.9-Whether suit for declaration that
Malankara Church is episcopal is of a civil nature and is maintainable-
Held, per Sahai, .J., yes; civil courts have jurisdiction to entertain
suits for violation of fundamental rights-Constitution of India, Articles
25, 26.

Places of Worship (Special Provisions) Act, 1991-Whether bars a suit for
declaration that Malankara Church is episcopal-Held, per Sahai, J., No.

Code of Civil Procedure, 1908, s.11-Res Judicata-Royal Court of Travancore
and Supreme Court upholding validity of the Constitution and creation of
Catholicos-Held, operates as res judicata between parties and binds the
patriarch group.

Code of Civil Procedure, 1908, S.11, 114-Kerala High Court accepting Hudaya
canon produced by Patriarch group in the Vattipanam suit-Review petition of
Catholicos group entertained on condition that finding regarding
Patriarch's power of excommunication under the canon will not be
questioned-High Court allowing review petition and invalidating
excommunication of Malankara Metropolitan-Whether the acceptance of the
canon still operates as res judicata against the Catholicos group and
negatives their claim to validity of the 1934 Constitution-Held, per Sahai,
J. No; with the review being allowed, the decision on binding effect of
canon does not operate as res judicata between the parties-Canonical law-
Evidence Act, 1872-Ss.42, 43.

St. Thomas, one of the disciples of Jesus Christ came to India in 52 A.D.
to spread his message. The first ecumenical council was convened in 325
A.D. at Nicea by the Roman emperor Constantine. Prelates from all parts and
representatives of all dioceses in the Christian world attended the synod.
The ecclesiastical jurisdiction of the Christiandom 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 great Metropolitan of the East was proclaimed as
the Catholicos of the East.

By the 16th century, Christianity had gained a substantial foothold in
Kerala and the dominant faith was of the Syrian Orthodox Church. Rebelling
against the pressure from the Portugese to embrace the Roman Catholic
faith, the Christians of Malabar met at Mattancherry in 1664 and affirmed
their loyalty to the Syrian Orthodox Church headed by the Patriarch of
Antioch by en masse taking the Koonan Cross Oath.

The advent of the British saw the Malankara Syrian Christian Community
dividing into two groups - one that embraced the Protestant faith and the
other that adhered to the Orthodox faith. Their dispute was resolved by the
Cochin Award rendered on April 4, 1840 whereby the Church properties were
divided between the two groups and an amount of 3000 Star Pagodas was
allotted to the Malankara Church.

1840 saw a tussle between Mathew Athanasius-(who claimed to have been
ordained as Malankara Metropolitan by the Patriarch of Antioch) and Chepat
Dionysius. Mar Yayakim Koorilos who was sent by the Patriarch as his
delegate to resolve the dispute, excommunicated Mathew and ordained himself
as the Malankara Metropolitan. With Mathew Athanasius persisting in his
claim, the Travancore Government constituted the Quilon Committee which
decided in his favour. Thereafter, on a request by the locals one Joseph
Dionysius went to Syria and got himself ordained as the Malankara
Metropolitan. However, Mathew refused to hand over charge and instead
ordained his brother Thomas Athanasius as his successor.

The Patriarch of Antioch, Peter III, came to Malabar in 1976 and convened
the Mulunthuruthy Synod where the Malankara Syrian Christian Association
was formed to manage the affairs of the Church and the Community. The
Patriarch was its patron and the Malankara Metropolitan its ex-officio
President. Malabar was divided into seven Dioceses each headed by a
Metropolitan. One among them was to be designated as Malankara Metropolitan
exercising spiritual and temporal powers over all Dioceses.

Despite Joseph Dionysius being accepted as the Malankara Metropolitan,
Thomas Anthanasius refused to hand over charge and this led to the filing
of a suit (known as Seminary Suit) by Joseph Dionysius which came to be
disposed of in 1889 by a judgment of the Travancore Royal Court of Appeal.
The Court found that the ecclesiastical supremacy of the Patriarch of
Antioch over the Malankara Syrian Christian Church had all along been
recognised and acknowledged by the Jacobite Syrian Christian community and
their Metropolitans ; that this supreme power included ordaining
metropolitans to manage spiritual matters of the local church; in sending
Morone (sanctified oil used for baptismal purposes), in receiving Ressissa
(tribute) from the community and general control over the spiritual
government of the church. However, the Court rules that the authority of
the Patriarch never extended to temporal affairs of the church. The Court
further declared that the Malankara Metropolitan should be native of
Malabar consecrated by the Patriarch or by his duly authorised delegate and
accepted by the people as their Metropolitan. Joseph Dionysius was
accordingly found entitled to be declared as the Malankara Metropolitan and
as the trustee of the church properties.

The Patriarch of Antioch again approached the court in an Arthat Suit in
1877. This resulted in a judgment in 1905 of the Cochin Court of Appeal re-
affirming the judgment of the Royal Court and declaring that while the
Patriarch was the spiritual head, the churches and their properties were
subject to the spiritual, temporal and ecclesiastical control of the
Malankara Metropolitan.

The Sultan of Turkey withdrew the recognition given to Abdulla Messiah and
in his place recognised Abdulla II as the Patriarch. Mar Geevarghese
Dionysius who was ordained by Abdulla II as Malankara Metropolitan was
excommunicated by the latter due to certain differences and in his place
Poulose Mar Kurilos was appointed. In 1912 Abdul Messiah came to Malankara
and declared the excommunication of Mar Geevarghese Dionysius invalid and
purported to revive and re-establish the Catholicate by consecrating one
Mar Ivanios as Catholicos.

A dispute arose as to which of the groups - one owing allegiance to the
Catholicos and the other to the Patriarch - was entitled to receive the
amount of interest on the 3,000 Star Pagodas. In the ensuing interpleader
suit, known as Vattipanam Suit, the District Judge, Trivandrum held that
the excommunication of Mar Geevarghese Dionysius, the validly appointed
Malankara Metropolitan, by Abdulla II was invalid and that the Catholicos
group was entitled to the interest amount. The appeal of the Patriarch
group was allowed by the Full Bench of the High Court (41 TLR 1). It held
that the version of the canon law produced by the Patriarch group (Ex.18)
was the one recognised and accepted by the Malankara Church and binding on
it and that under Ex.18 the Patriarch could in his own right excommunicate
the Metropolitans. However, a review petition was admitted on condition
that the Catholicos group would not question three findings - the binding
nature of the Canon law as produced by the Patriarch group; the power of
the Patriarch to excommunicate without intervention of the Synod; the
absence of an indirect motive on the part of the Patriarch which induced
him to exercise his power of excommunication. The review petition was
allowed (45 TLR 116) and the trial court judgment was restored. The
excommunication of Mar Geevarghese Dionysius was held invalid not on
account of lack of power in the Patriarch but because he had not observed
the principles of natural justice.

On December 26, 1934 the Catholicos group adopted a draft constitution
which inter alia recognised that the Patriarch was the primate of the
Orthodox Syrian Church and the supremacy in the Orthodox Syrian Church of
the East and the primate of the Orthodox Syrian Church is with the
Catholicos. In response the Patriarch group at a meeting in 1935 elected
Mar Poulose Athanasius as the Malankara Metropolitan. They then instituted
in 1938 the Samudayam Suit for a declaration of their title as trustees of
the church properties and that the Catholicos group who were heretics and
had separated from the Syrian Christian Church were not lawful trustees.
This suit was dismissed in 1943. The appeal of the Patriarch group was
allowed in 1946. The further appeal of the Catholicos group was allowed by
this court in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR
(1959) SC 31. This court held that the findings in favour of the Catholicos
group in the Vattipanam Suit constituted res judcata and they could not now
be declared heretics. It invalidated the meeting of the Patriarch group and
the decisions taken then and upheld the adoption of the draft constitution
in 1934 by the Catholicos group. The Samudayam Suit of the Patriarch group
was dismissed.

The Patriarch Yakub who was in India during the Samudayam Suit issued a
Kalpana (Ex.A19) on December 9,1958 expressing the desire for peace and
unity and accepting Mar Basselius Geeverghese as Catholicos. The Catholicos
on December 16, 1958 responded with his Kalpana (Ex.A 20) conveying the
acceptance of Moran Yakub as the Patriarch of Antioch subject to the 1934
Constitution. The Patriarch in his letter of April 8,1959 took exception to
the use by the Catholicos of the expression 'holiness' with his name, to
the assertion by the Catholicos that he was sitting on the 'Throne of St.
Thomas'; to the assumption by the Catholicos that his was the Church of the
East and that he was the Catholicos of the East; to the new arrangement of
dioceses and to his assumption of the management of the Simhasana churches.
The Catholicos replied to the objections but the Patriarch was not
satisfied. The exchange of correspondence grew increasingly accusatory.

The Malankara Association at a meeting in 1962 elected Ougen Mar Timothious
as Catholicos and this was approved by the Malankara Episcopal Synod. Upon
invitation by the synod, the Patriarch came to India and the new Catholicos
was installed by him on May 22, 1964. It was decided that the jurisdiction
of the Catholicos shall not be extended to Arabian countries or Persia but
include only countries situated to their east.

In 1972 the Patriarch purported to nominate a delegate to the Malankara
Sabha and this was disliked by the Catholicos who conveyed his displeasure
in a letter to the Patriarch co-signed by nine Metropolitans. Nevertheless
the Patriarch's delegate Mar Timotheos came to Malankara and started
ordaining priests and deacons. When the Catholicos protested, the Patriarch
responded by sending him a list of charges the principal one being that the
Catholicos was repudiating the Patriarchal authority. While the Malankara
Episcopal Synod stood by the Catholicos, the Universal Synod at its
deliberations at Damascus held him guilty and an apostate to the Syrian
Orthodox Church. Consequently the Catholicos was excommunicated by the
Patriarch.

Eight suits were filed in all by the Catholicos group. The main suit sought
for a declaration that the Malankara Church is episcopal in character and
is not a union or federation of autonomous church units and it is governed
in its administration by the Constitution of the Malankara Church. It
sought to permanently injunct the Patriarch group from ordaining priests or
performing any other sacraments or service for the Malankara church. The
suits which were consolidated were dismissed by a Single Judge of the High
Court. The Division Bench in appeal reversed and upheld the claim of the
Catholicos group. It held that:

(i) The Malankara Church is not an autocephalous church but is a part of
the World Orthodox Syrian Church of which the Patriarch of.

Antioch is the head.

(ii) The Catholicos of the East is the head of the Malankara Church and the
relationship between the Patriarchate and the Malankara Church is governed
by the 1934 Constitution which is valid and binding on the Malankara
Association, community, Dioceses as well as parish churches and
parishioners.

(iii) The Catholicate established by Abdul Messiah was valid and although
the spiritual power of the Patriarch has not been reduced to a vanishing
point, he could not be regarded as having active spiritual supremacy.

(iv) The decision in 41 TLR 1 about the binding nature of the Hudaya Canons
was not final and did not operate as res judicata between the parties.

(v) The Malankara Church is not purely episcopal but has only some
episcipal characteristics.

(vi) Parish churches are not congregational or independent but are
constituent units of the Malankara Church; they have a fair degree of
autonomy subject to supervisory powers vesting in the Malankara
Association, Catholicos and Malankara Metropolitan.

The Patriarch group appeals to this court.


JUDGMENT
 

PETITIONER:
MOST. REV. P.M.A. METROPOLITAN & ORS.

Vs.

RESPONDENT:
MORAN MAR MARTHOMA & ANR.

DATE OF JUDGMENT20/06/1995

BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
JEEVAN REDDY, B.P. (J)
SEN, S.C. (J)

CITATION:
1995 AIR 2001 1995 SCC Supl. (4) 286
JT 1995 (5) 1 1995 SCALE (4)1


ACT:



HEADNOTE:



