TMI Blog1995 (6) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne (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 entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral 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 dissen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkara 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 ₹ 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 Metro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nial 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. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey 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 Travanco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 wol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. 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 excommunicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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'. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Engl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution 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 Paris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er: 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 congregat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 explaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erminate 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir 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 Registratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, 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 ecclesi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed 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-communi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... message. He died in India. At the Council held at Nicea in 325 A.D. - First General Council - convened by the Roman Emporer Constantine, four Patriarchates were established spanning the Christendom as it was known then, viz., Rome, Constantinople, Alexandria and Antioch, each headed by a Patriarch. Within the jurisdiction of Patriarch of Antioch was established another office, viz., the great Metropolitan of the East, also known as Catholicos . The office of Catholicate fell into disuse later and was revived in 628 A.D. Sometime later, it again fell into disuse. All these are matters of faith and are stated merely by way of introduction. By the 16th century, Christianity had gained a fairly substantial foothold in the area now comprised in Kerala. The dominant faith was of the Syrian Orthodox Church. 16th century saw the rise of Portugese political power on the west Coast of India. The Portugese were Roman Catholics. They compelled the local christians to accept Roman Catholic faith. They succeeded to some extent but not for long. In the year 1654, the Christians of Malabar rebelled against the imposition of an alien faith and affirmed their loyalty to Syrian Orthodox Churc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remacy of Patriarch comprised in consecrating and appointing Metropolitans from time to time to govern and rule over the Malankara Edavagai, in sending Morone (the sanctified oil) for baptismal purposes, in receiving the Ressissa (tribute) from the Community to maintain his dignity and in generally controlling the ecclesiastical and temporal affairs of the Edavagai, the defendants denied any such Patriarchal supremacy. The suit was ultimately disposed of by the judgement of Travancore Royal Court of Final Appeal in the year 1889. The Royal Court found that the ecclesiastical supremacy of the Patriarch of Antioch over Malankara Syrian Christian Church in Travancore had all along been recognised and acknowledged by Jacobite Syrian Christian Community and their Metropolitans; that the exercise of supreme power consisted in ordaining, either directly or through a duly authorised delegates, Metropolitans from time to time to manage the spiritual matters of the local Church, in sending Morone to be used in the Churches for baptismal and other purposes and in general supervision over the spiritual government of the Church. The Royal Court further ruled that the authority of Patriarch neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dionysius. Because of certain differences arising between Mar Geevarghese Dionysius and Abdulla II, the latter ex- communicated the former on March 31, 1911. A few months later, Abdulla II appointed one Paulose Mar Kurilos as the Malankara Metropolitan. Mar Geevarghese Dionysius responded by convening a meeting of the Malankara Syrian Christian Jacobite Church which declared his excommunication as invalid. In the year 1912, Patriarch Abdul Messiah came to Malankara and declared the excommunication of Mar Geevarghese Dionysius by Abdulla II as invalid. In addition to that, Abdul Messiah also purported to revive and reestablish the Catholicate by consecrating one Mar Ivanios as the Catholicos. It is relevant to notice the roceedings relating to the revival of Catholicate. Two documents are put forward as the Kalpana of Abdul Messiah reviving the Catholicate, namely, Exs.A.13 and A.14. The Patriarch group (who are the appellants before us) dispute Ex.A.13. They say that Ex.A.14 is the only version while Catholicos group (who are respondents before us) say that Ex.A.14 was preceded by Ex.A.13 and that without Ex.A.13 there could not have been Ex.A.14. We may notice the contents of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese Gregorius, the second Joachim Evanios and the third, Gheevarghese