TMI Blog2017 (7) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... th respect to the matters it has decided, in the wake of provisions of Order 1 Rule 8 and Explanation 6 to Section 11 Code of Civil Procedure. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e., Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided. (iv) As the 1934 Constitution is valid and binding upon the Parish Churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in the so-called exercise of right Under Articles 25 and 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the churches under the guise of spiritual supremacy of the Patriarch. (v) The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara Metropolitan. Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of Malankara Church subject to the riders provided in the 1934 Constitution. (vi) Full effect has to be given to the finding th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int Vicars, Priests, Deacons, Prelates etc. in contravention of the 1934 Constitution. (xiii) Malankara Church is Episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution. (xiv) Appointment of Vicar is a secular matter. There is no violation of any of the rights encompassed Under Articles 25 and 26 of the Constitution of India, if the appointment of Vicar, Priests, Deacons, Prelates (High Priests) etc. is made as per the 1934 Constitution. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned. (xv) Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc. Even otherwise once the 1934 Constitution has been adopted, the appointment of Vicar, Priests, Deacons, Prelates (high priests) etc. is to be as per the 1934 Constitution. It is not within the domain of the spiritual right of the Patriarch to appoint Vicar, Priests etc. The spiritual power also vests in the other functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar etc. in violation of the 1995 judgment of this Court. (xx) The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even frame bye-laws in violation of the provisions of the 1934 Constitution. (xxi) The Udampadies of 1890 and 1913 are with respect: to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted. - Civil Appeal Nos. 3674, 3681, 3682, 3683, 8790, 8789 of 2015, Civil Appeal No. 5408 of 2017 (Arising out of SLP (C) No. 35211/2015), Civil Appeal No. 5409 of 2017 (Arising out of SLP (C) ... CC No. 22129/2015) And Ors. - - - Dated:- 3-7-2017 - Civil Appeal No. 5411 of 2017 (Arising out of SLP (C) No. 35599 of 2015) and Civil Appeal No. 5410 of 2017 (Arising out of SLP (C) No. 28797 of 2015) Arun Mishra And Amitava Roy, JJ. For the Appearing Parties : C. Aryama Sundaram, K.V. Vishwanathan, Shyam Divan, Chander Uday Singh, K. Parasaran, Mohan Parasaran, K.K. Venugopal, S. Sreekumar, Krishnan Venugopal, Sr. Advs., S. Udaya Kumar Sagar, Bina Madhavan, Swati Bhardwaj, Ramandeep Kaur, Adv. for Lawyer's Knit Co., E.M.S. Anam, P.J. Philip, P.K. Manohar, Radha Shyam Jena, Maneesha Dhir, Abhishek Kumar, Ashwin Rakesh, Ritesh Kumar, A. Raghunath, Vishnu Sharma, Anupama Sharma, Sonali Negi, Rohit Mammen Alex, P.S. Sudheer, Rishi Maheshwari, Anne Mathew, Shruti Jose, V.K. Biju, Roy Isaak, Abhay Pratap Singh, N. Livingstone, N.P.R. Panickker, K.J. Kuria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets be administered in accordance with the decision of majority of the Parishioners; and permanent injunction restraining the third Defendant, agents and religious dignitaries and those who are not accepting spiritual supremacy of Patriarch of Antioch and all the East. 3. With respect to Mannathur Church the appeals have been preferred against judgment and decree dated 20.5.2015 passed by the High Court of Kerala in R.F.A. No. 320 of 2014 arising out of O.S. No. 41 of 2003 filed by the Catholicos faction to declare that the church is administered by 1934 Constitution. Further declaration that Defendant Nos. 3 to 5 had no right or authority to act as its trustees, permanent prohibitory injunction against them for functioning as trustees, direction be issued to Defendant No. 2 to call general body for holding elections. Injunction had also been prayed against changing name of the church. 4. It appears that there is perpetual fight for managing the affairs of Malankara Church between the Patriarch faction and the Catholicos faction for control of spiritual and temporal management of affairs of the Parish Church. Malankara Church is division of the Orthodox Syrian Church. Befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 3000 Star Pagodas deposited by Mar Thoma VI (Dionysius the Great) with the East India Company at 8 % interest came to be allotted to Malankara Jacobite Syrian Church. On account of disputes between the members of Malankara Jacobite Syrian Church, Partairch Peter III of Antioch came to Malabar in 1876. He called a meeting of the accredited representatives of all Churches in Malabar which is known as the Mulanthuruthy Synod . At this Synod, Malankara Syrian Christian Association (viz. Malankara Association) was formed to manage the affairs of the church and the community. The Malankara Metropolitan was made its ex-officio President. Until 1876, the entire Malabar was comprised in one Diocese. Thereafter, it was divided into seven Dioceses, each Diocese headed by a Metropolitan. One of them was to be designated as Malankara Metropolitan who exercised spiritual and temporal powers over all the Dioceses. SEMINARY SUIT: 6. Seminary Suit was filed on 4.7.1879 by Mar Joseph Dionysius claiming to be the properly consecrated Metropolitan of Malankara Jacobite Syrian Church and the President of Malankara Association against Mar Thomas Athanasius. The main dispute between them wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thdrawal of recognition, as per one view, was that Abdul Messiah ceased to exercise any and all the powers of Patriarch; the other view was that said withdrawal did not affect the spiritual authority of Abdul Messiah. This Court noted that the dispute between Abdul Messiah and Abdulla-II led to the formation of two groups in the Malankara church. 8. As stated above, the Sultan of Turkey withdrew the recognition given to Abdul Messiah as the Patriarch of Antioch and recognized Abdulla II as the Partiarch. Mar Geecarghese Dionysius was ordained as Metropolitan by Patriarch Abdulla II at Jerusalem. Mar Geecarghese Dionysius became the Malankara Metropolitan on the death of Mar Joseph Dionysius. Due to differences between Mar Geevarghese Dionysius and Abdullah II, the latter excommunicated the former on 31.3.1911. Few months later, Abdulla II appointed Paulose Mar Kurilos as the Malankara Metropolitan. Mar Geevarghese Dionysius convened a meeting of the Malankara Syrian Christian Jacobite Church which declared his excommunication as invalid. REVIVAL OF CATHOLICATE IN 1912: 9. In 1912 revival of Catholicate was effectuated by Abdul Messiah by consecrating one Mar Ivanios as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans, Episcopas and to consecrate Holy Morone and to serve all the other spiritual items and also to administer the Kandanadu Diocese as he was earlier.... You must respect and love him properly and suitably because he is your head, Shepherd and spiritual father. He who respects him, respects us. He who receives him, receives us. Those who do not accept his right words and those who stand against his opinions which are in accordance with the Canon of the Church, defy him and quarrel with him, will become guilty.... 107. Coming to Ex. A-14, which is dated 19-2-1913, the third paragraph starts by saying: After bestowing on you our blessings a second time, we desire to make known to you our true affection that ever since your letters reached our weakness in midiat, we have been deeply grieved at the dissensions sown by Abdulla Effendi among our spiritual children in all our churches in Malabar. A little later A-14 says: Accordingly, we, by the Grace of God, in response to your request, ordained a Maphrian, that is, Catholicos by name Poulose Basselios and three new Metropolitans, the first being Gheevarghese Gregorius, the second Joachim Evanios and the third, Gheevarghese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d authority to install a Catholicos, when a Catholicos dies. No one can resist you in the 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 , which are not found in Ex. A-13. More about these documents later. VATTIPANAM SUIT 11. Dispute arose as to the persons entitled to the interest on 3000 Star Pagodas aforementioned. It was converted to a representative suit. Patriarch and Catholicos factions were parties. Withdrawal of recognition of Abdul Messiah came in question. Excommunication of first Defendant by Abdulla II was held to be invalid. District Judge upheld the claim of Catholicos group, Defendant Nos. 1 to 3, for interest. Election for the post of Malankara Metropolitan was held to be void at law. It was also held that withdrawal of recognition by the Sultan of Turkey did not deprive Abdul Messiah from his functional powers of supervision. 12. In 1923 patriarch group filed appeal before the High Court of Travancore since reported in 41 TLR 1. A Full Bench of the High Court allowed the appeal and reversed the judgment and decree of the District C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Association was formed for drawing a constitution for the church and the association. Dispute also arose with respect to the person who is entitled to receive interest. On 21.8.1928 civil suit was filed in the District Court of Kottayam belonging to Patriarch group against Mar Geevarghese Dionysius and two others including the then Catholicos Mar Geevarghese Philixinos. The suit was dismissed due to non-compliance with certain orders regarding payment of monies to Commissioner appointed in the suit. The restoration application was dismissed against the Catholicos which was filed in the High Court. In 1931, Patriarch Elias 1 at the instance of Lord Irwin, the then Viceroy of India, visited Malabar in order to solve the dispute between two rival groups in the Malankara church but he died at Malabar before he could effect any settlement. In his place one Ephraim was elected as the Patriarch of Antioch in 1933, allegedly without notice to the Malabar community. Therefore, Mar Geevarghese Dionysius and his supporters did not recognize him as duly elected Patriarch. 15. In February, 1934 Mar Geevarghese Dionysius died and the trust properties passed into possession of his co-trustee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n properties of the Malankara Church) and for a further declaration that Defendants to that suit belonging to Catholicos group, were not lawful trustees. Other incidental reliefs were also prayed for. The suit was dismissed by the trial court on 18.1.1943 against which Plaintiff filed an appeal which was allowed on 8.8.1946 and the suit was decreed by majority of Judges by 2: 1. Matter was carried to this Court. This Court directed the High Court to re-hear the appeal on all the points. Thereafter appeal was re-heard and was allowed vide judgment dated 13.12.1956 The suit was decreed. The Defendants, Catholicos group, filed an appeal in this Court which was allowed on 12.9.1958 as per Moran Mar Basselios Catholicos v. Thukalan Paulo Avira and Ors. AIR 1959 SC 31. It was found by this Court in Samudayam suit that the Plaintiffs election at a meeting held on 22.8.1935 in which original Plaintiff is said to have been elected the Malankara Metropolitan and Plaintiffs 2 and 3 as Kathanar, and lay trustees was invalid. Since the meeting was held without notice to the members of the Catholicos party, the Defendants and their partisans had not become ipso facto heretics or aliens or had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociation Committee, and the Churches and people of Malankara also accepted the Catholicate and have submitted themselves to its authority from 1088? (g) Are the Plaintiffs estopped from contending that the Catholicate was not validly re-established in 1088 or that its authority was not accepted or recognised by the Malankara Jacobite Syrian Church? (h) Whether after the revival of the Catholicate the powers of the Patriarch, if any, as regards ordination or appointment of the Malankara Metropolitan and the Metropolitans of Malankara have become vested in the Catholicos? (j) Cannot the offices of Catholicos and Malankara Metropolitan be combined in one and the same person? 11. Is the Patriarch of Antioch the ecclesiastical head of the Malankara Jacobite Syrian Church or is he only the supreme spiritual head? (a) What is the nature, extent and scope of the Patriarch's ecclesiastical or spiritual authority, jurisdiction, or supremacy over the Malankara Jacobite Syrian Church? (b) Is the Patriarch acting by himself or through the Delegate duly authorised by him in that behalf, the only authority competent to consecrate Metropolitans for Malankara? Or is the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised temporal authority by awarding such spiritual punishment as he thinks fit in cases of mismanagement or misappropriation of church assets? 13. Which is the correct and genuine version of the Hoodaya Canons compiled by Mar Hebraeus? Whether it is the book marked as Ex. A or the book marked as Ex. XVIII in O.S. 94 of 1088? 14. Do all or any of the following acts of the 1st Defendant and his partisans amount to open defiance of the authority of the Patriarch ? Are they against the tenets of the Jacobite Syrian Church and do they amount to heresy and render them ipso facto heretics and aliens to the faith? (i) Claim that the 1st Defendant is a Catholicos? (ii) Claim that he is the Malankara Metropolitan? (iii) Claim that the 1st Defendant has authority to consecrate Morone and the fact that he is so consecrating? (iv) Collection of Ressissa by the 1st Defendant? 15. (a) Have the 1st Defendant and his partisans voluntarily given up their allegiance to and seceded from the Ancient Jacobite Syrian Church? (b) Have they established a new Church styled the Malankara Orthodox Syrian Church? (c) Have they framed a constitution for the new church conferring autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicate that the principal contention of the Plaintiffs in the present suit is that the Defendants had become heretics or aliens to the Church or had voluntarily gone out of the Church only by reason of certain conduct definitely particularised in paragraphs 19 to 26 of the plaint, namely, (i) the acceptance of Abdul Messiah as a validly continuing Patriarch; (ii) the acceptance of the establishment of the Catholicate with power to the Catholicos for the time being (a) to ordain Metropolitans, (b) to consecrate Morone (c) to issue Staticons, (d) to allot Edavagais and (e) to receive Ressissa. These are the specific acts on which is founded the charge of heresy or going out of the Church by setting up a new Church. It has not been disputed that the power to issue Staticons and to allot Edavagais are not independent powers but are incidental to and flow from the power to ordain Metropolitans. The question is whether these contentions are concluded by the final decision, (Ex, 256) pronounced on July 4, 1928 in the interpleader suit (O.S. No. 94 of 1088) which is reported in 45 Trav. L.R. 116. (A-1). This leads us to scrutinise the matters which were in issue in that suit. 19. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crate Morone has been taken away as a consequence of the adoption of wrong canon (Ex. 26-Ex. A in O, S. No. 94 of 1088) indicating that the Defendants have set up a new church; (iib) The privilege of the perquisites of the Ressissa has been denied to the Patriarch by the new constitution in breach of the true canons; (iii) That there has been a complete transfer of the trust properties from the beneficiaries, namely, Malankara Jacobite Syrian Church to an entirely different institution, the Malankara Orthodox Syrian Church; (iv) The re-establishment of the institution of the Catholicate of the East in Malabar having jurisdiction over India, Burma, Ceylon and other countries in the East is different from the institution of Catholicate that was the subject-matter of the interpleader suit (O.S. No. 94 of 1088). It is necessary now to discuss these contentions separately. 34. Re. (I): In support of the first charge learned Counsel has drawn our attention to paragraphs 18, 22 and 26 of the plaint, paragraphs 29 and 38 of the written statement, paragraphs 18 and 27 of the replication and to issues Nos. 6, 14, 15 and 16. We do not think the pleadings and the issues are capable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Church by acceptance of the wrong canon is within the scope of those two issues and that the parties to this suit went to trial with that understanding. We do not consider this argument to be well founded at all. A reference to the pleadings will indicate how and why the Hoodaya canon came to be pleaded and discussed in this case. The Plaintiffs impute certain acts and conduct to the Defendants and contend that by reason thereof the Defendants have become heretics or aliens or have gone out of the Church. These imputations form the subject-matter of issues 14 and 15 and the conclusions to be drawn from the findings on those issues are the subject-matter of issues Nos. 16 and 17. The Defendants, on the other hand, impute certain acts and conduct to the Plaintiffs as a result of which, they contend, the Plaintiffs have separated from the Church and constituted a new Church. Issues 19 and 20 are directed to this counter charge. In order to decide these charges and counter charges it is absolutely necessary to determine which is the correct book of canons, for the Plaintiffs 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h who is declared in Clause (1) of this very constitution to be the supreme head of the Orthodox Syrian Church. In any case, according to the canons relied upon by each of the parties, namely, Ex. B.P.