JUDGMENT:
J U D G E M E N T
R.M. Sahai.J.
When Lord Jesus Christ was asked by a youngman who was
possessed of property what was the road to heaven, the Holy
Bible records it in Chapter 19 of the New Testament - the
Gospel According to St. Mathew thus.
"16. And, behold, one came and said
unto him, Good Master, what good thing
shall I do, that I may have eternal
life?
17. And he said unto him, Why
callest thou me good? there is none
good but one, that is, God: but if thou
wilt enter into life, keep the
commandments.
18. He saith unto him, Which?
Jesus said, Thou shalt do no murder,
Thou shalt not commit adultery, Thou
shalt not steal, Thou shalt not bear
false witness,
19. Honour thy father and thy
mother: and, Thou shalt love thy
neighbour as thyself.
20. The young man saith 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 that for sometime both the
parties resolved their differences by mutual adjustment, but
`those who hoped - fondly, as events have proved, that the
decision of the Supreme Court in Moran Mar Basselios
Catholicos v. Thukalan Paulo Avira & others (1958 K.L.T.
721) = AIR 1959 SC 31 and the reported reconciliation
following upon that decision would give the quietus to the
litigation, prolific, prolonged and ruinous, arising out of
the faction in the Malankara Jacobite Syrian Church between
what is known as the Patriarch's Party on the one hand and
what is known as the Catholicos' Party on the other, counted
without the resourcefulness of those entrenched in and of
those covetous of positions of power, and we dare say, of
profit, and of those who, for one reason or another, have a
vested interest in the continuance of the dispute,' [Raman
Nayar, J. in Appearl Suit No. 269 of 1960 decided on 3rd
April 1964].
How the much negotiated peace and quiet arrived at by
written adjustments worked out by issuing letters from both
the groups was shaken even before expiry of 15 years since
the judgement was delivered by this Court in September, 1958
and what leld to filing of numerous suits eight of which
were consolidated by the Additional. District. Judge but
were heard and decided by a learned Single Judge of the High
Court, as they were transferred under orders of this Court,
and were ultimately decided in appeal and cross objections
by the Division Bench giving rise to these appeals and
various legal issues including whether the suit under
Section 9 of the Code of Civil Procedure was maintainable,
effect of Places of Worship (Special Provisions) Act, 1991
and whether the decision in earlier suit filed by the
appelants operated as res judicata can be, better,
appreciated if the history how the Malankara Church came to
be established, what is its nature and how the two groups
Patriarch of Antioch and Catholicos came to be formed
leading to internecine struggle and litigation may be
noticed in brief. The adversorial duel between the two rival
groups has assumed so much of publicity that it has found
place even in the Encyclopedia of Religion. It may be
prefaced with brief observations about the Christian
religion and the Church.
Religion is founded on faith and belief. Faith emanates
from conscience and belief is result of teaching and
learning. Christianity 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. 37 Apostolic
See at Antioch was established by St. Peter to whom the
stewardship of Church was entrusted by Lord Jesus Christ. It
took root in Kerala within 20 years of the epoch making
events in Jerusalem, the crucifixion, resurrection and
ascension of the Lord Jesus Christ. St. Thomas, one of the
12 apostles of Jesus Christ visited India in A.D. 51/52 and
established 7 Churches in the Malayalam speaking parts of
South India. They are known as Malankara Jacobite (or
orthodox) Syrian Church, "Malankara" means "Malayalam
speaking" `The two Syrian Orthodox Churches in Syria and
India, along with the Egyptian (Coptic), Ethiopian, and
Armenian Churches, belong to the group of Ancient, or
Oriental Orthodox, Churches, wrongly called "monophysite".
Their Christology is essentially the same as that of the
Eastern Orthodox related to the patriarchate of
Constantinople. They affirm the perfect humanity as well as
the perfect divinity of Christ, inseparably and unconfusedly
united in the divine-human nature of the person of Christ'
[Encyclopedia of Religion, Volume 14, page 227].
Jacobite Church is, `a name which the Syrian Church
assumes to itself. When the Syrian Churches are interrogated
as to the reason of this name they usually allege that they
are the descendants of Jacob' [Faiths of the World by James
Gardner, Volume II). `Known to the West as Jacobites (after
Jacob Baradeus, c. 500-578, the reorganiser of the West
Syrians and Egyptians in the sixth century), the Syrian
Orthodox Church is found mainly in Syria, Lebanon, Jordan,
Turkey, India, the United States, the Federal Republic of
Germany, and Sweden. In 1985 the total number of Jacobites,
including 1.8 million Indians, was about 2 million, in two
separate jurisdictions -- one with Patriarch Ignatius Zakka
as head in Damascus, Syria and the other with Catholicos Mar
Thoma Mathews I as head, in Kottayam, Kerala, India'
[Encyclopedia of Religion, Volume 14 p. 227]. The word
`church' refers both to the Christian religious community
and to the building used for Christian worship'
[Encyclopedia Britannica, Volume 5 page 739). The Christian
religion is one, but, `Christians differ greatly in their
beliefs about the nature of the church' [Encyclopedia
Britannica, Volume 5, page 739] which was, `originally
applied in the classical period to an official assembly of
citizens.... In the Septuagint 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 imparted by different
metropolitans who were consecrated from time to time. But
wealth breeds dissension, disharmony and discontent. And
that is the unfortunate story of the last period beginning
from 1879. More than 100 years have rolled by since then
when the storm of strife for supremacy over the Church was
taken to courts but the dust has not settled down till now.
The first two periods have been described by the Royal Court
of Appeal as, `Grand Periods, the first commencing from the
foundation of the church and ending with the overthrow of
the Portuguese power in India sometime in 1663, and the
second period commencing from that year or 1665 and
extending to the period when the famous Mulunthuruthy Synod
was held in 1876 which was remarkable for more than one
reason, including the one which led to struggle for
spiritual supremacy and administrative control over temporal
matters of the Church through the courts. The events till
1876 have been discussed in great detail in the judgment of
the Royal Court of Appeal. The period thereafter commencing
from the last quarter of 19th century and beginning of 20th
century is remarkable for creation of Catholicate of East in
this country and framing of Constitution by the Malankara
Association. All this is discussed in Moran Mar Basselios
(supra).
Religious spirit was dominant in the first period.
Every move was religion oriented. The keen desire to delve
more and more in spiritual than temporal matters was
exhibited from time to time. Three important events took
place during this long period. Although each was distance in
time from the other but everyone was significant in its own
way in shaping the future of the Church. The first, of
course, was establishing of the Church by St. Thomas who
exercised great influence and ordained two men as Arch -
Deacons, one from each of the two respectable families, that
is, Sankarapuri and Pakalomattiom. In A.D. 200 the devotees
had written to Demetrius the Bishop of Alexandria,
requesting him to send a teacher, to instruct them in the
doctrines relating to the beliefs in Christ. The second in
the sequence was significant not for the Syrian Church only,
but for the entire Christian community. It was an epoch
making event. The first eccuminical council was held in 325
A.D. at Nicea. Priests and prelates from all parts of
Christendom were invited. Representatives of all dioceses 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 to time by the Catholicate of the East
in Persia and by the Patriarchs of other Eastern Churches
for discharging spiritual functions like ordination of
priests in the Malankara Church. But all other functions
were carried on by the Indian born ecclesiastical dignitary
known as the 'Arch-Deacon' who was not possessed of the full
spiritual grace of a Bishop.
The next or the third important event during this
period was the famous Koonan Cross Oath at Muttancherry
sometime in 1664. It was final break away from the Roman
Catholic influence which was being forcibly imposed on the
followers of Syrian Church. Between 1599 to 1654 A.D. due to
influence of the Portuguese political power in the East
Coast of India, the Malankara Church was compelled to
accept Roman Catholic supremacy i.e., the supremacy of the
Pope of Rome. The tough resistance from the Syrian
Christians resulted in adopting repressive measures by the
Portuguese. The climax was reached in 1599 in the so-called
Synod of Diamper. Books of the Syrians Christians were burnt
and destroyed. All traces of Apostolic succession in their
church were obliterated. The Portuguese arrested Mar
Ignatius the Patriarch, at Mylapore, brought him in fetters
to Cochin on way to Rome and ultimately he mysteriously
disappeared believed to have been killed either by drowing
or burning. This enraged the Syrians. They met at
Mattancherry, took the famous oath at Koonan Cross and
resolved that they shall never again unite themselves with
the Portuguese who had without any scruple or fear of God
murdered their holy Patriarch. This was in 1664. This event
marks an epoch in the history of the Syrian church. It split
the followers in two Punthenkoor and Palayakoor. The former
became Jacobite Syrians following the creed of Patriarch of
Antioch and the latter Roman Syrians following the Roman
creed of the Pope of Rome. The Puthenkoor people after
meeting at Mattancherry came to Alengad Church and, in
obedience to the Station of Mar Ignatius consecrated Arch-
Deacon Thoma with the title of Mar Thoma Metran.
With this commenced the second period. It, too, like
the first was marked by few important events, which again
have played vital role in the destiny of the Syrian Church.
The first was the ordination in 1654 of Mar Thoma Mitra as
Marthoma I. Its significance lay as he was ordained as
Metropolitan of Malankara by the Patriarch 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 Church were as per the Award to be
administered by the trustees i.e., (1) the Malankara
Metropolitan, (2) a priest-trustee and (3) a lay-trustee.
The effect of the Cochin Award was that the dispute between
the Mission Society and the Syrian Church came to an end.
But it appears between 1808 and 1840 vast assets had been
acquired with the trust created by Dionysius VI. These were
controlled and administered by the person who was the head
of the Church. Therefore, even though one Cheppat Dionysius,
a locally ordained Metropolitan was in office, one Mathew
Athanasius went to Syria in 1840 and got himself ordained as
Metropolitan by the Patriarch of Antioch. Thus the seeds of
strife were sown.
If 1654 is significant for commencement of local
ordination by the delegate of Patriarch of Antioch then 1840
marked the beginning of emergence of struggle for supremacy
over the Church between locally ordained Metropolitan and
the one ordained by the Patriarch of Antioch. Disputes arose
between M. Athanasius and C. Dionysius. To settle it the
Patriarch of Antioch sent one Mar Yayakim Koorilos as his
delegate. But Koorilose adopted a novel way of settling the
dispute by excommunicating Mathew and appointing himself as
the Malankara Metropolitan. Cheppat Dionysius withdrew in
favour of Mar Koorilos, but Mathew Athanasius persisted in
his claim. When these disputes came to the knowledge of
Travancore Government it appointed in 1848 a Tribunal known
as the `Quilon Committee' to settle the dispute. The
Committee held in favour of M. Athanasius and he took over
charge as the Malankara Metropolitan. It appears the
Committee preferred Patriarch ordained Metropolitan over the
local ordained as spiritual spirit was flowing, still, from
Antioch. Even though the Quilon Committee decided in favour
of Athanasius and he took over charge of the property but
the local people were not satisfied, therefore, they appear
to have persuaded one Joseph Dionysius to go to Syria and
get himself ordained as Malankara Metropolitan. In 1865
Joseph Dionysius was ordained as the popular feeling was
that M. Athanasius was leaning towards protestainism. M.
Athanasius however refused to lay down the office. He
continued as metropolitan and towards the end of his life he
ordained his nephew or brother one Thomas Athanasius who on
death of his brother assumed the office.
This bitter strife between 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 that Thomas Athanasius was a nominee of
his brother and he had not been elected by the people. But
it, undoubtedly, shows that the spiritual domination was
still predominant. However, Thomas Athanasius challenged the
ordination by Patriarch and claimed equal status. This could
not have been agreed to by anyone as the spiritual faith in
the Patriarch prevented the people in Malabar to acknowledge
a person as Metropolitan who was not ordained either by the
Patriarch or his nominee. However, Thomas Athanasius
refused to hand over the property and Joseph Dionysius was
left with no option except to approach the court.
Thus commenced the third period. If the first two
periods were great for the growth and development of the
Church then the third described as the, `turbulent period'
is unique not for any development of religion, but for
providing stability to the Church by creating a Catholicate
of the East for India, Burma and Ceylon at Malankara and
adopting a Constitution for the administration of the
Church. The period unfortunately witnessed division amongst
followers of the Church who came to be known as the
`Patriarch' and the `Catholico', mainly because there was
disturbance in Antioch itself and two of the Patriarch
claimed to exercise the prerogative of being Patriarch of
Antioch at the same time. Within a span of fifty years, five
suits were filed, the first known as, `Seminary Suit', in
1879, the second as `Arthat case' in 1899, the third in 1913
which became famous as `Vattipanam case' the fourth in 1938
known as `Samudayam Suit' and fifth and last in 1974 giving
rise to these appeals. The first was filed by a Patriarch
ordained and duly elected Metropolitan at Mulanthuruthy
Synod for recovery of property against nominated
Metropolitan, whereas the second was filed for enforcement
of the order passed in earlier suit as some of the parishes
were denying the authority of the Metropolitan to exercise
spiritual and temporal control over them. The third was an
interpleader suit by Secretary of State for India due to
formation of two groups laying rival claims against the
assets. All the three suits were decided in favour of
Catholico group. Therefore, the fourth suit was filed by the
Patriarch group against Catholicos claiming that they had
become heretics and had separated from the Church. This too
was decided in favour of Catholicos. 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 Syrian
Orthodox in the Middle East.....The Syrian church in India
numbers 1.8 million and is divided into two jurisdictions.
The smaller of the two jurisdictional groups (with five
hundred thousand members and a dozen bishops) decided in the
1970s to revolt against the Indian catholicos and his synod,
forming a wing of the church directly administered by the
Syrian Patriarch in Damascus and with its own maphrian see.
The larger group, numbering about 1.3 million is an
autocephalous church in India under Moran Mar Baselius Mar
Thoma Mathews I, Catholicos of the East. This group has a
flourishing theological seminary and a number of ashrams and
monasteries, as well as hospitals, orphanages, schools, and
other institutions. Its members have established a diocese
in North America with about thirty congregations and a
bishop residing in Buffalo, New York. The Encyclopedia of
Religion, Volume 14 p. 228].
The `Seminary Suit' was filed in 1879 by Joseph
Dionysius against Mar Thomas Athanasius for recovery of the
property over which he had obtained possession in lieu of
the Quilon Committee report. It was contested by Thomas
Athanasius who denied the supremacy of the Patriarch. He
claimed that Patriarch could not claim as a matter of right
to have any control over the Jacobite Syrian Church in
Malabar either in temporal or spiritual matters although as
a high dignitary in the churches in the country where their
saviour was born and crucified the Malabar Syrian Christian
community did venerate the Patriarch. The final judgment in
the suit was given on 20th July 1889 by the Royal Court of
Final Appeal (Travancore). The decision went in favour of
Joseph Dionysius who was held entitled to recover the
properties of Malankara Church as he was the Malankara
Metropolitan accepted by the community. The judgment
explained the extent of the spiritual supremacy of the
Patriarch over the Malankara Church. It was held that
Patriarch right consisted in ordaining either directly or by
duly authorised delegates metropolitans from time to time,
to manage the spiritual matters of the local church, sending
Morone (holy oil) to be used in the churches for baptismal
and other purposes and in general supervision over the
spiritual government of the Malankara Church. But he was
held to have no authority over temporal matters. It was
held:
"the Patriarch's supremacy over
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 had no
interference with the internal
administration of the temporalities
of the Church in Travancore which,
in this respect has been an
independent Church."
[Emphasis supplied]
The concluion and finding of the court that the
Patriarch had no temporal and administrative control over
the churches was not accepted either by the Patriarch or the
Parishes. Some of the Parishes, therefore, denied the
authority of Dionysius which led to filling of suit in 1899
by t he Metropolitan against Parishes which, as stated,
became famous as 'Arthat Case. The suit was decreed in 1905
and the judgement of Rajah (Cochin) Court of Appeal
reiterated that the Patriarch of Antioch was the spiritual
head of Malankara See which included the church for which
suit had been filed and the churches and the properties were
bound by a trust in favour of those who worship God
according to faith, doctrine, disciple of Jacobite Syrian
Church in the communion of His Holiness the Patriarch of
Antioch. The Court held that the churches and properties
were, therefore, subject to spiritual, temporal and
ecclesiastical jurisdiction of the Dionysius the Malankara
Metropolitan'.
The effect of the two judgements of the Royal Court of
Final Appeal and Rajah of Cochin on one hand was to
recognise Dionysius as the validly elected Malankara
Metropolitan, which of course was in keeping with what the
Patriarch had decided when the meeting was held at
Mulunthuruthy and with this there was no grievance, and on
the other that Patriarch had no temporal power over the
Church which was not acceptable to him. He, therefore,
decided to come down to Malabar to influence the course of
events and get an assurance from different churches
accepting his superiority in temporal matters as well.
However, in 1905 dispute started between two persons one,
Abdul Messiah and other Abdulla-II over the right to be
Patriarch. Both of them were appointed by Firman of the
Suitan of Turkey.But the one issued in fovour of Abdul
Messiah had been withdrawn. In 1909 Joseph Dionysius died.
In his place one M.G. Dionysius was elected who had got
himself ordained by the Patriarch Abdulla-II in 1907. When
Abdulla-II came to Malabar with the object of claiming his
temporal authority over the Malankara Jacobite Syrian Church
and he convened a meeting at the old Seminary of Kottayam
and demanded acknowledgement of his temporal 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 Malabar in October
1911 and in 1912 issued a Kalpana branding Abdul Messiah and
M.G. Dionysius as "wolves" from whom the faithful should
entirely keep aloof.
Little did anyone, then, visualise that the very next
year which was to synchronise with visit of Abdul Messiah,
yet another Patriarch who had been disentitled by the Sultan
of Turkey, would so significantly change the history of
Malankara Church. Whether he was justified and more than
that entitled to declare the ex-communication of Dionysius
invalid and whether he could on his own issue a Kalpana
creating a Catholicate of East is now a matter of history as
its validity is beyond challenge since both the actions have
been upheld judicially and have achieved finality in Moran
Mar Basselios (supra). Abdul Messiah issued a Kalpana
beseeching everyone, that it was their duty, to respect Mar
Gheevarghese, and love him properly and suitably because he
was their head, shepherd and spiritual father. It was stated
that who respects him (respects us), he who receives him,
receives us. Those who do not accept his right words and
those who stand against his opinions which are in accordance
with the canon of the Church, defy him and quarrel with him
will become guilty. Keep aloof from quarrel and breach of
law. Grace and blessings from the Lord will come and abide
on them who obey. Another Kalpana was issued bestowing his
blessings second time and expressing deep grief at the
dissension shown by Effendi. It further said 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......... 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, in accordance 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 thngs
properly, and in conformity with Precedents with the advice
of the committee, presided over by Dionysius, Metropolitan
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 was authorised to draw up a
constitution of the Church. There was sharp reaction to it.
The delegate of Patriarch issued an order to the Catholic
Metropolitan to execute Udampad within two days. When
nothing came out of it, 18 persons belonging to patriarch
group filed suit against Mar Philexinos. a person who later
joined the Patriarch after 1958 and was largely responsible
for the disturbance of peace in 1965. The suit was dismissed
in default and the order remained unchanged as the revision
in the High Court was dismissed for non-prosecution. The
Catholico in the meantime went ahead and in a meeting held
on 26th December, 1934 at Kottayam adopted the draft
Constitution unanimously and elected the Malankara
Metropolitan. The Constitution while recognising that
Malankara Church was a division of orthodox church and
primacy of Patriarch of Antioch provided that the primacy of
the East was in Catholicos. Detailed provisions dealing with
powers of Metropolitan, Bishop, Parishes, etc. were made.
Probably as a counter to 1934 meeting of Catholico the
Patriarch group held meeting in August, 1935, elected one M.
Paulose Althanasius as Malankara Metropolitan and armed with
this they filed Suit No.111 of 1139, that is 10th March,
1938 in the District Court of Kottayam claiming that the
Catholico had become heretics and separated from the
Orthodox Syrian Church. The suit was dismissed in January,
1943. In 1946, appeal was allowed and the suit was decreed.
The defendants again applied for review which was dismissed
against which they preferred appeal under Article 136 of the
Constitution and in Moran Mar Basselios Catholicos & Anr.
vs. Most Rev. Mar Poulose Athanasius & Ors. AIR 1954 SC 526
the appeal was allowed. The judgement of the High Court was
set aside and the High Court was directed to admit the
review petition and re-heer the same. In December 1956 the
judges heard the appeal, delivered the unanimous judgement
allowing the appeal and decreeing the suit. Against the
decree the Catholico group preferred an appeal which was
decided in 1959 by this Court. Some of the Catholicos also
filed a writ petition under Article 32 of the Constitution
which was also decided along with the appeal. The Court
after elaborate discussion and noticing the earlier course
of litigation held that the claim of the other group that
the Catholicos had become heretics on aliens or had 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 Catholico party as they
were erroneously regarded as having gone out of the Church.
The Court did not find any merit in the Kalpana which was
Ex.Z in the suit commanding the faithful not to have
anything to do with the heretics. The court held that the
Catholicos and their partisans had not become, 'ipso facto'
heretics in the eye of the Civil Court or aliens and had not
gone out of the Church. The court held that the election of