Philexinos. It appears to us that, unless we do instal a Catholicos, our Church, owing to various causes, is not likely to stand firm, in purity and holiness. And, now, we do realise that by the might of our Lord, it will endure unto Eternity, in purity and holiness, and more than in times past, be confirmed in the loving bond of communion with the Throne of Antioch. The Joy of our Heart is herein realised. Our children, abide ye now in peace. As for ourselves, we leave you. Rest assured that though we leave you, we shall never be unmindful of you. We shall incessantly lift up our eyes unto heaven and offer our prayers and intercessions for the guileless lambs, redeemed by the previous blood of our Saviour Jesus Christ. Pray ye for us, and for our entire community. Abide ye in love, peace and concord. Pray ye for your enemies, and, for those that revile you without cause. Be not afraid of the uncanonical and unjustifiable interdicts and curses of the usurper. Heed not those who create dissensions. God will reward them for their action, be they good or bad. We commend you into the hands of Jesus Christ, our Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into a representative suit between two groups, viz., defendants 1 to 3 representing what may be called the Catholicos group (i.e., the group owing allegiance to the Catholicos installed by Patriarch Abdul Messiah) and defendants 4 to 6 representing what may be called the Patriarch group (i.e., the group owing allegiance only to the Patriarch). The first defendant claimed to have been appointed as Malankara Metropolitan by Abdul Messiah and disputed the validity of the Bull of excommunication issued by Abdulla II. On the other hand, defendants 4 to 6 claimed that the first defendant having been ex-communicated by the Patriarch Abdulla II, ceased to be the Malankara Metropolitan and that the fourth defendant has been validly appointed by Abdulla II as the Malankara Metropolitan in the place of the first defendant. Defendants 4 to 6 further contended that by their conduct and declarations, defendants 1 to 3 have become schismatics and hence disqualified to act as the trustees of the Church properties. The fourth defendant died pending the suit and in his place defendant No.42 was impleaded as the Malankara Metropolitan. The learned District Judge held inter alia that the first defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch which induced him to exercise his power of ex-communication. Accordingly, the appeal was re-heard by another Full Bench which by its judgment pronounced on July 4, 1928 upheld the decision of the learned District Judge and confirmed his decree. Under this judgment, the Full Bench held: (i) The excommunication of Mar Geevarghese Dionysius (the first defendant) was invalid because of the breach of the rules of natural justice in that he was not apprised of the charges against him and had not been given a reasonable opportunity to defend himself. In other words, he remains the Malankara Metropolitan; (ii) That defendants 1 to 3 had not become heretics or aliens or had not set up a new Church by accepting the establishment of the Catholicate by Abdul Messiah with power to the Catholicos for the time being to ordain Metropolitans and to consecrate Morone and thereby reducing the power of the Patriarch over the Malankara Church to a vanishing point; (iii) That the defendants 4 to 6 had not been validly elected. It is interesting to notice that in this suit while the Patriarch group was contending that members of the Catholicos group have become aliens to the faith b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to strengthen their respective positions. On August 16, 1928 the Managing Committee of the Malankara Association was formed which was authorised to draw a constitution for the Church and the Association. On the very next day, i.e., August 17, 1928, Mar Julius Elias, the delegate of the Patriarch who was then in Malabar, issued an order calling upon Mar Geevarghese Dionysius to execute an Udampadi (submission deed) within two days accepting the authority of the Patriarch and also suspending him for having committed several grave offences against the Holy Throne of Antioch and for having repudiated the authority of the ruling Patriarch. He addressed letters to the Governments of Travancore and Madras to withhold payment of interest to Mar Geevarghese Dionysius in view of his suspension from the office of Malankara Metropolitan. On August 21, 1928, O.S.2 of 1104 was filed in the District Court of Kottayam by eighteen persons belonging to Patriarch group against Mar Geevarghese Dionysius and two others including the then Catholicos Mar Geevarghese Philixinos. Mar Geevarghese Philixinos died in 1929. Thereupon Moran Mar Basselios was impleaded as a defendant. On January 23, 1931, O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st and the Primate of the Orthodox Syrian Church is with the Catholicos. (5) The approved canon of this church is Hudaya Canon written by Bar Hebreus (the same canon book as one printed in Paris in 1898). (90) The throne of the Catholicos was re-established in the Orthodox Syrian Church of the East which includes Malankara church in 1088 M.E. (1913) and this institution has been funtioning ever since then in the Orthodox Syrian Church of the East. (91) Catholicos shall have the right to Visit all churches in Malankara and that the expenses of such visits shall be borne by the respective parish churches. (92) Malankara church shall recognise the Patriarch