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

       Vs.

RESPONDENT: MORAN MAR MARTHOMA MATHEWS & ANR.ETC.

DATE OF JUDGMENT20/06/1995

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

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

ACT:

HEADNOTE:

JUDGMENT: B.P. JEEVAN REDDY.J.      Leave granted in Special Leave Petitions.      These appeals  represent the latest round of litigation between two  rival sections in the Malankara Jacobite Syrian                JUDGEMENT Christian Community. A brief reference to the earlier rounds of litigation  is necessary for a proper appreciation of the questions arising herein.      St.Thomas, one of the disciples of Jesus Christ came to Malabar in 52 A.D. to spread his message.  He died in India.      At the  Council held  at Nicea  in  325  A.D.  -  First General Council - convened by the Roman Emporer Constantine, four Patriarchates were established spanning the Christendom as it was known then, viz., Rome, Constantinople, Alexandria and  Antioch,   each  headed  by  a  Patriarch.  Within  the jurisdiction of Patriarch of Antioch was established another office, viz., the great Metropolitan of the East, also known as "Catholicos".  The office of Catholicate fell into disuse later and  was revived  in 628 A.D. Sometime later, it again fell into  disuse.   All these are matters of faith  and are stated merely by way of introduction.      By the  16th century,  Christianity had gained a fairly substantial foothold  in the  area now  comprised in Kerala. The dominant  faith was of the Syrian Orthodox Church.  16th century saw  the rise  of Portugese  political power  on the west Coast  of India.  The Portugese  were Roman  Catholics. They compelled the local christians to accept Roman Catholic faith.   They succeeded to some extent but not for long.  In the year  1654, the  Christians of  Malabar rebelled against the imposition  of an alien faith and affirmed their loyalty to Syrian  Orthodox Church headed by the Patriarch by taking an oath en masse at Mattancherry, known as the "Koonan Cross Oath".   Since then  the Patriarch of Antioch was exercising ecclesiastical  supremacy   over  what  may  be  called  the

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"Malankara Syrian  Christian Church".   With the rise of the British power in the Southern India during the 19th century, they in  turn pressurised  the  Malankara  Syrian  Christian Community  to  embrace  the  Protestant  faith.    They  too succeeded in  some measure.   Disputes arose between the two groups (one that embraced the Protestant faith and the other adhering to  the Orthodox  faith), which  was settled  by an award called  "Cochin Award"  rendered on April 4, 1840.  As per this  award, the  Church properties were divided between the Church  Mission Society  (Protestants) and the Malankara Jacobite Syrian Church (Orthodox faith). The amount of 3,000 Star Pagodas  deposited by  Mar Thoma  VI    (Dionysius  the Great)  with  the  East  Indian  Company  at  eight  percent interest came  to be  allotted to  Malankara Jacobite Syrian Church in this division.      On account  of certain  disputes and bickerings between the members  of Malankara  Jacobite Syrian Church, Patriarch 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, popularly called the "Malankara  Association", was formed to manage the  affairs of  the Church  and the  Community.  The Malankara Metropolitan  was made the ex-officio President of this Association.   Each  member Church  was to  send  three representatives to the Association.  A Managing Committee of twenty four,  called the "Standing  working Committee of the Association" was  also constituted.   Until 1876, the entire Malabar was comprised in one Diocese.  But thereafter it was divided into  seven  Dioceses,  each  Diocese  headed  by  a Metropolitan. One  of them was to be designated as Malankara Metropolitan who  exercised spiritual  and  temporal  powers over all the Dioceses.      SEMINARY SUIT:      On July 4, 1879 Mar Joseph Dionysius claiming to be the properly  consecrated  Metropolitan  of  Malankara  Jacobite Syrian Church  and as the President of Malankara Association filed O.S.No.439  of 1054  in the  Zilla Court  of  Alleppey against one Mar Thomas Athanasius.  The main dispute between them was  while the  plaintiff  asserted  the  supremacy  of Patriarch   comprised   in   consecrating   and   appointing Metropolitans from  time to time to govern and rule over the Malankara Edavagai,  in sending  Morone (the sanctified oil) for baptismal  purposes, in receiving the Ressissa (tribute) from the Community to maintain  his dignity and in generally controlling the  ecclesiastical and  temporal affairs of the Edavagai,  the   defendants  denied   any  such  Patriarchal supremacy.   The suit  was ultimately  disposed  of  by  the judgement of  Travancore Royal  Court of Final Appeal in the year 1889.   The  Royal Court  found that the ecclesiastical supremacy of  the Patriarch of Antioch over Malankara Syrian Christian Church in Travancore had all along been recognised and acknowledged  by Jacobite Syrian Christian Community and their Metropolitans;  that the  exercise  of  supreme  power consisted in  ordaining, either  directly or  through a duly authorised delegates,  Metropolitans from  time to  time  to manage the spiritual matters of the local Church, in sending Morone to  be used  in the  Churches for baptismal and other purposes and  in  general  supervision  over  the  spiritual government of  the Church.   The  Royal Court  further ruled that the  authority of  Patriarch never extended to temporal affairs  of   the  Church   which  in  that  behalf  was  an independent Church.    It  was  further  declared  that  the Metropolitan of  the Syrian   Christian Church in Travancore should be  a native  of Malabar consecrated by the Patriarch

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or by  his duly  authorised delegate  and  accepted  by  the people as  their Metropolitan.   The  Court found  that  the plaintiff was  so consecrated  by Patriarch  and accepted by the majority  of the  people and,  therefore, entitled to be recognised and declared as the Malankara Metropolitan and as the trustee of the Church properties.      ARTHAT SUIT:      It appears that the Patriarch of Antioch did not relish the judgment  of the Royal Court of Travancore insofar as it declared that he had no control over the temporal affairs of the Malankara  Church.   Some local Christians supported him in that  behalf which  led to  the institution  of a suit in 1877 which  resulted in  the judgment of the Court of Appeal of Cochin  dated August  15, 1905, re-affirming the findings of the  Travancore Royal  Court. The  Cochin Court of Appeal declared  that   while  the  Patriarch  of  Antioch  is  the spiritual  head   of  Malankara  Syrian  Jacobite  Christian Church, the Churches and their properties are subject to the spiritual, temporal  and ecclesiastical  jurisdiction of the Malankara Metropolitan.   In  other words,  the  Patriarch’s claim of  control over the temporal affairs of the Malankara Church was negatived once again.      THE REVIVAL OF CATHOLICATE IN 1912:      The Sultan  of Turkey withdrew the recognition given to Abdul Messiah  as the  Patriarch of  Antioch and  recognised Abdulla II  as the  Patriarch.   There is  a  difference  of opinion as  to the  effect of this withdrawal of recognition by the  Sultan.   While one  view is  that this  recognition resulted in  Abdul   Messiah ceasing to exercise any and all the powers  of Patriarch,  the other  view is  that the said withdrawal did  not affect  the spiritual authority of Abdul Messiah.   Be that  as it  may, there  were  now  two  rival claimants to  the   Patriarchate of  Antioch and as we shall presently indicate  it is this dispute between Abdul Messiah and Abdulla  II which  led to the formation of two groups in the Malankara Church.      In  the   year  1907,  Mar  Geevarghese  Dionysius  was ordained as  Metropolitan by  the Patriarch  Abdulla  II  at Jerusalam.   In 1909,  Mar Geevarghese  Dionysius became the Malankara Metropolitan on the death of Mar Joseph Dionysius. Because  of   certain  differences   arising   between   Mar Geevarghese  Dionysius   and  Abdulla  II,  the  latter  ex- communicated the  former on  March 31,  1911.   A few months later, Abdulla  II appointed  one Paulose Mar Kurilos as the Malankara Metropolitan.  Mar Geevarghese Dionysius responded by convening  a meeting  of the  Malankara Syrian  Christian Jacobite  Church   which  declared  his  excommunication  as invalid.   In the year 1912, Patriarch Abdul Messiah came to Malankara  and   declared   the   excommunication   of   Mar Geevarghese Dionysius by Abdulla II as invalid.  In addition to  that,   Abdul  Messiah  also  purported  to  revive  and reestablish the  Catholicate by consecrating one Mar Ivanios as the  Catholicos.  It is relevant to notice the roceedings relating to the  revival of Catholicate.      Two documents  are put  forward as the Kalpana of Abdul Messiah reviving the Catholicate, namely, Exs.A.13 and A.14. The Patriarch  group (who  are  the  appellants  before  us) dispute Ex.A.13.   They say that Ex.A.14 is the only version while Catholicos  group (who  are respondents before us) say that Ex.A.14  was  preceded  by  Ex.A.13  and  that  without Ex.A.13 there  could not  have been  Ex.A.14.  We may notice the contents  of both the documents.  Ex.A.13 which is dated September 17, 1912, says inter alia, "by virtue of the order of the  office of  the Shephard, entrusted to Simon Peter by our Lord  Jesus Messiah,  we are  prompted to perpetuate for