the plaintiffs was not valid and their suit, in so far as it
was in the nature of a suit for ejectment was llable to fail
for want of their title as trustees. The Court further held
that since the interpleader suit was converted into a
representative suit on behalf of Jacobite Syrian Christian
population of Malabar, therefore, the decision in that suit
was binding on all members of the Malankara Syrian Christian
Community. Thereafter, it proceeded to examine as to what
were the material issues which were decided in that case and
which operated as res judicata. The four issues which were
framed in that suit and which were considered by the court
for purposes of deciding the question on res judicata read
as under:
14. Do all or any of the following
acts of the 1st defendant (catholico)
and his partisans amount to open
defiance of the authority of the
Patriarch? Are they against the tenets
of the Jacobite Syrian Church and do
they amount to heresy and render them
ipso facto heretics and aliens to the
faith?
(i) Claim that the 1st defendant is a
Catholicos?
(ii) Claim that he is the Malankara
Metropolitan?
(iii) Claim that the 1st defendant
has authority to consecrate Morone and
the fact that he is so consecrating?
(iv) Collection of Ressissa by the 1st
defendant?
15.(a) Have the 1st defendant and his
partisans voluntarily given up their
allegiance to and seceded from the
Ancient Jacobite Syrian Church?
(b) Have they established a new
Church styled the Malankara Orthodox
Syrian Church?
(c) Have they framed a constitution for
the new church conferring authority in
the Catholicos to consecrate Morone to
ordain the higher orders of the
ecclesiastical hierarchy, to issue
Staticons allocating Dioceses to the
Metropolitans and, to collect Ressissa?
(d) Do these functions and rights
appertain solely to the Patrirch and
does the assertion and claim of the
1st defendant to exercise these rights
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 reasoning
that the Court held :
"that the contentions put forward in
paragraphs 19 to 26 of the plaint in the
present suit on which issues Nos.14, 15,
16 and 19 have been raised were
directly and substantially in issue in
the interpleader suit (O.S.94 of 1088)
and had been decided by the Travancore
High Court on review in favour of Mar
Geevarghese Dionysius and his two
cotrustees (defendants 1 to 3 ) and
against defendants 4 to 6 . In short
the question whether Mar Geevarghese
Dionysius and his two co-trustees
(defendants 1 to 3) had become
heretics or aliens or had gone out
of the Church and, therefore, were
not qualified for acting trustees was
in issue in the interpleader suit
(O.S.No.94 of 1088) and it was
absolutely necessary to decide such
issue. That judgment decided that
neither (a) the repudiation of Abdulla
II, nor (b) acceptance of Abdul
Messiah who had ceased to be a
Patriarch, nor (c) acceptance of the
Catholicate with powers as hereinbefore
mentioned, nor (d) the reduction of
the power of the Patriarch to a
vanishing point, 'ipso facto'
constituted a heresy or amounted to
voluntary separation by setting up a
new Church and that being the position
those contentions cannot be re-agitated
in the present suit".
Thereafter the Court after discussing the matter in great
detail held as under :
"The case with which the plaintiffs
have come to court in the present suit
is that the defendants had become
heretics or aliens or had gone out
of the Church by establishing a new
church because of the specific acts and
conduct imputed to the defendants in
the present suit and that the charges
founded on those specific acts and
conduct are concluded by the final
judgment (Ex.256) of the High Court of
Travancore in the interpleader suit
(O.S.No.94 of 1088) which operates as
'res judicata'. The charge founded on
the fact of non-payment of Ressissa,
if it is not concluded as
constructive 'res judicata' by the
previous judgment must, on merits, and
for reasons already stated, be found
against the plaintiff-respondent. We are
definitely of the opinion that the
charges now sought to be relied upon as
a fresh cause of action are not covered
by the pleadings or the issues on which
the parties went to trial, that some of
them are pure after-thoughts and should
not now be permitted to be raised and
that at any rate most of them could
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 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 love the church and devout
of God desired peace and unity putting
an end to the dissention, 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 in the apostolic
proclamation we issued to you soon
after our ascension on the Throne. This
desire of ours gained strength with
all vigour day by day without in any
way slakened and the lord God has been
pleased to end the dissention through
us. Glory be to Him. To bring forth
peace in the Malankara church we hereby
accept with pleasure Mar Baselious
Gheevarghese as Catholicose. Therefore
we send our hearty greetings
intensified by the fervour of deace
in this month of rejoycing. We also
beseech, let the lord shower on you His
abundant blessings. Let the lord
make you a people beautified by
virtuous acts towards the right and
delight you with the comfort and
plenteousness flowing from the care
pleased to his Holy will to the envy
of others. Let it be with the grace and
mercy of Him, His father and His Holy
spirit.
Our father which art in the
heaven etc. etc. On the 9th December
1958, the 2nd year of our assension
as patriarch.
From the Aramana at Holms."
[Emphasis supplied]
The other letter was issued on 16th December 1958 marked as
Ex.A-20 by the Catholico group to the following effect :
"Glory to God united in the Trinity, the
self existing, perfect in essence and
without beginning or end. From the meek
Baselious Catholicose named as
Gheevarghese If seated on the Throne of
The East of Apostle St. Thomas.
Seal
Let divine grace and Apostolic
Benediction be always in abundance with
all the Melpattakkars (High
Priests). Priests, Deacons and all
the faithful under our
jurisdicition.
We have always been in grief on
account of the failure of the
efforts made by late Mar
Gheevarghese Dionisius and us to bring
forth peace in our church and end
quarrels and discord which were
existing in our church for long. We are
now very much delighted and do glorify
God in that there is an end to the
discord showing the willingness to
unite.
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 issued by the two. In a letter sent in August
1960 marked as Ex.A-26 after reiterating the stand which was
taken in earlier letters it concluded with these words :
"To conclude, I wish to state that
the prestige and influence of the
throne of Antioch here depend very
largely upon the wise co-operation of
Your Holiness. The Malankara Church with
its catholicate and synod of bishops
and the association has certainly to
adhere to the provisions of the
constitution and has to abide by the
Supreme Court decision. But that does
not mean any kind of disrespect or
hostility towards Antioch. There are
enough provisions in the constitution
to keep our connection Meeningful and
alive".
The relations thereafter appear to have become cordial so
much so that in 1961 Ex.A-30 was written by Petriarch Yakub-
III in which it was mentioned,
"I am placing your Beatitude's photo
properly in our place so that all
people who are in and out should see
itand understand the intimate unity
and real re-conciliation and the
essential relationship between the
Apostolic Throne and our church in
Malankara ............. we are eager
tosee perfect peace in our church in
Malankara. We hope that all the
disputes will be over and the church
go ahead powerfully in the path of
light, prosperity and progress during
your Beatitude's old age itself.
Please convey our Apostolic
Blessings to all our spiritual children
both priests and faithfuls who are under
your authority."
But from letter dated 18th January 1962 sent by Baselius
Geevarghese II, Catholicos of the East, it appears some
local dispute had surfaced again. Allegations were made
against one Mar Philixenos and the same person about whom
reference has been made earlier and who in fact was
responsible for dissension once again and it was stated,
they profess outwardly to be pro-Antioch, but really they
are anti Patriarchal as well as anti- Catholicate. Now since
at this time I am in my declining age I think it appropriate
to invite your Holiness be pleased to visit us at your
earliest convenience and bless us by your presence as well
as prayers'. It appears Mar Baselius Geevarghese died in
January 1964 and the members of the Holy Episcopal Synod
installed one Ougen Mar Themotheus, Metropolitan as his
successor as his election by the Malankara Association on
17th May 1962 was approved by the Holy Synod on 21st March
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 filed. Eight
of which covering entire issues were consolidated and tried
together.
This completes the factual narration and the background
in which the suits out of which these appeals have arisen
came to be filed. Although both the parties have furnished
in great detail the events which took place after the
judgment was delivered in 1959, but it appears unnecessary
to mention each of them, except to observe that a mere look
on these dated indicates that initially there was an anxiety
for peace and reconciliation by both groups which was shaken
by pinpricks here and there and was finally thrown to winds
between 1970-75. Religious cover was again put forward to
gain control over temporal affairs resulting in setting in
motion the same old tortuous process of litigation. In the
first part beginning from December, 1958 a meeting of the
Malankara Association was held in which almost all the
Churches participated, irrespective of the faction. The
meeting was attended even by the elected priest-trustee and
the lay trustee and the delegate of the Patriarch as a
special invitee. In January, 1959 the Patriarch Group
submitted a memorandum to the Catholicos seeking among other
things reconstitution of the Managing Committee of the
Malankara Association which was considered in a Synod held
on 21st February, 1959 and pursuant to the decision taken
therein, dioceses were re-allotted. From the year 1959 to
1964 number of meetings were held in which both the groups
participated and attempted to function as one unit. From
1960 to 1962 there are various letters, for instance Exhts.
A-28, A-29, A-30, A-31 and A-39 which indicate cordial
relationship between the Patriarch and Catholico. Even in
1964 when Mar Ougen I was installed by the Malankara
Episcopal Synod, the Patriarch himself presided in the
ceremony. In a meeting held in December, 1965 Malankara
Association elected five candidates for ordination as
Bishops and elected members to the Managing Committee which
included members of the Patriarch group as well. In 1967 the
Constitution was amended in consequence of meeting in which
both the groups deliberated.
From June 1970 started the second part which was in
contrast of the earlier. In June 1970 the dispute about use
of expression `Holiness' and 'The Throne of St. Thomas' was
again questioned followed by sending a delegate in 1972
which was objected to 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 the Catholicos if he was
willing to submit to the decision of the alleged universal
Synod. On 21st August 1975 the Patriarch by Kalpana Ex.B-72
excommunicated Catholicos and on 7th September 1975
installed at Damascus Mar Paulose Philexinos (who had
earlier been deposed by the Malankara Episcopal synod for
proved ecclesiastical indiscipline) as a Catholicos in the
name of Baselius Paulose II.
Out of these suits eight covering all the issues were
transferred to the High Court. The Single Judge even while
accepting the Constitution as valid held that it was not
binding on the Churches and Parishioners unless there was
express surrender. The Court held that they had no concern
with those Churches which continued with Patriarch of
Antioch. The learned Single Judge held that the Malankara
Church was Episcopal to a limit in spiritual affairs. In
matters of temporalities, the Church was congregational. It
was further held that the Parish Churches were independent
autonomous units as far as governance and administration of
temporalities were concerned. The suits were dismissed. In
appeal, the Bench framed as many as 31 questions to cover
the wide range of controversy raised before it, reversed the
decision of the learned Single Judge and decreed the suit,
except in relation to Churches known as 'Simhasna Churches'
and the Churches established by the Evangelistic
Association. Relevant findings on the questions framed by it
are extracted below. The first three questions related to
the validity of the Cannon.
They read as under:-
"(1) Whether Ext. A90 or Ext. B161
is the correct version of Hudaya
Canons accepted by the Malankara
Jacobite Syrian Community as valid and
binding?
(2) Are the plaintiffs barred by
resjudicata from contending that the
binding version of Hudaya canons is Ext.
A90 by reason of the judgment in XLI
T.L.R. 1. order in the Review Petition
and the judgment in 45 T.L.R. 156?
(3) Are the defendants barred by res
judicata from contending that the
binding version of Hudaya Canons is not
Ext. B161 by reason of the decision in
the Samudayam suit?"
The answer given by it was that the decision in 41 TLR 1,
Exhibit 18 therein, and (Ext. 3p in the Samudayam suit and
Exht. B-161 in these cases) is the version of the Hudaya
Canons accepted as binding on the Malankara Church has not
become concluded and does not operate as res judicata
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 Exht. A14
with powers as provided therein was valid and binding on the
Malankara Church, that by such establishment Patriarch has
not been deprived of his powers to ordain Metropolitans or
consecrate Morone or to exercise any other recognised
spiritual power, though the power to ordain Metropolitans is
subject to acceptance of the Malankara community represented
by the Association and that by the establishment of the
Catholicate spiritual power of the Patriarch has not been
reduced to a vanishing point, though the Patriarch could not
be regarded as having active spiritual supremacy.
The Question Nos. 7 to 15 related to the Constitution
of 1934 and status of Parish Churches. They were answered as
follows:-
"(a) 1934 Constitution is valid and
binding on the Malankara Association,
Community, Dioceses as well as parish
churches and parishioners.
(b) Parish churches are not
congregational or independent, but are
constituent units of Malankara church;
they have fair degree of autonomy
subject to the supervisory powers
vesting in the Managing Committee of
the Malankara Association, Catholicos
and the Malankara Metropolitan as the
case may be. Administration of the day-
to-day affairs of parish churches
vests in parish assembly and
elected committees of the parishes.
(c) Malankara church is not
purely episcopal but has only some
episcopal characteristics.
(d) Malankara Association is a
representative body which has right to
bind the Malankara church, the
community, parishes and parishioners by
its deliberations and actions.
The most sensitive issue which has been subject of great
debate in this Court was posed as Question No.18,
"Has the Malankara Church become an autocephalous
church?
and it was answered against the respondent by recording the
finding:-
"We, therefore, hold that the
Malankara Church is not an autocephalous
church but is a part or division of the
world Orthodox Syrian Church and set
aside the finding of learned single
judge that the Catholicos group has
now established an autoceohalous
church. We hold that while Patriarch
of Antioch is the head of the World
Orthodox Syrian church Catholicos of
the East who is subject to the
Constitution is head of the
Malankara Church and the relationship
between Patriarchate and the Malankara
Church is governed by the provisions of
the Constitution."
This was the 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 understanding and respect for each other,
with utmost congenial coolness and exemplary precision and
clarity. To support their respective claims, the learned
counsel for both the parties advanced extensive arguments
covering wide range of various aspects ranging from
maintainability of the suit, jurisdiction of the civil
courts to entertain religious disputes, misjoinder and non-
joinder of the parties, intricate questions of res judicata,
religious nature of the Trust and even religious matters,
such as whether the Catholicate of the East is entitled to
be addressed as 'Holiness' sitting on the 'Throne of St.
Thomas'. It is proposed to deal with the preliminary
objections both to the maintainability of the suit under
Section 9 of the Civil Procedure Code and the non-
maintainability due to enactment of the Places of Worship
(Special Provisions) Act, 1991 as if any of these is
accepted then no further controversy would arise.
Thereafter, what shall be examined is whether the claim of
the appellant that they had ex-communicated the respondent
in accordance with Hudaya Canon governing the Church is well
founded as if even this plea is accepted, then no other
issue shall survive. If the answer is in favour of the
respondents, then it shall have to be decided, how far the
dispute between parties has been settled by earlier
decisions and what was the scope of Samudayam Suit and the
finality arising out of it. Ancillary to this would be the
question whether Catholicate of the East was established in
Malankara in the year 1912 and whether it has been validly
established, if so, what is its binding effect.
To begin with the objection to the maintainability of
the suit under Section 9 of the Civil Procedure Code was
probably not raised in 1954 and 1959 and if raised was not
pressed. But that by itself may not preclude defendant-
appellant from raising it, even in this Court as the bar or
lack of jurisdiction can be entertained, at any stage, since
an order or decree passed without jurisdiction is non est in
law. What then is the scope of the Section? Does it
comprehend suits for declaration that the Syrian Churches
are episcopal? Could the respondent-plaintiff claim
declaration that Malankara Association had become
autocephalous and no priest could refuse to recognise the
authority of the Catholico? Could the plaintiff seek
injunction, restra in the priests or 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 cognisable unless it is barred, 'there is an
inherent right in every person to bring a suit of a civil
nature and unless the suit is barred by statute one may, at
one's peril, bring a suit of one's choice. It is no answer
to a suit, howsoever frivolous the claim, that the law
confers no such right to sue' Smt. Ganga Bai vs. Vijay Kumar
& Ors., AIR 1974 SC 1126. The expansive nature of the
Section is demonstrated by use of phraseology both positive
and negative. The earlier part opens the door widely and
latter debars entry to only those which are expressly or
impliedly barred. The two explanations, one existing from
inception and latter added in 1976 bring out clearly the
legislative intention of extending operation of the Section
to such religious matters where right to property or office
is involved irrespective of whether any fee is attached to
the office or not. The language used is simple but explicit
and clear. It is structured on the basic principle of a
civilised jurisprudence that absence of machinery for
enforcement of right renders it nugatory. The heading which
is normally key to the Section brings out unequivocally that
all civil suits are cognizable unless barred. What is meant
by it is explained further by widening the ambit of the
Section by use of the word `shall' and the expression, `all
suits of a civil nature' unless `expressly of impliedly
barred'.
Each word and expression casts an obligation on the
court to exercise jurisdiction for enforcement of right. The
word `shall' makes it mandatory. No court can refuse to
entertain a suit if it is of description mentioned in the
Section. That is amplified by use of `expression, `all suits
of civil nature'. The word `civil' according to dictionary
means, `relating to the citizen as an individual; civil
rights'. In Black's Legal Dictionary it is defined as,
`relating to provide rights and remedies sought by civil
actions as contrasted with criminal proceedings'. In law it
is understood as an antonym of criminal. Historically the
two broad classifications were civil and criminal. Revenue,
tax and company etc, were added to it later. But they too
pertain to the larger family of `civil'. There is thus no
doubt about the width of the word `civil'. Its width has
been stretched further by using the word `nature' along with
it. That is even those 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 as, `the fundamental qualities of
a person or thing; identity or essential character; sort;
kind; character'. It is thus wider in content. The word
`civil nature'is wider than the word `civil proceeding'. The
Section would, therefore, be available in every case where
the dispute has the characteristic of affecting one's rights
which are not only civil but of civil nature.
Are religious rights, for instance right to worship in
a religious place, entry in a temple, administration of
religious shrines for instance a temple, mosque or a church
are rights of civil nature? Is the suit filed by the
respondent bad as the declaration, injunction and
prohibition sought are in respect of matters which are not
civil in nature? The answer is given by Explanation I. The
Civil Procedure Code was enacted during British period. The
legislature enacting the law was aware that there were no
ecclesiastical courts either in ancient or Medieval India as
in England. `The term "ecclesiastical law" may be used both
in a general and in a technical sense. In its general sense
it means the law relating to any matter concerning the
Church of England administered and enforced in any court; in
its technical sense it means the law administered by
ecclesiastical courts and persons' [Halsbury's Laws of
England Vol. 14 para 137]. `The ecclesiastical law of
England is as much the law of the land as any other part of
the law' [Halsbury's Laws of England Vol.14 para 139]. There
was no such law in our country. The ecclesiastical courts
are peculiar to England. The Parliament was aware of it.
That is why it added Explanation I to Section 9 of the Civil
Procedure Code. It obviates any ambiguity by making it clear
that where even right to an office is contested then it
would be a suit of a civil nature even though that right may
entirely depend on the decision of a question as to
religious rites or ceremonies. Explanation II widens it
further to even those offices to which no fees are attached.
Therefore, it was visualised from the inception that a suit
in which the right to property or religious office was
involved it would be a suit of civil nature. Reason for this
is both historical and legal. In England ecclesiastical law
was accepted as a part of the common law binding on all.
But, `the introduction of English Law into a colony does not
carry with it English 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
the Muhammadan Ecclesiastical Law, it
is to my mind the duty of this
Court, and of all Courts subordinate
to it, to take judicial notice of such
law".
There are numerous authorities where dispute about entry in
the temple, right to worship, performing certain rituals
have been taken cognizance of and decided by civil courts.
In Narasimma Chariar & Ors. vs. Sri Kristna Tata Chariar 6
Mad. H.C. Reports 449 it was claimed by the plaintiff that
they had the exclusive rights to Adhyapaka Mirass of
reciting certain texts or chants in a temple. In that suit
it was held:
"The claim is for a specific
pecuniary benefit to which plaintiffs
declare themselves entitled on condition
of reciting certain hymns.
There can exist no doubt
that the right to such benefits is a
question which the Courts are bound to
entertain, and cannot cease to be such
a question, because claimed on account
of some service connected with religion.
If, to determine the right to
such pecuniary benefit, it becomes
necessary to determine incidentally the
right to perform certain religious
services, we know of no principle which
would exonerate the Court from
considering and deciding the point".
It was approved by the Privy Council in Krishname & Ors. vs.
Krishnasamy & Ors. 1879 ILR 2 Mad. 62 and the passage
extracted above was approved by observing that it was
"perfectly correct". This was a decision when Explanation II
was not there. The dispute had two rounds of litigation. In
the second round after remand the High Court observed.
"It is certainly not the duty of
the Civil Court to pronounce on the
truth of religious tenets nor to
regulate religious ceremony; but, in
protecting persons in the enjoyment of