consecrated in co- operation with the episcopal Synod of which the Catholicos is the President and in accordance with the canons. (93) Whenever Catholicos is to be consecrated, if there be Patriarch recognised as stated above, the Patriarch should be invited for the consecration and if the Patriarch arrives, he shall as President of the Synod consecrate Catholicos with the co-operation of the Synod. (101) No one shall have right to alter the faith of the Sabha. In case there is any dispute regarding matters of faith, episc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected. The matter was carried to this Court in Civil Appeal No.193 of 1952 which was allowed on May 21,1954. This court directed the High Court to re-hear A.S.I of 1119 on all the points. Accordingly, the High Court took up the appeal for hearing and allowed the same by its judgement dated December 13,1956. The suit was decreed accordingly. On a certificate being granted by the High Court, the defendants (catholicos group) filed an appeal in this Court which was allowed on September 12, 1958 (reported in A.I.R.1959 S.C.31). It is necessary to notice the relevant findings recorded by this Court: (1) The main plea of the plaintiffs that the defendants had become heretics or aliens or had gone out of church by establishing a new Church because of the specific acts and conduct imputed to them is unacceptable for the reason that the said issue is concluded by the judgement of the High Court of Travancore in O.S.94 of 1088 (vattipanam suit). The charges which were sought to be relied upon as fresh cause of action in the suit (Samudayam Suit) are not covered by the pleadings or the issues on which the parties went to trial. Some of them are pure after-thoughts and cannot therefore be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sensions that arose in the Malankara Church prevailing for a period of 50 years have in several ways weakened and deteriorated it. Although right from the beginning several persons who loved the Church and devout of God desired peace and unity putting an end to the dissension, they departed in sorrow without seeing the fulfilment of their desire. We also were longing for peace in the Malankara Church and the unity of the organs of the one body of the Church. We have expressed this desire of ours very clearly in the apostolic proclamation (reference is to the proclamation dated November 11, 1957) 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 slackened and the Lord God has been pleased to end the dissension through us. Glory be to him. To bring forth the peace in the Malankara Church we hereby accept with pleasure Mar Baselious Gheevarghese as Catholicose. Therefore we send our hearty greetings ........ . (Emphasis added) It is significant to mention here that this Kalpana Ex.A.19 was issued by Patriarch Yakub, who was in India during the conduct of Samudayam suit/appeal, attending to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etropolitans of both the groups and the delegate of Patriarch. A meeting of the Bishops of both the groups was held on January 12, 1959. Ex.A.153 is a copy of the minutes of the meeting.It was attended by six Metropolitans of Catholicos group and three Metropolitans of Patriarch group.The meeting resolved to unite various rival organisations, youth leagues, students' organisations and womens'organisations under one Association. Committees were formed to devise ways and means of unification. It was decided to implement the Constitution of Malankara Association wherever it was not implemented and to appoint a committee to study the particulars and report at the next meeting. It was also decided to re-allot the dioceses since the total number of Metropolitans of both the groups put together exceeded the number of dioceses. Accordingly, at the Synod meeting held on February 21, 1959 [Ex.A.153(a)] attended by all the Metropolitans, re- allotment of dioceses was made. It was decided to send the copies of the Constitution to all the Parishioners with a direction to obey the same. Under the re-allotment of the dioceses, three dioceses were allotted to Metropolitans belonging to Pat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16th December at the old Seminary before an august gathering consisting of Bishops, Priests and laymen of both the parties. Before the said exchange, there were negotiations between the two parties in which it was made clear that the acceptance of Patriarch shall be subject to the Constitution. It was only after the acceptance of the same by the Patriarch's representative, Mar Julius Elias, that the letters, A.19 and A.20 were exchanged. Protesting against the same after four or five months is not justified. With respect to the use of the expression 'holiness', the Catholicos justified the same saying that it can be used by the Catholicos also and is not confined to Patriarchs only. Regarding the claim of the Throne of St.Thomas, the Catholicos stated in this letter that this expression is used not only by Patriarchs but also by Metropolitans and Bishops alike, as is evident from the Hudaya Canon and other books. As a matter of fact, no apostle had ever established a Throne anywhere. It is only a honorific. Indeed, Ex.A.13 and A.14 reviving the Catholicate refer to the Throne of St.Thomas in India. Therefore, the Throne of St.Thomas is not a new thing. Similarly, the Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September 16, 1959 a meeting of the Malankara Association was held wherein members of both the groups