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you  Catholicos   or  Mapriyana   to  serve   all  spiritual requirements that are necessary for the conduct of the order of the  holy  true  Church  in  accordance  with  its  faith ......With Geevarghese  Mar Dionysius  Metropolitan, who  is the head  of   the Metropolitans in Malankara and with other Metropolitans, Ascetics,  Deacons  and  a  large  number  of faithfuls,  we  have  ordained  in  person  our  spiritually beloved Evanios  in the name of Baselius as Mapriyana, i.e., as the  Catholicos on  the Throne  of St.Thomas in the East, i.e., in  India and  other places  at the  St.Mary’s Church, Niranam on Sunday, 2nd Kanni, 1912 A.D. as per your request" (emphasis added).   A.13 then sets out the authority and the jurisdiction of  Catholicos  so  revived  in  the  following words:      "The authority  to  serve  all spiritual      elements     in  public,   which     are      necessary for  protecting the  tradition      of the  Holy   Church has  been given to      him (Evanios)  by the Holy Ghost as  was      given  to the  Holy Apostles by our Lord      Jesus Messiah.        Authority    means      the     authority       to        ordain      Metropolitans,  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 standing against  his opinions      which are  in accordance  with the Canon      of the Church, defy him and quarrel with      him, will become guilty......".      Coming to  Ex.A.14, which  is dated  February 19, 1913, the third paragraph starts by saying "After bestowing on you our blessings  a second time, we desire to make known to you our true  affection that ever since your letters reached our weakness in  midiat, we  have been  deeply  grieved  at  the dissensions sown  by Abdulla  Effendi  among  our  spiritual children in  all our  Churches in  Malabar".  A little later A.14 says:      "Accordingly, we,  by the  Grace of God,      in response to your request,  ordained a      Maphrian, that   is,  Catholicos by name      Poulose   Basselios  and    three    new      Metropolitans,     the  first      being      Gheevarghese   Gregorius,   the   second      Joachim  Evanios   and      the   third,      Gheevarghese Philexinos.   It appears to      us   that, unless    we  do    instal  a      Catholicos,   our   Church,   owing   to      various causes,    is  not    likely  to      stand firm,  in purity  and    holiness.      And, now,  we do  realise  that  by  the      might of   our Lord, it will endure unto      Eternity, in  purity and   holiness, and      more than in times past, be confirmed in      the loving  bond of  communion with  the      Throne of Antioch. The Joy of  our Heart      is herein  realised. Our children, abide      ye now  in peace.   As for ourselves, we

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    leave you.  Rest assured that though  we      leave you, we  shall never  be unmindful      of you.     We shall incessantly lift up      our  eyes  unto  heaven  and  offer  our      prayers  and   intercessions   for   the      guileless  lambs,   redeemed  by     the      previous  blood  of  our  Saviour  Jesus      Christ. Pray  ye   for us,  and for  our      entire  community.  Abide  ye  in  love,      peace and  concord.   Pray ye  for  your      enemies, and, for those that  revile you      without cause.   Be  not afraid  of  the      uncanonical    and         unjustifiable      interdicts   and curses  of the usurper.      Heed not   those who create dissensions.      God will reward them  for their  action,      be  they good  or bad.    We commend you      into the   hands  of   Jesus Christ, our      Lord, the Great Shepherd  of the  flock.      May   he  keep  you.  We  rest confident      that       the       Catholicos      and      Metropolitans  =  your shepherds =  will      fulfil     all  your     wants.      The      Catholicos, aided by  the Metropolitans,      will   ordain       melpattakkars,    in      accordance with    the  Canons   of  our      Holy    fathers    and  consecrate  Holy      Morone. In  your Metropolitans is vested      the sanction  and  authority  to  instal      a  Catholicos,  when  a Catholicos died.      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.  We  beseech      your love,   and  counsel   you in   the      name   of our  Lord Jesus that Ye  faint      not   in your   true  faith    of  Saint      Peter,  on  which  is  built,  the  Holy      Catholic and  Apostolic Church.  What we      enjoin   your true   love  is  that  the      unlawful conduct  of a  usurper, may not      induce you to sever that communion which      is the  bond of love connecting you with      the Apostolic Throne of Antioch."                                            (Emphasis added)      The main difference between Ex.A.13 and Ex.A.14 is two fold: Firstly, A.13 speaks of "Catholicos on the Throne of St.Thomas in the East", which words are not to be found in A.14. Secondly, A.14 contains the following words: "in your Metropolitans is vested the sanction and 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.      Mar Ivanios,  who was  consecrated as  the  Catholicos, died on  April 16,  1913. Abdul  Messiah died  on August 30, 1915 and  Abdulla II  died on  November 25, 1915. No one was installed  as   the  Catholicos  till  1925,  when  one  Mar Geevarghese Philixinos  of Vakathanam  was installed  as the second Catholicos but without reference to the Patriarch. On the  death   of  Mar   Philixinos  on   December  17,  1928,

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Geevarghese Gregorius was installed as the third Catholicos, again without reference to the Patriarch.      VATTIPANAM SUIT:      Dispute  arose  as  to  the  persons  entitled  to  the interest on  3,000 Star  Pagodas aforementioned.  In view of the dispute,  the Secretary of State for India instituted an interpleader Suit  No.O.S.94 of  1088 in the District Court, Trivandrum. It  was later  converted into  a  representative suit  between   two  groups,   viz.,  defendants   1  to   3 representing what  may be called the Catholicos group (i.e., the group  owing allegiance  to the  Catholicos installed by Patriarch Abdul  Messiah) and defendants 4 to 6 representing what may  be called  the Patriarch  group (i.e.,  the  group owing allegiance only to the Patriarch). The first defendant claimed to  have been appointed as Malankara Metropolitan by Abdul Messiah  and disputed  the validity  of  the  Bull  of excommunication issued  by Abdulla  II. On  the other  hand, defendants 4  to 6  claimed that  the first defendant having been ex-communicated  by the Patriarch Abdulla II, ceased to be the  Malankara Metropolitan and that the fourth defendant has been  validly appointed  by Abdulla  II as the Malankara Metropolitan in the place of the first defendant. Defendants 4  to   6  further  contended  that  by  their  conduct  and declarations, defendants  1 to 3 have become schismatics and hence disqualified  to act  as the  trustees of  the  Church properties. The  fourth defendant  died pending the suit and in his  place defendant No.42 was impleaded as the Malankara Metropolitan. The  learned District  Judge held  inter  alia that the  first defendant is the validly appointed Malankara Metropolitan, having  been accepted  by the community at the installation meeting  held in  the year  1084. He  also held that the  withdrawal of  recognition by the Sultan of Turkey did not  deprive  Abdul  Messiah  of  his  purely  spiritual functions and  powers and  that the  ex-communication of the first defendant  by  Abdulla  II  was  invalid.  With  these findings, the  learned District  Judge upheld  the claim  of defendants 1 to 3 to the interest amount.      The Patriarch  group filed  an appeal  before the  High Court of  Travancore (reported  in 41 T.L.R.1). A Full Bench of the  High Court  allowed  the  appeal  and  reversed  the judgment and  decree of the Trial Court and upheld the claim of defendants 4 to 6 as the true and valid trustees entitled to the  said interest  amount. The  findings recorded by the High Court are:      "(a) That Exhibit 18, and not Exhibit A,      is the  version of  the  Canon Law  that      has  been recognised and accepted by the      Malankara  Jacobite   Syrian   Christian      Church as binding on it;        (b) That under Ex.18, the Patriarch of      Antioch  possessed   the   power      of      ordaining     and        excommunicating      Episcopas  and Metropolitans by himself,      i.e., in  his own  right and  that it is      not   necessary for  him to  convence  a      Synod of  Bishops and proceed by  way of      Synodical action, in order to enable him      to exercise   these  powers;  the person      ordained should,    of  course,  be    a      native   of Malabar   and  be  acc epted      by  the people;      (c)  That    there  is  nothing  in  the      Mulanthuruthy Resolutions,  Exhibit  EL,      which   limits   the   powers  possessed      by  the Patriarch under  the  Canon  Law