-Ex, 18 of O.S. No. 94 of 1088 produced by the Plaintiffs or Ex. 26-Ex. A in O.S. No. 94 of 1088 insisted upon by the Defendants, the non-payment of Ressissa does not entail heresy. Even if the question involved in ground (ii b) is not covered by the previous decision in the interpleader suit (O.S. No. 94 of 1088) the question has, on the foregoing grounds, to be decided against the Plaintiff-Respondent. 38. Re. (iv): An attempt is made by learned Counsel for the Respondents to make out that what was referred to in the interpleader suit (O.S. No. 94 of 1088) was the ordination of a Catholicos whereas in the present suit reference is made to the establishment of a Catholicate and further that in any case the Catholicate of the East referred to in the plaint in the present suit is an institution quite different from the Catholicate which was the subject-matter of discussion in the interpleader suit (O.S. No. 94 of 1088.). We do not think there is any substance whatever in this conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could and should have been put forward in the earlier suit (O.S. No. 94 of 1088) and that not having been done the same are barred by 'res judicata' or principles analogous thereto. We accordingly hold, in agreement with the trial court, that it is no longer open to the Plaintiff-Respondent to re-agitate the question that the Defendant Appellant had 'ipso facto' become heretic or alien or had gone out of the church and has in consequence lost his status as a member of the Church or his office as a trustee. This Court has approved the conclusion of the District Court that the suit was barred by res judicata and was founded on the same cause of action as that of O.S. No. 2 of 1104. Finding of the District Court has been affirmed by this Court. This Court found that M.D. Seminary meeting 26.12.1934 was properly held and the first Defendant was validly appointed as the Malankara Metropolitan and as such became the ex officio trustee of the church properties. The decree of the trial court dismissing the suit was restored. It was found M.D. Seminary meeting adopted the Constitution on 26.12.1934. EFFECT OF RECONCILIATION: 20. During the pendency of the appeal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in accordance with the terms of 1934 Constitution. However, such terms were not specified. The use of the expression 'holiness' with the name of Catholicos was objected to observing that this expression can be used only by the Patriarch and the assertion of sitting at the Throne of St. Thomas is not acceptable. Without his authority, Catholicos could not have assumed the administration of the said churches. 22. On 8.6.1959 the Catholicos replied to the Patriarch to the effect that the use of the expression 'holiness' was justified and the claim of the Throne of St. Thomas is used not only by Patriarchs but also by Metropolitans and Bishops alike and is also evident from the Hudaya Canon and other books; Kalpana Ex. A-13 and A-14 reviving the Catholicate referred to the Throne of St. Thomas in India, and thus, the expression 'the Throne of St. Thomas' is not a new thing, and further the judgment of the Supreme Court had affirmed the 1934 Constitution. However the Patriarch again objected to Catholicos on 16.7.1960. Correspondence went on between the Patriarch and Catholicos. On 22.5.1964 the Patriarch installed new Catholicos in India. A day befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imit the geographical jurisdiction of the hierarchy. In response thereto, Patriarch communicated several charges to the Catholicos on 30.1.1974 and required him to show cause. On 9.3.1974 the Catholicos replied stating that the Patriarch had no jurisdiction to level charges against him or to ask for his explanation. On 10.1.1975 the Patriarch suspended the Catholicos from his office until further orders. On 22.5.1975 meeting of Malankara Episcopal Synod was held reiterating the independent nature of Malankara Church and disputing the authority of the Patriarch. On 16.6.1975 the Universal Synod met at Damascus to consider the charges against the Catholicos. Pursuant thereto, a bull of excommunication was issued by the Patriarch excommunicating the Catholicos from the Syrian Orthodox Church which led to filing of the suit which was decided vide judgment of 1995. O.S. No. 2 of 1979 was filed by the Catholicos challenging the authority of the Patriarch to ordain Bishops and Metropolitans. O.S. No. 6 of 1979 was filed by the Catholicos against the Patriarch pertaining to the ordaining of priests in certain dioceses. O.S. No. 4 of 1979 was treated as the main suit. To reiterate, same mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench of the Kerala High Court reversed the same and upheld the claim of the Catholicos group to a large extent. The main suit had been decreed, as prayed for, against Defendant Nos. 1 to 17 without costs and dismissed against Defendant No. 18 (Evangelical Association of the East). With respect to Knanaya Samudayam the suit had been decreed but with certain qualifications. 26. In 1995 judgment this Court has given the findings in para 148 and the same are extracted hereunder: 148. 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 Court. The fundamental facts which decide the fate of the main dispute are: (a) The Patriarch of Antioch was undoubtedly acknowledged and recognised by all the members of the Malankara Church as the supreme head of their Church. In the year 1654, they took the oath known as the Koonan Cross Oath reaffirming their loyalty to the Syrian Orthodox Christian Church headed by the Patriarch. It was the Patriarch who convened the Mulanthuruthy Synod at which the Malank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Seminary meeting held on 26-12-1934 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 the 1934 Constitution. This was necessary for the reason (i) to avoid creating parallel authorities leading to conflict and confusion and (ii) the acceptance by the local people was a sine qua non for any Metropolitan or melpattakar in Malankara Church as provided in the Mulanthuruthy Synod (convened and presided over by the then Patriarch himself) and given a judicial sanction by the judgment of the Travancore Royal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 jurisdiction confining his authority to India and East alone. 27. This Court accepted the revival of the Catholicate on a threadbare scrutiny of the recorded facts and held that it was no longer open to the Patriarch or his followers to contend that the revival of Catholicate was not in accordance with the religious tenets and faith of the Syrian Jacobite Christian Church, and that the power of the Patriarch was reduced to a van ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as to validity of the Constitution was untenable as they cannot make a legitimate grievance to all these. This Court laid down thus: 150. In this view of the matter, the submissions of the Patriarch group that the 1934 Constitution was not put forward by the Catholicos group as one of the bases of their claim in Samudayam suit or that no finding as such was recorded by this Court in the said suit regarding the validity of the Constitution are of little consequence. We are not relying upon the Rule of estoppel in this behalf but are only pointing out that having conceded, recognised and affirmed all the above things, the Patriarch group cannot make a legitimate grievance of these very things. They cannot be heard to say so. Nor have they made any effort to explain the said acts and conduct of the Patriarch and of the persons owing allegiance to him. They must be deemed to have given up and abandoned all their objections to the aforesaid events and documents. 29. With respect to the validity of the excommunication of the Catholicos in the Vattipanam suit, it was held that it was not open to the Patriarch to seek excommunication of the Catholicos on the charges which were lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropolitans. It does not say anything about the power of the Patriarch to excommunicate Catholicos and if so according to what procedure. We have seen supra that while granting the review of the said judgment, the High Court specified that three findings recorded by it in the judgment under review should not be reopened. The three findings inter alia included the finding relating to the authenticity of Ex. 18. According to the said version of the Hudaya Canon, the Catholicos shall act according to the orders of (be subject to) the Patriarch of Antioch. He shall not defy (act against) his superiors. It repeatedly says that the Catholicos is subject to the authority of Patriarch and that the Patriarch is the head or superior of the Catholicos. Though the canon does not say so, we shall proceed on the assumption for the purpose of this case -- without recording any finding to that effect -- that the Patriarch has the power to excommunicate the Catholicos. Yet the question remains whether the grounds on which the excommunication of the Catholicos has been effected are valid and permissible grounds. A perusal of the charges communicated to the Catholicos by the Patriarch in his lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Charge No. 8 says that in the ordinations administered by the Catholicos, the heretical two-nature theory propounded by Pope Leo is not repudiated. It is not stated under what canonical law such an assertion is obligatory. So far as the non-acceptance of the delegate sent by Patriarch is concerned, it can hardly be considered to be a ground for excommunication. After all that has happened between 1912 and 1964, the sending of a delegate over the protestations of all the Metropolitans of Malankara including those belonging to Patriarch group was totally uncalled for. The delegate started ordaining priests here and the Patriarch himself ordained the first Defendant in OS No. 4 of 1979. All this certainly could not have been done unilaterally. It is one thing to say that the Patriarch could do these things in cooperation with the Catholicos but the ordaining of the priests and Metropolitans by him and his delegate without reference to -- indeed over the protestations of the Catholicos -- was certainly not the right thing to do since it purported to create a parallel administrative mechanism for the Church in spiritual/temporal matters. We are, therefore, of the opinion that the cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iddle East from the jurisdiction of the Catholicos. It was held that Malankara Church is Episcopal to the extent it is so declared in the 1934 Constitution. The said Constitution governs the affairs of the Parish Churches and shall prevail. It was observed that due to mutual bickering in the Patriarch and the Catholicos, it cannot be said that 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 in accordance with the 1934 Constitution. The common Samudayam properties held by the Malankara Church are vested in Malankara Metropolitan as declared in the judgment of 1995 of this Court in Moran Mar Basselios (supra). This Court summarized its conclusions thus: 155. The result of the above discussion may be summarized thus: (1) The Vattipanam judgment has held that the version of Hudaya Canon put forward by Patriarch group as Ex. 18 in the suit is the correct version and not the version put forward by the Catholicos group. However, in Samudayam suit, the District Judge (trial court) accepted the version of Canon put forward by the Catholicos group as agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anthuruthy Synod. The Defendants in the present suits (Patriarch group) cannot question its legality and validity in view of the acts and conduct of the Patriarch and the members of his group subsequent to the judgment of this Court in Moron Mar Basselios. (6) Ex. A-19, Kalpana, was issued by Patriarch Yakub with the full knowledge of revival of Catholicate, Ex. A-14 and the 1934 Constitution and the various claims and contentions of both the parties put forward in Samudayam suit and the decision of this Court in Moron Mar Basselios. It must, therefore, be held that the Patriarch has thereby accepted the validity of the revival of Catholicate Ex. A-14 and the 1934 Constitution, and abandoned and gave up all or any objections they had in that behalf. Several members of his group including some of the Defendants also accepted the Constitution and took oath to abide by it. They cannot now turn round and question the same. (7) Though the Patriarch raised objections to the honorifics (e.g., use of 'Holiness' with the name of the Catholicos and his assertion that he was seated on the Throne of St. Thomas in the East ) and to the qualification added by the Catholicos in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed in the 1995 judgment, that no declaration could be granted affecting the rights of Parish Churches in their absence nor could it be declared that the properties held by Malankara Parish Churches vests in the Catholicos or the Malankara Metropolitan or the Metropolitan of the diocese concerned, as the case may be. However this Court also observed that the 1934 Constitution shall govern and regulate the affairs of Parish Churches too insofar as the said Constitution provides for the same. 32. This Court also observed that with respect to spiritual control, Church was episcopal and there was no difficulty in holding that Catholicos and the Malankara Metropolitan have spiritual control over the Parish Churches, but if it means conrol 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 Parish Churches concerned. AMENDMENT OF CONSTITUTION AS PER 1995 JUDGMENT: 33. This Court directed the amendment of Section 68 for the democratic functioning of the Malankara Church. Sections 46 and 71 had been inser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... member or members , as the case may be. It is made clear that when we speak of the members in the said articles, we refer to members as contemplated by and as mentioned in Clause (7) of the 1934 Constitution (which deals with Parish Church and Parish Assembly). 8. The first proviso in Article 71 is deleted. PART IV 9. In view of the aforementioned controversies, it is submitted by the counsel for the parties, no elections could so far be held as contemplated and directed by the judgment of this Court. In Part I of the order dated 25-3-1996, it was directed by this Court that the election of members of the Association and the Diocesan Assemblies shall take place within three months therefrom on the basis of the amended/substituted Articles 71 and 46. The time for conducting the said elections is extended up to and inclusive of 30-4-1997. This Court also extended time to hold elections till 30.4.1997. IMPLEMENTATION OF 1995 JUDGMENT: 36. C.M.P. No. 2079 of 1997 was filed in A.S. No. 331 of 1980 in execution proceedings before the Kerala High Court. The Catholicos group claimed, that elections had already been held and hence the execution was completed. The fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration; to appoint a court receiver; and to conduct elections to the Managing Committee. In the plaint it. was averred that Defendant No. 1 is a Parish Church established by Jacobite Christian Community at Kolencherry. There are two factions-the Orthodox faction and the Patriarch faction. Defendant No. 2 is a Vicar of the Patriarch faction. Defendant No. 3 is the priest offering services on behalf of the Orthodox faction. Plaintiffs and Defendant Nos. 2, 5 and 7 belong to the Patriarch faction and other Defendants belong to the Catholicos faction. On 13.12.1913 Udampady was executed regarding the manner in which its affairs are to be administered, to which five priests and 15 lay trustees were parties in which specific provisions for the priests to render services in turns and the trustees to administer the assets of the Church were made. The Church was being administered as per the 1913 Udampady., As the factional fights in the Church erupted, O.S. No. 19 of 1980 was filed by the Orthodox faction Under Section 92 Code of Civil Procedure. An Advocate-Receiver was appointed to manage the assets of the Church. Suit was dismissed vide judgment dated 27.2.1997. The judgment directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutions i.e. Catholicos by 1934 Constitution and Patriarch by 2002 Constitution and such a dispute can be settled by calling upon general body meeting of the entire Parishioners. It was further averred that the Defendant Church had not accepted the 1934 Constitution. It is governed by Udampady of 1913. Defendants 3, 10 and 11 were trying to obtain the keys as to when the suit was filed. 