participated [Ex.A.43(a) is the minutes of the meeting]. The strength of the Managing Committee was fixed at ninety, of which seventy four were to be elected and sixteen to be nominated by Malankara Metropolitan. Several other decisions were taken. Ex.A.98 shows that the elected members of the Managing Committee took oath to abide by the Constitution. Pursuant to the decision of the Managing Committee of the Malankara Association, Catholicos invited the Patriarch to come to Malankara. The Patriarch, however, replied on October 27, 1961 [Ex.A.31(a)] that a canonical invitation should be issued which will be placed before the Patriarchal Synod. Accordingly, a canonical invitation Ex.A.32 was sent on January 18, 1962. Since the then Catholicos had become very old, a meeting of the Malankara Association was held on May 12, 1962 for electing his successor. It elected Ougen Mar Timothious, which was approved by the Synod on June 21, 1963. This was conveyed to Patriarch. On January 13, 1964, a letter of invitation was sent by Malankara Episcopal Synod inviting Patriarch to come to India f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oth the groups and that the newly elected members took oath affirming the 1934 Constitution. More significantly in the year 1970, a meeting of the Malankara Association was held (on December 31, 1970) participated by representatives of both the groups, whereat one Mathew Athanasius was elected as the successor Catholicos to Mar Ougen I. [It may be recalled that Mathew Athanasius was ordained as Metropolitan in 1951 by Basselios Geevarghese II, (first defendant in the Samudayam suit); Mathew Athanasius is the second plaintiff in O.S.4 of 1979, the main suit before us.] It appears that this election was challenged by certain members owing allegiance to Patriarch by way of O.S.3 of 1979 which was dismissed by the Trial Judge. The judgment became final since no appeal was preferred against it. Ex.A.5 shows that the Managing Committee of the Association appointed a Rules Committee in accordance with the Constitution to suggest amendments to the Constitution. The Rules Committee included the representatives of both the groups including D.W.2 in the present suit. The draft amendments suggested by the Rules Committee were approved by the Managing Committee and by the Synod meeting, as woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of this heirarchy . (Emphasis added) The Catholicos then referred to the re-definition of the geographical jurisdictions of both the Patriarch and the Catholicos prior to installation and to the installation of the new Catholicos by the Patriarch on May 22, 1964. He also referred to the activities of Mar Thimotheos, the delegate of Patriarch whom the Catholicos described as a troublemaker. The Catholicos stated that the activities of the delegate would have constituted a sufficient ground, normally speaking, for him to protest against his actions with the Patriarch but that he has not taken such action only because he considers his link with Patriarchate as valuable. Finally, he protested against any proposal to conserate Metropolitans for India by Patriarch and stated that any such action would be treated as an uncanonical action. After receiving the above letter of the Catholicos, the Patriarch communication a list of chages to the Catholicos on January 30, 1974 (Es.A.80). This letter is in the nature of a show-cause notice calling upon the Catholicos to answer the charges levelled against him within one month. It is unnecessary to detail the charges herein. The main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Patriarch to Catholicos. The Universal Synod concluded that the Catholicos Ougen I is guilty against the faith and the laws of the Church and has violated the oath taken by him at his consecration as the Catholicos of the East and as the Metropolitan of Malankara and must be considered to have become an apostate to the Syrian Orthodox Church. Accordingly, he was stripped off all the offices, authority and privileges of the said office. The Synod authorised the Patriarch to announce the said decision to whole church and to all concerned. The Patriarch issued a notice to the Catholicos calling upon him to intimate whether he accepts and submits to the resolutions of the Universal Synod within ten days. He was intimated that if he does not so submit, he will be declared as apostate. A Bull of excommunication was issued by the Patriarch excommunicating the Catholicos from the Syrian Orthodox Church. THE INSTITUTION OF THE PRESENT SUITS: Eight suits in all were instituted which were later transferred to the High court for disposal. Of these eight suits, two are no longer before us,viz., O.S.347/73 (numbered as O.S.3/79 in the High Court of Kerala) and O.S.35/76 (numbered as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccession. The 1934 Constitution governs and regulates all the affairs of this Church. The Constitution enables the Malankara Metropolitan to hold the office of Catholicos as well. Thus in the Malankara Metropolitan-cum-Catholicos converge all temporal, spiritual and ecclesiastical powers without mitigating the exalted position and status of the Patriarch, the Primate of the Orthodox Syrian Church . After the judgment of the Supreme Court the Patriarch and his group accepted the Catholicos and the 1934 Constitution. But later they have been acting against the interests of the Church at the instance of Patriarch and others. They also denied the authority of the first plaintiff (Catholicos-Malankara Metropolitan). The defendants are impleaded in their individual capacity and as representing the Patriarchal group. No person irrespective of his position has any locus standi in the Malankara Church without believing in the holy church, headed by the Catholicos of the East-Cum-Malankara Metropolitan and without affirming and accepting the ecclesiastical authority of the first plaintiff and the administrative set up and heirarchy, the principle being that the lawful Metropolitan is neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the pleadings. The learned Single Judge dismissed the suits. On appeal, the Division Bench of the Kerala High Court reversed. The Division Bench re-formulated the issues in controversy into 31 issues. Of them issues 1 to 22 and 27 to 31 pertain to the main dispute now under discussion, whereas Issues 23 to 26 pertain to certain individual churches to which we shall advert later. The Division Bench has upheld the claim of the Catholicos group to a large extent. O.S.4/79, the main suit, has been decreed as prayed for against defendants 1 to 17 without costs. It has been dismissed against defendant No.18 (Evangelical Association of the East). So far as D.19 (Knanaya Samudayam) is concerned, the suit has been decreed but with certain qualifications which we shall mention while dealing with the appeal preferred by D.19. The result of the other suits is consistent with the decree in O.S.4/79 and need not be mentioned separately. OUR FINDINGS: The following facts, in our considered view, are of fundamental significance. Once they are kept in view, it would be unnecessary to go into many of the issues agitated before the learned single Judge and the Division Bench of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in exercise of this power that on the death of the first Catholicos installed by Patriarch Abdul Messiah in 1913, the second Catholicos Basselios Geevarghese I (Mar Geevarghese Philixinos) was installed in the year 1924 by the Malankara Synod without reference to the Patriarch. Again in 1929, Basselios Geevarghese II was elected as the third Catholicos by the Association and was installed as such. In the M.D. Seminary meeting held on December 26, 1634 the third Catholicos was elected as the Malankara Metropolitan, thus combining both the posts in one person. In other words, the spiritual and temporal powers over the Malankara Church came to be concentrated in one person. It may be that by this act of revival of Catholicate and the Kalpanas A.13 and A.14, the Patriarch is not denuded of the powers delegated by him to the Catholicos - assuming that these powers were not already possessed by the Catholicos and that they came to be conferred upon him only under A.13 and A.14 -yet, reasonably speaking, the Patriarch was, and is, expected to exercise those powers thereafter in consultation with the Catholicos and the Malankara Sabha (Association) - and, of course, in accordance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been detailed hereinabove). After all these developments, and after a lapse of four months after A.20, the Patriarch raised an objection to the use of certain expression employed in Ex.A.20, viz., the Catholicos claiming to be seated on the Throne of St. Thomas and also to the qualification added by he Catholicos to his acceptance to the Patriarch, viz., subject to the constitution.... But even this objection which is reflected in the correspondence which passed between them during the years 1959 to 1962 (referred to supra) must be deemed to have been given up and abandoned by the Patriarch by his acts and declarations in the year 1964. As stated supra, the Patriarch came to India pursuant to a canonical invitation from the Malankara Synod and consecrated and duly installed the new Catholicos (Mar Ougen), who was elected by the Malankara Association in accordance with the 1934 Constitution. Before he did so, the Patriarch took care to see that the respective territorial jurisdictions of the Patriarchate and the Catholicate are duly defined and demarcated. The Middle East which was supposed to be hitherto under the jurisdiction of the Catholicos was excluded from his jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be heard to say so. Nor have they made any effort to explain the said acts and conduct of the Patriarch and of the persons owing allegiance to him. They must be deemed to have given up and abandoned all their objections to the aforesaid events and documents. THE VALIDITY OF THE EXCOMMUNICATION OF THE CATHOLICOS: In the Vattipanam suit, the High Court found that of the two versions of Hudaya Canon put forward by the Patriarch group and Patriarch group (Ex.18 in that suit) is the correct one. The very same version was put forward by the Patriarch group as the true version in the Seminary suit. Of course, at that time, both the groups concerned herein were comprised in Patriarch group and were fighting against the renegade group of Mar Athanasius. It is really pointless to go into the question whether the judgment in Vattipanam suit operates as res judicata. Even if it is assumed that it does not, yet its value as a precedent - a finding arrived at by the High Court after a full enquiry - cannot be denied. According to the first judgment of the High Court, the Patriarch has the power to excommunicate the Metropolitans. It does not say anything about the power of the Patriarch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itans and other officials of the Church and to consecrate