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    in  matters  of  spiritual character, or      which imposes  restrictions  on  him  in      regard to  the exercise  of such powers;      and      (d)  That     no   special     forms  of      procedure are   prescribed by Exhibit 18      for observance   by  Patriarch before he      exercises      his       powers       of      excommunication." Thereupon defendants  1 to  3 applied for review of the said judgment. The  review petition  was admitted  subject to the condition that the reciew petitioners shall not question the following three  findings recorded  in  the  judgment  under review - the three findings being:      "(1) as  to the authenticity of Ex.A.18,      the version  of Canon  Law  produced  by      defendants 5, 6 and 42.       (2) as  to the  power of  Patriarch  to      ex-communicate without  the intervention      of the Synod; and        (3)  as to  the absence of an indirect      motive on  the part  of the    Patriarch      which induced  him to exercise his power      of ex-communication." Accordingly, the  appeal was  re-heard by another Full Bench which by  its judgment pronounced on July 4, 1928 upheld the decision of  the learned  District Judge  and confirmed  his decree. Under this judgment, the Full Bench held:        "(i)     The  excommunication  of  Mar      Geevarghese   Dionysius    (the    first      defendant) was   invalid  because of the      breach of  the rules  of natural justice      in that  he  was  not  apprised  of  the      charges   against him  and had  not been      given  a   reasonable   opportunity   to      defend himself.   In  other   words,  he      remains the Malankara Metropolitan;        (ii)  That   defendants 1 to 3 had not      become heretics  or aliens  or   had not      set up  a new  Church by  accepting  the      establishment  of   the  Catholicate  by      Abdul  Messiah   with   power   to   the      Catholicos for  the time being to ordain      Metropolitans and  to  consecrate Morone      and thereby  reducing the  power of  the      Patriarch   over the   Malankara  Church      to  a  vanishing point;        (iii) That  the defendants  4 to 6 had      not been validly elected." It is  interesting to  notice that  in this  suit while  the Patriarch  group   was  contending   that  members   of  the Catholicos  group   have  become  aliens  to  the  faith  by repudiating the  supremacy of  Patriarch (by recognising the authority and  the power of the Catholicos), the Catholicate group contended  that they have not repudiated the Patriarch and that  by recognising  the Catholicos,  they have  in  no manner  denied   the  ecclesiastical   superiority  of   the Patriarch.  It   is  equally   relevant  to  note  that  the excommunication  which   was  in   question  there  was  the excommunication of the Malankara Metropolitan and not of the Catholicos. The question whether the Patriarch has the power to excommunicate the Catholicos and if so in what manner and on what  grounds was  not in  question in that suit. Another feature to be noted is that it was the Patriarch group which was saying that by espousing the cause of and the revival of

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Catholicos, defendants  1 to 3 therein had in effect reduced the power  of the  Patriarch over  the Malankara Church to a vanishing  point   -  which   in  their   view  amounted  to repudiation of  the power  and authority  of the Patriarch - while the  Catholicos group  was denying that they have done any such  thing or that they had any intention to do so. The excommunication  of   first   defendant   (Mar   Geevarghese Dionysius, Malankara  Metropolitan) was  held invalid not on the ground  of lack  of power  in the  Patriarch but  on the fround that  he did  not follow  the principles  of  natural justice in  excommunicating him. Once the excommunication of first  defendant   was  held  to  be  invalid,  it  followed logically  that   the  appointment   of  defendant  No.4  as Malankara Metropolitan  was invalid.  Yet another noticeable feature of  this judgment  is the following finding recorded by the Court:        "The  whole   matter  resolves  itself      into   a   personal dispute between  two      claimants   to the Patriarchate in which      it  is    said,  the    first  defendant      deserted the  Patriarch who  had created      him  Metropolitan    and  supported  his      rival. Such  conduct might  amount to an      ecclesiastical  offence  for  which  the      offender    could  be  deprived  by  his      ecclesiastical superior  but   it  could      not be  an offence  for which  the civil      courts could   try  him  or express  any      opinion   as   to  his guilt.... In  the      circumstances   it cannot   be said that      the Church to  which the defendants 1 to      3 belong  is  a  different  Church  from      that for  which  the  endowment  now  in      dispute was made."      DEVELOPMENTS SUBSEQUENT  TO THE  FINAL DISPOSAL  OF THE VATTIPANAM SUIT:      After the  aforesaid judgment,  it  appears,  both  the parties tried  to strengthen  their respective positions. On August 16,  1928 the  Managing Committee  of  the  Malankara Association was  formed  which  was  authorised  to  draw  a constitution for the Church and the Association. On the very next day,  i.e., August  17, 1928,  Mar  Julius  Elias,  the delegate of the Patriarch who was then in Malabar, issued an order calling  upon Mar  Geevarghese Dionysius to execute an Udampadi (submission  deed) within  two days  accepting  the authority of  the Patriarch  and  also  suspending  him  for having committed  several grave  offences against  the  Holy Throne of Antioch and for having repudiated the authority of the  ruling   Patriarch.  He   addressed  letters   to   the Governments of  Travancore and Madras to withhold payment of interest  to  Mar  Geevarghese  Dionysius  in  view  of  his suspension from the office of Malankara Metropolitan.      On August  21, 1928,  O.S.2 of  1104 was  filed in  the District Court  of Kottayam by eighteen persons belonging to Patriarch group  against Mar  Geevarghese Dionysius  and two others  including   the  then   Catholicos  Mar  Geevarghese Philixinos.  Mar   Geevarghese  Philixinos   died  in  1929. Thereupon Moran  Mar Basselios was impleaded as a defendant. On January  23, 1931,  O.S.2 of  1104 was dismissed for non- compliance with  certain orders  regarding payment of monies to the  Commissioner appointed  in the suit. The application for restoration  of the  suit was dismissed on September 29, 1931, against which order the plaintiffs therein filed Civil Misc. Appeal  No.74 of  1107 in  the High  Court. While  the aforesaid C.M.A.  was pending  in the  High  Court,  certain