41. Defendant Nos. 1, 3 and 9 in their written statement contended that the first Defendant is a Malankara Orthodox Syrian Church founded centuries ago. The origin and establishment of the Church is in obscurity. The Church was initially administered under an Udampady registered in 1913 AD. Thereafter, Malankara Association framed the Constitution in 1934. Thus, Udampady of 1913 ceased to exist by virtue of Section 132 of the 1934 Constitution which provides that provisions in Udampadi inconsistent with the provisions of said Constitution shall be void. After promulgation of the 1934 Constitution, D-1 Church is being administered in accordance with the provisions of the 1934 Constitution. After the decision of the Supreme Court in 1958, peace and tranquility prevailed in Church. In pursuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i were the lay trustees. There was proper administration and management of the Church. It was not the big Trust of religious nature but was established to meet the religious needs of the faithfuls of the Malankara Orthodox Syrian Christian community. The Plaintiffs have deviated from Malankara Orthodox Syrian faith for which the Church was established and formed a new Sabha called Yakobava Suriyani Christian Association in the year 2002, They have no right or authority to interfere in the temporal and ecclesiastical affairs of the Church, D-1. It was true that two priests of two factions were conducting services in turns by way of interim arrangement. First Defendant is in possession of the keys as per order dated 2.10.2010 passed by the trial court. 43. Another written statement was filed by Defendant Nos. 1, 2 and 5 supporting the Patriarch states that it was governed as per the Udampady and not by the 1934 Constitution. Additional written statement was also filed by additional Defendants 13 and 15 supporting the Plaintiff. It was contended that the religious services in the church can only be performed by those religious dignitaries who accept the supreme spiritual headship o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esan Metropolitan in respect of all Churches including D-1 Church falling under the Diocese. The Vicars including the fourth Defendant were appointed by said Diocesan Metropolitan in accordance with Section 40 of the 1934 Constitution. Elections to the Managing Committee were held on 20.3.2002 and was affirmed by the Supreme Court. After bifurcation of the Diocese into East and West, fresh Kalpana 58/2002 was issued confirming the appointment of fourth Defendant as Vicar of D-1 Church. Defendants 2 and 3 were claiming to be trustees of first Defendant Church. They were elected as trustees for a period of one year only by the Pothuyogam dated 17.1.1999. Thereafter, no Pothuyogam had been convened. No other appointment was extended further by the Diocesan Metropolitan. As per Article 12 of 1934 Constitution, fourth Defendant Vicar had to call for Pothuyogam in respect of D1 Church which has to be convened twice every year. The Secretary, trustee and managing committee members were elected as per Section 17 for a period of one year so as to write and keep the minutes of the Church and get signatures of Diocesan Metropolitan. Accounts have to be maintained and submitted. Defendant No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution of India. The Plaintiffs or the fourth Defendant have no authority or right to question the decisions and resolutions of the Parish Assembly dated 30.6.2002. The 1995 judgment has no relevance to the administration of the Church in the light of adoption of the 2002 Constitution. Since the 4th Defendant had deviated from the fundamental faith of the Church the present Diocesan Metropolitan of the Jacobite Church H.G. Kuriakose Mar Divascorous as per his Kalpana No. KND 35 of 2003 removed him from the post and appointed Fr. Thomas Murikkal as Vicar of the Church. Defendant Nos. 2 and 3 were elected as trustees on 17.1.1999 but the annual General Body Meeting of the Church on 9.2.2003 elected new trustees namely P.A. George Padiyil and Paul Varghese Keelppillil. They were not impleaded in the suit, thus it suffered from non-joinder of necessary parties. Since Defendant No. 4 had abdicated the faith, he could not continue as Vicar of the Church. Membership of the Church is open to those who are obedient and loyal to the Holy Throne of Antioch. The Church is not governed by the 1934 Constitution, The Church or the Parishioners have no right or authority to deviate f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that D-1 Church was governed by the Udampady of 1890 registered with SRO, Muvattupuzha. They are not governed by the 1934 Constitution. An Association was convened on 20.3.2002 and Yacobaya Suriyani Christiyani Sabha promulgated the Constitution in the year 2002 The Patriarch faction association never participated in the elections held as per the 1995 judgment. Pothuyogam was held on 30.3.2003 in tune with the Udampady of 1890. Other similar pleas as in the aforesaid case have been raised. There was excommunication of Metropolitan Dr. Thomas Mar Athanasious. First Defendant Church never accepted the 1934 Constitution. Defendant Nos. 7 to 27 also filed their additional written statements. A.S. No. 176 of 2002 was pending, the suit was not maintainable. They also relied upon Udampady of 1890 and 2002 Constitution. 49. The High Court vide judgment and decree dated 4.10.2013 dismissed RFA Nos. 589 and 655 of 2011 arising out of OS No. 43 of 2006 filed by the Appellants. Review petition filed before the High Court was dismissed vide order dated 11.4.2014. The appeals arising therefrom are CA Nos. 3682 of 2015 and 3683 of 2015. The High Court has upheld the judgment of the trial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals have been preferred. 51. With respect to Church at Mannathur, the trial court has passed similar decree as passed by the High Court in the Varikoli Church matter, upholding 1934 Constitution and similar directions have been issued. The High Court has affirmed the judgment and decree of the trial court hence the four civil appeals have been preferred arising out of S.L.P. [C] Nos. 35599 of 2015, 28797 of 2015, 35211 of 2015 and C.C. No. 22129 of 2015 which arise out of R.F.A. No. 320 of 2014 and O.S. No. 41 of 2003. SUBMISSIONS ON BEHALF OF APPELLANTS: 52. Shri K. Parasaran, learned senior Counsel appearing on behalf of Appellants has urged in Varikoli Church matter various submissions. I. First one centering around whether the Church is governed by the 1934 Constitution; whether Vicar to be appointed in accordance therewith is entitled to perform the religious functions/ceremonies in the Church; whether elections to the Managing Committee is required to take place in accordance with the 1934 Constitution? It was submitted by learned senior Counsel that the 1995 judgment is not binding upon the Appellant-Church. The appointment of Vicar is not to be governed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. With respect to Knanaya Church, this Court has observed that when a particular people say that they believe in the spiritual superiority of the Patriarch and that it is an Article of faith with them, the Court cannot say no; your spiritual superior is the Catholicos . The guarantee of Article 25 of the Constitution has also got to be kept in view. The aforesaid observations made in para 151 of the judgment of 1995 of this Court have been relied upon. Thus, it is open to a Parish Church with majority to claim that their spiritual superior is Patriarch or Catholicos as the case may be. No particular canon can be followed. In case it is held on the basis of 1995 judgment then 1934 Constitution is binding on Parish Churches even in their absence as parties, it would amount to violation of principles of natural justice. In this regard learned senior Counsel has relied upon John v. Rees (1969) 2 AER 274; National Textile Workers v. P.R. Ramkrishnan (1983) 1 SCC 228 and Institute of Chartered Accountants v. L.K. Ratna (1986) 4 SCC 537. Shri K. Parasaran, learned senior Counsel has further submitted that the property rights have to be decided as per the civil law and not as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior Counsel has submitted that the 1995 judgment is not binding upon the Appellants that abandonment of pleas/objections to the revival of the Catholicate, the validity of the 1934 Constitution, the Catholicos being seated on the Throne of St. Thomas, etc. cannot bind the Appellant in perpetuity to remain a part of the Malankara Association. He made the following submissions in this regard: (i) In the 1995 judgment, Hon. Jeevan Reddy, J. has observed about the abandonment of the objections in regard to the revival of the Catholicate, validity of the 1934 Constitution, Catholicos being seated on the Throne of St. Thomas in the East and acceptance of the Patriarch by the Catholicos subject to the Constitution. It has been urged that the Appellant cannot be disabled from pursuing their faith i.e. the Patriarch being the spiritual superior having authority to appoint a Vicar for performance of spiritual ceremonies, conforming to that faith. (ii) The finding as to abandonment, as observed in the 1995 judgment, runs contrary to the decision of this Court in Sha Mulchand Co. Ltd. v. Jawahar Mills (1954) SCR 351 a decision of Four Judges, in which it has been laid down thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in legal status; it is not the estoppels as such nor is it the abandonment or waiver per se. (iii) The plea of estoppel was not raised. The decision of Four Judges is binding on Three Judges as held in S.H. Rangappa v. State of Karnataka and Ors. (2002) 1 SCC 538 thus: 11. While referring to the decisions of this Court in Bachhittar Singh v. State of Punjab AIR 1963 SC 395 as well as Krishi Utpadan Mandi Samiti v. Makrand Singh (1995) 2 SCC 497 and Eugenio Misquita v. State of Goa (1997) 8 SCC 47 Mr. Sanghi, learned Senior Counsel contended that the observations of this Court in Khadim Hussain case Z(1076) (sic 1976) 1 SCC 843 require reconsideration. With respect, we are unable to agree with this for more than one reason. Firstly, the decision in Khadim Hussain case was rendered by four Judges and the said decision is binding on us, apart from the fact that on the interpretation of the provisions of Section 6 we are in agreement with the views expressed by the Bench in that case. Secondly, as far as Bachhittar Singh case is concerned that related to notings on the file made by a Minister and the question which arose was whether that was an order which could have been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Third limb of the argument of Shri K. Parasaran, learned senior Counsel is that Parishioners have a right Under Article 25 of the Constitution of India. Article 25 guarantees to all persons the freedom of conscience and free profession, practice and propagation of religion. Article 26 guarantees to all religious denominations, the freedom to manage its own affairs in matters of religion. Spiritual superiority of Patriarch is an Article of faith guaranteed Under Article 25 of the Constitution. The Section of people who do not believe in spiritual supremacy of Catholicos cannot be forced to have faith in him. Each Parishioner has a right to freedom of religion. The freedom is guaranteed to persons as opposed to citizens as in Article 19. He has also relied upon the term 'public order' as examined by this Court in Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709 thus: The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large.... It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se has not assigned any reason why the judgment of trial court is erroneous. 53. Shri C.A. Sundaram, learned senior Counsel appearing on behalf of Appellants in C.A. Nos. 3674 of 2015 and 3682 of 2015 has submitted that the idea behind the formation of a trust has to be judged on as to what has been followed by a long series of years. He has relied upon Cochin Royal Court judgment dated 15.8.1905, The 1913 Udampady is consistent with the declarations and decisions of Mulanthuruthy Synod dated 27.6.1876 and the usage and practice that was being followed from the 7th Century till 1913. Said judgment deals with the basic formation of the Church. The 1913 Udampady also governed affairs of Church during the time period of 1913 to 1959. When the Parish Assembly can adopt the 1934 Constitution in 1959, it can also decide at present to go by the 1913 Udampady. The Catholicos do not have the spiritual grace of Apostolic Throne of St. Peter through Patriarch of Antioch. Following the 1934 Constitution from 1959 to 1970 will not amount to estoppel or waiver of fundamental rights. After 1974 the parties have not been able to reconcile. It is an Article of faith that the religious dignitarie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile examining the question of ex-communication. In view of Articles 19 and 25 of the Constitution, this Court has not construed it appropriate to hold that the 1934 Constitution would apply to all the Parish Churches in the Malankara Jacobite/Orthodox Churches. The consequence of not subscribing to the 1934 Constitution can only be that cessation of all privileges as priests of Sabha and in respect of the Samudayam property. The Parishioners own the property of Parish Church and the Cemetery and they cannot be deprived of that right by not subscribing to the 1934 Constitution. The Jacobite Church is not an Episcopal church and the Parish properties do not vest in the Episcopa. It is difficult to accept the supremacy of Catholicos. There were umpteen instances when burial of dead had been obstructed. Registration of Udampady is equivalent to possession of the property. The Kolencherry Church is a Public Trust of religious and charitable nature. There is no waiver or estoppel. Malankara Church is neither completely Episcopal nor a congregational unit. The declaration sought with respect to religious services/ceremonies to be performed by a particular Vicar or priests appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e eo nomine representatives of other Parishioners. As such the 1995 judgment does not bind the Appellants. The Episcopal character is to the extent so declared in the 1934 Constitution. It was not mentioned which Patriarch Churches are to be governed by the 1934 Constitution. This Court has decided differently about Kananaya Churches. On that parity of reasonings, this Court should hold that Malankara Churches are also to be governed by their own Constitution or Udampady. The right to come out has to be given because fundamental faith has been breached which they reposed in the supremacy of Patriarch of Antioch. When two factions are there and the community is divided, it is not the function of the court to compel the divided community to have single leadership against the will of one of the two factions. If there is a divided religious community to accept one particular leader would constitute an infringement of freedom of religion. The principle of ex debito justitiae cannot convert itself into an instrument of injustice or vehicle of oppression. He has buttressed the point in additional written submissions also. Things have reached a point of no return and they have adopted a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 Constitution and in the year 2011. Vicar has to do both religious and spiritual functions as per the 1934 Constitution. On behalf of intervenor Shri Ritesh Kumar has supported the case set up by Appellants. CONTENTIONS ON BEHALF OF RESPONDENTS: 59. Shri K.K. Venugopal, learned senior Counsel appearing on behalf of Respondent No. 1 in Kolenchery Church matter has submitted that the present appeal arises out of the civil suit and the same be confined to the issues raised in the suit, i.e., whether the Church in question is to be governed by the 1934 Constitution or the Udampady of 1913. It was further urged by him that certain issues are covered by Moran Mar Basselios v. T. Paulo Avira AIR 1959 SC 31 (supra) and the 1995 judgment. They are: (a) The 1934 Constitution of the Malankara Church was validly adopted at the M.D. Seminary meeting held on 26.12.1934. (b) Malankara Orthodox Syrian Church is Episcopal to the extent declared by the 1934 Constitution. The said Constitution governs the affairs of the Parish Churches and shall prevail. (c) The 1934 Constitution was accepted by the persons belonging to the Patriarch faction. (d) The power of the Patriarch does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patriarch and the Catholicos under the 1934 Constitution. He has attracted our attention to Sections 1, 2, 94, 98, 100 and 101. He has submitted that the prime jurisdiction regarding the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested with the Malankara Metropolitan as per Section 94. As per Section 98, Catholicos may also hold the office of the Malankara Metropolitan, Section 100 declares that the powers of the Catholicos include the consecration of Prelates, presiding over the Episcopal Synod, declaring its decisions and implementing them, conducting the administration as the representative of the Synod and consecrating the Holy Moron. It was further urged that as per Section 101 Malankara Church shall recognize the Patriarch, canomcally consecrated with the co-operation of the