a certain status or property, it
may incidentally become the duty of the
Civil Court to determine what are the
accepted tenets of the followers of a
creed and what is the usage they have
accepted as established for the
regulation of their rights interse."
The Law Commission in its 27th Report in Civil Procedure
Code, December 1964 at page 91 while considering the
addition of Explanation II to Section 9 observed as under:
"It may be added, that the
decision of the Privy Council to the
effect that a suit for pecuniary
benefits is a civil suit, even if it
becomes necessary to determine a right
to perform religious services, does
not imply that other suits 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. AIR 1921 Calcutta 328 it was
held:
"Where there were no
Ecclesiastical Courts, there was nothing
to prevent civil courts from holding
that Pujari has been removed from his
office on valid grounds."
Sir Ashutosh Mookerjee quoted thus:
"There is manifestly nothing
wrong in principle that the holder of
a spiritual office should be subject to
discipline and should be liable to
deprivation for what may be called
misconduct from an ecclesiastical point
of view or for flagrant and continued
neglect of duty..... It is plain that
although so far as Hindus are
concerned, there is now no State Church
and no ecclesiastical court, there
is nothing to prevent civil courts
from determining questions such as
those raised in the present litigation
and from holding that the Pujari has
been removed from his office on valid
grounds."
In U.W. Baya vs. U. Zaw Ta. AIR 1914 Lower Burma 178 (1)
where a question arose as to which was the forum where an
action for violation of religious rights could be brought,
it was held,
"there are, therefore, no
ecclessiastical authorities in Lower
Burma. Section 9, Civil P.C. enacts
that the courts shall subject to the
provisions herein contained, have
jurisdiction to try all suits of a
civil nature excepting suits of which
the cognizance is either expressly or
impliedly barred. This is a suit of a
civil nature. It is a claim of certain
lands and manuscripts.
The civil courts, in our
opinion, clearly have jurisdiction to
decide the suit and should do so".
In Sri Sinha Ramanuja Jeer & Ors. v. Sri Ranga Ramanuja Jeer
& Anr. (1962) 2 SCR 509 this Court observed:
"prima facie suits raising
questions of religious rites and
ceremonies only are not maintainable
in a civil Court, for they do not deal
with legal rights of parties. But the
explanation to the section accepting
the said undoubted position says that
a suit in which the right to property
or to an office is contested is a
suit of civil nature notwithstanding
that such right may depend entirely on
the decision of a question as to
religious rites or ceremonies. It
implies two things, namely, (i) a suit
for an office is a suit of a civil
nature; and (ii) it does not cease to
be one even if the said right depends
entirely upon a decision of a question
as to the religious rites or
ceremonies."
In Ugamsingh & Mishrimal vs. Kesrimal & Ors., 1971 (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., whether it was autocephalous
was solely dependent upon the canonical laws and it
necessarily involved an adjudication of what was the
applicable canon, what was its interpretation and what are
the religious beliefs, practices, customs and usage in the
church which pertained to the ecclesiastical jurisdiction
and the civil courts could not embark on such an enquiry.
This is the farthest or the highest stand that could be
taken by the appellant. The answer is twofold, one section 9
of the Civil Procedure Code and other Article 25 of the
Constitution. The latter guarntees constitutionally freedom
of conscience and the right freely to profess, practice and
propagate religion to every person. Its reach has been
explained in various decisions. In His Holiness Srimad
Perarulala Ethiraja Ramanuja Jeeyar Swami etc. vs. The State
of Tamil Nadu. AIR 1972 SC 1586 it was held that this
Article guarantees freedom to practice rituals and
ceremonies which are integral parts of a religion by the
followers of a doctrine. In S.P. Mittal vs. Union of India &
Ors. AIR 1983 SC 1, it was held that freedom or right
involving the conscience must naturally receive a wide
interpretation. The suit filed was thus maintainable. The
injunction and prohibition sought from interfering in
administration of Church are certainly matters which pertain
to the religious office. Even the declaration that the
Church is episcopal is covered in the expansive expression
of religion as explained in Mittal's case (supra). The word
'episcopal, means' of or pertaining to bishops, Having a
govt. vested in bishop'. A suit for declaration of such a
right would be maintainable under section 9. Not only
because it is claim to an office but also because there is
no other forum where such dispute can be resolved. If a
dispute arises whether a particular religious shrine has
ceased to be so due to its anti-religion activities then the
followers of that religion or belief and faith cannot be
denied the right to approach the court. Explanation I is not
restrictive of the right or matters pertaining to religion.
It only removes the doubt to enable the courts to entertain
suits where dispute about religious office is incolved. The
right to religion having become fundamental right, it would
include the right to seek declaration that the Church was
Episcopal. But the court may refrain from adjudicating upon
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 according to tenets observed by
the Digambri Sect of the Jain religion. It was held that
from the pleadings and the controversy between the parties
it was clear that the issue was not one which was confined
merely to rites and rituals but one which effected the
rights of worship. If the Digambaries have a right to
worship at the temple, the attempt of the Swetamberies to
put Chakshus or to place Dhawandand or Kalash in accordance
with their things and to claim that the idol is a Swetamberi
idol was to preclude the Digambaeries from exercising their
right to worship at the temple, with respect to which a
civil suit is maintainable under Section 9 of the Civil
Procedure Code. The scope of the Section was thus expanded
to include even right to worship.
'Religion is the belief which binds spiritual nature of
men to super-natural being'. It includes worship, belief,
faith, devotion etc. and extends to rituals. Religious right
is the right of a person believing in a particular faith to
practice it, preach it and profess it. It is civil in
nature. The dispute about the religious office is a civil
dispute as it involves disputes relating to rights which may
be religious in nature but are civil in consequence. Civil
wrong is explained by Salmond as a private wrong. He has
extracted Blackstone who has described private wrongs as,
'infringement or privation of the private or civil rights
belonging to individuals, considered as individuals, and are
thereupon frequently termed civil injuries'. Any
infringement with a right as a member of any religious order
is violative of civil wrong. This is the letter and spirit
of Explanation I to Section 9. In American Jurisprudence
volume 66, paragraph 45, the law is explained thus.
'The (the) civil courts have
steadily asserted their want of
jurisdiction to hear and determine
any controversy relating thereto. On
the other hand, the civil courts have
without hesitation exercised their
jurisdiction to protect the
temporalities of such bodies, for
whenever rights of property are
invaded, the law must interpose
equally in those instances where the
dispute is as to church property and in
those where it is not'.
In Long vs.Bishop of Capetown, 1863 (1) Moore PCC NS 411,
where the Bishop held an ecclesiastical court for proceeding
against the appellant who was authorised to perform
ecclesiastical duties in a Parish 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 Daji Charya & Ors. ILR 7 Bombay 323 where certain
persons brought a suit that their right of worship in the
sanctuary for a temple was being infringed, it was held that
the right of exclusive worship of an idol at particular
place set up by a caste was civil right.
The law being such it may be seen whether the suit
filed by the respondent is covered within the forecorners of
Section 9. Whether the relief sought by the respondent was
regarding the status or office of the Metropolitan? In
Original Suit No.4 of 1979 it is claimed that various
persons said to be ordained as metropolitans have no right
to act as such and priest ordained in turn by them would
equally have no right to act as such, all these being
usurpers. Further the office of metropolitan in the
Malankara Church has, with it, attached legal obligations
for the non-performance of which sanctions or penalties are
provided is clear both from the canonical law as well as the
Constitution. Apart from this four suits, namely, Original
Suit Nos.2/79, 5/79, 6/79 and 8/79 concern themselves solely
with the interference in the administration of Church
properties being scheduled specifically in the respective
plaints. Similarly the claim founded on allegations against
wrong persons exercising the functions by those who have
been wrongly designated as metropolitans and are interfering
with the right to worship in Churches appears to be squarely
covered in Section 9. The prayers in Original Suit No.4/79
were 'A' to 'H'. Even if the prayer 'A' which seeks a
declaration that Malankara Church is episcopal in character
ignored the suit for reliefs 'E','F', 'G' and 'H' which read
as under cannot be held to be touching only religious rites
and therefore, are not cognisable by Civil Court:
"E.To declare that any Priest
who refuses to recognize the
authority of the Catholicos and
Malankara Metropolitan, the 2nd
plaintiff and other Metropolitans
under him is not entitled to minister in
any of the churches or its institutions
in Malankara.
F. To prohibit defendants 1 to 3
by an order or permanent injunction
from ordaining Priests or deacons or
performing any other sacraments,
services etc. for the Malankara
church or its institutions.
G. To prohibit defendants 4
onwards from performing any religious
services a 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 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 matters of
religion and since Articles 25 and 26 of the Constitution
protect not merely religious, doctrine and beliefs but also
acts done in pursuance of religion and themselves carrying
the rituals and observations, ceremonies and right of
worship which are integral part of religion it is difficult
to agree that there was no forum for vindication of such
right.
Even the argument that the declaration that the Church
was autocephalous or Episcopal is cognisable only in the
ecclesiastical jurisdiction and the civil courts could not
embark on such an enquiry does not appear to be well
founded. A civil court may be precluded from deciding what
rites are necessary to impart religious character. For
instance, whether kaivapu, that is placing of the hand by
the spiritual head for ordination is necessary or Morone,
that is, oil of see must be there may be a matter for the
Synod. But who has a right to perform it or whether it has
been performed as provided in the religious book and whether
a Church has become autocephalous due to adoption of
Constitution by a Synod are matters which can surely and
certainly be decided by the courts. The learned counsel
submitted that question whether the Malankara Church was
governed in its administration by the Constitution of
Malankara Church with reference to the Constitution passed
in M.D. Seminary meeting in 1934, which dealt with religious
and ecclesiastical aspects of the Church, could not be
adjudicated upon by the civil courts. According to learned
counsel the Constitution expressly adopted the Catholico
version of the canon and made provisions in regard to
ordination of priecs, bishops, Catholicos andthe discipline
to which they were subjected, these were mere matters of
religious rites and ceremonies and involved an adjudiction
of the question of religious faith, creed and doctrine which
would be wholly outside the scope of the civil courts. The
learned counsel submitted that the single most important
question on which the fate of these appeals and suits would
turn was as to which was the correct version of the canon
applicable to Malankara Church and this was a matter which
entirely depended on questions relating to the religious
faith, doctrine and belief. It was also emphasised that the
various decisions given by this Court, namely, Sardar Syedna
Tahar Saifuddin Saheb vs. The State of Bombay, 1962 Supp. 2
SCR 496; 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 passages have no relevance
to a sovereign secular country like India. The learned
counsel pointed out that the decisions in Long (supra) and
Dame (supra) arose in different colonies which accepted the
supremacy of the Crown in ecclesiastical matters and apart
from the regular hierarchical set up in the Anglican
Churches or the Churches in the colonies the civil courts
also exercised jurisdiction. These decisions arising from
jurisdictions where Church was part of the State could not
apply in a country like India where religious neutrality was
mandated by the secular constitution. In the end the learned
counsel promitted that the judiciary should keep its hands
off in respect of such religious matters.
The submissions do not appear to stand the test in
light of what has been stated earlier. The relevant passage
from Halsbury's Laws of England have already been extracted
to demonstrate that the ecclesiastical law of England does
not apply to colonies. There is no statute framed even
during British regime which had adopted the statutory or
common law to the Churches in India. The mere fact that the
Churches in England are governed by ecclesiastical law could
by no stretch of imagination furnish foundation for the
submission that the Churches in India would also be governed
by ecclesiastical law. The jurisdiction of courts depends
either on statute or on common law. The jurisdiction is
always local and in absence of any statutory provision the
cognizance of such dispute has to be taken either by a
hierarchy of ecclesiastical courts established in the
country where the religious institutions are situated or by
a statutory law framed by the Parliament. Admittedly no law
in respect of Christain Churches has been framed, therefore,
there is no statutory law. Consequently any dispute in
respect of religious office in respect of Christians is also
cognisable by the civil court. The submission that the
Christians stand on a different footing than Hindus and
Budhists, need not be discussed or elaborated. Suffice it to
say that religion of Christians, Hindus, Muslims, Sikhs,
Budhs, Jains or Parsee may be different but they are all
citizens of one country which provides one and only one
forum that is the civil court for adjudication of their
rights, civil or of civil nature.
In reading Section 9 widely and construing it
expansively the jurisdiction to entertain a suit 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 the
constitution is incapable of enforcement as there is no
court which can take cognisance of it. There is yet another
aspect of the matters that Section 9 debars only those suits
which are expressly or impliedly barred. No such statutory
bar could be pointed out. Therefore, the objection that the
suit under Section 9 C.P.C. was not maintainable cannot be
accepted.
The other objection to the maintainability of the suit
was based on the Places of Worship (Special Provisions) Act,
1991 (`Act' for short). This Act was enacted to prohibit
conversion of any place of worship and to provide for the
maintenance of its religious character as it existed on the
15th day of August, 1947 and for matters connected therewith
or incidental thereto. Section 2(c) defines `worship' to
mean `a temple, mosque, gurudwara, church, monastery or any
other place of public religious worship of any religious
denomination or any section thereof, by whatever name
called'. Section 3 bars any person from converting any place
of worship or any religious denomination into a place of
worship of a different section of the same religious
denomination or of a different religious denomination or any
section thereof. Section 4 declares that the religious
character of a place of worship existing on 15th day of
August, 1947 shall continue to be same as it existed on that
date. Therefore, it was urged that the suit having been
filed for declaration that the Syrian Churches were
apostolic and autocephalous, it amounted to seeking a
declaration as to religious character of the places of
worship and consequently it was barred and the court cannot
assume jurisdiction to grant such declaration. The learned
counsel urged that each Parish Church is a place of worship
within the meaning of Section 2(c) of the Act and the
religious denomination is the Jacobite Syrian Orthodox
Church in Malabar. According to learned counsel, it having
been held in successive decisions that there were two
sections of the said religious denomination, one, the
Patriarch Group and the other, Catholicos and these two
denominations existed on 15th day of August, 1947, factually
and legally, the suit filed by the respondents for a
declaration that the Jacobite Church was autocephalous was
not maintainable and liable to be dismissed on this ground
alone. The learned counsel submitted that the Parish
Churches believed in 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 before such commencement
by acquiescence;
(e) any conversion of any such
place effected before such
commencement which is not liable
to be challenged in any court,
tribunal or other authority being barred
by limitation under any law for the
time being in force".
The Syrian Jacobite Church is an ancient and historical
monument which was established sometime in 51-52 century
A.D. The respondents did not seek a declaration for
conversion of the church or place of worship. The matter of
the religious denomination was settled as far back as 1876
in the Mulunthuruthy Synod. Even the declaration sought that
the Church is autocephalous is founded on the Kalpana issued
in 1912 and the Constitution framed in 1934. No declaration
is sought for change of the place as it existed in 1947.
Further, whether the declaration sought for can be granted
or not is a different matter than claiming that the
declaration if granted would result in converting the place
of worship or the religious denomination. This objection,
too, therefore, is not available on facts of this case.
Reverting to merits the principal issue that calls for
adjudication is about the scope of excommunication in
ecclesiastical matters and the extent to which the Court can
examine it and lastly whether the ex-communication of the
Catholico by the Synod held at Damascus under the
Presidentship of the Patriarch of Antioch was valid either
canonically or conventionally? The principal defence in the
suit from which these appeals have arisen, was that the
Catholico-plaintiffs were ex-communicated, therefore, the
suits were liable to be dismissed. Two questions arise, one,
the jurisdiction of the civil court to examine ex-
communication and second, whether the ex-communication was
in accordance with law. Taking up the first question as to
whether the civil courts are competent to decide on the
validity of the ex-communication, the answer, in this
connection, has been given while deciding the objection of
maintainability of the suit under Section 9 CPC. Yet it
would not be inappropriate to mention how far the protection
of a civil court extends regarding the ecclesiastical
matters. The law has been explained in paragraphs 315, 332
and 337 of Halsbury's Laws of England, Vol. 14. A church is
formed by the voluntary association of individuals. And the
churches in the commonwealth are voluntary body organised 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 rights in any matter of
mixed spiritual and temporal character the courts of law
will, on due complaint being made, inquire into the laws and
rules of the tribunal or authority which has inflicted the
injury and will ascertain whether any sentence pronounced
was regularly pronounced by competent authority, and will
give such redress as justice demands. See Long (supra), Dame
(supra) and Anadrav (supra). In Hasanali & Ors. vs.
Mansoorali & Ors., AIR (35) 1948 PC 66, it was held that a
court of law cannot recognise a purported ex-communication
as valid if principles of substantial justice have not been
complied with.
Ex-communication in religious order and that tco of a
spiritual head entails serious consequences both religious
and civil.'Ex-communication' is defined in Black's Law
Dictionary as 'a sentence of censure pronounced by one of
the spiritual courts for offences falling under the
ecclesiastical cognizance. It is described as two-fold: (1)
The lesser excommunication, which is an ecclesiastical
censure, excluding the party from the sacraments; (2) the
greater, which excludes him from the company of all
Christians. Formerly, too, an excommunicated man was under
various civil disabilities. He could not serve upon juries,
or be a witness in any court; neither could he bring an
action to recover lands or money due to him. These penalties
were abolished in England by St. 53 Geo. III, c. 127.
Excommunication is still a censure under Canon Law". In
Faiths of the World by James Gardner, it is discussed under
'Anathema' and 'Censure'. The Anathema was usually
administered to offenders. 'It is well known that a solemn
Curse or anathema "with bell, book, and candle" against all
heretics, is annually pronounced by the pope at Rome, and by
other ecclesiastics in other places on the Thursday of
Passion week, the day before Good Friday, the anniversary of
the Saviour's crucifixion". The substance of the
"Anathema"is in these words:
"Excommunicated and accursed may they
be, and given body and soul to the
devil. Cursed be they in cities, in
towns, in fields, in ways, in paths,
in houses, out of houses, and all
other Places, standing, lying, or
rising, walking running, waking,
sleeping, eating, drinking, and
whatsoever things they do besides. We
separate them from the threshold, and
from all prayers of the church."
'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 Catholico was validly ex-
communicated in accordance with the canon filed as Ex. 18,
which is the foundation of the power and jurisdiction of the
Patriarch. How far is correct? In Moran Mar Basselios
(supra) it was held that the Catholicos had not committed
any act of heresy. Could they be held to have committed act
of heresy when, then used the world 'Holiness' and on the
'Throne of St. Thomas'. From the New Testament - The Gospel
according to St. Mathew. Chapter 19 it appears there was
throne for each apostle:-
"Then answered Peter and said unto
him, Behold, we have foresaken all, and
followed thee; what shall we have
therefore?"
"And Jesus said unto them, verily
I say unto you, That ye which have
followed me, in the regeneration when
the son of, man shall sit in the
throne of his glory, ye also shall sit
upon twelve thrones, judging the twelve
tribes of Israel".
St. Thomas was, 'one of the original apostles of Jesus
Christ' [Religions of India by Dr. Karan Singh, P. 15]. In a
book written by E.M. Philip, one of the authors on Syrian
Church, the effect of the judgment by Royal Court of Appeal
is described thus, 'of course. the majority judgment
prevailed and Mar Dionysius was established on the throne of
St. Thomas'. The expression 'Melapattakaran of the throne in
Malayalam' has been used by Royal Court of Cochin in its
judgment thus,
"He upheld the contention of
Mar Thomas Athanasius, and found that
the Syrian Church was independent of
the Patriarch of Antioch. Of
course, the majority judgment
prevailed, and Mar Dionysius V. was
established on the throne of St.
Thomas".
In Exht. A-4 (Notice for M.D. Seminary Meeting of 1934)
issued to Vicars, Priests, Kykars and Parishioners, it was
mentioned:-
In the letter dated 8th June, 1959, Ex. A-24, the Catholic
in his reply to the Patriarch wrote as under:-
"3. His Holiness: The propriety of
using the title 'His Holiness' along
with my name is questioned. Now I must
bring to your notice that fact that
customarily the same ephithets have
been attached to the Patriarch and
the Catholicos in our church as
evinced by our Holy writs and other
books. For example, in the diptych
(first intercession of the Church,
during the Holy Qurbana, the people are
asked to pray for our Patriarchs Aboon
Mar Ignatius and Aboon Mar Baselios. The
very same 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 the ceremony of
enthronment is done over for Bishops.
Your Holiness knows that the
very eminent Syrian Historical writer
Gregories Bar Heoraous regards St.