Morone. A.14 empowers the Metropolitans to elect their own Catholicos. In these circumstances, it is difficult to understand how could the use of the expression Holiness or the assertion of being seated at the Throne of St. Thomas in the East or the claim that the Malankara Church is an autocephalous Church can be treated as heresy when the very Constitution by which the Catholicos and his group were swearing affirmed in clear terms that the Patriarch is the supreme head of the Malankara Church. As a matter of fact, some of the charges in the letter dated January 30, 1974 can also be termed as vogue. For example, Charge No. 9 reads thus: The books taught in the Sunday Schools there contain uneconomical and wrong teachings and fallacious historical facts especially with a view to inject wrong ideas into the tender minds regarding the fundamentals and history of the Church. The letter does not set out or refer to the alleged uneconomical or wrong teachings and fallacious historical facts taught in the books in the Sunday Schools. Similarly, Charge no. 8 says that in the ordinations administered by the Catholicos, the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the hands of Episcopal or pastoral orders'. The same dictionary defines the word Congregationalism as 'A system of ecclesiastical polity which regards all legislative disciplinary and judicial functions as vested in the individual church or local congregation of believers'. Chambers Dictionary Vol. 4 defines Congregationalism as 'the doctrine held by churches which put emphasis on the autonomy of the individual congregations'. Congregationalims has for its sign-manual the words of Jesus 'Where two or three are gathered together in my name, there am I in the midst of them'. (Emphasis in original). 121. The Division Bench also referred to the judgment of the Kerala High Court in John v. Rev. Thomas Williams (1953) K.L.T. 605 on the meaning and content of the expression Congregationalism. The judgment describes Congregationalism as one of the non-conformist Protestant denominations. Relying upon the Encyclopedia of Britanica, it says that the Congregationalism is the name given to that type of church organisation in which the autonomy of the local church or body of persons assembling in Christian fellowship is fundamental. It constitutes one of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the jurisdiction over the day-to-day management of temporal affairs of Parish Churches. The Division Bench has also referred to the Mulanthuruthy Synod resolutions which say that the Parish Churches have a degree of autonomy with certain supervisory powers along being vested in the Managing Committee of the Association or Catholicos or the Malankara Metropolitan, as the case may be. The Division Bench has held that Malankara Church though it has some episcopal characteristics is not a purely episcopal church. But we are not able to agree that the individual Parish Churches are independent churches or churches with independent status.... The Parish Churches are constituent parts of the Malankara Church and enjoy a degree of autonomy and he administration of the day-to-day affairs vests in the Parish Assembly and committee elected by the Parish Assembly subject to supervisory powers of the Metropolitan - and the provisions of the Constitution of the Malankara Sabha do not affect this position We are, however, of the opinion that in this suit no declaration can be granted affecting the rights of Parish Churches in their absence not can it be declared that the properties held by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any inherent right to get himself impleaded; that lies in the discretion of the Court on being satisfied that the petition is well founded on merits. The counsel for the contesting respondents (plaintiffs) would contend that all that the plaintiffs want is for a declaration of the supervisory and spiritual control over the Church. (Emphasis supplied) Accordingly, the revision petitions were dismissed. If the plaintiffs mean merely spiritual control by saying episcopal, probably there may be no difficulty in holding that Catholicos and the Malankara Metropolitan have spiritual control over the Parish Churches, but if it means control over temporal affairs of, or title to or control over the properties of, the Parish Churches beyond what is provided for in the Constitution, a declaration to that effect can be obtained only after hearing and in the presence of the concerned Parish Churches. It also appears that each of these Parish Churches/Associations has its own constitution, whereunder the general body of the Parishes is declared to be the final authority in temporal matters. All this is mentioned only to emphasis that in the absence of the Parish Churches and proper plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that he had himself created another center of power in India with the aforesaid powers, it would be reasonable to hold that thereafter the Patriarch cannot exercise those powers unilaterally, i.e., without reference to the Catholicos. He can exercise those powers only in consultation with the Catholicos. Moreover, the person to be appointed as Metropolitan or Malankara Metropolitan has to be accepted by the people as has been affirmed in the judgment in Seminary suit. The Patriarch's power to ordain the Metropolitans now is subject to the Constitution of 1934. (4). It may be that be virtue of the revival of Catholicate and by issuing the Kalpana Ex.a.14 - and also by accepting the 