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developments took place which require to be noticed.      With a  view to  put an end to the disputes between the two rival  groups in the Malankara Church, Patriarch Elias I visited Malabar  in 1931  at the instance of Lord Irwin, the then Viceroy  of India.  Patriarch Elias I, however, died in Malabar before he could effect any settlement. In his place, one Ephraim  was elected  as the Patriarch of Antioch in the year 1933,  but, it  is said,  without notice to the Malabar Community. For  this reason,  Mar Geevarghese  Dionysius and his supporters did not recognise Ephraim as the duly elected Patriarch.      Mar Geevarghese  Dionysius died  in February, 1934 with result the  trust properties  passed into  the possession of his  co-trustees,  Mani  Poulose  Kathanar  and  E.J.Joseph. Shortly thereafter,  the draft  constitution prepared by the Managing  Committee   of  the   Malankara  Association   was published in  the shpae  of a  pamphlet. On December 3, 1934 notices were  issued convening a meeting of all the Churches to be held on December 26, 1934 at M.D. Seminary at Kottayam for, inter  alia, electing  the Malankara  Metropolitan  and adopting the draft constitution. Notices were also published in two leading Malayalam newspapers. The meeting was held on the appointed day (the proceedings whereof were exhibited as Ex.64 in Samudayam suit), at which, thethird Catholicos, Mar Basselios  Geevarghese   II   was   elected   as   Malankara Metropolitan. The draft constitution was also adopted at the said meeting.      THE CONSTITUTION  ADOPTED BY  THE MALANKARA ASSOCIATION HELD ON DECEMBER 26, 1934:      The Constitution which was adopted on December 26, 1934 provides for various aspects concerning the Malankara Church and the  Malankara Association.  The relevant  Articles,  as originally approved in 1934, read thus:       "(1) Malankara  Church is a division of      Orthodox Syrian  Church. Primate  of the      Orthodox Syrian Church is Patriarch.        (2)  Malankara  Church was  founded by      St. Thomas,   the apostle and  supremacy      in   the Orthodox  Syrian Church  of the      East and   the  Primate  of the Orthodox      Syrian Church is with the Catholicos.       (5) The  approved canon  of this church      is Hudaya  Canon written by  Bar Hebreus      (the same  canon book  as one printed in      Paris in 1898).        (90)  The throne of the Catholicos was      re-established in  the Orthodox   Syrian      Church   of   the  East  which  includes      Malankara church   in  1088  M.E. (1913)      and   this    institution    has    been      funtioning  ever    since  then  in  the      Orthodox Syrian Church of the East.       (91) Catholicos  shall have  the  right      to   Visit   all churches  in  Malankara      and   that the  expenses of  such visits      shall be  borne by the respective parish      churches.       (92) Malankara  church shall  recognise      the    Patriarch  consecrated  in    co-      operation with   the   episcopal   Synod      of which the Catholicos is the President      and in accordance with the canons.        (93)  Whenever  Catholicos  is  to  be      consecrated,  if   there  be   Patriarch      recognised   as   stated   above,    the

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    Patriarch should  be   invited  for  the      consecration  and   if   the   Patriarch      arrives, he   shall  as   President   of      the   Synod   consecrate Catholicos with      the co-operation of the Synod.        (101) No one shall have right to alter      the faith  of the  Sabha. In  case there      is any   dispute  regarding   matters of      faith, episcopal   synod is  vested with      power to decide the dispute."                                             (Emphasis added)      The constitution was amended in 1951 and again in 1967. When the  1951 amendments  were made,  the judgement  of the Travancore High  Court dated  August 8, 1946 was holding the field whereunder  the  Catholicos  group  were  declared  as strangers to  the Malankara  Church.  For  that  reason,  it appears,  none   of  the  members  of  the  Patriarch  group participated in effecting the said amendments.      SAMUDAYAM SUIT:      On July  5, 1935  the Metropolitans  of the Patriarchal party issued  notice  summoning  a  meeting  of  the  church representatives for  August 22,  1935  at  Karingasserai  to elect the  Malankara Metropolitan.  The notice  stated  that none of  the persons belonging to Catholicos party should be elected. The meeting was accordingly held on August 22, 1935 whereat Mar  Poulose Athanasius was elected as the Malankara Metropolitan. The  meeting purported  to remove the trustees elected at the Meeting held on December 26, 1934 (i.e., Mani Poulose Kathanar  and E.J.  Joseph, belonging  to Catholicos group) and  appointed two  other  persons  in  their  place. Having done this, the Patriarch group (plaintiffs appellants in C.M.A.  74 of 1107 pending in the High Court) allowed the appeal to be dismissed for non-prosecution.      The Patriarch group then instituted, on March 10, 1938, O.S.111  of   1113  in   the  District   Court  of  Kottayam (hereinafter referred  to as  ’the samudayam  Suit’)  for  a declaration of  their  title  as  trustees  of  the  Samudam properties (common  properties) of  the Malankara Church and for a  further declaration  that the defendants to that suit (belonging to Catholicos group) were not lawful trustees and for possession  of the  trust properties.  Certain ancillary reliefs were also asked for. The plaintiffs in the said suit based their  title on  the proceedings  of the Karingasserai meeting  aforesaid,  whereat  the  plaintiffs  therein  were elected as  Malankara Metropolitan  and co-trustees  and the trustees belonging  to Catholicos  group (defendants  to the suit) were  removed. The  suit was  dismissed by  the  Trial Court on  January 18,  1943, against  which  the  plaintiffs therein preferred  an appeal  to the  Travancore High  Court being A.S.I  of 1119.  On August  8,  1946  the  appeal  was allowed and  the suit decreed by a majority of Judges (2:1). The defendants  (Catholicos  group)  thereupon  applied  for review which  was rejected.  The matter  was carried to this Court in  Civil Appeal  No.193 of  1952 which was allowed on May 21,1954.  This court  directed the High Court to re-hear A.S.I of 1119 on all the points. Accordingly, the High Court took up  the appeal  for hearing and allowed the same by its judgement dated  December  13,1956.  The  suit  was  decreed accordingly. On  a certificate  being granted  by  the  High Court, the  defendants (catholicos group) filed an appeal in this Court which was allowed on September 12, 1958 (reported in  A.I.R.1959  S.C.31).  It  is  necessary  to  notice  the relevant findings recorded by this Court:        "(1)   The     main   plea    of   the      plaintiffs   that   the  defendants  had

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    become heretics  or aliens  or had  gone      out of  church by   establishing  a  new      Church because  of the specific acts and      conduct   imputed      to   them      is      unacceptable   for the  reason that  the      said issue is concluded by the judgement      of the  High   Court of   Travancore  in      O.S.94 of  1088 (vattipanam  suit).  The      charges which  were sought  to be relied      upon as  fresh cause   of action  in the      suit   (Samudayam Suit)  are not covered      by the  pleadings or the issues on which      the parties  went to   trial.  Some   of      them   are pure    after-thoughts    and      cannot  therefore  be  permitted  to  be      raised.   The   said charges,  or at any      rate most  of them,  ought to  have been      and should have  been put forward in the      vattipanam  suit   and  the   plaintiffs      having   not   done   that,  cannot  now      put   them forward. They  are barred  by      the  rule of res judicata from doing so.      It must   therefore be  held that  it is      no longer  open to the plaintiffs to re-      agitate the  contention that  the  first      defendant   in the  said suit  had  ipso      facto   become heretic   or    alien  or      had   gone   out   of   Church   and  in      consequence has  lost his  status  as  a      member of  the Church or his office as a      trustee.      (2) The  M.D. Seminary  meeting held  on      26.12.1934   at kottayam  was a properly      held meeting  and the first defendant in      the   said suit   was validly  appointed      as   the  Malankara Metropolitan and  as      such   became the  ex-officio trustee of      the church properties.        (3) The  Karingasserai meeting  cannot      be   held to be a properly held  meeting      of   the   Malankara   Association   and      therefore the   proceedings    of    the      said   meeting  and  the decisions taken      therein are not valid.       (4) Since the plaintiffs have failed to      prove that  they are  validly    elected      trustees, their  suit for ejectment must      fail for want of title as trustees."      DEVELOPMENTS SUBSEQUENT  TO THE JUDGEMENT OF THIS COURT IN MORAN  MAR BASSELIOS  CATHOLICOS & ORS. V. THUKALAN PAULO AVIRA & ORS. (A.I.R. 1959 S.C.31):      Even while  the aforesaid  appeal was  pending in  this Court, the  then Patriarch  expressed a  desire through  his Kalpana  dated   November  30,  1957  (Ex.B.197)  to  settle outstanding disputes  in the  Malankara Church. He stated in the Kalpana  that he  was deeply interested in joining those who were  divided and  in strengthening  the spiritual  bond between Malankara  and Antioch  and that  he was opening his heart for  peace and  unity. It  appears that this desire of the Patriarch  was reciprocated by the Catholicos group. The judgement of  this Court  delivered on  12th September, 1958 affirming  that  the  Malankara  Church  remained  a  single unified  church   and  rejecting  the  contention  that  the defendants in  the said  suit (Samudayam  Suit)  had  become heretics and had established a separate Church away from the