Thomas, the apostle, as the first bishop
of the East. Let me also bring to
your notice that the Malankara
Church Historian, E.M. Philip who had
been a staunch partisan of the
Patriarch, refers to the throne of
St. Thomas, in his history of the
Malankara Syrian Church (2nd Edition
page 253). That being the case, can we
say that St. Thomas, one among the
twelve eminent apostles, had no throne
at all.
Your Holiness says 'Also we
could not find such a throne in the
document given by Abdul Messiah II'. I
am indeed happy that your Holiness
respects and depends upon the Kalpana
given by Abdul Messiah II. But it must
caution your Holiness that the Kalpana
you refer to may be the General
Kalpana that he issued just before he
left Malankara (1913). The earlier
Kalpana issued by him from Niranam
Church on the day he installed Mar
Ivanios of Murimattom as Catholicos, had
to be necessarily referred to. To
make things clear, I shall quote a
sentence from it. "According as you
requested we have consecrated our
spiritual and beloved Ivanious as
Mapriano under the name Baselios of the
East, on the throne of the Diocese of
St. Thomas in India and other places".
(1912). This is very definite and no one
could say that a throne like this was
a now find or one found without the
knowledge of the throne of Antioch".
This letter explained the justification for use of the
expression, 'Throne of St. Thomas' and 'Holiness'. Whatever
may be its religious significance but in view of what has
been stated above coupled with the conduct of the Patrirch
in not only condoning and accepting its use but even
presiding in the installation ceremony, it is difficult to
treat it as an act of heresy deserving ex-communication.
Apart from it, the four charges levied in the show-
cause notice were as under:-
(1) That the Catholicos claimed
to be seated on the Throne of St.
Thomas.
(ii) That he declared that he was
equal in status to the Patriarch
which was uncanonical as he was a
subordinate.
(iii) That he did not accept
the Patriarch delegate in India (sent
in 1972) and resorted by all means "to
send him off".
(iv) That at the time of
ordination of three Metropolitans in
1966 by the 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
Constitution which was framed in 1934 could not entail ex-
communication. The action of Patriarch in ex-communicating
the Catholico deprived him of the religious right guaranteed
to him under the Constitution, therefore, it had to be in
accordance with law. Even the meeting summoned at Damascus
being in violation of the Constitution of 1934 was invalid.
Therefore, the ex-communication of Catholicos was not in
accordance with law.
Was the ex-communication canonical? If the religion is
a bond uniting man to God then canon is a rule or decree, a
body of principles and standards the practice and observance
of which identifies the man with the religion. 'The identity
of the religious community described as church consist in
the identity of its doctrine, creeds, formularies, rituals
etc.' [Hidayatullah, J. in Ninal Daniel v. Most Rev. Ubanon
Marthoma, Metropolitan of Mar Thoma Church, and others,
Civil Appeal no.947 of 1964 decided on 7th January, 1965].
Canon is explained in Black's Law Dictionary as under:
"A law, rule or ordinance in
general, and of the church in
particular. An ecclesiastical law or
statute. A rule of doctrine or
discipline. A criterion or standard of
judgment. A body of principles,
standards, rules, or norms." Canon means
both a norm and attribute of the
scripture. The erm 'canon law' is
explained in The Encyclopedia of
Religion Vol. 3 as under:
"The term canon is based on the
Greek word Kanon. Originally signifying
a straight rod or bar, especially one
used to keep something else straight,
canon came to mean something that is
fixed, a rule or norm. The term
has several applications in church
usage: the canon of scripture, or
that fixed list of books that are
determined to belong to sacred
scripture; the canon of the Mass, the
fixed portion of the eucharistic
prayer; the process of declaring a
deceased person to be among the fixed
list of saints in heaven, or
canonization. From the third century,
directives for church living and norms
for church structures and procedures
have been issued as canons.
Canon law refers to the law
internal to the church. In the early
centuries of Christianity, canon was
used for internal church norms, to
distinguish them from the imperial nomos
(leges in Latin) or laws. Church norms
have also been known as sacred or
divine, to distinguish them from civil
or human laws. At 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 book
containing the Canons and procedure
necessary for the firmness in the
Orthodox faith is printed in Syriac
or Malayalam as per orders (of the
Holy father) and a copy with his seal
given to each church and decided that
future conduct shall not be except in
accordance with that."
The absence of any canon in such an old Church existing
since 51-52 Century A.D. with such extensive and widespread
following not only in this country but even others is a
tribute to the honest, firm and sincere belief in the Syrian
Church. Even without any written Code or rule their never
was any controversy over faith, practice, belief, rituals
etc. But what is surprising is that till the advent of late
19th and the beginning of 20th Century there was no
authentic publication of it. Consequently when the battle in
courts of law started between the two groups there appeared
two divergent versions differing on vital aspects. To add to
this the courts have not been consistent in accepting one or
the other version. More so because of the accusation of
interpolation and tampering. Even though the first occasion
to examine the canons arose in the appellate judgment of the
Royal Court, the scope was limited as to whether the
Patriarch alone had the power to consecrate Morone. The
authority to ex-communicate etc. in which the interpolation
is alleged was never examined. The decision, therefore,
cannot be taken to be as putting its seal of approval on the
authority of the canon produced on behalf of Patriarch of
Antioch. And when the power and jurisdiction to ex-
communicate in accordance with canon law was raised in the
interpleader suit (Vattipanam suit) both the sides came with
different versions, the one filed by Catholico was accepted
by the trial court whereas the High Court found the version
placed by the Patriarch as authentic. Both the judgments
abound in thorough and careful analysis of difficult
subject. The discussion is extensive and learned. But all
this labour was lost when the appeal in the High Court was
dismissed in consequence of the review judgment. It is true
that the Bench while admitting the review petition had
confined its scope but once it found that the
excommunication was invalid for violation of principles of
natural justice and question having been raised that the
ordination of defendant no.1 (that is catholico) as
Malankara Metropolitan was invalid he was 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 findings recorded on the authenticity of the canon
and the power of the Patriarch to ex-communicate without any
intervention by the Synod, the findings recorded on these
aspects were not destroyed in consequence of the order
passed on the review petition. The submission does not
appear to be correct either legally or factually. When a
reivew petition is entertained and notice is issued by a
court it is open to it to restrict the scope of hearing but
once the petition is heard and the court is satisfied that
the order under review was erroneous at the fact of it then
it is not precluded from allowing the petition was admitted
and the Catholicos were restricted from re-opening other
points, an application was filed on their behalf which was
rejected but while rejecting the application it was
observed, `if it is found that any of these questions is so
legally connected with the questions relating to natural
justice that the latter questions cannot be properly dealt
with without considering such excluded questions then for
this purpose and for this purpose alone the excluded
questions may be considered'. This observation of Chatfield,
J. was concurred by other judges also. And when the review
petition was heard on merits the court was of the opinion,
`these (These) orders did not prevent the defendants (that
is Patriarch) from relying on contentions not expressly
found in their favour in the original judgment and they have
in fact relied on the contentions previously set up by them
that the defendants 1 to 3 have become aliens to the faith
of Syrian Jacobite Church and for this reason alone are
capable of acting as trustees. The plaintiffs on the other
hand have failed to show that any of the questions which
have been declared to be excluded from consideration at the
re-hearing are inseparably connected with these questions
and thereupon in disposing of this appeal the excluded
questions will not be referred to'. It is thus clear that
the Bench heard the appeal not only on the questions on
which the review was entertained but even on other questions
as the questions of natural justice and apostacy were
closely connected with and could not be separated from the
issues which had earlier been closed. It was after these
observations that Justice Chatfield made the observations
which have been extracted earlier. To argue, therefore, that
the finding recorded in the 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 Trial Court ceases to have finality. In
Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the
Court while considering the expression, `heard and finally
decided' in Section 10 of the British Baluchistan Regulation
IX of 1896 held that where the suit was dismissed by two
courts on merits but the decree was maintained in second
appeal because the suit was not properly constituted then
the finality on merits stood destroyed. In Sheosagar Singh &
Ors. v. Sitaram Singh ILR 1897 Cal. Vol.XXIV where parentage
of defendant was decided in his favour by the Trial Court
but the High Court maintained the order as the suit was
defective the claim of the defendant in the latter suit that
the finding on parentage operated as res judicata was
repelled and it was held, that the question of parentage had
not been heard and finally decided in the suit of 1885. The
appeal in that suit had put an end to any finality in the
decision of the first Court, and had not led to a decision
on the merits.
The rationale of these decisions is founded on the
principle that if the suit was disposed of in appeal not on
merits but for want of jurisdiction or for being barred by
time or for being defectively constituted then the finality
of the findings recorded by the Trial Court on merits stands
destroyed as the suit having been found to be bad for
technical reasons it becomes operative from the date the
decision was given by the trial court thus rendering any
adjudication on merits impliedly unnecessary. On the same
rationale, once the Royal Court of Appeal allowed the Review
Petition and dismissed the appeal as the ex-communication of
Dionysius was contrary to principles of natural justice and
he had not become heretic then the finding on authenticity
of the canon etc. rendered in the original order was
rendered unnecessary. Therefore, the finding recorded on the
authenticity of the canon and power of the Patriarch etc.
recorded in the earlier order could not operate as res
judicate in subsequent proceedings.
Last but not the least reason to hold that the finding
in the Vattipanam Suit recorded by the High Court in its
original judgment on canon etc. could not operate as res
judicata is where a decree is one of dismissal in favour of
the defendants, but there is an adverse finding against him,
a plea of res judicata cannot be founded upon that decision
because the defendant having 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 judicata. The decision in Chockalingam Chetty (supra) is
an authority for the principle that where an appeal is filed
without impleading a defendant through whom other defendants
derived title then the decision in his favour operates as
res judicata between plaintiff and other defendants as well.
Similarly, in the decision of the Patna High Court in Arjun
Singh (supra) the primary question was whether a party
against whom a finding is recorded has got a right of appeal
even though the ultimate decision was in his favour and it
was held that there was no bar, but what was necessary was
that the finding so recorded should operate as res judicata.
On facts it was found that the Appellate Court while
maintaining the order of dismissal of the suit on
preliminary issue recorded findings on other issues which
were against the plaintiff, yet the plaintiff was not
entitled to file an appeal as the findings on merits which
were adverse to him could not operate as res judicata. In
Sham Nath's case (supra) the learned Single Judge rejected
the plea of res judicata raised on behalf of the plaintiff,
but while considering the alternative argument, observed
that an adverse finding recorded against a defendant in a
suit dismissed could not operate as res judicata unless the
adverse finding formed a fundamental part of the decree
itself. None of the decisions, therefore, are of any help to
the appellant. In any case the findings on cannon or power
of Patriarch which were the findings adverse to the
Catholico could not form fundamental part of the decree
itself, therefore, it could not operate as res judicata.
Truly speaking, the findings on the authenticity of the
canon and the power of Patriarch etc. recorded in the
earlier judgment and the finding on apostacy and breach of
natural justice recorded in the review judgment could not go
together. Otherwise in Moran Mar Bessilios (supra) it would
not have been possible for this Court to come to a finding
that the findings recorded on Issue Nos. 14, 15, 16 and 19
in the Vettipanam Suit operated as res judicata in the
Samudayam Suit. The finding recorded by the learned Single
Judge and the Division Bench, therefore, that, `the
decision in XLI T.L.R. that Ext.18 there in (Ext.BP in the
Samudayam case and Ext.B161 in these cases) is the version
of Hudaya canons accepted as binding on the Malankara Church
has not become concluded and 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 which it is understood, the decision
of the Judge and the opinion expressed by him, is not
relevant'. Applying these principles once the appellate
judgment was set aside, the appeal was dismissed and the
order of the trial court was maintained, the findings
recorded on canon etc. in the appeal could not be relied.
That is why when the suit was filed in 1938, that is
the Samudayam Suit, the parties joined issue, once again, on
the authenticity of the canon and the Court framed the issue
as to which was the correct and genuine version. No issue
about res judicata was raised by the Patriarch.
Coincidentally same story was repeated, the Trial Court
accepting the version filed by the Patriarch. But when the
matter came to this Court in 1959 it while considering the
objection of Patriarch that by inserting Clause 5 in the
Constitution the Catholicos were guilty of heresy as it was
contrary to the authentic version produced by them did
observe that for deciding this aspect it was necessary to
decide the issue which related to authenticity of the
version. Since this Court had not recorded any finding
itself on the authenticity of the canon the dispute again
arose, when these suits were filed, about the authenticity
of the canon and the findings and conclusions recorded in
earlier suits that is the Vattipanam Suit and the Samudayam
Suit and whether any one of them operated as res judicata.
It has already been explained why the findings recorded in
Vattipanam Suit could not operate as res judicata. Nor the
finding could be treated as binding precedent.
Can the same be said about the finding in the Samudayam
Suit? It is not disputed that the Trial Court not only
framed Issue No.13 but even recorded specific finding that
the canon produced by the Patriarch group was not the
authentic version. But its binding effect was rendered
nugatory both according to the Division Bench and the
learned counsel for the appellant because when this Court
restored only the decree of the Trial Court and not the
judgment then the findings recorded by the Trial Court could
not be taken to be binding or final. Two legal questions,
therefore, arise one, whether the authenticity of the canon
was directly and substantially in issue and second the
effect of restoration of the decree of the Trial Court. The
first was answered by this Court itself while adjudicating
upon the plea advanced on 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 (that is the Patriarch Group) founded
their charges on Ex.B.P. - Ex. 18 in O.S. No.94 of 1088 and
the defendants took their stand on Ex.26 - Ex.A in O.S.
No.94 of 1088. Issue No.13 was directed to determine that
question'. The issue whether the Hudaya canon filed by the
Patriarch Group as Ex.18 in the earlier suit and as Ex.BP in
the present was authentic was not only directly and
substantially in issue but as held by this Court was
necessary to be decided for the principal and the main
dispute which arose in that case. In the circumstances it is
difficult to agree with the Division Bench, that, `this does
not mean that findings were really relevant or necessary for
the ultimate decision in the litigation by the Supreme
Court. Issue Nos. 14 to 17 and 19 and 20 were raised by the
plaintiffs and had to be decided'. The Trial Court no doubt
observed that it was not necessary to decide the issue in
the broad and general sense but it held that the discussion
and conclusions in the earlier suit that is Vattipanam Suit
on the question of canon did not operate as res judicata. It
did make some observations which furnished occasion to the
appellants to urge that once the Court found that it was not
necessary to decide the larger issue it should not have
discussed the smaller one only because additional evidence
had been led and the counsel had argued the matter. But this
submission cannot be accepted as in view of the observation
made by this Court that the finding on Issue No.13 was
necessary the observations lose importance. And the finding
if recorded by the Trial Court would have to be accepted and
any observation to the contrary ignored. The finding of the
Trial Court on Issue No. 13 was that no Hudaya canon book
approved as authentic and genuine by the Patriarch was ever
supplied to the Malankara Sabha and the manuscript were of
questionable origin and it could not be shown that,
"either in Malankara or in Syria
or Turkey or other places under the
Patriarch or any where in the
Jacobite church outside Malankara,
there is or has been in existence and
in use any version of the Hudaya
canon corresponding to Ext. BP or that
such a version has been approved and
accepted by the Jacobite church as a
correct version".
[Emphasis supplied]
In appeal (The Most. Rev. Mar Poulose Athanasius & Ors. vs.
Moran Mar Bassaelios Catholicos & Ors., 1957 KLT 63) the
findings 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 Patriarch from claiming
that the Hudaya Canon filed by them was authentic as the
earlier judgment operated as bar to this plea as once this
Court recorded the finding that the Catholico had not
separated the finding on Issue No. 13 stood affirmed even
though it was not referred since the finding on the Catholic
having become heretic or separated from the Church depended
as observed by this court itself, on finding on Issue No.13.
If the finding of the trial court on Issue No.13 was
necessary for deciding whether the Catholico had become
heretic and that finding was affirmed in the review judgment
then the finding of the High Court in its earlier judgment
on the authenticity of the canon cannot stand. It could
neither be res judicata nor a precedent.
The next aspect is the legal effect of restoration of
decree of the Trial Court. Did it result in revival of the
findings on authenticity of the canons as well. The Division
Bench held that, `once an appeal is disposed of it is the
appellate judgment which should be considered for the
purpose of deciding the question of res judicata. Appellate
judgment supersedes the judgment of the trial court, and it
is no longer open to look into the judgment of the trial
court except to the extent it might have been specifically
confirmed by the appellate court. See Benodial Chakravarthy
V. Secretary of State for India (A.I.R. 1931 Cal. 239) and
Venkiteswarulu v. Venkitanarasimham and others (AIR 1957
A.P. 557)'. The reasoning that once an appeal is taken to
higher court then it is the appellate decree which is final
and binding cannot be faulted with. But the other
observation that the findings of the Trial Court cannot be
looked into except to the extent it might have been
specifically confirmed is not wholly correct. None of the
decisions referred in the order support it. The Calcutta
decision has already been referred to. In Venkateswarlu v.
Venkata Narasimham & Ors., AIR 1957 Andh. Pradesh 557, the
High Court observed, `Now the appellate court rested its
conclusion not on the ground that Ex.A-1 was unsupported by
consideration but on the ground that the transaction was
such as not to bind the joint family. Though the trial court
found that the consideration for the sale Ex.A-1 was wholly
fictitious, the appellate court did not give a finding upon
that question but confirmed the decree of the trial court on
the ground 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 framed in 13th
Century could not have provided for excommunication of
Catholico of East who was himself visualised as high
spiritual authority no doubt lower in hierarchy to Patriarch
of Antioch but otherwise not subordinate to him. In absence
of any such express provision in the canon, the Patriarch of
Antioch could not exercise this power as even if it was
there it did not mention Catholicos. Who could exercise this
power is not necessary to be gone into. Suffice it to say
that where scriptures are silent the courts cannot
substitute their own opinion but when the excommunication of
high spiritual authority is involved which, as seen earlier,
has serious repercussion not only on the individual status
of the man but also of religious society, then such an
action by a general body of ecclesiastics like a properly
requisitioned Synod of all the groups may have that sanctity
which may compel the courts to stay its hands. But the Synod
summoned at Damascus was certainly not empowered to
excommunicate.
There is one additional feature in this case that
Clause 5 of the Constitution framed in 1934 read as under:
5. "The Canon accepted by this
church is the Hudaya canon of Bar-
Hebreaus (This is the Canon that has
been printed in Paris in 1890)."
This Constitution has been upheld by this Court in Moran Mar
Basselious (supra). It is now binding on the Syrian
Christians. Any action taken against the respondent contrary
to it could not have been upheld. Religious persons in all
religions have been men of great learning and character.
Spiritual superiority emanates from purity of character. Any
person elected or nominated to such high spiritual office as
Catholicate of East could not be subjected to ex-
communication. That is why the Canons did not contain any
provision. The entire proceedings of ex-communication,
therefore, were unsustainable. If the spiritual heads of
such high stature start ex-communicating each other, it may
not be conducive for the religious order. That is why even
though the Sultan of Turkey withdrew the Firman issued in
favour of Abdul Messiah, the court in absence of any
material to show that such withdrawal resulted in
deprivation of his spiritual superiority refused to act upon
it. Apart from it, once a Constitution for Malankara
Association was framed, accepted and upheld by the Court,
the ex-communication, if any, could be in exercise 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 traced from the Mulunthuruthy
Synod held in 1876 to 1912 then it is apparent that
Catholicate of the East was not treated as subordinate to
the Patriarch of Antioch. He exercised same spiritual and
temporal powers as Patriarch but with respectful communion.
The ex-communication thus cannot be upheld canonically,
traditionally or constitutionally. It was violative of the
norms which are mandatorily required to be observed
conventionally.
Having dealt with ex-communication, the
controversy about spiritual and temporal powers of the
Patriarch and Catholicos, their inter-relationship and the
extent to which they have become final by earlier decisions,
particularly Moran Mar Basselios (supra) and operate as res
judicata, may be examined. The pleadings of the parties
giving rise to various issues and the questions framed by
the Division Bench and answered by it have been extracted in