1934 Constitution (as to be mentioned presently) - the power of the Patriarch may have been reduced to a vanishing point, but all the same he remains 'the supreme head of the Syrian Church of which the Malankara Church is a division. He is spiritually superior to the Catholicos though he does not, and indeed never did, enjoy any temporal powers over the Malankara Church or its properties. (5). The 1934 Constitution was approved at a validly convened meeting of Malankara Association, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual authority by the Catholicos and his group and similarly the Patriarch's refusal to recognise the Catholicos or the 1934 Constitution in the correspondence that passed during the years 1972 to 1975 are attributable to the personal differences and the mutual bickering between the two dignitaries and their respective groups. On that basis, it can neither be said that the Catholicos or his followers have become apostates or that they have deviated from the tenets of the faith. Similarly, Patriarch cannot be said to have lost his spiritual supremacy over the Malankara Church (on account of his accusations and declarations) which he enjoyed prior to the commencement of the said correspondence, i.e., according to the 1934 Constitution. (10). The common properties (Samudam properties) held by the Malankara Church are vested in Malankara Metropolitan and others as declared in the judgment of this Court in A.I.R. 1959 S.C. 31. 123. In view of the above findings, it is unnecessary to go into the other questions urged before us, viz., maintainability of the suit (in view of Section 9 of the Civil Procedure Code), effect of the Places of Worship (Special Provisions) Act, 1991, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her party before us disputes the validity of these resolutions. In Seminary suit, it was held by the Royal Court of Final Appeal on the basis of the said resolutions and other material placed before it that the Metropolitan of the Syrian Christian Church in Travancore should be a native of Malabar consecrated by Patriarch or his delegate and accepted by the people as their Metropolitan. Indeed, this aspect has been repeatedly stressed before us by the learned Counsel for the Catholicos group. We too find this to be a very desirable feature - an instance of infusion of democratic spirit in religious affairs. It may be mentioned that in the appeal preferred in this Court against the rejection of their review petition in Samudayam suit (judgment reported in A.I.R. 1954 S.C. 526), the stand of the Catholicos group was that the said judgment of the Royal Court represents the Constitution of the Malankara Church. The subsequent judgments too re-affirms the said position. It is thus clear that the Malankara Association was formed not only to manage the temporal affairs of the Church but also its religious affairs and that the appointment of Metropolitans was subject to acceptance by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over both spiritual and communal affairs of the Malankara Church should be composed in a reasonable and fair manner. Judged from this angle, Clause (68) of the 1934 Constitution cannot be said to be a fair one. [After 1967 amendment, the corresponding clause is Clause (71) which reads, a priest and two payment elected by each Parish Assembly (and the members of he existing Managing Committee?) shall be members of the Association ]. It may, therefore, be necessary to substitute Clause (68)(now Clause (71) and other relevant clauses of the Constitution to achieve the aforesaid objective which would also affirm the democratic principle, which appears to be one of the basic tenets of this Church. Accordingly, we direct both the parties as well as the Rule Committee (mentioned in Clause (120) of the Constitution) to place before this Court within three months from today draft amendments to the Constitution. After perusing the same, we shall give appropriate directions. Thereafter, elections to the Malankara Association shall be held on the basis of the amended Constitution. The Association so elected shall be the Association for all purposes within the meaning of and for the purposes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eretics) convened pursuant to the directions of the High Court, not only the Knanaya Churches participated therein but the Knanaya Metropolitan, Mar Clemis, was elected as the Malankara Metropolitan; and (b) after the judgment of this Court in A.I.R. 1959 S.C. 31, Knanaya Churches participated in the meetings of the Malankara Association held in 1959, 1962, 1965 and 1970 as would be evident from Ex.A.47 (h), A.50 (h) and A.53 (h). Leading members of the Knanaya Community were elected as members of the Managing Committee of the Malankara Association. 128. The above facts were placed against the following facts appearing in favour of the Knanaya Church, viz., (i) in the plaint, there was no specific prayer with respect to the Knanaya Church. Because Knanaya Churches were also listed in the list of Parish Churches appended to the plaint, the Knanaya Samudayam applied for impleading itself as a defendant to the suit and was impleaded as D.19. only in response to the averments made in written statement of D. 19, did the plaintiffs aver facts on the basis of which they claimed that Knanaya Churches are part of Malankara Association and subject to the 1934 Constitution; (ii). t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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