Catholicos. It was further submitted by him that the present proceedings are an attempt to reopen the issues that stand concluded by the earlier judgments. This Court in the 1959 judgment and also in the 1995 judgment has affirmed adoption of the 1934 Constitution. The 1934 Constitution contains the provisions dealing with properties of the Parish Churches as well in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1995 judgment, this Court has held that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches insofar as it provides for the same. He has taken this Court to various provisions of the 1934 Constitution. As per the Constitution, even a majority of the Parishioners in the Parish Assembly by themselves are not able to take the movable or immovable properties out of the ambit of the 1934 Constitution without the approval of the church hierarchy. He has referred to Sections 23, 37, 124, 125 of the 1934 Constitution. He has also referred to certain decisions of House of Lords etc. Since there is no declaration of trust available on record the Court may go by the usage or custom prevalent in the church to determine the competing claims made by rival factions. The Kolenchery Church had been administered only under the 1934 Constitution and not by the 1913 Udampady. The judgments of 1959 and 1995 have upheld the 1934 Constitution. By swearing allegiance to the 2002 Constitution, the Parishioners cannot take away the assets of the Kolenchery Church. It was further submitted that the cooperation and consultation between Malankara Association and Patriarch of Antio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome etc. has been filed. The Parishioners have no right to walk out of the church along with properties by a referendum or election. There is no pleading that Parish properties vest with the Parishioners. Thus the courts below had no occasion to consider this question. No Parishioner or any person who made the dedication can claim a right or a share in the property of the church. Properties are to be administered as per the 1934 Constitution. A group of Parishioners cannot claim any right, title or interest in the Parish property. They cannot take away the property by forming of the new Church and the Constitution of 2002. Learned Counsel has relied upon Sections 23, 37 and 39 of the 1934 Constitution with respect to acquisition, vicar and lay steward and properties and he has also referred to Sections 54, 61, 62, 68, 85 and 94 regarding effective control and management of Parish properties by the hierarchy of authorities like Vicar, lay trustee, Parish Managing Committee, Secretary, Metropolitan, Diocesan Assembly, Diocesan Council, Malankara Metropolitan etc. The question raised is beyond the scope of the civil suit. Appointment and transfer of Vicars are temporal matters and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing Justice Malimath report and thus they are not entitled to any indulgence in the appeals. The approved Canon of the Church is the Hudaya Canon written by Bar Hebraeus i.e. the Canon as the one printed in Paris in the year 1898 wherein it is stated that the Patriarch of Antioch shall not enter the eparchy of Tigris by way of administration, except when invited. The creation of Catholicos in 1912 in Malankara conferring jurisdiction over India, Ceylon, and Burma was neither against the scriptures nor faith as held by this Court in the 1995 judgment. He has also referred to certain provisions of the Constitution. This Court has laid down in 1997 that every person claiming to hold any office or post in the church shall be bound by and shall swear allegiance to the 1934 Constitution. 63. In the case of Syrian Church at Mannathur, it was submitted by Shri E.M.S. Anam, learned Counsel that certain dispute which took place in 2011 have been pointed out as to the performance of ceremonies of the Church and due to law and order problem created, the Sub-Divisional Magistrate took possession of the D-1 Church on 25.12.2011. Udampady of 1890 does not hold the field. The Church had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it has been mentioned that in the absence of the Parish Churches it cannot be declared that the properties held by Malankara Parish Churches vest in the Catholicos. In our opinion, the submission is wholly untenable. The representative suit was decided in 1995 and the judgment is binding even on those who were not parties to the case. All the Parishioners are bound by the judgment to the extent it has decided the matter. There is no conflict in the decree as well as the aforesaid observations that have been made by this Court. The majority opinion has left open the question that the property whether it is held by the Parish Churches or vested in the Catholicos and Para 155(8) deals with other rights and nature of the Church to be episcopal and with respect to the applicability of the 1934 Constitution the judgment is final, conclusive and binding in these cases. Though on the basis of Bhikhi Lal v. Tribeni AIR 1965 SC 1935 it was submitted that the decree has to be in accordance with the judgment, we find that the decree is wholly in tune with the judgment and the issues which were effectively decided by this Court and what was left open is absolutely in no conflict with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third Catholicos was elected as the Malankara Metropolitan and thus the powers of both were concentrated in one person i.e. the spiritual and temporal powers. This Court also observed that the Patriarch in the year 1972 could not have exercised the power of appointment of getting ordaining the priests and deacons through his delegate as observed in Para No. 134 of the 1995 judgment. This Court clearly held that even if it is held that by Kalpana's A-13 and A-14 the Patriarch is not denuded of the powers delegated by him to the Catholicos, he could not have unilaterally exercised those powers which were delegated and he could have exercised those powers thereafter in consultation with the Catholicos and the Malankara Sabha (Association) and of course in accordance with the 1934 Constitution. This Court also held that it was necessary for the reason (i) to avoid creating parallel authorities leading to conflict and confusion and (ii) the acceptance by the local people. Thus this Court clearly held that the Patriarch could not have purported to exercise unilaterally the powers delegated by him to the Catholicos under A-14. 68. This Court also held that when the Patriarch had re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Ors. v. Venkatarayulu Naidu Charities and Ors. (1989) Supp 2 SCC 356 has dealt with the suit Under Section 92 and Order 1 Rule 8 of Code of Civil Procedure and it was held that such a suit is the representative action of a large number of persons who have a common interest. The suit binds not only the parties named in the suit but all those who are interested in the trust. It is for that reason Explanation 6 to Section 11 Code of Civil Procedure constructively bars by res judicata the entire body of interested persons from re-agitating the matters directly in issue in an earlier suit Under Section 92 Code of Civil Procedure. This Court has laid down thus: 11. It is not necessary to go into the finding of the High Court that two of the Appellants being Muslims can have no interest in the trust as the other two Appellants claim to be the beneficiaries of the trust and their claim has not been negatived. Moreover, the trust has been constituted to perform not only charities of a religious nature but also charities of a secular nature such as providing for drinking water and food for the general public without reference to caste or religion. Section 11 read with Explanation 6 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded in the earlier suit that was decided in 1958 as well as in 1995 is binding insofar as the questions decided in a representative character. The provision to Exception 6 of Section 11 applies to such a suit as held in Kumaravelu v. Ramaswami AIR 1933 PC 183. This Court has decided the issue in 1995 suit to the extent that the parties were having the common interest as contemplated in Order 1 Rule 8 and left open issues with respect to temporal matters in the absence of Parish Churches. To that extent only, we can decide the issues and other issues have to be taken as barred by the principle of res judicata as per Explanation 6 to Section 11 and Order I Rule 8 Code of Civil Procedure. The submission that declaration Under Section 35 of the Specific Relief Act since in personam and the 1995 judgment has to be considered in that spirit, cannot be accepted in view of the aforesaid discussion. Moreover, in the suit culminating into 1995 judgment the relief was not sought inter parties, it was not in personam. The reliefs that were sought were common to Malankara Church. Thus the provisions of Section 35 cannot come to the rescue of the Appellants so as to prevent the bar of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Church Samudayam decides otherwise. This Court with respect to Knanaya Church has made the aforesaid observations. There is no dispute with the aforesaid observation about the spiritual superiority of the Patriarch and that it is an Article of faith with certain Parishioners and if for certain purpose, certain people may believe in the spiritual superiority of Catholicos, this is not for this Court to say that your spiritual superior is not the Catholicos. The question of appointment of Vicar and priests etc. is a secular matter and not a spiritual one as discussed hereinafter. Nothing prevents the Parishioners having faith in the Patriarch to believe in his spiritual superiority. The question in the instant case is how the Malankara Church is to be managed. As per the individual faith, they can have their own management or management has to be separated from the spiritual faith that is protected in the right as enshrined Under Article 25 of the Constitution of India. 74. It was submitted that in case the declaration in the 1995 judgment that the 1934 Constitution is binding on the Parish Churches even in their absence as parties, it would amount to the violation of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1934 Constitution. The 1995 judgment cannot be misconstrued so as to confer the aforesaid right upon the Parishioners. The judgment is clear, unequivocal and unambiguous with respect to binding nature of the 1934 Constitution. It was submitted that the Parish Churches even after the 1934 Constitution, can decide to make their own Constitution in the exercise of their fundamental right to freedom of religion Under Article 25 so as to follow the faith of spiritual supremacy of the Patriarch. The submission is attractive but is not acceptable as what is the meaning of spiritual supremacy, what is, inter alia, the effect of establishment of Catholicos and what is the delegation of power as per Kalpana made by the Patriarch, what he has accepted subsequently in 1958 and 1964 and the respective rights of management of Parish Church would have to be decided. In our opinion, it would not be open to any faction or group to adopt any particular system of management of Churches and to have a parallel system of managing authorities under the guise of spiritual supremacy. The mismanagement of Church and chaos cannot be permitted to be created for temporal gains or otherwise. There is a syste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t been influenced by the declaration caused in the aforesaid form and no prejudice has been caused to the Appellants. IN RE: ABANDONMENT OF PLEAS/OBJECTIONS TO THE REVIVAL OF THE CATHOLICATE. THE VALIDITY OF THE 1934 CONSTITUTION. 78. The Appellants, Patriarch faction contend that the Catholicos being seated on the Throne of St. Thomas, etc. cannot bind them in perpetuity. It was submitted by Shri Parasaran, learned senior Counsel that at paras 155(6) and (7) in the majority opinion, Hon. Jeevan Reddy, J. had observed that the Patriarch and the Patriarch group are deemed to have given up or abandoned all or objections with regard to the revival of the Catholicate, validity of the 1934 Constitution, Catholicos seat on the Throne of St. Thomas in the East and acceptance of the Patriarch by the Catholicos 'subject to the Constitution'. He has vehemently contended that this, however, will not mean that the Appellant is perpetually bound to remain part of the Malankara Association for all times to come. Nor can they be disabled from pursuing their faith i.e. the Patriarch being the spiritual superior and appointing a Vicar, performing spiritual ceremonies, conforming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the legal forms which in law bring about the extinguishment of his interest and pass the title which resides in him to another, were not duly observed. Fazl Ali., J. and I endeavoured to explain this in Dhiyan Singh v. Jugal Kishore-What happens is this. The person estopped is not allowed to deny the existence of facts, namely the actings of the parties and so forth which would in law bring about the change in legal status, namely, the extinguishment of his own title and the transfer of it to another, for estoppel is no more than a Rule of evidence which prevents a man from challenging the existence or nonexistence of a fact. Once the facts are ascertained or by a fiction of law are deemed to exist, then it is those facts which bring about the alteration in legal status; it is not the estoppel as such nor is it the abandonment or waiver per se. 79. It was further submitted that the decision of 4-Judge Bench is binding on a Bench of 3 Hon. Judges as laid down in S.H. Rangappa v. State of Karnataka and Ors. (2002) 1 SCC 538. The decision of 1995 is in conflict with the observations in Sha Mulchand Co. Ltd. (supra). If estoppel was not pleaded the question of abandonment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1995 judgment that once having created the office, it is not the plea of waiver or abandonment but the Kalpana issued by the Patriarch is binding upon him also. Thus it is a positive act and once having done so, the Patriarch is bound by it and cannot wriggle out of it and make the entire Parish Church system topsy-turvy. Thus the 3-Judge Bench decision in the 1995 judgment cannot be said to be contrary to the 4-Judge Bench decision in Sha Mulchand (supra) but on a closer scrutiny, Sha Mulchand (supra) does not buttress the plea of the Appellants but negotiates against it. Too much cannot be made out of the observations made by this Court that the Patriarch cannot be said to have lost his spiritual supremacy over the Malankara Church but the fact that remains is that it has reached a vanishing point and the Church is to be managed as per the historical background, in accordance with the 1934 Constitution which has also the force behind it of the Patriarch himself in the form of Kalpana. The Parishioners can have faith in the spiritual supremacy of the Patriarch but not in all the matters. They have to give equal importance in the matter of management of the 1934 Constitution and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e its own affairs in matters of religion. Again reliance has been placed upon the observations made by this Court in the 1995 judgment at para 163 that when a particular people say that they believe in the spiritual superiority of the Patriarch and that it is an Article of faith with them, the Court cannot say no, your spiritual superior is Catholicos . As Article 25 permits a person to have such a faith, there is no dispute with the aforesaid proposition. It is open to any Parishioner to have faith in the spiritual superiority of the Patriarch. A right to freedom of professing one's faith and religion is enshrined in Article 25 of the Constitution which gives freedom of faith and worship, subject to public order, morality and health and other provisions of Part III of the Constitution. The freedom is guaranteed to 'persons' as opposed to 'citizens' as in Article 19. Therefore, each Parishioner has a right to freedom of religion. It was submitted by Shri K. Parasaran, learned senior Counsel, that 'public order' was examined by this Court in Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709 wherein it was observed: The contravention of law always a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that Under Article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance with law; and the law, therefore, must leave the right of administration to the religious denomination itself subject to such restrictions and Regulations as it might choose to impose. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior Counsel that the Patriarch of Antioch is a Pope. Following apostolic succession, through Jesus Christ and St. Peter, the sacrament descends on the Patriarch. The Vicar primarily holds a religious office and represents the Patriarch, as if the Patriarch himself is present when confession is made to the Vicar. The definition of 'apostolic', as found in Ramanatha Aiyar's Law Lexicon (Vol. IV), is: Having full powers to represent the Pope as if he were present. The definition of 'Patriarch', as found in the Oxford Dictionary, is: A bishop of one of the most ancient Christian sees (Alexandria, Antioch, Constantinople, Jerusalem, and formerly Rome). The head of an autocephalous or independent Orthodox Church. A Roman Catholic bishop ranking above primates and metropolitans and immediately below the Pope, often the head of a Uniate community. The definition of Pope, as found in the Oxford Dictionary, is: The Bishop of Rome as head of the Roman Catholic Church. The head of the Coptic Church, the Bishop or Patriarch of Alexandria. The definition of Vicar, as found in the Oxford Dictionary, is: (in other Anglican Churches) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel, urged that as per Section 101 of the Constitution and relying on the Canon of 1898 the Patriarch has no right to interfere; The relevant provision in the Canon is extracted below: The Patriarch shall not be consecrated without the agreement of the Maphrian, if he is alive. Otherwise, the Easterners have authority to consecrate themselves the Maphrian. The canon law is an express bar from any person being consecrated as Patriarch 'without the agreement of the Maphrian . Maphrian is the Catholicos of the East as evident from Chapter VII of the same Canon. The said provision is extracted below: Henceforward the Great Metropolitan of the East has been granted authority to consecrate metropolitans in the East, like the patriarch and he shall be proclaimed Catholicos. When he is present in a synod of the westerners, his seat shall be placed above all metropolitans, along with the patriarch of Jerusalem. That Maphrian is the Catholicos of the East is found in the judgment of this Hon'ble Court in 1995 Suppl (4) SCC 286. Thus any person NOT consecrated in accordance with the Canon approved Under Section 5 of the 1934 Constitution is not a Patriarch recogn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subject, particular with reference to the Alexandrian Church. The sixth canon of that council ran in these terms: 'Let the ancient custom which has prevailed in Egypt, Libya and Pentapolis, that the bishop of Alexandria should have authority over all these places, be still maintained, since this is the custom also with the Roman bishop. In like manner, at Antioch, and in the other provinces, the churches shall retain their ancient prerogatives. 90. It is apparent that the Syrian Orthodox Church of Malankara accept and acknowledge the theory of apostate's succession. In Faiths of the World, the word 'episcopalians' is explained and it is stated that it is a name given to those who hold that peculiar form of church government that is called 'episcopacy'. The Church of Rome is Episcopalian in its constitution, and acknowledges the Pope as Universal Bishop, to whom all the various orders of clergy, cardinals, primates, and patriarchs, archbishops and bishops are subordinate. The Armenian Church is similar in government. 91. 'Congregationalism', how it is defined in various dictionaries has been quoted by this Court in the 1995 judgment in para 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Malankaraaccept and acknowledge the theory of apostle succession is beyond doubt. In Faiths of the World, the word 'episcopalians' is explained and it is stated that it is a name given to those who hold that peculiar form of church government which is called 'episcopacy'. The Church of Rome is Episcopalian in its constitution, and acknowledges the Pope as Universal Bishop, to whom all the various orders of clergy, cardinals, primates, and patriarchs, archbishops and bishops are subordinate.... The Armenian Church is similar in government to the Greek Church, their Catholicos being equivalent in rank and authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;Congregationalism'. The judgment describes 'Congregationalism' as one of the non-conformist Protestant denominations. Relying upon the Encyclopaedia Britannica, 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 the three main types of ecclesiastical polity, the others being Episcopacy and Presbyterianism. It regards church authority as inherent in each local body of believers, as a miniature realisation of the whole church which can itself have only an ideal corporate being on earth. While in practice it is religious democracy, in theory it claims to be a theocracy since it assumes that God himself Rules directly through Christ. It springs from the religious principle that each body of believers in actual church fellowship must be free of all external human control, in order the more fully to obey the Will of God as conveyed to conscience by His Spirit. The essential features of Congregationalism are stated to be the autonomy or independence of the individual churches or organisations, though in ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nor can it be declared that the properties held by Malankara Parish Churches vest in the Catholicos or the Malankara Metropolitan or the Metropolitan of the diocese concerned, as the case may be. Indeed, no such specific relief has been asked for in the suit and without impleading the affected parties, no declaration can be claimed by the Plaintiffs that their church is episcopal in nature, if that declaration means that it gives the Catholicos/Malankara Metropolitan/the Metropolitan of the Diocese any title to or any control over the properties held by the Parish Churches. We have pointed out hereinbefore that the only place in the plaint where a reference is made to the properties of the Parish Churches is in para 24 where all that it is alleged is that the Defendants and their partisans are trying to intermeddle in the affairs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, a declaration to that effect can be obtained only after hearing and in the presence of the Parish Churches concerned. 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 emphasise that in the absence of the Parish Churches and proper pleadings and proof, no declaration touching the Parish Churches can be granted in these suits. In para 103 of its judgment, the Division Bench has held that while the Malankara Metropolitan has supervisory jurisdiction over the Parish properties as provided in the 1934 Constitution, it cannot be said that the administration of the Parish properties vests in him. It held that the administration vests in Parish Assemblies or Parish Churches, subject again to the provisions of the Constitution. In sum, we observe that the 1934 Constitution governs the affairs of the Parish Churches too insofar as it does. The power of the Malankara Metropolitan or the Metropolitan in temporal affairs must be understood in these suits too in the same manner as has been declared in Samudayam judgment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... politan who was the bishop of the capital city of the province. By the fourth century the beginnings of a patriarchal system could be detected in the large regional groupings of provinces. Eventually all the dioceses and provinces of the empire were subject to one of five patriarchs ( father-rule ), namely, the bishops of Rome. Antioch, Alexandria, Jerusalem, and Constantinople. The prominence of these bishoprics may be accounted for on grounds partly theological and partly political. 94. In 'The Encyclopedia of Religion' by Macmillan Publishing Co., New York, Vol. 3, Orthodox and other Eastern churches have been dealt with at page 475. The relevant portion is extracted hereunder: Orthodox and other Eastern churches. The Eastern Orthodox and other Eastern churches are firmly committed to apostolic succession and the episcopacy. The Eastern Orthodox churches accept the first seven ecumenical councils (through the Second Council of Nicaea in 787), as do Roman Catholics. The smaller Eastern churches, refusing to recognize the third (Ephesus, 432) and fourth (Chalcedon, 451) ecumenical councils, are divided into two Nestorian churches and four others known collectively as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be elected and chosen by the college of canons to the void bishopric within 12 days. The consecration of bishop is by archbishop as provided in Para 189 and it is only a bishop who can ordain priests or deacons as provided in para 197. 96. In England in Parish Churches also it is the bishop or diocese that sets in the procedure for appointment of priests. The Diocese appears to be the in charge within the territory diocese operates with respect to such matters. There can be in future process also. Such procedure is detailed in the booklet for Diocese of Exeter. 97. As per 'Diocese of Southwark' a Parish church in England the priests are again appointed by the procedure initiated by Diocese. Diocese appoints a designated officer to act as contact person between the interested parties and to fill the vacancy of a priest. In Udampady also which have been placed on record of 1913 and 1890 procedure for appointment of Vicar and priests etc. has not been provided. On the other hand, it appears that at no point of time the appointment of Vicar/priests, deacons has been made by the Patriarch. There is no such material placed on record indicating that the Patriarch at any p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... else but a doctrine of belief. There are teaching also which differs from religion. The teachings of Shri Aurbindo are only philosophy and not religion as observed by this Court in S.P. Mittal v. Union of India AIR 1983 SC 1. 100. Religion is a collection of cultural system, belief systems that establishes symbols which relate humanity to spirituality and sometimes to moral values. There are 19 major religious groupings in the world and from them a total of 10,000 distinct religions exists. Although only about 270 of those have half a million or more followers. In the US alone over 2500 different religious faith entities can be observed. Religion is an institution established by man for various reasons. The word 'spiritual' has been defined in Oxford dictionary thus: 1. of, relating to, or affecting the human spirit or soul as opposed to material or physical things: I'm responsible for his spiritual welfare the spiritual values of life. (of a perso*n) not concerned with material values or pursuits. 2. of or relating to religion or religious belief; Iran's spiritual leaders. (also negro spiritual) A religious song of a kind associated with black C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lical Christianity reserves the term to describe the warmer religious emotions; and it has its proper and peculiar application as the distinguishing quality of NT believers. The substantive 'spirituality' does not occur in Scripture, but the adjective 'spiritual' is frequently employed to describe the character of the man who has entered the Kingdom of God. Such a man has the Holy Spirit as the vital, determining principle of his life. Such usage does not permit us to apply the epithet to any one who has been moved in some vague way by holy impulses, for a definite and well-marked character as indicated by this description. of spiritual persons Newman writes: He [the holy Spirit] pervades us (if it may be so said) as light pervades a building, or as a sweet perfume the folds of some honourable robe; so that, in Scripture language, we are said to be in Him, and He in us. Swamy Chidanand Saraswatiji has defined spirituality in the Essence of Spirituality-Service of Others as: The essence of spirituality is service. As one goes deeper and deeper on a spiritual path and as one gets closer to Realisation and Enlightenment, one realises that the Divine resides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 179. A guaranty of $15 to remunerate a medium for conducting spiritualistic s(??)ance as religious ceremony in the worship of God and creation of the fund by voluntary contributions of communicants of Spiritualistic Church do not constitute gain within statute forbidding public stances for gain. Comp. St. 1929, $ 28-1111. A medium is one whose organism is sensitive to vibration from the spirit world and through whose instrumentality intelligences in that world are able to convey messages and produce the phenomena of spiritualism . A s ance is the form of worship designated by the ordinance and cannons of the Spiritualistic Church and constitutes one of the most formal and solemn religious services of the church. Dill v. Hamilton, 291 N.W. 62, 65, 137 Neb. 723. Spiritualism may be denied as a belief in the power of some departed spirits to communicate with the living by means of mediums. City of Chicago v. Payne, 160 III. App. 641, 642. Spiritualism is a form of religious belief which should not be inquired into in a judicial proceedings, and undue influence of a donor is not to be inferred merely from the fact that he and the done were Spiritualists. Watson v. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the existence of insentient beings and the forces of the universe. Religion is not necessarily theistic. A religion undoubtedly has its basis in a system of beliefs and doctrine that are regarded by those who profess religion to be conducive to their spiritual well being. The right to religion guaranteed Under Article 25 or 26 is not an absolute or unfettered right but is subject to legislation by the State limiting or regulating any activity-economic, financial, political or secular which is associated with the religious belief, faith, practice or custom. They are subject to reform as social welfare by appropriate legislation by the State. Though religious practices and performance of acts in pursuance of religious belief are as much as a part of religion, as faith or belief in a particular doctrine, that by itself is not conclusive or decisive. What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence-actual or legislative or historic-presented in that context is required to be examined and a decision reached. In secul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gral part of the religion, the person who performs it or associates himself with the performance of ritual ceremonies is not. Therefore, when the hereditary right to perform service in the temple can be terminated or abolished by the sovereign legislature, it can equally regulate the service conditions sequel to the abolition of the hereditary right of succession in the office of an Archaka. Though an Archaka integrally associates himself with the performance of ceremonial rituals and daily pooja to the Deity, he is the holder of an office of priest in the temple. He is subject to the discipline on a par with other members of the establishment. Abolition of emoluments attached to the office of the Archaka, therefore, cannot be said to be invalid. The customs or usages in that behalf were held not an integral part of the religion. It was, therefore, held that the legislature has the power to regulate the appointment of the Archaka, emoluments, and abolition of customary share in the offerings to the Deity. The same ratio applies to the facts in this case. 107. In Pannalal Bansilal Patil and Ors. Etc. v. State of Andhra Pradesh and Anr. AIR 1996 SC 1023, Section 144 of Andhra Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To them all must have an equal right to plead and in a manner of such directness and simplicity that every human being can approach the doors of the Eternal with equality and with equal access and thereby exercise greater freedom in his own life. It is essential that the value of law must be tested by its certainty in reiterating the Core of Religious Experience and if a law seeks to separate the non-essential from the essential so that the essential can have a greater focus of attention in those who believe in such an experience, the object of such a law cannot be described as unlawful but possibly somewhat visionary. 109. This Court in A.S. Narayana Deekshitulu (supra) has also held that religion in Articles 25 and 26 has to be construed in its strict and etymological sense. Every aspect of religion is not safeguarded by the Constitution. This Court held as follows: 89. A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It may not be possible, therefore, to devise a precise definition of universal application as to what is religion and what are matters of religious belief or religious practice. That is far from saying that it is not possible to state with reasonable certainty the limits within which the Constitution conferred a right to profess religion. Therefore, the right to religion guaranteed Under Article 25 and 26 is not an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting or regulating any activity -- economic, financial, political or secular which are associated with religious belief, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by the State. Though religious practices and performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in a particular doctrine, that by itself is not conclusive or decisive. What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence -- factual or legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a well-versed and accomplished person in the Agamas and rituals necessary to be performed in a temple, he is the holder of an office in the temple. He is subject to the disciplinary power of a trustee or an appropriate authority prescribed in the Regulations or Rules or the Act. He owes his existence to an order of appointment -- be it in writing or otherwise. He is subject to the discipline on a par with other members of the establishment. Though after appointment, as an integral part of the daily rituals, he performs worship in accordance with the Agama Shastras, it is no ground to hold that his appointment is either a religious practice or a matter of religion-It is not an essential part of religion or matter of religion or religious practice. Therefore, abolition of the hereditary right to appointment Under Section 34 is not violative of either Article 25(1) or Article 26(b) of the Constitution. 