extenso. The crucial issue that had been argued was whether
the direction of this Court in Moran Mar Basselios (supra)
'that the judgment of the Kerala High Court is set aside,
the decree of the trial court dismissing the suit must be
restored', resulted in restoring the decree and not the
judgment, therefore, any finding recorded in that suit could
not operate as res judicata. In Satyadhyan Ghosal & Ors. v.
Sm. Deorajin Debi & Anr. (1960) 3 SCR 590 this court
insisted on finality in the strict sense of the term and
observed as under :
"The very fact that in future
litigation it will not be open to
either of the parties to challenge
the correctness of the decision on
matter finally decided in a past
litigation makes it important that
in the earlier litigation the decision
must be final in the strict sense of the
term".
This was affirmed by a Constitution Bench in The Mysore
State Electricity Board vs. Bangalore Woollen, Cotton and
Silk Mills Ltd. & Ors. 1963 supp. (2) SCR 127 and it was
observed :
"It is well settled that in
order to decide whether a decision in
an earlier litigation operates as res
judicata, the court must look at
the nature of the litigation, what
were the issues raised therein and what
was actually decided in it.......it is
indeed true that what becomes res
judicata is the "matter" which is
actually decided and not the reason
which leads the court to decide the
'matter'".
These observations are well settled and reiterate
established 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, that truth
bought at such expense is the
negation of justice. The great
American Judge, Story, J. delivering
the judgment of the Supreme Court of
the United States in Ball v. Morrison
called the first of there Acts of
limitation a statute of repose : and in
England Best CJ called it 'an act
of peace'(A'Court v. Cross). The
courts of equity, originally set up to
make good deficiencies in the common
law, worked out for themselves a
parallel doctrine. It went by the
technical name of laches. Courts of
equity would only give relief to those
who pursued their remedies with
promptitude. Then, people who have long
enjoyed possession, even if they cannot
demonstrate a legal title, can
rarely be dispossessed. Scottish law
goes even further than English : delay
in vindicating a claim will not only
bar the remedy but actually extinguish
the right. But the fundamental
principle that it is in society's
interest that there should be some end
to litigation is seen most
characteristically in the recognition
by our law--by every system of law--of
the finality of a judgment. If the
judgment has been obtained by fraud or
collusion it is considered a nullity
and the law provides machinery
whereby its nullity can be so
established. If the judgment has
been obtained in consequence of
some procedural irregularity, it
may sometimes be set aside. But such
exceptional cases conclude the matter.
That, indeed, is one of society's
purposes in substituting the law suit
for the vendetta....And once the final
appellate court has pronounced its
judgment, the parties and those who
claim through them are concluded, and if
the judgment is as to the status of
a person, it is called a judgment in
rem and everone must accept it. A line
can thus be drawn closing the account
between the contestants. Important
though the issues may be, how
extensive so ever the evidence,
whatever the eagerness for further fray,
society says; 'We have provided
courts in which your rival
contentions have been heard. We
have provided a code of law by which
they have been adjudged. Since judges
and juries are fallible human beings,
we have provided appellate courts which
do their own fallible best, to correct
error. But in the end you must accept
what has been decided. Enough is
enough, And the law echoes : res
judicata, the matter is adjudged'. The
judgment creates an estopel - which
merely 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. What stands out clearly from the decision after
decision rendered right from 1899 to 1959 is that the
Patriarch of Antioch is the spiritual head of the Syrian
Orthodox Church. It was held so clearly in the appellate
judgment of the Royal Court of Appeal. It was reiterated in
Court of Appeal judgment delivered in 1905. In the
Interpleader Suit filed by the Secretary of State the claim
of Catholicos was upheld. The findings recorded therein were
held to operate as res judicata in Moran Mar Basselios
(supra) which arose out of a suit filed by the Patriarch
Group as far back as 1938. The claim of the Patriarch that
the Catholicos had become heretics and ceased to be members
of the Syrian Orthodox Church, was repelled. The Court held
that the reduction of power of the Patriarch of Antioch to
'vanishing point', ipsofacto did not constitute heresy nor
it amounted to voluntary separation of setting up a new
Church. But the most vital finding was that the creation of
Catholicate of the East by Abdul Messiah, the disentitled
Patriarch of Antioch, by Kalpana, Exhibit A-14 (latter
order) issued in 1912 was not invalid. The result of
creation of Catholicate of East with power to ordain
metropolitan and perform all those functions which could be
performed by Patriarch Antioch was that even the spiritual
power which was held to be vesting in him in earlier
judgments stood reduced to 'vanishing point'. What is meant
by this expression shall be explained later. The verdict was
accepted by the Patriarch himself when he issued Kalpana-
Exhibit A-19 after the Supreme Court decision to bring
peace. The specific objection on behalf of the Patriarch
that "the re-establishment of the Institution of the
Catholicos in the East in Malabar having jurisdiction over
India, Burma and Ceylon" was "different from the Catholicate
that was the subject-matter of Interpleader Suit" was
repelled by this Court in Moran Mar Basselics (supra) and it
was observed at page 48 as under :-
"We do not think there is any
substance whatever in this contention.
A reference to paragraphs 30 and 31 of
the written statement clearly indicate
that the institution of Catholicate,
which is relied upon by the defendants,
is no other than the Catholicate
established in Malabar in 1088 by
Patriarch Abdul Messiah".
Relevant clauses of 1934 Constitution declaring the status
of Patriarch and 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 beseech
our Lord Jesus that Ye faint not in
your true faith of Saint Peter, on which
is built, the Holy Catholic and
Apostolic Church. What we enjoin your
true love is that the unlawful conduct
of a usurper, may not induce you to
sever that communion which is the bond
of love connecting you with the
Apostolic Throne of Antioch".
Relevant portion of Exhibit A-19 issued by Patriarch after
the decision of
the Court read as under :-
"To bring forth peace in the Malankara church we
hereby accept with pleasure Mar Baselious Gheevarghese as
Catholicose".
The combined reading of these documents along with the
findings recorded by this Court in Moran Mar Basselios
(supra), thus, leaves no doubt that Catholicate of East
whether due to disuse of the Catholicate which,
undisputedly, existed at Tigris or because of creation of a
new one by the Kalpana of 1912 or for any other reason did
come into existences. The power and jurisdiction to be
exercised by such Catholicate is spelt out from the Kalpana
A-12 and A-13 and the Constitution of 1934. In fact, going
by the history it was nothing new or unusual as it has
already been narrated that even in the first Eccuminical
Councial When Patriarch of Antioch was created, the
Catholicate of the East was also created and he was
entrusted with the power and prerogative to manage the
affairs of Eastern Churches subject to that Patriarch of
Antioch was common and could exercise all the functions.
Then from 1654 to 1800 the ordination of Bishops in Malabar
used to take place by the delegates of the Patriarch. Even
though after 1840, i.e., the Cochin Award, the individual
persons went to Antioch and got themselves ordained which
was accepted as well, but due to its disuse and in any case
after issuance of Kalpana in 1912 and framing of the
Constitution the controversy arose whether the supremacy in
spiritual matters also was not reduced to 'vanishing point'.
It was negatived by the Court as it was held that it was not
so and nor any separate Church came into existence. The
documents which have been referred earlier if properly
construed and the course of activity, thereafter, is studied
in correct perspective, then the Syrian Church in
Malabar and the Patriarch of Antioch, the two authorities
with nearly same spiritual powers, one local and the other
at Syria entered into relationship of happy communion
between the 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 consecration
by the Patriarch of Paulose Athanasius on 3.9.1973 (the
first ordination by the Patriarch after 15 years). Original
Suit No.274 of 1973 filed in the District court was numbered
as O.S. No. 2/79 in the High Court. The suit was filed as
Paulose Athanasius had never been elected by the Malankara
Association and, therefore, was not entitled to function as
Metropolitan in the Malankara Church. In view of the
findings recorded by the Travancore Royal Court of Final
Appeal pronounced on July 12, 1889 that a Metropolitan of
the Jacobite Syrian Church could be a native of Malabar
consecrated by the Patriarch or the delegates and accepted
by the people to be entitled to be spiritual and temporal
head of the local Church, which finding was endorsed by this
Court in 1958, the suit was filed to prevent Athanasius from
interfering with administration of the Malankara Church and
any of its constituent diocese including the Kottayam
Diocese, as he was neither qualified nor entitled to be
appointed. Since the Patriarch ordination created the
apprehension and the defendants threatened to act on
strength of his ordination from the Patriarch of Antioch the
Court granted an injunction in October 1973 restraining him
from interfering in the administration of the Malankara
Church. As a sequel to this injunction a show cause notice
was issued on 30th January, 1974 by the Patriarch against
the first plaintiff levelling various charges and describing
the action of the plaintiff as uncanonical and a challenge
to the authority of the Patriarch. The matters thereafter
grew worse and when the Patriarch ordained two more bishops
the Catholico Mar Ougen I and Catholico-elect Mathew
Athanasius filed Suit No. 142/74 which was re-numbered in
the High Court as O.S. No. 4/79 once again protesting
against the direct ordination by the Patriarch of bishops
not accepted by the Malankara Association. In this manner
nearly 8 suits came to be filed by the Catholico Mar Ougen I
along with his successor-elect Mathew Athanasius. The main
defence in the suits apart from others was that the
plaintiff had been ex-communicated. Both the learned Single
Judge and the Division Bench did not find any merit in the
claim that after the death of first plaintiff the third
plaintiff who was successor-elect was not entitled to
continue the suit. It was held that they were not apostate
and aliens to the Jacobite 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 boundaries seem to
have been originally identical with or determined by those
of manors, as a manor very serfdom extends over more than
one of these parishes, although in many cases one parish
contains two or more manors. Besides being ecclesiastical
units, ancient parishes have been at different perious, and
in many cases still are, administrative areas for various
civil purposes, although the boundaries for parishes for
civil purposes have in many cases been altered under
statutory authority'. [Halsbury's Laws of England Vol.14
para 535]. 'The word 'Parish' was in use as early as the
third century, but it was at that time equivalent to the
term Diocese (which see). In primitive time the diocese of a
bishop was neither more nor less than what is now called a
parish; and even when the jurisdiction of bishops had become
extensive, the diocese long continued to be called the
parish. Afterwards the word was limited to the district
attached to a single church over which a presbyter presided,
who was hence called parochus. ..............During this
formation of the parochial system, the ........... measures
were adopted to retain these churches in a state of
dependence on the mother or cathedral church. The diocesans,
however, were often obliged to allow the parish churches a
greater degree of independence than they were of their own
accord willing to concece to them............for sometime
after the first introduction of the parochial system, the
revenues of a diocese continued to be regarded as a whole
the distribution of which was subjected to the bishop; that
is to say, whatever obalations or the like were made in
parish churches were paid into the treasury of the cathedral
church as the one heart of the body and thence distriouted
among the cleray after the claims of the parish had been
satisfied [emphasis supplied]. This arrangement remained
generally in force until the end of 5th century, many parish
Churches having in the meantime greatly increased in wealth
by means of bequests and donations and having come into the
receipt of considerable obalations. ..............But in the
course of the sixth century the revenues of the pareshial
clarc came to be considered simply as cheir own, the bishops
being obliged to rele cheir hold of them Faiths of the
World, by thems Gardner p.617
Parish Church, thus, is an ecclesiestical authority
operating 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
communal affairs of the entire Syrian community. The other
resolution passed was that the 'committee shall have liberty
to collect other amounts as well in addition to the amounts
above mentioned to cause its increase, to make sub-
committees and to do everything beneficial'. In respect of
administration of property it was resolved that 'for
altering the existing rules relating to the administration
of the property belonging to, the church and to the Syrian
community, and for enacting new laws for the same, for
examining and approving the accounts of the various
churches, for confirming the epithopas (stuarts of the
Church) of the respective churches decided by the Yogam, for
printing the books useful and necessary for the community,
for repairing the churches which have fallen into disrepair,
for building new churches and for erecting schools, the
above said committee shall have full responsibility'. The
Committee was further entrusted with responsibility to
collect and send the "Ressissa" due to His Holiness the
Patriarch, to collect the 'kaimuthu' and other income due to
the metropolitans from the churches and in case it was not
sufficient to find other ways for the same and also for
maintenance of the Dayaras (Monasteries), to effect payment
of salaries to the vicars according to the capacity of the
parish and pay the salary of the Secretary and others.
Thereafter when the Constitution of 1934 was made a full
chapter was devoted to the Parish church. The detailed
procedure was given about the membership, maintenance of
register, the payment of subscription, the convening of the
Parish Assembly meeting, the duration at which the Assembly
should meet in a year and the manner in which the fund was
to be spent. It was also provided that the Vicar shall
report to the diocesan Metropolitan about the election of
the Parish Committee which shall not have any authority to
take any decision in matters relating to religion which
shall be referred to the Diocesan Metropolitan. Right of
appeal was also provided to Metropolitan. Clause 37 provided
that when the Diocesan Metropolitan came to the Church on
his Parish visit he shall sign the register maintained in
every Parish of moveable and immoveable properties. All this
indicates that the Parish Churches were under the control
and supervision of the Metropolitan. This Constitution was
amended in 1967 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 Constitution and whether vicars, priests and office
bearers in Parish Churches had to be approved and appointed
by him or the Metropolitan had only spiritual supervision
and no temporal control. Both these issues were decided by
the learned Single Judge in favour of the Parish Churches.
But the Division Bench after elaborate discussion of law and
fact held, 'Parish Churches' were' not congregational or
independent' and the Constitution is valid and binding on
the Malankara Association, community diocese as well as
Parish Churches and Parishes.
Whether the finding is well founded or not and whether
the Division Bench was justified in further recording the
finding that the Malankara Church was episcopal to a limited
extent, only, shall be adverted presently, but before doing
so it is necessary to deal with one submission of Mr.
Parasaran on this aspect at the outset, which was more
preliminary in nature, as to whether the relief sought by
the plaintiffs that the Malankara Church was episcopal in
character was not a Union or Federation of Autonomous Church
Units and was governed in its administration by the
Constitution of the Malankara Church could not be granted in
absence of impleadment of each Parish Church. Prima facie
the submission appeared attractive but a closer scrutiny of
the pleading demonstrates that the nature of Parish Churches
was very much in issue of which parties were aware and the
suits were tried on the footing whether Parish Churches were
autonomous or not. In any event, it is worthwhile referring
to the pleading.
In paragraph 11 onwards of the Plaint (in Original Suit
No.142/74 re-numbered as Original Suit No.4/79 in the High
Court) it was averred that the Malankara Church consisted of
an aggregate of about 15 lakhs of worshippers worshiping in
more than 1000 Parish Churches. A list of churches was
appended to the Plaint. It was claimed that each Church
founded became a constituent of the Malankara Church a well
established religious community administered under the
authority of the Malankara Metropolitan. It was claimed that
the Parishioners of each Church were entitled to the
benefits from the Church and its properties. The Malankara
Church was neither a Union with a Federation of
Congregational Units but a Church with a unique solidarity
derived from apostolic succession and authority of Malankara
Metropolitan and the doctrines 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
Association. It was claimed that Parish Churches and their
properties belonged to the respective Parishioners and the
plaintiffs or the hierarchy in the Malankara Church had no
manner of right, title, possession or management over these
Churches. It was denied that the Parish Churches and other
Churches mentioned in the list were constitutents of the
Malankara Church and that the Malankara Metropolitan had the
authority to administer all those Churches. Written
statements were filed. The defendants raised all possible
defence even contrary to earlier decision. Different written
statements were filed by different defendants including the
two, that is, Knanaya Association and Evangelistic
Association which were impleaded on their own instance.
These averments would indicate that the parties were very
much at issue on the question whether Parish Churches were
constituents of Malankara Church or not. That is why when
applications were filed on behalf of the Parish Churches for
being impleaded as party it was rejected and the dispute
became final after the High Court held that it was not
necessary to implead every Parish Church individually.
It is too late, therefore, to urge that no declaration
on the status of Parish Churches be granted. No such
objection was taken either before the learned Single Judge
or the Division Bench. May be that the 1000 Parish Churches
were not impleaded. But it was a representative suit. Then
the suit was for a declaration that the Malankara Church was
episcopal in character and not a Union of Federation of
Autonomous Churches. It was not necessary to impleed every
Parish Church as a party. The question whether Malankara
Church is episcopal or not had to be decided on the pleading
of the plaintiff. The defence raised by the defendants, who
were ordained by the Patriarch of Antioch, was that they
were the metropolitans and, therefore, entitled to protect
the interest of Parish Churches. Moreover the declaration
sought is as a matter of law. No factual dispute arises. The
suit was filed for enforcement of this right. Once it was
found by this Court in 1958 that the Constitution was
validly framed the Catholicos could not be denied this
declaration. In paragraph 94 of the 1934 Constitution it was
provided that, 'the (The) Prime jurisdiction regarding the
temporal ecclesiastical and spiritual administration of the
Malankara Church is 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 assembly or gathering;
specifically, an assembly or society
of persons who together constitute the
principal supporters of a particular
Parish, or habitually meet at the same
church for religious exercises."
The word is explained in the Faiths of the World Vol.1 at
page 589 thus:
"This word, like the term Church
(which see) is sometimes used in a
more extended and at other times in a
more restricted sense. In its
widest acceptation, it includes the
whole body of the Christian people. It
is thus employed by the Psalmist when he
says, "Let the congregation of saints
praise Him." But the word more
frequently implies an association of
professing Christians, who regularly
assemble for divine worship in one
place under a stated pastor. In order
to constitute a congregation in this
latter sense of the term, among the
Jews at least ten men are required,
who have passed the thirteenth year of
their age. In every place in which this
number of Jews can be statedly
assembled, they procure a synagogue.
Among Christians, on the other hand,
no such precise regulation is found,
our Lord himself having declared,
"Wherever two or three are met together
in my name, there am I in the midst
of them." Guided by such intimations
of the will of Christ, Christian sects
of all kinds are in the habit
of organising congregations though the
number composing them may be much
smaller than that fixed by the Jewish
Rabbies."
'Episcopal' is defined in Webster Comprehensive
Dictionary to mean, 'of or pertaining to bishops. Having a
government vested in bishops; characterised by episcopacy',
whereas 'Episcopacy' is defined as under:-
"Government of a church by bishops".
New English Dictionary of Historical Principles by Sir John
Murray, Volume III, explains it to mean:
"Theory of Church Polity which
places the supreme authority in the
hands of episcopal or pasteral orders".
'Episcopacy' is explained in the Faiths of the World by
James Gardner, Volume I, at page 836 as under:-
"that form of church government
which recognises a distinction of ranks
among the ministers of religion, having
as its fundamental article that a
bishop is superior to a presbyter".
'Bishop' in the same book is defined as
under:-
"one who in episcopalian
churches has the oversight of the
clergy of a diocese 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 understood as the entire submission of
autonomy of the Churches is based on whether the Parishes
are congregational or episcopal. The basic or essential
characteristic as appears from the above definitions and
explanation of 'congregationalism' and 'episcopal' is that
in the former the authority vests in the congregation
whereas in the latter it is controlled by the bishop as he
is deemed to be successor of the apostle. That the Syrian
Orthodox Church of Malankara accept and acknowledge the
theory of apostle succession is beyond doubt. In Faiths of
the World, the word 'Episcopalians' is explained and it is
stated that it is a name given to those who hold that
peculiar form of Church government which is called
'Episcopacy'. The Church of Rome is Episcopalian in its
constitution, and acknowledges the Pope as Universal Bishop,
to whom all the various orders of clergy, cardinals,
primates, and patriarchs, archbishops and bishops are
subordinate...The Armenian church is similar in govenment to
the Greek church, their Catholicos being equivalent in rank
and authority to the Greek patriarch... All the ancient
Eastern churches, including the Copts, Abyssinians, and
others, are Episcopalian. The church of England is strictly
Episcopalian in its ecclesiastical constitution.' The claim,
therefore, that they are congregational cannot be accepted.
Even factually it was not open to the Patriarch to take
up this defence. The Canon on which reliance was placed by
them and filed as Ex. B-161 dealing with properties and
income of the Churches provided, 'If the valuable souls of
the beliain can be entrusted to the (Episcops Bishop) it is
quite apt that he bears authority over the property of the