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Jacobite Syrian  Church appears  to have given an impetus to the drive towards unity between the two groups.      On December  9, 1958,  the Patriarch  issued a  Kalpana dated December 9, 1958 (Ex.A.19) stating inter alia:        "It is no secret that the disputes and      dissensions that arose in  the Malankara      Church prevailing  for a  period  of  50      years have   in  several   ways weakened      and deteriorated    it.  Although  right      from the  beginning several  persons who      loved  the  Church  and  devout  of  God      desired peace  and unity  putting an end      to the   dissension,  they   departed in      sorrow without seeing the  fulfilment of      their desire.  We also  were longing for      peace  in the  Malankara Church  and the      unity  of  the organs of the one body of      the  Church.   We  have  expressed  this      desire of   ours  very   clearly in  the      apostolic proclamation (reference is  to      the   proclamation  dated  November  11,      1957) we issued  to you  soon after  our      ascension   on the  Throne. This  desire      of ours  gained strength with all vigour      day  by   day  without    in  any    way      slackened and  the  Lord  God  has  been      pleased to   end the  dissension through      us. Glory be to him. To bring  forth the      peace in  the Malankara Church we hereby      accept  with   pleasure  Mar   Baselious      Gheevarghese          as    Catholicose.      Therefore    we   send     our    hearty      greetings ........".                                             (Emphasis added)      It is  significant to  mention here  that this  Kalpana Ex.A.19 was  issued by  Patriarch Yakub,  who was  in  India during the  conduct of  Samudayam suit/appeal,  attending to the said  litigation on  behalf of  the Patriarch  party. He became the  Patriarch sometime  earlier to his Kalpana dated November 30, 1957.      On  December  16,  1958  the  Catholicos  responded  by issuing his  Kalpana (Ex.A.20)  wherein he described himself as "meek Baselious Catholicos named as Geevarghese II seated on the  Throne of  the East  of Apostle  St.Thomas".  Having expressed his  grief at  the dessensions  in  the  Malankara Church  and  his  happiness  at  the  end  of  discord,  the Catholicos stated "we, for the sake of peace, in the Church, are pleased  to accept  Moran  MAr  Ignatius  Yakub  III  as Patriarch of  Antioch subject  to the constitution passed by the  Malankara  Syrian  Christian  Association  and  now  in force". (Emphasis  added). The  Catholicos futher  stated in the said  Kalpana, "we  have also  pleasure  to  accept  the Metropolitans under  him (Patriarch) in Malankara subject to the provisions of the said constitution......".      On December  22,1958 the  three Metropolitans appointed by  Patriarch   during  the   pendency  of   the   Samudayam suit/appeal sent  submission deeds  Ex.A.37 and  Ex.A.154 to the Catholicos.  Under  these  letters  of  submission,  the Metropolitans expressed  their joy  at  the  restoration  of peace and  unity in  the Malankara  Church and  promised  to perform their  functions under  the Catholicos and to follow the canons,  the constitution  in force and the orders to be issued by  the Catholicos. We may quote the last sentence in Ex.A.37  written  by  Poulose  Philixinos,  Metropolitan  of Kandanad Diocese,  (who has  indeed been  appointed later as

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Catholicos by  the Patriarch).  It reads:  "I hereby  inform that I  shall act  always in  accordance with the directions issued by  you from time to time and also in accordance with the canons of the Church and the constitution now in force."      On  December  26,  1958  a  meeting  of  the  Malankara Association was  held. Ex.A.43(a) is the copy of the minutes of the  said meeting. It shows that the meeting was attended by Bishops,  Clergy and  laity of  both the  groups and  was presided over by the Catholicos. This meeting was held after due notice intimating all concerned that new trustees of the Malankara  Association   would  be   elected  at   the  said meeting.The Patriarch’s  delegate, who  was then  in  India, also attended  the meeting  by special  invitation. At  this meeting, new  trustees were  elected. Ex.A.44, the newspaper report, contains  a group photograph of the Metropolitans of both the  groups and the delegate of Patriarch. A meeting of the Bishops of both the groups was held on January 12, 1959. Ex.A.153 is  a copy  of the  minutes of  the meeting.It  was attended by  six Metropolitans of Catholicos group and three Metropolitans of  Patriarch group.The  meeting  resolved  to unite various  rival organisations, youth leagues, students’ organisations    and    womens’organisations    under    one Association. Committees were formed to devise ways and means of unification. It was decided to implement the Constitution of Malankara Association wherever it was not implemented and to appoint  a committee  to study the particulars and report at the  next meeting.  It was  also decided  to re-allot the dioceses since the total number of Metropolitans of both the groups put together exceeded the number of dioceses. Accordingly, at  the Synod meeting held on February 21, 1959 [Ex.A.153(a)]  attended   by  all   the  Metropolitans,  re- allotment of  dioceses was  made. It was decided to send the copies of  the Constitution  to all  the Parishioners with a direction to  obey the  same. Under  the re-allotment of the dioceses, three  dioceses  were  allotted  to  Metropolitans belonging to  Patriarch group.  The  Catholicos  issued  the Kalpana dated  February 25,  1959  (Ex.A.38)  affirming  the allotment of  Dioceses as  per  Ex.A.153(a).  Ex.A.36  is  a memorandum submitted  by thirty  persons of  Patriarch group (including D.W.2 in the present suit) on January 12, 1959 to the Catholicos  requesting him to inform the community about the Constitution  of Malankara.  In  this  memorandum,  they requested  that  fresh  elections  should  be  held  to  the Managing Committee  and that  the Managing  Committee should have members  representing both  the groups.  This  document inter alia  refers to  the peace  and unity brought about in Malankara Church  on December  16, 1958,  complaining at the same time that complete unity has not been achieved as yet.      While the  above developments  were taking  place here, the  Patriarch  addressed  a  letter  dated  April  8,  1959 (Ex.A.23) to the Catholicos, the purport of which is: I have received your two letters. I could not reply soon on account of some  inevitable reasons.  In your letter you have stated that you  accepted  me  in  accordance  with  the  terms  of Constitution. But  you have  not made  it clear  what is the substance of  the terms.  The developments  in Malankara are contrary to  my expectations.  Your use  of  the  expression ’holiness’ with  your name is not right. This expression can be used  only by the Patriarchs. Your assertion that you are sitting at  the Throne  of St.Thomas is unacceptable. No one has ever heard of St.Thomas establishing a Throne. Similarly your assumption  that yours  is the  Church of  the East and that you  are Catholicos  of the  East is equally untrue and unwarranted. I  have learnt  from the  newspapers that a new arrangement  has   been  made  in  respect  of  dioceses  in