120. It is true that the position of the office of Pedda Jeengar or Chinna Jeengar as a religious head in the context of mathadhipathi of Ramanuja sect was upheld by the Privy Council, yet as regards his right in the Lord Venkataramana temple, he performs the office as a nominee and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustom also stands abolished. Prescription of the qualifications for appointment under the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966 was held to be valid and legal and not arbitrary, unjust and unfair. The provision of transfer of Archaka (Priest) from one temple to another was also upheld and not declared arbitrary or ultra vires or unjust. 111. Shri V.K. Biju, learned Counsel has relied upon Commissioner of Police and Ors. v. Acharya Jagadishwarananda Avadhuta and Anr. (2004) 12 SCC 770 in which it was held: 9.....What is meant by 'an essential part or practices of a religion' is now the matter of elucidation. Essential part of religion means the core beliefs upon which a religion is founded. Essential practice means those practices means those that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices the super structure of religion is built. Without which, a religion will be no religion. Test to determine whether a part or practice is essential to the religion is to find out whether the nature of religion will be hanged without that part or practice. If taking away that par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd propagate religion, but saves laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Reading Article 25 in the background of the proclamation regarding Liberty in the Preamble to the Constitution, we may safely conclude that the Constitution views religion, as comprising thought, expression, belief, faith or worship, as involving the conscience and as something which may be professed, practised and propagated and which is any man's attribute in the same manner as race, sex, language, residence etc. We also see that economic, financial, political or other secular activity may be associated with religious practice though such activity is not covered by the guarantee of freedom of conscience and the right freely to profess, practise and propagate religion. So, the Constitution considers religion as a matter of thought, expression, belief, faith and worship, a matter involving the conscience and a matter which may be professed, practised and propagated by anyone and which may even have some secular activity associated with it. We have already said that any freedom or right involving the conscie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Articles 25(1) and 26(b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in character, it cannot be urged that Article 25(1) or Article 26(b) has been contravened. The protection is given to the practice of religion and to the denomination's right to manage its own affairs in matters of religion. Therefore, whenever a claim is made on behalf of an individual citizen that the impugned statute contravenes his fundamental right to practise religion or a claim is made on behalf of the denomination that the fundamental right guaranteed to it to manage its own affairs in matters of religion is contravened, it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management is alleged to have been contravened are affairs in matters of religion. If the practice is a religious practice or the affairs are the affairs in matters of religion, then, of course, the rights guaranteed by Article 25(1) and Article 26(b) cannot be contravened. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 26(b). 114. In Adi Saiva Sivachariyargal Nala Sangam and Ors. v. Government of Tamil Nadu and Anr. (2016) 2 SCC 725 the question of appointment of Archakas came up for consideration before this Court. This Court held that Archakas can be appointed in terms of Agama for the temples but such Agamas have to qualify the test of Article 14 which should not be contrary to the constitutional mandate. This Court has laid down thus: 43. That the freedom of religion Under Articles 25 and 26 of the Constitution is not only confined to beliefs but extends to religious practices also would hardly require reiteration. Right of belief and practice is guaranteed by Article 25 subject to public order, morality and health and other provisions of Part III of the Constitution. Clause (2) is an exception and makes the right guaranteed by Clause (1) subject to any existing law or to such law as may be enacted to, inter alia, provide for social welfare and reforms or throwing or proposing to throw open Hindu religious institutions of a public character to all classes and Sections of Hindus. Article 26(b) on the other hand guarantees to every religious denomination or Section full freedom to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the prescription contained in the Agamas. Coupled with the above is the lack of easy availability of established works and the declining numbers of acknowledged and undisputed scholars on the subject. In such a situation one is reminded of the observations, if not the caution note struck by Mukherjea, J. in Shirur Mutt with regard to complete autonomy of a denomination to decide as to what constitutes an essential religious practice, a view that has also been subsequently echoed by this Court though as a minority view . But we must hasten to clarify that no such view of the Court can be understood to be an indication of any bar to judicial determination of the issue as and when it arises. Any contrary opinion would give rise to large-scale conflicts of claims and usages as to what is an essential religious practice with no acceptable or adequate forum for resolution. That apart the complete autonomy contemplated in Shirur Mutt AIR 1954 SC 282) and the meaning of outside authority must not be torn out of the context in which the views, already extracted, came to be recorded (p. 1028). The exclusion of all outside authorities from deciding what is an essential religious p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd by establishing Catholicos-III in 1964 by consecrating Malankara Metropolitan. It is apparent that the 1934 Constitution has to hold the field and it is not the spiritual right within the spiritual domain even if the Patriarch of Antioch is supreme to appoint Vicars/priests. 116. The provisions in 1934 Constitution are binding. Section 1 thereof provides that the Primate of the Orthodox Syrian Church is the Patriarch of Antioch. However Section 2 takes care that the Malankara Church which is a division of the Orthodox Syrian Church, was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the East, and the Primate of the Orthodox Syrian Church of the East is the Catholicos . Sections 1 and 2 are extracted hereunder: 1. The Malankara Church is a division of the Orthodox Syrian Church. The Primate of the Orthodox Syrian Church is the Patriarch of Antioch. 2. The Malankara Church was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the East and the Primate of the Orthodox Syrian Church of the East is the Catholicos. 117. The appointment of Vicar is dealt with in Section 38 of the Constitution. There shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish Assembly Register. In the case of default, Vicar has to write to the Metropolitan of the Diocese as to what shall be done thereafter with that member. Other such managerial rights are given in Sections 11 to 13. Vicar has to convene the meeting twice in a year of the Parish Assembly. In case Vicar fails to convene it, a request can be made to the Diocesan Metropolitan to convene it. The Vicar shall be the President and other Parish Priests, if any, shall be Vice-Presidents of the Assembly as pointed out in Section 15. Under Section 18 it is the duty of the Vicar to send or cause to be sent by the Secretary the decisions of the Parish Assembly to the Diocesan Metropolitan. An appeal lies to the Metropolitan against the decision of the Parish Assembly. Vicar has to inform about the appeal. The Vicar has to be the President of Parish Managing Committee as per Section 26. As per Section 27, the Vicar shall report to the Diocesan Metropolitan about the election of the Kaisthani, the Secretary and other members of the Parish Managing Committee. The Vicar or on his direction the Secretary, shall convene the meeting of the Parish Managing Committee as provided in Section 28. The Vicar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99. The throne of Catholicos was re-established in AD 1912 in the Orthodox Syrian Church of the East, which includes the Malankara Church, and this institution has been functioning ever since in the Orthodox Syrian Church of the East. 100. The powers of the Catholicos include the consecration of Prelates, presiding over the Episcopal Synod, declaring its decisions and implementing them, conducting administration as representative of the Synod and consecrating the Holy Mooron. 120. The Throne of Catholicos was re-established in 1912. He has the power of consecration of Prelates, presiding over the Episcopal Synod, declaring its decisions and implementing them, conducting administration as representative of the Synod and consecrating the Holy Moron. The Patriarch is dealt with in Section 101 which is extracted hereunder: 101. The Malankara Church shall recognize the Patriarch, canonically consecrated with the cooperation of the Catholicos. 121. The prime jurisdiction with respect to the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested in the Malankara Metropolitan and other authorities. It is intended for proper administration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... succession from Jesus Christ, viz., the blessings and grace of Christ descends through an apostle i.e. St. Peter or St. Thomas as the case may be, and from the said apostle to the Pope/Patriarch who appoints a Vicar. The argument ignores and overlooks other offices that are in-between like Catholicos, Malankara Metropolitan, and Diocesan Metropolitan etc. It is not necessary for the Pope and the Patriarch to appoint Vicar because management of a Church is not a religious ritual. 123. The spiritual powers vest in other functionaries also and obviously spiritual power cannot be the monopoly of any particular individual howsoever high he may be. Others are in hierarchy viz. Diocesan Metropolitan has power to appoint Vicar, Priests etc. as per Section 40. In the matter of ordination of Deacons and Priests by Diocesan Metropolitan or Malankara Metropolitan, a candidate for ordination should have a degree qualification. Power to appoint high Priests (Prelates) is by Catholicos in co-operation with Synod. Bishop and Metropolitan can be consecrated by the Catholicos in conjunction with Synod, Bishop or Metropolitan has to be elected by the Association after approval by Synod to be conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icos, Malankara Metropolitan has the spiritual powers. It is not that they have temporal powers only. They have spiritual status too that has to be respected equally. Shri C.V. Singh, learned Counsel, is right in contending that no office is either superior or inferior in the matter of relationship between the two heads, the Catholicos and the Patriarch. Both are independent spiritual authorities. However, the Patriarch occupies the higher post in the hierarchy i.e. he has an honour or precedence if he is present that is in a sense he is the first among equals - primus inter parties . The Church functioning is based on division of responsibilities at various levels. The division of power is for the purpose of management and does not militate against the basic character of the church being Episcopal in character. In Halsbury's Laws of England, vol. 14, para 562, right of Parishioners has been described thus: to enter the church, remain there for purpose of participating in divine worship to have a seat and to obey the reasonable directions of the church to ordain. The highest authority of Malankara church of the east is Catholicos being its primate as recognised in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Church nor the cemetery can be confiscated by anybody. It has to remain with Parishioners as per the customary rights and nobody can be deprived of right one enjoys being a Parishioner in the church or to be buried honourably in the cemetery, in case he continues to have faith in Malankara Church. 127. It passes comprehension as to how irreconcilable differences in faith have been sought to be created in flimsy manner to and divide Church into the Patriarch and Catholicos factions whereas they are part of the Malankara Church, whereas the dominant faith is the common, Malankara church is one, and Orthodox Syrian Church is the same. Only intention differs. Hence, law and order situation has arisen which cannot be scenario for spiritual attainments with embodiment of tolerance and equality of all human beings and living creatures. The depth in sight beyond the sensual eye sight is required for spiritual gains. For the reasons best known to the parties, fight is going on regarding the management which is wholly uncalled for. If church has to survive, obviously this must stop and let the blessings of the Christ fall upon the believers, actual followers of his teaching. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppoints Vicar as provided in the Constitution and it is clear the Patriarch of Antioch has not reserved this power to himself. Why there is such dispute is most unfortunate and is for inexplicable reasons. There is no good or genuine cause for it. As a matter of fact the 1995 judgment settled such disputes, between the parties. This Court has tried its best to take care of the prevailing situation while passing the decree. It was observed in utter breach during its execution itself. We are unable to accept and appreciate why for the Patriarch himself should appoint Vicar, Priest etc. The Diocesan Metropolitan as per the Constitution of 1934 appoints vicar. The submission that Vicar of a Catholicos group cannot be thrust on a worshipper of Patriarch faith against his will, is totally unsound and is simply a ploy to take over the control of the management of the Church by putting faith in a Vicar who is running a parallel governance at the cost of Church by creating factionalism within the Churches. It is settled proposition of law that when a mode is prescribed for doing a thing, it can be done only in that manner and not otherwise. This Court in 1995 Judgment made it clear that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed to this request. On the contrary, he wrote back to the Secretary to the Malankara Association (Ex. A. 192 dated July 9, 1973) that he is not aware of any such Sabha or of the Malankara Association. His delegate arrived in Malankara and started ordaining priests and deacons. The Catholicos objected to this activity of the delegate by his letter Ex. A. 79 dated August 7, 1973 addressed to the Patriarch. Nothing happened. On September 1, 1973, the Patriarch himself ordained the first Defendant in O.S. 4 of 1979 (the main suit now before us) as Metropolitan of the Evangalistic Association of the East. Then started a series of correspondence between the Patriarch and the Catholicos each accusing the other of several ecclesiastical violations. EXCOMMUNICATION OF CATHOLICOS BY PATRIARCH: 135. On August 7, 1973 the Catholicos sent a telegram to Patriarch to the following effect: Local newspapers report your holinessintention to consecrate one of our priests as Bishop. We unequivocally object to such action if contemplated by your Holiness as uncanonical and as a clear violation of 1958 peace agreement. (Letter follows). In the confirmatory letter, the Catholicos stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the Synod has assumed jurisdiction in the matter. A similar letter was addressed by the Secretary of the Malankara Synod on March 5, 1974 to the Patriarch. This letter also asked the Patriarch to prove his charges against Catholicos before the Malankara Synod. This exchange went on with the language and tone of each letter becoming more and more discourteous towards each other. Suffice it to mention that on My 5, 1974 the Malankara Synod met and not only justified the actions of the Catholicos but found the Patriarch guilty of several ecclesiastical violations. A copy of the proceedings was forwarded to the Patriarch. 