church. Everything should be administered by his order and
be given to the Priests, Decons and those who are in needs'.
The resolution in the Mulunthuruthy Synod also accepted
this. In the Vattipanam Suit Justice Chatfield in paragraph
15 of the judgment has noticed, it may be stated that both
sides admit that the administration of the temporalities of
the Syrian Jacobite Church in Malankara is with the local
Metropolitan and the other Metropolitans'. That is why in
the Arthat case it was held that the plaintiff churches,
that is the Parish Churches of Arthat were subject to
spiritual, temporal and ecclesistical jurisdiction of the
Metropolitan 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
page 131 of 6th Edn. has stated thus, `when a charity has
been founded and trusts have been declared, the founder has
no power to revoke, vary or add to the trusts. This is so
irrespective of whether the trusts have been declared by an
individual, or by a body of subscribers or by trustees'.
That the Parish Churches were established for promoting
ideals of Syrian Orthodox or Jacobite Church has been the
consistent claim of both the Patriarch and the Catholicos.
Its nature cannot be changed by the persons who are
entrusted to manage it. They were episcopal in character
when they were found, they continue to be so at present and
shall remain so in future. The character of public charities
from episcopal to congregational cannot be changed as it
would be against basic purpose for which these Churches were
established. In Attorney General v. Pearson & Ors. 1814-23
All England Law Reports p.60 at 63 it was observed as under:
"But if, on the other hand, it
turns out that the institution was
established for the express purpose of
such form of religious worship, or
the teaching of such particular
doctrines, as the founder has
thought most conformable to the
principles of the Christian religion, I
do not apprehend that it is in the
power of individuals, having the
management of that institution, at any
time to alter the purpose for which it
was founded, or to say to the remaining
members: `We have changed our
opinions, and you, who assemble in this
place for the purpose of hearing the
doctrines and joining in the worship
prescribed by the founder, shall no
longer enjoy the benefit he intended
for you unless you confirm to the
alteration which has taken place in our
opinions'."
Therefore, once these public charities were found whether
before the establishment of catholicate or after it their
nature could not change. On the material on record the
courts have found them to be so. Therefore, the submission
that they are autonomous does not appear to be well founded.
Autonomy for what, religious worship or temporal matters.
Former cannot be pleaded as once a Church was found for
religious worship it continued to be so. The autonomy in
temporal matters as claimed appears to be two-fold, one,
freedom to disassociate from Malankara Association and
second to control and supervise its internal affairs. The
first cannot arise. In law it is not open to members 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 submitted that the Malankara Church was
from very ancient times episcopal to a limited extent in
spiritual and ecclesiastical matters but has been
congregational/autonomous in temporal matters. It was urged
that if Jacobite Syrian Orthodox Church has been or was
episcopal as claimed by the respondents then the Patriarch
would have had control over temporal matters also. The
learned counsel submitted that Malankara Church being
essentially congregational it was to be presumed that every
Parish Church was an independent Church. The learned counsel
criticised the Constitution of 1934 as the deliberate
departure from the established norms and practice of the
Church and the attempt by it to invest it with episcopal
character in temporal matters. The learned counsel submitted
that the custom which was prevalent in the Malankara Church
throughout has been that the Parish Churches and its
properties were administered by the congregation that is
Parishioners and in that sense the Malankara Church has been
congregational in temporal matters and this well established
custom must prevail even over the provisions of the canon.
It was urged that this was already recognised in the
Samudayam suit by the Trigal Judge and the admission of the
Catholicos before the District Judge. The learned counsel
submitted that the status of the Parish Churches even before
Malankara Synod was independent and if indeed the Church was
episcopal in temporal matters there was no necessity for the
creation of an Association in the meeting of 1876 for the
purpose of raising funds since the Patriarch directly or
through the Malankara Metropolitan could have raised the
necessary finance from the Parish Churches and above all if
the Parish Churches were episcopal then where was the
question of entering into an Udampadi with every individual
Parish Church. The learned counsel submitted that the entire
claim of the respondents that the entire body of Churches,
institutions and common properties formed one organic unit
to be administered by the provisions of the impugned
Constitution was based on a misrepresentation of the words
`Church' and `Sabha' and is contrary to the history, customs
and proceedings and the Malankara Church. Reliance was
placed on the evidence of P.W.4 and P.W.8 and it was urged
that if they were read along with Ex.A-19 and A-20 then they
would indicate that it did not result 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 that Ex.A-19 could not be
construed as a surrender of the authority which existed in
the Patriarch in favour of the Catholico as if the Kalpana
is construed as such then it would amount to a change of
faith so far the Parish Churches in the Patriarch section
were concerned and on the principle of religious trust the
properties and the Churches could not go to Catholicos
section. Minutes of the meetings held by the Association in
1959, 1962, 1965 and 1970 including the presence of the
Patriarch in the installation ceremony of Mar Ougen as
Catholico was placed. It was urged that if these are
construed as claimed by the respondents then it would
inevitably result in applying the law relating to religious
trusts. But that would not be in consonance with law.
According to learned counsel on the principle of voluntary
association even if it is assumed that they decided to be
under Catholico there was nothing to prevent them in law
from opting out of it. Attention was drawn to various suits
filed during this period and the failure of the Catholico to
impose their constitution. In respect of presence of the
Patriarch at the installation ceremony of the Catholico the
learned counsel urged that it only strengthened their claim
that Patriarch was the supreme head as a person as
delegation of power can be made only by a person who is
superior than the person whom he ordains. In any case if the
Patriarch was authorised to delegate and participate in the
installation ceremony as the head of the Syrian Orthodox
Church then there was nothing in law to prevent him from
withdrawing it. The submission was placed on yet another
aspect that the Catholicos had never claimed supremacy to
the exclusion of the Patriarch. But on the other hand by
their conduct and action they accepted the spiritual and
ecclesiastical supremacy as was clear from various documents
where the Catholico requested the consent of Patriarch for
relaxing the rigour of canonical penances. The learned
counsel submitted that the respondents were claiming that
the Malankara Association had become autoceohalous.
Therefore, applying the principle of religious trusts if the
Parish Churches and properties which were originally founded
for the benefit of the parishioners who believed in
uninterrupted apostolic succession from St. Peter through
the Patriarch then the use of such Parish Churches and their
properties by 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 be
episcopal in spiritual matters and congregational in
temporal matters. That would be against the basic
characteristic of such a Church. It would be against
specific provisions in the Constitution. The temporal
matters or administration of Churches flows from its
establishment for religious purposes, namely, `the cure of
souls'. Where a building is consecrated as a Church, `it
continues to exist in the eye of law as a church and the
body corporate which had been endowed in respect of it
remains in possession of the endowment even though the
material building is destroyed'. Every Parish Church of
Malankara acknowledges the Patriarch of Antioch as the
spiritual head. They have been playing ressissa to
Patriarch. The ordination, consecration and every spiritual
or temporal power has always been exercised by the Patriarch
of Antioch so long it was not decided on basis of the Synod
held at Mulanthuruthy that the Patriarch was only the
spiritual head and the temporal powers vested in the
Metropolitan. This division of power could not destroy the
basic characteristic of episcopacy. The Church in England is
also an episcopal Church. In Halsbury's Laws of England
Vol.14 para 562 the right of Parishioners has been
described, `to enter the church remain there for purpose of
participating in divine worship to have a seat and to obey
the reasonable directions of the church to ordain'. The
property vests in the endowment. That is the fundamental
difference in congretational and episcopal. In the former it
vests in the Parishioner. But in the latter in endowment.
Once it is conceded that the Syrian Churches are episcopal
in character then the distinction between spiritual and
temporal is of no consequence. Therefore, the property of
the Church vests in the endowment and not the Parishioners.
The right to manage such property vests in the trustees
under the bye-law subject to the control by the Catholicos
and Metropolitan in accordance with the Constitution. The
fact that every Church has its own bye law does not militate
against its nature of being episcopal as Clause 122 of the
Constitution of 1934 itself provides that, `byelaws which
are not inconsistent with the principles contained in this
constitution may be passed from time to time by the Parish
Assembly, the Diocesan Assembly or the Diocesan Council and
may be brought into force with the approval 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 after creation of Catholicate the Patriarch
ceased to have any power, he stated 'ordaining a
Metropolitan is not a power. It is a bond and duty'. The
witness denied that Patriarch of Antioch was only the head
of the Jacobite Church and he had no power over or
concerning the Malankara Church. Therefore, they are not
independent and autonomous in the sense in which it was
claimed by the learned counsel. If it be so and if what has
been stated earlier that the Patriarch of Antioch himself
created a Catholico of the East in 1912 with all the
spiritual powers then it is difficult to visualise that how
the Parish Churches can claim that they are independent and
separate from the Malankara Association. In Moran Mar
Basselios (supra) it has been decided that the Constitution
was framed after notices were sent to every Parish Church.
Therefore, whether they attended or not is not material and
in any case once the Constitution was framed and its
validity has been upheld then under the provisions of the
Constitution the Metropolitan appointed by the Malankara
Association has control over the Parish Churches. It is not
necessary to refer to various observations made in the
earlier judgments by the courts which undoubtedly indicate
that the Malankara Association which was a creation of
Malankara Synod and is the representative body that has the
right to bind the holy community and all the Churches by its
deliberations and actions. The Full Bench of the Royal Court
of Cochin in 1905 held that the Churches and its properties
were subject to spiritual, temporal and ecclesiastical
jurisdiction of the Metropolitan of Malankara. Even in the
very first judgment of 1889 it was held that, `once
Metropolitan of the Syrian Jacobite Church was accepted by
the people it would, `entitle him to spiritual and temporal
governance of the local churches'. In the Samudayam suit
this Court had observed that the whole of the Malankara
Church was represented by the Malankara Association. The
District Judge whose decree had been restored by this Court,
and in appeal this Court had not said anything contrary to
what was observed by him, observed, `It cannot therefore be
denied that this Jacobite `Syrian Association' which was a
creation of the Mulunthurn Synod was and is the
representative body that has the right to bind the whole
community and all the churches by its deliberations 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 established
separately either under the Societies Registration Act or by
their own rules and their churches were established with
explicit declaration that they were under the spiritual
supremacy of Patriarch of Antioch from whom the grace
emanates. It was claimed by them that the suits against them
were misconceived and in any case some of them, for
instance, the churches established between 1951 and 1956
having come into existence after the Constitution of 1934
was framed by the Malankara Association they could not be
held to be under the spiritual or administrative control of
the Catholicate of the East. Each of them were subject
matter of separate suit. The issues were framed separately
and the evidence was also led. Both the learned Single Judge
and the Division Bench after consideration of the material
on record and examining the finding recorded in the earlier
decisions rendered by the Travancore Cochin High Court and
this Court in Moran Mar Basselios (supra) had held that
except churches of the Evangelistic Association and the
Simhasana churches and St. Anthony church the others were
under the Catholico of the East. The findings recorded in
the case of Knanya Samudayam is subject-matter of Appeal No.
4953 whereas Appeal No.4954 to 4956 has been filed by
Kundara Church and Appeal No. 4989 has been filed by five
churches established during 1951-56. The Catholicos have
challenged the findings of the Division Bench in respect of
Evangelistic Association and Simhasana Churches which is the
subject-matter of SLP No. 14783-86 of 1991.
The Malankara Suriyani Knanya Samudayam referred to as
`Knanaya Samudayam' traces its origin from one Mar Thomas of
Cona and one Bishop Joseph who migrated along with 400
persons comprising of 72 families from a place called Cona
in 345 A.D. They claim that they are different racially,
culturally and socially from the Syrian Christians and the
membership in the community is only by virtue of birth. It
is claimed that the community all along kept its status
separate and functioned under the guidance and supervision
of spiritual leadership of the Patriarch of Antioch. It
claimed that Patriarch ordained Mar Sevoten as the
Metropolitan in 1910 and Mar Clemis in 1951 who is still
continuing. Attention was also drawn to the Constitution
framed in 1912 and amended in 1918, 1932, 1939, 1951 and
1959 wherein the superemacy of Patriarch of 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 is administered by its
Parishioners according to congregational principles of
governance and its administration is carried on in
accordance with its Constitution which provided for Edavaka
Yogam, a managing committee, a working committee and
Thonnanda Kaikors. In the appeal filed by the five churches
established during 1951-56 it was claimed that when
Catholicos were declared as aliens to the church by the
Travancore High Court, they established the church under the
Patriarch of Antioch. They claimed that they have their own
Constitution and mode of administration. They are registered
under the Societies Registration Act to whom the
Constitution of Sabha was never made applicable. According
to them, they having been established exclusively by the
Patriarch Group, there can presumably be no doubt as to the
object of its foundation and its basic faith. In the SLP
filed by the Catholicos against the Evangelistic Association
referred as `Samajam' and `Simhasana Churches', it is
claimed that the object of the Evangelistic Association
indicates that it is composed of the members of the
Malankara Church and it provided that any person holding the
faith of the Jacobite Syrian Church and acknowledging the
authority of that church can be a member of that
Association. It was claimed that even though Samajam is
registered under the Societies Registration Act, but it
being established in the territorial jurisdiction of the
Catholicos and having acknowledged the spiritual headship of
the Patriarch of Antioch as a supreme patron of the Samajam,
they too should be treated as a part of the Malankara
Church. It was pointed out that in 1966 the Samajam amended
Clauses 7 and 9 of its Regulations and Rules and
incorporated in Clause 7 (a) and (b), but their claim was
rejected by the Division Bench as this amendment was
subsequently withdrawn. In respect of the Simhasana
Churches, it was claimed that they were established with the
object of seeking grace from Patriarch of Antioch and,
therefore, they too should be deemed to be part of Malankara
Church.
Since the basic controversy is the same and both the
learned Single Judge and the Division Bench have recorded
the finding for or against the catholicos in respect of
different churches after considering the material on record
in each case and with full understanding and correct
appreciation of law it is not necessary to 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 the head, they cannot claim to be
independent, especially after the Constitution of 1934 was
framed.
What remains to be dealt with is the argument advanced
by Ms. Lily Thomas, the learned counsel for intervener that
the Patriarch of Antioch being corporation sole his powers,
spiritual or temporal were not partible nor the integrality
can be split up. Reliance was placed on paragraph 1206 of
Halsbury's Laws of England Vol. 9 and General Assembly of
Free Church of Scotland & others etc. V. Lord Overtoun and
others etc. 1904 Appeal Cases 515. The characteristics of a
corporation sole which was, `originally ecclesiastical for
the most part' is, `that its identity is continuous, that is
that the original member or members and his or their
successors are one' [Halsbury's Laws of England Vol. 9 paras
1207-1208]. But does it help? The personality of the
Patriarch is not being split. His integrality is not being
destroyed. He remains the spiritual head. The difference in
degree of exercise of spirituality does not detract his
status from being corporation sole. The mere fact that it
has been reduced to `vanishing point' does not mean that he
has ceased to be so. In fact much sensitivity has been
generated for nothing. The Patriarch of Antioch and
Catholicate always existed in the hierarchy as the two
dignitaries. `This dignitary (Patriarch) usually resides in
a monastery near Mardin. The second dignitary, the primate
of Tagrit, resides near Mosul, and is termed Maphrida or
fruit-bearer' [Faiths of the World Vol.II p. 195]. In
General Assembly of Free Church (supra) what was held that
nature of public trust cannot be changed. Has it been
changed by the Catholicate? The answer has to be in the
negative. Even the first clause of the Constitution framed
in 1934 acknowledge the supremacy of the patriarch.
The conclusions thus reached are,
1 (a) The civil courts have jurisdiction to entertain the
suits for violation of fundamental rights guaranteed under
Articles 25 and 26 of the Constitution of India and suits.
(b) The expression 'civil nature' used in Section 9 of
the Civil Procedure Code is wider than even civil
proceedings, and thus extends to such religious matters
which have civil consequence.
(c) Section 9 is very wide. In absence of any
ecclesiastical courts any religious dispute is congnizable,
except in very rare cases where 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 Constitution.
(d) The spiritual powers of the patriarch of Antioch
can be exercised by the Catholico in accordance with the
Constitution.
5. (a) The Hudaya Canon produced by the Patriarch is not
the authentic version.
(b) There is no power in the Hudaya Canon to ex-
communicate Catholicos.
6. The ex-communication of the Catholicos by the Patriarch
was invalid.
7. All churches, except those which are of Evangelistic
Association or Simhasna or St. Mary are under spiritual and
temporal control of the Malankara Association in accordance
with 1934 Constitution..
Legal issues of jurisdiction, maintainability of the
suits, ex-communication of the Catholico, authenticity of
the canon, res judicata of the findings recorded in the
Samudayam Suit, relationship of Malankara Association with
Parish Churches having been resolved not much difficulty
remains in the manner in which these appeals should be
decided. But before doing so the stage is also ripe for
recording the deep anguish on baffling
tenacity, to fight till finish, between two groups, rather,
members of the same family of a community which is, a living
tradition of faith and culture' which teaches honesty,
simplicity and above all sacrifice. What is astonishing is
that the two groups have had several rounds of bouts in the
courts, where mass evidence both oral and documentary was
led not on ideological clash, religious difference,
theological conflict or any scriptural dispute or
controversy about the right of worship, rituals and
ceremonies or belief and faith surfaced but on matters which
appear to be extraneous to establishment of the Syrian
church a religious institution which has a glorious history
and proud record of service. Mr. Parasaran was justified in
submitting that Syrian churches could not be thought of
without Patriarch of Antioch. But where is the dispute
about it. Even the Catholicos acknowledge that he is the
highest spiritual head. Extent of his powers and prerogative
and not the existence or his being highest spiritual
authority was disputed. Therefore, in nutshell the entire
exercise was much ado about nothing. If the Catholicos went
to one extreme and claimed that a declaration be granted
that the Church had become autocephalous then the Patriarch
went to other extreme by raising all possible defence
denying even the most basic and fundamental concepts which
had been settled 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 and more legalistic and technical, both
the parties through their counsel reposed confidence in this
Court and entreated the Bench to bring an end to this
litigation. Therefore, now after dealing with various legal
matters which could not have probably been satisfactorily
resolved it is appropriate to declare that,
(1) Relationship between the two spiritual superiors, that
is, the patriarch of Antioch and Catholico of the East at
Malankara is neither of superior nor subordiante but of two
independent spiritual authorities with Patriarch at the
highest in the hierarchy
(2) The Catholicos and the Patriarch are declared as
followers of one creed,namely , Syrian Orthodox Church.
(3) The Constitution framed by the Malankara Association as
amended from time to time shall govern the Churches attached
to the Malankara Association.
Before concluding it may be observed that while
highlighting the relationship between Malankara Association
and the Parish Churches, it was submitted by Mr. Parasaran
that the provisions in the Constitution permitting every
church to send same number of representatives irrespective
of the strength of churches was not very fair. May be. But
this is a provision governing matters not only of
administration of churches but of faith and religion. The
Malankara Association is like the executive of the Malankara
Church to exercise control over religion and temporal
matters. The Courts' function is restricted to ensure its
proper implementation and not to determine whether the
provisions in the Constitution framed by the religious body
was fair or unfair. Religion is not governed, necessarily,
by logic. In any case, it is not in the domain of secular
courts to substitute its own opinion of fairness. Further,
no foundation was laid for it either in the pleading in the
trial court or in the SLPs filed in this Court nor any
argument appears to have been advanced either before the
Single Judge or the Division Bench. In fact, if the figures
given in the Encyclopedia of Religion is any guide then the
numerical strength of Catholicos in 1970 was more than the
Patriarch. However paragraphs 120 and 121 of the
Constitution of 1934 provide for a Rule Commitee which is
empowered to amend the Constitution from time to time. The
grievance, therefore of fair representation, if it has any
substance, can be raised before the Committee.
In a separate judgment 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