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Malankara. Before  effecting the  said arrangement,  it  was necessary to  decide the  limits of the relationship between Malankara Church  and Patriarchate.  The new  arrangement of dioceses could  have been  made only thereafter and that too with my  knowledge.  You  also  seem  to  have  assumed  the management of Simhasana Churches which are directly under my rule. Without  my authority  you could  not have assumed the administration of the said churches.      On  June   8,  1959,  the  Catholicos  replied  to  the Patriarch (Ex.A.24).  In this  letter, the Catholicos stated that the  letters Ex.A.19 and A.20 were exchanged by him and the representative  of  the  Patriarch,  Mar  Julius  Elias, Metropolitan, on 16th December at the old Seminary before an august gathering  consisting of  Bishops, Priests and laymen of both  the parties.  Before the  said exchange, there were negotiations between  the two  parties in  which it was made clear that  the acceptance  of Patriarch shall be subject to the Constitution.  It was  only after  the acceptance of the same by  the Patriarch’s  representative, Mar  Julius Elias, that the  letters, A.19  and A.20 were exchanged. Protesting against the same after four or five months is not justified. With respect  to the  use of  the expression ’holiness’, the Catholicos justified  the same saying that it can be used by the Catholicos  also and is not confined to Patriarchs only. Regarding  the   claim  of  the  Throne  of  St.Thomas,  the Catholicos stated  in this  letter that  this expression  is used not  only by  Patriarchs but  also by Metropolitans and Bishops alike, as is evident from the Hudaya Canon and other books. As  a matter of fact, no apostle had ever established a Throne  anywhere. It  is only a honorific. Indeed, Ex.A.13 and A.14  reviving the  Catholicate refer  to the  Throne of St.Thomas in  India. Therefore,  the Throne  of St.Thomas is not a  new thing.  Similarly, the  Church of  the  East  and Catholicos  of  East  are  well  established  entities.  The judgment of  the Supreme  Court affirms the Constitution and it is  binding upon  every one. For these reasons, there can be no ground or reason for entertaining any apprehensions by the Patriarch.      On July  16, 1960,  the Patriarch  again wrote  to  the Catholicos reiterating  his objections.  In this letter, the Patriarch  asserted   that  the   provisions  of   the  said Constitution "seem  to be  destructive of every principle of apostolic and  episcopal Churches.  So we  could not approve your constitution".  The letter  concluded by saying, "it is reported to  us that  our  people  there  and  the  churches remained divided  mainly on the scope of your acceptance and the validity  of the constitution which you hold more sacred than the  holy scriptures,  the canons of the church and its traditions. In  the circumstances we have no alternative but to recognise  those people and churches who hold fast to the original principles  of the foundation of their church." The letter called  upon the  Catholicos to  clarify his position immediately within  a month  failing which it would be taken that the  Catholicos has  nothing to reply and he could take such further  steps as are deemed necessary for the peace of the  church   and  preservation  of  its  faith,  order  and discipline as a holy and apostolic church.      On August 13, 1960, the Catholicos replied to Patriarch in which  he reiterated  that when  the Samudayam  suit  was pending in  the Courts,  the Patriarch  himself was in India (at  that   time,  he   was  not   the  Patriarch)   as  the representative of  the Patriarch  and prosecuting  the  said suit. He  appeared as  a witness, produced several documents and  was   aware  of  all  the  developments  including  the enactment of  the Constitution  and its  acceptance  by  the

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Supreme Court. With reference to the Patriarch’s proposal to accept only  his followers as members of the true faith, the Catholicos  expressed   a  doubt  whether  a  Patriarch  can continue as  such once  he recognises  schismatics into  the fold. He  closed the  letter by saying that he expected full cooperation from  and recognition of the Constitution by the Patriarch.      The correspondence  went on like this with the language and accusations in each letter becoming more and more shrill with each exchange.      With the  above correspondence  was going on, following developments took  place in Malankara: On September 16, 1959 a meeting  of the  Malankara Association  was  held  wherein members of  both the  groups participated [Ex.A.43(a) is the minutes of  the  meeting].  The  strength  of  the  Managing Committee was fixed at ninety, of which seventy four were to be  elected   and  sixteen  to  be  nominated  by  Malankara Metropolitan. Several  other decisions  were taken.  Ex.A.98 shows that  the elected  members of  the Managing  Committee took oath  to abide  by the  Constitution. Pursuant  to  the decision  of   the  Managing   Committee  of  the  Malankara Association, Catholicos  invited the  Patriarch to  come  to Malankara. The  Patriarch, however,  replied on  October 27, 1961 [Ex.A.31(a)]  that a  canonical  invitation  should  be issued which  will be  placed before  the Patriarchal Synod. Accordingly, a  canonical invitation  Ex.A.32  was  sent  on January 18,  1962. Since the then Catholicos had become very old, a  meeting of the Malankara Association was held on May 12, 1962  for electing  his successor.  It elected Ougen Mar Timothious, which  was approved  by the  Synod on  June  21, 1963. This was conveyed to Patriarch. On January 13, 1964, a letter of  invitation was  sent by Malankara Episcopal Synod inviting Patriarch  to come to India for the installation of the new  Catholicos. This  letter Ex.A.35 was signed by nine Metropolitans belonging  to both the groups. The plaintiffs- respondents  say   that  this   invitation   was   sent   as contemplated by  Article 114  of their Constitution. Ex.A.41 is  the  Kalpana  dated  April  29,  1964  issued  by  three Metropolitans  (including   one  of   the  Patriarch  group) regarding  the  proposed  installation  of  Catholicos.  The Patriarch arrived  in  India  and  the  new  Catholicos  was installed  by  him  on  May  22,  1964.  A  day  before  the installation of  new Catholicos,  it may be mentioned, there was  a   discussion  with  respect  to  the  demarcation  of jurisdiction of  Catholicos pursuant  to which the Malankara Synod resolved  that "hereafter the jurisdiction of the said see shall not be extended to the Arabian countries or Persia and that the see includes only eastern countries situated on the east  of them.  But H.H.,  the Patriarch  shall agree to continue the  present  system  of  sending  priests  to  the Arabian gulf countries from Malankara for ministering to the spiritual needs  of the  Malayali Parishioners  as  long  as Malayalis stay there".      The  address   presented  to   the  Patriarch   by  the Catholicos,  Metropolitans,   Clergy  and   the  people   of Malankara Orthodox  Syrian Church  on May  22, 1964 affirmed that the  Patriarch’s ’monumental act of December, 1958’ has infused new hopes for a bright future and that the Malankara Church  is   thankful  to  the  Patriarch  for  acting  with imagination, courage and persistence in handling a difficult situation in the Church. The address further affirmed:        "We  beg to  assure your holiness that      though we  have had  differences in  the      past,  there was  a deep-seated sense of      attachment    among        our    people