132. It was pointed out that writ petitions were filed before the Kerala High Court in the years 2004 and 2008. A writ petition was filed in the year 2008 by representatives of the Catholicate before the Kerala High Court to restrain the Patriarch from indulging in prohibited religious activities on the ground that it will violate the Foreigners Act and the Visa Manual. The said writ petition was dismissed. In view of repeated repudiation of the supremacy of the Patriarch, the followers of the Patriarch have framed a new Constitution for themselves in 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1995 judgment that the Patriarch could exercise the power in consultation with the Catholicos. Consultation does not mean concurrence as held in L T McNeil Ltd. v. Govt. of T.N. (2001) 3 SCC 170 and State of Gujarat and Anr. v. Justice R.A. Mehta (Retired) and Ors. (2013) 3 SCC 1. Only intimation would be required in this case. There is nothing to prevent the Patriarch from exercising the powers even if the Catholicos disagree, as the Patriarch of Antioch is spiritually superior. No consent or permission is required of the Catholicos. The observations made at Para 158 of the 1995 judgment of this Court with respect to the Constitution of a representative body have been relied upon. The same is extracted hereunder: 158....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 people of Malankara. The emphasis is upon the people of Malankara and not upon the individual Churches/Parish Churches..... It thus appears that while the membership of the Malankara Association is limited to one priest and two laymen elected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patriarchal supremacy. Suit was decided by the judgment of Travancore Royal Court of Final Appeal in 1889. The conclusions inter alia arrived at were that the ecclesiastical supremacy of the Patriarch of Antioch over Malankara Syrian Christian Church in Travancore had all along been recognized and acknowledged by Jacobite Syrian Christian community and their Metropolitans. However, the authority of Patriarch never extended to the government of temporalities of the church. It was also held that the Metropolitan of the Jacobite Syrian Church in Travancore shall be a native of Malabar and accepted by the people as their Metropolitan. 137. Arthat suit was also filed in 1877. The Patriarch of Antioch did not relish he judgment of the Royal Court of Travancore. The judgment in Arthat suit was passed on 15.8.1905. The Cochin Court of Appeal reaffirmed the findings of the Travancore Royal Court in which it was declared by the Cochin Court of Appeal while the Patriarch of Antioch is the spiritual head of Malankara Syrian Jacobite Christian Church, the church and their properties are subject to the spiritual, temporal and ecclesiastical jurisdiction of the Malankara Metropolitan. In othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. C.M.A. No. 74 of 1107 was dismissed for non-prosecution. Thereafter the Patriarch group instituted Samudayam suit on 10.3.1938 which this Court decided finally on 12.8.1958. 138. Issue No. 14 was framed in Samudayam Suit as to defiance of the authority of the Patriarch. The submission that the Defendants by placing reliance on the authority of the Catholicos had become heretics or had voluntarily gone out of the church was not accepted as that had been concluded by the decision of Vattipanam suit. The plea was barred by the principle of res judicata. It was held that Defendants 1 to 3 had not become heretics or had not set up a new church by accepting the establishment of the Catholicate by Abdul Messiah with power to the Catholicate for the time being to ordain Metropolitans and to consecrate Moron and thereby reducing the power of the Patriarch over the Malankara church to a vanishing point. It was also held that Defendants 4 to 6 of patriarch faction had not been validly elected in the aforesaid meeting convened in 1935. This Court held in the Samudayam suit that issues 14, 15, 16 and 19 were directly and substantially in issue in the interpleader suit (OS No. 94/1088) i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er expected nor tolerable and church is not meant to be a place for such a masculine culture. The matter was decided in the Vattipanam suit, Samudayam suit and the 1995 judgment and the Patriarch faction ought not to have violated the judgment of this Court in the method and manner in which it has been done. In the 1958 judgment also this Court has laid down by an elaborate reasoning process that the 1934 Constitution is binding on the Parish Churches. M.D. Seminary meeting was properly held in which the 1934 Constitution was adopted. It was clearly held in Samudyam Suit by this Court: 43. Learned Counsel for the Respondent has tried to find fault with the notices in minor details. For instance, it has been argued that in the notices other than Ex. 59 no agenda was mentioned. Apart from the fact that no such objection was taken in the plaint, it is clear that those notices by a clear reference to Ex. 59, specially because they had all been sent together, did incorporate the agenda set out in full in Ex. 59. In our opinion, the M.D. Seminary meeting was properly held and the first Defendant, who is now the sole Appellant before us, was validly appointed as the Malankara Metropoli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the spiritual power had also come to the vanishing point by his own acts as noticed by this Court in the 1995 and other judgments. Submission to the contrary on behalf of the Appellants that he can exercise the powers after informing the Catholicos, cannot be accepted. The Malankara Metropolitan has to be of local area. Logically also for proper management of the affairs of Churches power cannot be exercised from abroad. Such a scenario is neither conceived nor feasible or permissible. The spiritual supremacy of one holy authority over the other, also cannot per se mean exclusion and subordination of the other religious authority. When there is delegation and delimitation of the territorial and other powers, concerned authorities however high they may be, spiritually or otherwise, have to follow the discipline and strictly act as per delimitation of zones and powers. It is absolutely necessary for survival of the Church and for proper administration. IN RE: THE 1934 CONSTITUTION IS IN THE NATURE OF A CONTRACT, ENFORCEABLE AT PRESENT: 141. It was urged by Shri K. Parasaran, learned senior Counsel appearing on behalf of the Appellants that the 1934 Constitution is in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the previous judgments. It was held in 1905 in the Arthat Suit that the Churches and their properties are subject to spiritual, temporal and ecclesiastical jurisdiction of Malankara Metropolitan. The Patriarch's claim of control over the temporal affairs of the Malankara Church was rejected. It was also rejected in the Seminary Suit filed in 1879. The effort made by the Patriarch faction appears to be for the temporal gains under the guise of supremacy of the Patriarch as the Vicar and priests have the power of management in addition to performing the religious duties. The submission that the 1934 Constitution has been breached by the Catholicos cannot be accepted. There is not only violation of binding judgment 1995 of this Court by the Patriarch faction but of other binding precedents too. It was vigorously urged by Shri K. Parasaran, learned senior Counsel that the 1995 judgment was rendered to reconcile the two warring factions. Observations made by this Court at Para 157 of the 1995 judgment have been relied upon in which it has been observed that the directions were issued to bring about reconciliation between the two warring groups and establish peace in Mala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the same. Shri K. Parasaran, learned senior Counsel, urged that the High Court has not assigned any reason why the judgment of the trial court was erroneous. We have gone through the judgment and examined the entire case. In our opinion the High Court has rightly granted the declaration sought for in the facts and circumstances of the case, projected in the case. The declaration given that the Parish Churches are governed by the 1934 Constitution is just and proper. 143. It was also submitted that as the Catholicos have repudiated the supremacy of the Patriarch, they have not come to the Court with clean hands. Relying upon Mohammadia Cooperative Building Society Ltd. v. Lakshmi Srinivasan Cooperative Building Society Ltd. (2008) 7 SCC 310, it was submitted that the discretionary relief in a suit for specific performance cannot be granted to a Plaintiff who has come to the court with a pair of dirty hands. We find that in the instant the Patriarch faction is more to be blamed for disorder in the churches than the Catholicos faction. They ought to have followed 1995 judgment and other decisions. That they have not done and have insisted upon their own system of management ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have no legal sanction behind them in the sense that they are not issued under the authority of any statute, we also notice that the circulars do not oblige each and every pupil to join in the singing even if he has any conscientious objection based on his religious faith, nor is any penalty attached to not joining the singing. On the other hand, one of the circulars (the first one) very rightly emphasise the importance of religious tolerance. It is said there, All religions should be equally respected. 15. If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection, then such compulsion would clearly contravene the rights guaranteed by Article 19(1)(a) and Article 25(1). He also relied upon Cheall v. APEX (1983) 1 All ER 1130; Smt. Damyanti Naranga v. The Union of India and Ors. (1971) 1 SCC 678; O.K. Ghosh v. E.X. Joseph (1963) Supp 1 SCR 789; Suryapalsingh v. U.P. Government AIR 1951 All 674; and Sitharamachary v. Sr. Dy. Inspector of Schools AIR 1958 AP 78. He urged that the 1995 judgment cannot be read as if the Appellant Church cannot leave the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is included in the Orthodox Syrian Church of the East and the Primate of the Orthodox Syrian Church of the East is the Catholicos. 3. The ancient and the real name of the Malankara Church is the Malankara Orthodox Syrian Church although it is also wrongly called 'The Jacobite Church', for the same reasons for which the Orthodox Syrian Church has been also called so. 5. The approved Canon of this Church is the Hudaya Canon written by Bar Hebraeus (the same Canon book as the one printed in Paris in the year 1898.) 148. As per Section 6, every Parish Church shall have a Parish Assembly and there would be one Parish Register. Entry of each member shall be made in the Parish Register. It is open to become a permanent member or a temporary member of the Parish Church as provided in Section 9. The Vicar has to convene the Parish Assembly meeting as provided in Section 12. As per Section 13, Parish Assembly shall meet at least twice in a year. As per Section 15 the Vicar shall be the President. As per Section 16 there shall be a Secretary for the Parish Assembly. Section 17 provides the duties of the Parish Assembly which shall include the election of the Kaisthani (L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ip is dealt with in Section 25. The Vicar and Secretary are the members. The Vicar shall be president of the Parish Managing Committee as per Section 26. The Vicar shall report to the Diocesan Metropolitan about the election of the Kaisthani, the Secretary and other members of the Parish Managing Committee. Section 28 deals with calling of the Parish Managing Committee meeting by the Vicar. As per Section 31, the Parish Managing Committee shall prepare the yearly budget. Kaisthani (lay-steward) is also a part of the Parish Church and is elected by the Parish Assembly as provided in Section 33. He shall maintain correct accounts as provided in Section 35 and when the Diocesan Metropolitan comes to the Church, he shall get the books of accounts signed by Diocesan Metropolitan and sealed. As per Section 36, the Vicar has to send two copies of the summarized statement of accounts passed at the Parish Assembly to the Diocesan Metropolitan for his approval. As per Section 37 the movable and immovable properties of the Parish Church shall be entered into a register. There shall be a Vicar for every Parish Church; other priests, if any shall be assistants of the Vicar as per Section 38. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 63. Section 64 provides the Catholicos in consultation with the Malankara Association Managing Committee and according to the recommendation of the Malankara Episcopal Synod allocate Dioceses to the Metropolitans which is extracted hereunder: 64. The Catholicos in consultation with the Malankara Association Managing Committee and according to the recommendation of the Malankara Episcopal Synod allocate Dioceses to the Metropolitans. Section 65 deals with power of Diocesan Metropolitan and the matters concerning faith, order and discipline etc. same is reproduced below: 65. Matters concerning faith, order and discipline shall, subject to the decisions of the Malankara Episcopal Synod, be under the control of the Diocesan Metropolitan. As per Section 66 the Diocesan Metropolitan shall carry on the administration subject to the supervision of the Malankara Metropolitan. Same is extracted hereunder: 66. The Diocesan Metropolitan shall carry on the administration of the Dioceses under their charge subject to the supervision of the Malankara Metropolitan. Section 67 provides that the expenses of the Diocesan Metropolitan on his visit to the churches of his Diocese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litan shall be the Trustee for the rest of the Community properties if they are not subject to other special provisions. For Malankara archdiocese there shall be Malankara Metropolitan who shall have jurisdiction regarding temporal, ecclesiastical and spiritual administration of the Malankara church. The provision of Section 94 which is significant is reproduced above. Section 95 provides that in case there is no Diocesan Metropolitan in any Diocese; such Diocese shall be under the direction administration of the Malankara Metropolitan. The Association shall elect Malankara Metropolitan to that office. The Catholicos may also hold the office of the Malankara Metropolitan as provided in Section 98 which is extracted above. 153. Part 5 of the Constitution deals with the Catholicos. Sections 99 and 100 afore-extracted deal with them. The Catholicos has the powers of the consecration of Prelates, presiding over the Episcopal Synod, conducting administration as representative of the Synod and consecrating the Holy Moron. 154. Patriarch is dealt with in Part 6 of the Constitution in Section 101 which provides that the Malankara Church shall recognize the Patriarch, canon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooya (Reader) may be administered. B, High Priests (Prelates). 112. The Catholicos shall consecrate with the co-operation of the Episcopal Synod the required number of Bishops and Metropolitans for the Malankara Church. On the occasion of consecration of a Bishop or a Metropolitan such Bishop or Metropolitan shall submit a statement regarding faith and submission (Salmoosa) to the Catholicos, the President of the Synod. The Catholicos shall give a certificate of consecration (Sthathicon) to the Prelate so consecrated. 157. If any one shall be consecrated as Catholicos, the Association shall elect him to that office. The Synod shall consecrate the person as Catholicos and there shall be invitation to Patriarch when the Catholicos is to be consecrated and if the Patriarch arrives, he shall consecrate the Catholicos with the cooperation of the Synod. Section 114 is extracted hereunder: 114. If any one shall be consecrated as Catholicos he shall be elected to that office by the Association. If such election is approved by the Episcopal Synod, the Synod shall consecrate the person as Catholicos. If there be a Patriarch recognized by the Malankara Church the Patriarch shall be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Managing Committee shall have no authority to pass any resolution concerning faith, order or discipline. 161. The Parish Assembly can pass byelaws that are not inconsistent with the principles contained in the Constitution. The Diocesan Assembly or the Diocesan Council can also suggest and submit to the Managing Committee through the Rule Committee for consideration as provided in Section 129 that is extracted hereunder: 129. Byelaws which are not inconsistent with the principles contained in this Constitution may be passed from time to time by the Parish Assembly, the Diocesan Assembly or the Diocesan Council and submitted to the Managing Committee through the Rule Committee and brought in to force with the approval of the Managing Committee. 162. All agreements, offices and practices which are not consistent with the provisions of the Constitution are made ineffective and have been annulled as provided in Section 132 contained in Part 13 'Miscellaneous', and the same is reproduced hereunder: 132. All agreements, offices and practices which are not consistent with the provisions of this Constitution are hereby made ineffective and are annulled. 163. Variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has urged that the existing majority at a given time in any Parish Church cannot be permitted to take away the assets of the church at the expense of those who adhere to the original Trust. 