 

Head Notes

Disposing of the appeals, this Court

HELD : Per Jeevan Reddy, J. (for himself and Sen, J.):

1.1. The excommunication of Catholicos was not valid and legal. The charges
on which the excommunication was based were not available as grounds of
excommunication and could not constitute valid grounds there-for. [679-F]

1.2. Having revived the Catholicos and having accepted the Constitution of
1934 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. [678-E]

13. 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 was an autocephalous Church could not be treated as heresy when the
very Constitution by which the Catholicos and his group were swearing,
affirmed in clear terms that the Patriarch was the supreme head of the
Malankara Church. [678-G]

2.1. The Patriarch remained the supreme head of the Syrian Church of which
the Malankara Church was a division. He was spiritually superior to the
Catholicos though he did not, and indeed never did, enjoy and temporal
powers over the Malankara Church or its properties. [685-A]

22. Having conferred upon the Catholicos the powers of ordaining the
Metropolitans, the Patriarch could not exercise those powers unilaterally,
i.e., without reference to the Catholicos. He could exercise those powers
only in consultation with the Catholicos. Moreover, the person to be
appointed as Metropolitan or Malankara Metropolitan had to be accepted by
the people as had been affirmed in the judgment in the Seminary suit. The
Patriarch's power to ordain the Metropolitans was subject to the
Constitution of 1934. [684-G]

3.1. The Malankara Church was episcopal to the extent it was so declared in
the 1934 Constitution. The said Constitution also governed the affairs of
the Parish churches. [685-H, 686-A]

32. The common properties (Samudayam properties) held by the Malankara
church were vested in Malankara Metropolitan and others as declared in the
judgment of this Court in Moran Mar Basselios AIR (1959) SC 31. [686-D]

33. In this suit no declaration could be granted affecting the rights of
Parish Churches in their absence nor could it be declared that the
properties held by Malankara Parish Churches vested in the Catholicos or
the Malankara Metropolitan or the Metropolitan of the concerned diocese, as
the case may be. Without impleading the affected parties, no declaration
could be claimed by the plaintiffs that their church was episcopal in
nature, if that declaration meant that it gave the Catholicos/ Malankara
Metropolitan/the Metropolitan of the Diocese any title to or any control
over the properties held by the Parish Churches.

3.4. The 1934 Constitution governed the affairs of the Parish Churches too
insofar as it did. The power of the Malankara Metropolitan or the
Metropolitan in temporal affairs must be understood in these suits too in
the same manner as has been declared in the Samudayam judgment, i.e., with
respect to the common properties of the Malankara Church as such. [683-H,
684-A]

4.1. It was no longer open to the Patriarch or his followers to contend
that the revival of Catholicate was not in accordance with the religious
tenets and faith of the Syrian Jacobite Christian Church, that the
Constitution of 1934 was not duly and validly passed or that the power and
authority of the Patriarch as obtaining prior to 1912 remains and continues
unaffected and undiminished. [676-F]

4.2. The 1934 Constitution was approved at a validly convened meeting of
Malankara Association, which Association was created by the Patriarch
himself under the Resolutions of the Mulanthuruthy Synod. The Patriarch
group could not question its legality and validity in view of the acts and
conduct of the Patriarch and the members of his group sub-sequent to the
judgment of this Court. [685-C]

4.3. 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 was of little
consequence. Having conceded, recognised and affirmed all the above things,
the Patriarch group could not make a legitimate grievance of those very
things. They must be deemed to have given up and abandoned all their
objections to the aforesaid events and documents. [677-C-D]

5. It was unnecessary to go into the other questions viz., maintainability
of the suit, the effect of the Places of Worship (Special Provisions) Act,
1991, non-joinder of parties etc. The objection on the basis of S.9 of the
Civil Procedure Code was not urged by the defendants-appellants before the
Division Bench and must be deemed to have been abandoned. The question
whether the finding of the trial court in the Vattipanam Suit regarding the
authenticity of the canon produced by the Patriarch Group had been restored
by the judgment of this Court had lost its significance on account of the
subsequent developments and need not be gone into.

Per Sahai, J. (concurring)

1.1. The ex-communication of the Catholicos by the Patriarch could not be
upheld canonically, traditionally or constitutionally. It was violative of
the norms which are mandatorily required to be observed convention-ally.
[617-A]

1.2. The 1934 Constitution upheld by this Court in Moran Mar Basselious
was binding on the Syrian Christians. Any action taken against the
Catholicos contrary to it could not be upheld. The creation of the
Catholicos in 1912 was neither against the scriptures nor against faith.
Any person elected or nominated to such high spiritual office as
Catholicate of East could not be subjected to ex-communication. That is why
the Canons did not contain any provision. Even the meeting of the Universal
Synod summoned in Damascus being in violation of the 1934 Constitution was
invalid. The entire proceedings of ex- communication, therefore, were
unsustainable. [616-B-C]

2.1. The relationship between the Patriarch of Antioch and Catholicos of
the East at Malankara was neither of superior nor subordinate but of two
independent spiritual authorities with Patriarch at the highest in the
hierarchy. [645-D]

2.2. The effect of the two judgments rendered by the Royal Court of Appeal
and by this court in Moran Mar Basselios was that both the Catholicos and
Patriarch groups continued to be members of the Syrian Orthodox Church. The
Patriarch of Antioch had no temporal powers over the churches. [643-D-E]

2.3. The effect of the creation of Catholicate at Malankara and the 1934
Constitution was that the Patriarch could exercise spiritual powers subject
to the Constitution. The spiritual powers of the Patriarch of Antioch could
be exercised by the Catholicos in accordance with the Constitution. [643-F]

2.4. The personality of the Patriarch was not being split. His integrality
was not being destroyed. He remained the spiritual head. The difference in
degree of exercise of spirituality did not detract his status from being a
corporation sole. The fact that it had been reduced to a 'vanishing point'
did not mean that he ceased to be so. [642-C]

General Assembly of Free Church of Scotland v. Lord Overtoun, (1904) AC
515, referred to.

Halsbury's Laws of England, Vol.9 paras 1207-08, referred to.

3.1. The parish churches were episcopal in character when they were found,
they continue to be so at present. The character of public charities from
episcopal to congregational cannot be changed as it would be against the
basic purpose for which these churches were established. [632-G-H]

Attorney General v. Pearson, [1814] 23 All ER 60, referred to. Halsbury's
Laws of England, Vol.14 paras 534, 562, relied to.

Encyclopedia Britannica, Volume 5, Page 693;Faiths of the World by James
Garden, Vol. 1, p.516; The Encyclopaedia of Religion, Vol.3, p.348;
Religion in India by Dr. Karan Singh, referred to.

.

32. The claim that the parish churches were congregational could not be,
accepted. From the scheme unfolded by the Resolution passed in the
Mulunthuruthy Synod read with the Constitution it appears that every Syrian
Parish Church even though established independently had necessarily to have
a relation with the Malankara Association. The Parishes were bound by the
Constitution framed in 1934. [626-E]

33. The property vested in the endowment. That was the fundamental
difference between the congregational and the episcopal. In the former it
vested in the parishioner, but in the latter in the endowment. Once it was
conceded that the Syrian Churches were episcopal in character then the
distinction between spiritual and temporal was of no consequence.
Therefore, the property of the Church vested in the endowment and not the
Parishioners. The right to manage such property vested in the trustees
under the bye-laws subject to the control by the Catholicos and
Metropolitan in accordance with the Constitution. [637-C]

Hill: Law of Trusts and Trustees, relied on.

4. The following findings in Moron Mar Basselios became final and operate
as res judicata:-

(a) The Catholicate of the East was created in Malankara in 1912.

(b) The Constitution framed in 1934 by Malankara Association was valid.

(c) The Catholicos were not heretics nor they had established separate
church.

(d) The meeting held by Patriarch group in 1935 was invalid.

[643-B-C]

The Most. Rev. Mar Poulose Athanasius v. Moran Mar Basselios Catholicos,
(1957) KLT 63; Benodeo Lal Chakravarthy v. Secretary of State for India,
AIR (1931) Cal.239;Venkiteswarulu v. Venkitanarasimhem, AIR (1957) AP 557;
Narayanan Chetty v. Kannammai Achi, ILR (1905) 28 Mad. 338; Satyadhyan
Ghosal v. Deorajin Debi, [I960] 3 SCR 590; Mysore State Electricity Board
v. Bangalore Woollen, Cotton and Silk Mills Ltd., [1963] Supp. 2 SCR 127;
Ampthill Peerage Case, [1976] 2 ALL E R 411; Bell v. Morrison, (1828) 1
Peters 351 and A'Court v. Cross, (1825) 3 Bing 329, referred to.

5.1. The suit was maintainable. The injunction and prohibition sought from
interfering in administration of Church were matters which pertained to the
religious office. Even the declaration that the Church was episcopal was
covered in the expansive expression of 'religion'. The word 'episcopal'
meant 'of or pertaining to bishops, having a government vested in bishop'.
A suit for declaration of such a right would be maintainable under s.9.
[590-E]

New English Dictionary of Historical Principle's by Sir John Murray, Vol.
III, Part I, page 245; Chambers Encyclopaedia, Vol. IV. page 13 and Black's
Law Dictionary, referred to.

5.2. Explanation I to s.9 was not restrictive of the right or matters
pertaining to religion. It only removed the doubt to enable the courts to
entertain suits where dispute about religious office was involved. The
dispute about the religious office was a civil dispute as it involves
disputes relating to rights which may be religious in nature but were civil
in consequence. [590-G]

Smt. Ganga Bai v. Vijay Kumar, AIR (1974) SC 1126; S.A.L. Narayan Row v.
Ishwarlal Bhagwandas, AIR (1965) SC 1818; Arbind Kumar Singh v. Nand
Kishore Prasad, AIR (1968) SC 1227; Thiruvenkata Ramanuja Pedda

Jiyyangarly Valu v. Prathivathi Bhayankaram Venkatacharlu, AIR (1947) PC
S3; M. Appadorai Ayyangar v. P.B. Annangarachariar, AIR (1939) Mad 102;
Kattalai Michael Pillai v.J.M. Barthe, AIR (1917) Mad 431; E.C. Kent v.
E.E.L. Kent, AIR (1926) Mad 59; Hasanali v. Mansporali, AIR (1948) PC 66,
referred to.

Queen Empress v. Ramzan, ILR (1885) 7 All 461; Narasimma Chariar v. Krishna
Tata Chariar, (1870-71) 6 Mad HCR 449-Krishnama v. Krish-nasamy, ILR (1879)
2 Mad 62; Srinivasalu Naidu v. Kavalmari Munnuswami Naidu, AIR (1967) Mad
451, approved.

Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR (1959) SC 31
and Moron Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, AIR
(1954) SC 526, referred to.

Law Commission 27th Report on Civil Procedure Code, December 1954, p.91;
Halsbury's Law of England, Vol. 14 paras 301, 304 and 315, referred to.

53. The right to religion having become fundamental right, it would include
the right to seek declaration that the Church was episcopal. But the court
may refrain from adjudicating upon 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. [590-H]

His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami v. The State
of Tamil Nadu, AIR (1972) SC 1586; Rev. Stainislaus v. State of Madhya
Pradesh, AIR (1977) SC 908; S.P. Mittal v. Union of India, AIR (1983) SC 1;
Ugamsingh v. Kesrimal, [1971] 2 SCR 836, relied on.

5.4. A suit filed after coming into force of the Constitution for
vindication of rights related to worship of status, office or property was
maintainable in a civil court and it would be duty of the court to decide
even purely religious questions if they had a material bearing on the right
alleged in the plaint regarding worship, status or office or property.
[588-B]

Nagar Chandra Chatterjee v.Kailash Chandra Mondal, AIR (1921) Cal 328; U.
W. Baya v. U. Zaw Ta, AIR (1914) LB 178 1; Sinna Ramanuja Jeer v. Ranga
Ramanuja Jeer, [1962] 2 SCR 509; Ugamsingh v. Kesrimal, [1971] 2 SCR 836;
T.A. Aiyangar Swamigal v. L.S. Aiyangar, 31 MLJ 758 and Devendra

Narain Sarkar v. Satya Charan Mukerji, AIR (1927) Cal 783, approved.

Long v. Bishop of Capetown, (1863) 1 Moore PCC NS 411; Dame Henriette Brown
v. Les Cure Et Marguilliers De L 'Oeuvre Et Fabrigue De Notre Dame De
Motreal, (1874-75) 6 PC 157; Anardrav Bhikaji Phadke v.Shankar Daji Charya,
ILR 7 Bom 323 and Sardar Syedna Taher Saifuddin Saheb v. The State of
Bombay, [1962] Supp. 2 SCR 496, referred to.

American Jurisprudence Vol. 66, para 45, referred to.

6. Places of Worship (Special Provisions) Act, 1991 did not debar those
cases where declaration was sought for a period or for enforcement of a
right recognised prior to the Act coming into force. The respondents did
not seek a declaration for conversion of the church or place of worship.

7.1. The decision in the Vattipanam Suit that Ex.18 therein was the version
of Hudaya canon accepted as binding on the Church had not become concluded
and did not operate as res judicata between the parties.

[610-G]

Abdullah Ashgar Ali Khan v. Ganesh Dass, AIR (1917) PC 201; Sheosagar Singh
v. Sitaram Singh, ILR (1897) 24 Cal 616, followed.

Midnapur Zamindari Company Ltd. v. Naresh Narayan Roy, AIR (1922) PC 241;
Mt. Munni Bibi v. Tirloki Nath, AIR (1931) PC 114; V.P.R.V. Chockalingam
Chetty v.Seethai Achi, AIR (1927) PC 202; Sham Nath Madan v. Mohammad
Abdullah, AIR (1967) J&K 85 and Arjun Singh v. Tara Das Ghosh, AIR (1974)
Patna 1, distinguished.

7.2. When a review petition was entertained and notice issued by a court
it was open to it to restrict the scope of hearing but once the petition
was heard and the court was satisfied that the order under review was
erroneous on the face of it then it was not precluded from allowing the
petition and setting aside the findings which were earlier not permitted to
be re-opened. [607-E]

7.3. The appellate judgment of this Court precluded the Patriarch from
claiming that the Hudaya Canon filed by them was authentic. [614-B]

7.4. For the finding on the authenticity of the canon to be relied on as a
precedent, it had to fall either under s.42 or 2.43 of the Indian Evidence
Act. [610-H]

Ninan Daniel v. Most Rev. Uhanon Marthoma Metropolitan, Civil Appeal No.
947 of 1964 decided on 7th January, 1965, relied on.

Kumar Gopika Raman Roy v. Atal Singh, AIR (1929) PC 99 and Benode Lal v.
Secretary of State, AIR (1931) Cal. 239, referred to.

Encyclopaedia of Religion, VoL 3, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4958-60 of 1990 Etc. Etc.


Citation

1995 AIR 2001, 1995( 1 )Suppl.SCR 542, 1995( 4 )Suppl.SCC 286, 1995( 4 )SCALE1 , 1995( 5 )JT 1