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    irrespective of party opinions about our      connection with  the  apostolic  see  of      Antioch. Even  in our  worst  period  of      controversy, that  sense  of  attachment      was not  lost to us. The Catholicate was      never visualised  as a  rival    to  the      exalted Throne  of Antioch. On the other      hand  it   is     the  symbol   of  real      cooperation with  that Throne  while  it      signifies    the  Church’s    right  and      freedom to  carry out God’s purposes  in      the   land in    the  footsteps  of  the      saints and the faith of the Fathers".      Ex.A.48, A.49, A.52, A.178, A.179 and A.189 series show that a  new Managing Committee was elected for the Malankara Association  and   that  the   Committee  was   composed  of representatives of  both  the  groups  and  that  the  newly elected members  took oath  affirming the 1934 Constitution. More significantly  in the  year  1970,  a  meeting  of  the Malankara  Association  was  held  (on  December  31,  1970) participated by  representatives of both the groups, whereat one  Mathew   Athanasius  was   elected  as   the  successor Catholicos to  Mar Ougen  I. [It may be recalled that Mathew Athanasius was ordained as Metropolitan in 1951 by Basselios Geevarghese II,  (first defendant  in the  Samudayam  suit); Mathew Athanasius  is the second plaintiff in O.S.4 of 1979, the main  suit before us.] It appears that this election was challenged by  certain members owing allegiance to Patriarch by way  of O.S.3  of 1979  which was  dismissed by the Trial Judge.  The  judgment  became  final  since  no  appeal  was preferred  against   it.  Ex.A.5  shows  that  the  Managing Committee of  the Association appointed a Rules Committee in accordance with  the Constitution  to suggest  amendments to the  Constitution.   The  Rules   Committee   included   the representatives of  both the  groups including  D.W.2 in the present suit.  The draft  amendments suggested  by the Rules Committee were approved by the Managing Committee and by the Synod meeting,  as  would  be  evident  from  the  documents Ex.A.11 series and Ex.A.162(f).      At this  stage, what  appears  to  have  triggered  the dispute again  is the  nomination of a delegate to Malankara Sabha by  the Patriarch  in the  year 1972.  This nomination implied the  exercise of  active spiritual  supremacy by the Patriarch over  Malankara Church  which  was  evidently  not relished by the Catholicos and other members. Under a letter dated February  16, 1972  (Ex.A.76) the  Catholicos and nine Metropolitans  including   the  members   of  the  erstwhile Patriarch group  requested the  Patriarch not  to  send  the delegate. They  pointed out  that sending such delegate will lead to  disturbance of  peace and  to dissensions among the Malankara Church.  The Patriarch  did not  pay heed  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:

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    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 there was no  necessity for  the Patriarch  to send  a delegate to Malankara and added further:        "The  Catholicate   of the  East is an      autocephalous  which  consecrates    its      own   Bishops   and   its   own  Morone.      This autocephaly  is    a  fact    quite      independent of  the name  of our Throne.      The   autonomy    exercised    by    the      Catholicate   over Malankara  has   been      well  established. It  was for  no other      reason that  your Holiness  in May, 1964      expressed  a   desire  to   delimit  the      geographical   jurisdiction    of   this      heirarchy".                                             (Emphasis added)      The Catholicos  then referred  to the  re-definition of the geographical jurisdictions of both the Patriarch and the Catholicos prior  to installation and to the installation of the new Catholicos by the Patriarch on May 22, 1964. He also referred to  the activities  of Mar Thimotheos, the delegate of  Patriarch   whom   the   Catholicos   described   as   a troublemaker. The  Catholicos stated  that the activities of the delegate  would have  constituted a  sufficient  ground, normally speaking,  for him  to protest  against his actions with the  Patriarch but  that he  has not  taken such action only because  he considers  his link  with  Patriarchate  as valuable. Finally,  he protested  against  any  proposal  to conserate Metropolitans  for India  by Patriarch  and stated that any  such action  would be  treated as  an  uncanonical action.      After receiving the above letter of the Catholicos, the Patriarch communication  a list  of chages to the Catholicos on January  30, 1974 (Es.A.80). This letter is in the nature of a show-cause notice calling upon the Catholicos to answer the charges  levelled against  him within  one month.  It is unnecessary to detail the charges herein. The main grievance of the  Patriarch was  the attempt  of Catholicos  to  style himself as  the head  of an  independent Church of Malankara and repudiation  of the  Patriarchal authority.  The  letter also complained  of  the  "most  discourteous  and  impudent manner which is unbecoming from the Catholicos" in which the letter dated August 7, 1973 was addressed to him.      On  March   9,  1974  the  Catholicos  replied  to  the Patriarch stating  that the Patriarch has no jurisdiction to level any charges against him or to ask for his explanation. He stated  that the only authority to do so is the Malankara Episcopal Synod.  He stated that the charges communicated by the Patriarch  have been  forwarded to  the said  Synod  for consideration and  appropriate action and 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

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towards each  other. Suffice  it to  mention that on July 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.      On  January   10,  1975  the  Patriarch  suspended  the Catholicos from  his office until further orders. On January 11, 1975  the Patriarch  wrote to  all the  Metropolitans in Malankara inviting  them to  the Universal Synod convened by him for  June 6,  1975 to  consider the  charges against the Catholicos. The     Patriarch also  addressed letters on the same day  to several  Bishops in  Malankara  condemning  the several actions  of the  Catholicos which  according to  him were contrary to the faith.      On May 22, 1975, another meeting of Malankara Episcopal Synod  was   held  reiterating  the  independent  nature  of Malankara  Church   and  disputing   the  authority  of  the Patriarch. All  these minutes  were duly communicated to the Patriarch including  the minutes of the meeting held on June 5, 1975.      On June 16, 1975 the Universal Synod met at Damuscus to consider the  charges against  the Catholicos. The Synod met on several  subsequent dates  upto December  20,  1975,  the proceedings whereof are enclosed to the letter Ex.A.22 dated June 22,  1975 addressed by the Patriarch to Catholicos. The Universal Synod  concluded that  the Catholicos  Ougen I  is guilty against  the faith and the laws of the Church and has violated the  oath taken  by him  at his consecration as the Catholicos of  the East and as the Metropolitan of Malankara and must  be considered  to have  become an  apostate to the Syrian Orthodox Church. Accordingly, he was stripped off all the offices,  authority and  privileges of  the said office. The Synod  authorised the  Patriarch to  announce  the  said decision to whole church and to all concerned. The Patriarch issued a  notice to  the  Catholicos  calling  upon  him  to intimate whether  he accepts  and submits to the resolutions of the  Universal Synod  within ten  days. He  was intimated that if  he does  not so  submit, he  will  be  declared  as apostate. A  Bull  of  excommunication  was  issued  by  the Patriarch excommunicating  the Catholicos  from  the  Syrian Orthodox Church.      THE INSTITUTION OF THE PRESENT SUITS:      Eight suits  in all  were instituted  which were  later transferred to  the High  court for disposal. Of these eight suits,  two   are  no   longer  before  us,viz.,  O.S.347/73 (numbered as  O.S.3/79 in  the High  Court  of  Kerala)  and O.S.35/76 (numbered  as O.S.7/79  in the  High  Court).  The other six  suits which  are now before us are the following. (For the  sake of  convenience, we  shall mention their High Court numbers only):        (1)     O.S.2/79, a  suit filed by the      Catholicos  and  his  group  challenging      the  authority    of  the  Patriarch  to      ordain Bishops  and Metropolitans on the      ground    that     the    Bishops    and      Metropolitans    so    appointed    were      interfering with  the worship  and other      functions of  the Malankara  Churches in      Kottayam.        (2)     O.S. 6/79  - also filed by the      Catholicos and  his group.  This    suit      pertains   to the  ordaining of  priests      by Patriarch in certain dioceses.        (3)   O.S. 4/79  - this  is treated as      the main  suit by  the parties   (It was