165. The majority view in the 1995 judgment refused to give declaration with respect to property in the absence of Parish churches, However it was observed that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches insofar as the Constitution provides for the same. In the absence of any further prayer made, suffice it to hold that the 1934 Constitution shall govern the affairs of the Parish Churches in respect of temporal matters also insofar as it so provides and discussed by us. The Malankara Church is Episcopal to the extent it is so declared in the 1934 Constitution as held in the 1995 judgment. The 1934 Constitution governs the affairs of Parish Malankara Churches and shall prevail. 166. In our opinion, otherwise also, property cannot be taken away by the majority or otherwise and it will remain in Trust as it has been for the time immemorial for the sake of beneficiaries. It is for the benefit of beneficiaries. No one can become owners by majority decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proval and relied upon by the Court. 169. From the aforesaid it is apparent that the Parish Assembly by majority cannot take away the property and divert it to a separate and different church that is not a Malankara Church administered as per the 1934 Constitution, though it is open to amend the Constitution of 1934. As the basic documents of creation of church have not been placed on record, usage and custom for determining the competing claims of rival factions becomes relevant. In Pearson (supra), it was held thus: But there is another view in which the case should be considered-and it is this-that, where an institution exists for the purpose of religious worship, and it cannot be discovered from the deed declaring the trust what form or species of religious worship was intended, the court can find no other means of deciding the question, than through the medium of an inquiry into what has been the usage of the congregation in respect to it; and, if the usage turns out upon inquiry to be such as can be supported, I take it to be the duty of the Court to administer the trust in such a manner as best to establish the usage, considering it as a matter of implied contract betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution. We propose to extract both Udampadies of 1890 and 1913 hereunder. The Udampady of 1890 is extracted below: Translation of the regd. Udampady of 1890 AD of St. George Jacobite Syrian Church, Mannathoor. Face value- Rs. 5 In the year 1890 AD, on the day of 4th Karkidakom of 1065 M.E., before Your Grace Paulose Mar Ivanios, our Metropolitan of Kandanadu church and Ors. (Kandanad Diocese) in Malankara, we Nazranis (Christians) and farmers who are the members of Mannathoor Church situated in Mannathoor kara, Koothattukulam Pravarthy, Muvattupuzha Mandapathuvathukkal- 1. Chacko Kora aged 65, Kuzhalanattu, Mannathoor 2. Ulahannan Skaria aged 32, Padinjarekkara, Mannathoor, 3. Varky Mani aged 37, Peringattuparambilputhenpurayil Mannathoor, 4. Iype Iype aged 36, Kalarikkal, Mannathoor, 5. Mani Varky aged 49, Madathikudiyil, Mannathoor, 6. Cheria Pothen aged 50, Pallithazhathuputhenpurayil, Mannathoor, 7. Mani Adai aged 47, Puthenpurayil Mannathoor, 8. Itti Iype Iype aged 38, Vadakkemandolil, Mannathoor, 9. Chummar Thomman aged 37, Nellithanathu Puthenpura, Mannathoor, 10. Cheria Chacko aged 51, Chemmankuzha, Mannathoor, 11. Pothen Paily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod between 1067 Chingam 1st and Chingam 15th shall be read out in the parish assembly and then handed over to the new trustees on the day of Chingam 15th Perunnal (feast of ascension of St. Mary), Like the above every year two members will be elected as trustees and this will continue. 3. All the movable assets of the church including silver, bronze and other metals all with a proper list, documents, registered deeds, records etc. shall be kept with the trustees which they will safeguard and they shall meet all the requirements of the church in an order. 4. The trustees if not handing over the keys, records and assets as per the list to the newly elected trustees on time, the new trustees can complain to Your Grace and if required they shall engage in legal case and shall settle if any. 5. Resheessa (offerings) to the Holy Throne of Anitoch and Your Grace shall be handed over to Your Grace and get acknowledged. We will follow the faith and clauses stated above and Ors. and the Canon laws and the kalpanas from time to time. Any one named above if found not following this Udampady or found disqualified, they and anybody who become members of the church parish in future but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m kara 16) Poulo aged 50 S/o Aypu, Murimattathil Ompala Elamkulam kara 17) Kuruvila aged 54 S/o Varkey Cheladu residing at Paramurickan Puthenpurayil, Peringole kara 18) Chacko aged 39 S/o Fr. Ouseph thenungal Pallippurathu Puthenpurayil do kara 19) Paily aged 41 S/o Varkey, Thamarachalil Elamkulam kara all are residing Aykkaranadu Desom 20) Paily aged 37 s/o Uthuppan, vailayil Puthen purayil, Ezhakkaranadu kara, Ramamangalam Desom, Moovattupuzha taluk 21) Ittan aged 36 S/o Fr. Pathrose, Kunnathu Vadakkekkara Puthenpurayil, Kinginimattom kara, Aykkaranadu desom, Kunnathunadu taluk all are farmers Christian and Trustees for the future administration of the do church 1) We are members of Jacobite trust and are under the Throne of Antioch and hence we shall not do anything contrary to this 2) We shall be abide by the Bulls and orders of his Holinoss Moran Mor Ignatious Patriarch who is called as second Abdaloho who is our supreme head AND sitting in the throne of Antioch, and, of his Grace Mar Kuriakose Koorilose Metropolitan accepted by the church as appointed and ordained as the Metropolitan of Kandanadu Diocess, Association Committee President and Malankara Metropolitan in Aluva S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 92, the first turn as afore mentioned shall repeat. Pattom, interest, rice, paddy etc. due to the church shall be collected and accounted the same in the assets of the church the debts such as jenmi michavarom, tax etc. shall be paid and obtain receipt for the same, the further dues to the church shall be collected and recovered either through clerks or managers so appointed for salary or through any person feels good among the trustees with the kalpana of metropolitan after discussing the matter in the meeting 6) since the kottoor church sits in Elamkulam kara do Desom has been renovated with the funds of this church and the same has been functioning under this church and income and expenditure of the said church also had been taken, by the church, the income from the said church also shall be accounted in the accounts of this church and shall function as per the precedents. The spiritual functions shall be performed by the 5 priests together on turn basis ends in this church and they can receive their share also. There are 8 keys for the locker and the same is within the custody of Fr. Poulose Kunnathu Vadakke Puthenpurayil and Fr. Ghevarghese Murimattthil Ompala among pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Samudayam suit also by the 1995 judgment, the question operates, as res judicata and the administration on the basis of Udampady cannot be claimed. The inconsistent provisions in the Udampady shall stand annulled as per Section 132 of the 1934 Constitution. 174. There are inconsistencies between the 1934 Constitution and 1913 Udampady as such the latter cannot prevail. In terms of Section 132, any Udampady (agreement) which is inconsistent with the provisions of 1932 constitution stands annulled and is ineffective, The following among others, are the important inconsistencies between the provisions of 1913 Udampady and the 1934 Constitution. 1934 Constitution 1913 Udampady Section 1. The Malankara Church is a division of Orthodox Syrian Church. The Primate of the Orthodox Syrian Church is Patriarch of Antioch Section 2. The Malankara Church was founded by St. Thomas the Apostle and is included in Orthodox Syrian Church of the East and the Primate of the Orthodox Syrian Church of the East is Catholicos (Clause 2) We are Members of Jaobite trust and are under the Throne of Antioch and hence we shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oo the Parish Assembly of matters necessary of the parish and the examination of the accounts presented by the Kaisthani. 35. The duties of Kaisthani shall include recording and maintaining correct accounts of the Parish, receiving the income and making the expenditure of the Parish according to the direction of the Parish Assembly and the Parish Managing Committee; preparing the yearly accounts of the Parish every six months and presenting the same to the Parish Managing Committee and thereafter presenting the same to the Parrish Assembly. When the Diocesan Metropolitan comes to the Church on his Parish visit the account books of the Parish shall be got signed by him 36. The Vicar shall send or cause to be sent by the Secretary two copies of the summarized statement of accounts passed at the Parish Assembly to the Diocesan Metropolitan for his approval. 47. Election of the Diocesan Secretary and the members of the Diocesan Council appointment of auditor to examine the accounts of the income and expenditure of the Diocese consideration of the auditors report, adoption of the Annual Accounts and consideration and the decision of matters necessary for Diocesan are w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in light of the findings of the Supreme Court in 1959 judgment and the 1995 judgment regarding the validity and the binding character of the 1934 constitution, the 1913 Udampady would, in any event, no longer survive and Parish Church would be governed in accordance with the 1934 Constitution. 176. Shri Anam, learned Counsel, was right in submitting that educational institutions have to be run in accordance with the provisions of the Kerala Education Act. Educational institutions cannot be governed by the Udampady of 1913 as per Sections 6 and 7 of the Kerala Education Act, 1959. IN RE: EFFECT OF NON REGISTRATION OF 1934 CONSTITUTION AND EFFECT OF REGISTERED UDAMPADY 177. The Udampadies were for administration of the Church at the relevant time, and lost their efficacy due to efflux of time and cannot hold the field in view of the system of administration provided in the 1934 Constitution. The 1934 Constitution was not required to be registered document as the Udampadies are not documents of creation of Trust/s, the Udampadies were not required to be registered. Udampady cannot prevail over the 1934 Constitution for various reasons discussed in the judgment. 178. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 493. The decision in S. Saktivel (supra) deals with the terms of the registered document whereas the decision in ITC Ltd. (supra) is also in a different context. S. Saktivel (supra) was a case where property itself was registered by a registered settlement deed dated 26.3.2015. It was held that it could not be modified or altered or substituted in 1941 by unregistered document. The decision has no application for the aforesaid reasons. 179. Shri Divan, learned senior Counsel, relied on the decision in Vinodkumar M. Malavia v. Maganlal Mangaldas Gameti and Ors. (2013) 15 SCC 394, wherein this Court held that when the property of churches vests in trusts regulated by the law relating to public trusts, mere resolution passed by such trusts will not cause a transfer of the property of the trust and the law regulating transfer of property will have to be followed and complied with. This Court in Vinodkumar (supra) held that as far as the unification of churches for spiritual matters is concerned, the same may be effected by resolutions passed by the church trusts, however, for transfer of trust property, provisions regulating the transfer of property under the general law will hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also recognised by this Court in Church of North India v. Lavajibhai Ratanjibhai wherein it was observed thus: (SCC p. 783, para 60) 60. We are not oblivious of the fact that the resolution adopted in the meeting held on 17-2-1970 allegedly fulfilled all the requirements for such resolution as provided in the Societies Registration Act but it is now beyond any controversy that the society having not owned any property, their transfer in favour of a new society was impermissible in law. In terms of Section 5 of the Societies Registration Act, all properties would vest in the trustees and only in case in the absence of vesting of such properties in the trustees would the same be deemed to have been vested for the time being in the governing body of such property. In this case, it is clear that the properties have vested in the trustees and not in the governing body of the society. 20. Therefore, we are of the opinion that the claim of the Appellants that following unification of FDCB with CNI after the purported resolution resulted in the dissolution of FDCB making CNI its legal successor and controller of its properties, does not hold good and cannot be accepted. The High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay Public Trusts Act as well as the provisions of the Constitution Under Articles 25 and 26 of the Constitution of India. In fact, Article 26 which provides for the freedom of the religious faith and Article 26 which provides for the freedom of acquiring and administering the property or the Trust in accordance with law, meaning thereby, the provisions of the Bombay Public Trusts Act, which has been created, would have no application again in the guise of such resolution. Even the Transfer of Property Act will have no bearing and properties of various trusts or the churches would get automatically transferred or vested without any requirement of law being fulfilled, without any document, without any registration, stamp, etc. therefore, it would be rather over simplification to accept the submission that it was merely a resolution for a merger or unification of various churches for better understanding and advancement of cause of religion and faith and the Court should not examine this aspect even though there is a strong protest which has led to repeated round of litigations before the courts up to the Hon'ble Apex Court. The underlying object or the purpose even if it assumed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere amended and enlarged. We are not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave. H. FRAMING OF SCHEME UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE 181. We are also not impressed by the submission that the court should direct framing of a scheme Under Section 92 Code of Civil Procedure in view of the decision of the Privy Council in Mohd. Ismile Ariff v. Ahmed Moolla Dowood 43 IA 127 (PC) in which it has been held that the court has the power to give direction and lay down Rules that may facilitate the work of management and the appointment of trustees in the future. The primary duty of the Court is to consider the interest of the general body of the public for whose benefit the trust is created. Reliance has been placed by Shri S. Divan, learned senior Counsel on Acharya Shri Shreepati Prasadji Barot Laxmidas 33 CWN 352 (PC) that the institutional trust must be respected by the sect and the body of worshippers f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tune with the judgment. There is no conflict between the judgment and the decree. (iii) The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of provisions of Order 1 Rule 8 and Explanation 6 to Section 11 Code of Civil Procedure. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e., Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided. (iv) As the 1934 Constitution is valid and binding upon the Parish Churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in the so-called exercise of right Under Articles 25 and 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the churches under the guise of spiritual supremacy of the Patriarch. (v) The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara Metropolitan. Malankara Metropolitan has the prime jurisdiction rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly which we have explained in this judgment. (xii) It is open to the Parishioners to believe in the spiritual supremacy of Patriarch or apostolic succession but it cannot be used to appoint Vicars, Priests, Deacons, Prelates etc. in contravention of the 1934 Constitution. (xiii) Malankara Church is Episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution. (xiv) Appointment of Vicar is a secular matter. There is no violation of any of the rights encompassed Under Articles 25 and 26 of the Constitution of India, if the appointment of Vicar, Priests, Deacons, Prelates (High Priests) etc. is made as per the 1934 Constitution. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned. (xv) Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc. Even otherwise once the 1934 Constitution has been adopted, the appointment of Vicar, Priests, Deacons, Prelates (high priests) etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar etc. in violation of the 1995 judgment of this Court. (xx) The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even frame bye-laws in violation of the provisions of the 1934 Constitution. (xxi) The Udampadies o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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