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    actually instituted   in   the  District      Court  on     27.6.1974).      We  shall      presently mention the frame of the  suit      since   that would  constitute the main-      frame of the dispute before us.       (4)   O.S. 8/79  - that  was instituted      by  Catholicos Ougen. On  his death  his      successor Catholicos  was  impleaded  as      the plaintiff.        (5)      O.S.  1/79,   instituted   by      Parishners    of Kothamangalam belonging      to  the  Catholicos  group  against  the      members of the Patriarch group.        (6)     O.S.    5/79,  instituted   by      Metropolitan     of     the  Diocese  of      Kottayam  and    certain  other  members      belonging to  Catholicos  group  against      the  Managing   Committee  of  Simhasana      Church at Pompady, Kottayam.      The plaintiff-respondent’s  case,  as  put  forward  in O.S.4/79, is to be following effect:      Until 1912  the Malankara  Metropolitan, necessarily  a native   of    Malankara,    was    invariably    exercising administrative  powers   over  temporal  and  ecclesiastical matters  which   authority  was   derived  because   of  his election/approval by  the  members  of  the  community.  The persistent interference  by the  Patriarch in the affairs of the Church  compelled the community to feel the need for re- establishment of  Catholicate. Accordingly,  it was  revived and re-established  in 1912.  The seat  of  Catholicate  was transferred from  Tigris in  Persia to  Malankara. After the establishment  of  Catholicate,  "Practically  no  residuary power (was)  left with  the Patriarch  of Antioch  over this Episcopal Church".  There are  about 1,000  Parish  Churches comprised in  the  Malankara  Church.  They  are  under  the authority of Malankara Metropolitan. The Malankara Church is neither  a   union  nor   a  federation   of  congregational autonomous units,  but a  Church with  a  unique  solidarity derived from  apostolic succession.  The  1934  Constitution governs and  regulates all  the affairs  of this Church. The Constitution enables  the Malankara Metropolitan to hold the office  of  Catholicos  as  well.  "Thus  in  the  Malankara Metropolitan-cum-Catholicos converge all temporal, spiritual and ecclesiastical  powers without  mitigating  the  exalted position and  status of  the Patriarch,  the Primate  of the Orthodox Syrian  Church". After  the judgment of the Supreme Court the  Patriarch and  his group  accepted the Catholicos and the  1934 Constitution.  But later they have been acting against the  interests of  the Church  at  the  instance  of Patriarch and  others. They also denied the authority of the first  plaintiff  (Catholicos-Malankara  Metropolitan).  The defendants are impleaded in their individual capacity and as representing the  Patriarchal group. "No person irrespective of his position has any locus standi in the Malankara Church without  believing   in  the  holy  church,  headed  by  the Catholicos  of   the  East-Cum-Malankara   Metropolitan  and without affirming and accepting the ecclesiastical authority of the  first plaintiff  and the  administrative set  up and heirarchy, the  principle being that the lawful Metropolitan is necessary  to the very being of the Church". In Para 24 a reference is  made to Church properties. The paragraph reads thus:  "Defendants   and  their   partisans  are  trying  to intermeddle in the affairs of individual churches and create dissensions and discord therein. They are attempting to make use of  the properties  of the  church in  this illegal  and

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unlawful attempt".      It is  relevant to notice the reliefs sought for in the suit. They are :        "A.  To   declare that   the Malankara      Church is episcopal in character  and is      not a  union or federation of autonomous      church units   and  is  governed in  its      administration by  the  constitution  of      the Malankara Church ;      B. To   declare  that defendants  1 to 3      are not  competent to ordain priests and      deacons for Malankara church;       C. To  declare that  defendants 1  to 3      are     not      legally     consecrated      Metropolitans     of    the    Malankara      Church  and defendants 4  to 8  are  not      legally   ordained   priests  or deacons      of the Malankara Church.        D.  To  declare that  no Metropolitan,      priest   or    deacon   unless   validly      ordained  and     appointed   under  the      provisions of  the Constitution  of  the      Malankara Church can officiate in any of      the  churches  or  its  institutions  in      Malankara Church.        E.  To   declare that  any priest  who      refuses to  recognise the  authority  of      the   first    plaintiff    and    other      Metropolitans under  him is not entitled      to minister  in any  of the  churches or      its institutions in Malankara.      F. To  prohibit defendants  1  to  3  by      an  order  or permanant injunction  from      ordaining     priests  or    deacons  or      performing  any     other    sacraments,      service,   etc.    for    the  Malankara      church or its institutions.      G. To prohibit defendants 4 onwards from      performing any  religious  service    or      sacraments   whatsoever in  or about any      of the  church of  Malankara and for the      Malankara  church   or  its  constituent      churches or institutions.        H.  To   prohibit the  defendants from      interfering  in   any  manner  with  the      administration of the Malankara Church."      The defendants  in their  written statements denied and disputed the  several averments,  assertions and claims made in the  plaint and reiterated the supremacy of the Patriarch in the  affairs of  the Malankara Church. According to them, the Catholicos  and the  members of  his group  have  become apostates  to  the  faith  on  account  of  their  acts  and declarations and  are not  entitled to  any of  the  reliefs prayed for.      A number  of issues  were framed  on the  basis of  the pleadings. The  learned Single Judge dismissed the suits. On appeal,  the   Division  Bench  of  the  Kerala  High  Court reversed. The  Division Bench  re-formulated the  issues  in controversy into 31 issues. Of them issues 1 to 22 and 27 to 31 pertain to the main dispute now under discussion, whereas Issues 23  to 26  pertain to  certain individual churches to which we  shall advert  later. The Division Bench has upheld the claim  of  the  Catholicos  group  to  a  large  extent. O.S.4/79, the  main suit,  has been  decreed as  prayed  for against defendants  1 to  17  without  costs.  It  has  been

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dismissed against  defendant No.18  (Evangelical Association of  the  East).  So  far  as  D.19  (Knanaya  Samudayam)  is concerned, the  suit  has  been  decreed  but  with  certain qualifications which we shall mention while dealing with the appeal preferred  by D.19.  The result of the other suits is consistent with  the decree  in O.S.4/79  and  need  not  be mentioned separately.      OUR FINDINGS:      The following  facts, in  our considered  view, are  of fundamental significance.  Once they  are kept  in view,  it would be  unnecessary to go into many of the issues agitated before the  learned single  Judge and  the Division Bench of the High  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’ re-affirming their loyalty to  the Syrian  Orthodox Christian  Church headed by the  Patriarch.  It  was  the  Patriarch  who  convened  the Mulanthuruthy Synod  at which the Malankara Syrian Christian Association  was  formed.  However,  the  authority  of  the Patriarch extended  only to  spiritual affairs  - the Syrian Christians  in   Malankara  believed   in  the  efficacy  of ’Kaivappu’ (laying  of hands by Patriarch on the head) while consecrating the Metropolitan and considered it essential to a proper  ordaining - but not to the temporal affairs of the Malankara Church as declared finally by the Travancore Royal Court of Final Appeal in the year 1889 in the Seminary suit. The Royal Court declared that the authority of the Patriarch never extended  to temporal  affairs of  the Church which in that behalf  was an  independent  Church.  The  Royal  Court further declared  that the  Metropolitan of  the  Church  in Travancore should  be a native of Malabar consecrated by the Patriarch or  his duly  authorised delegate  and accepted by the people  as their  Mulanthuruthy Synod.  This declaration was affirmed  by the  Cochin Court  of Appeal  in the Arthat suit in 1905. (b) The  revival of  Catholicate in  1912 by Patriarch Abdul Messiah made  a qualitative  change in  the situation. Under Ex.A.14, the Kalpana issued by the Patriarch Abdul Messiah,* (which document  was produced  in several  earlier suits and whose authenticity  is not  disputed by  the Patriarch group before  us)  and  A.13  which  precedes  A.14,  empower  the Catholicos to  ordain metropolitans  and other  officials of the Church  in accordance  with the canons of the Church and also to  consecrate holy  Morone. A.14 states expressly that the power  to instal  a  Catholicos  on  the  death  of  the incumbent is  vested in  the Metropolitans.  It is  in  this manner  that   the  power  of  ordaining  Metropolitans  and melpattakars and  consecrating holy  Morone, which hither to vested in  Patriarch, came to be vested in the Catholicos by the Patriarch  himself.  Further,  the  power  to  instal  a Catholicos on the death or disability of the ---------------------------------------------   *"It   was  conceded   on  both  sides  (in      vattipanam suit) namely that the  Firman      issued   to Abdul  Messiah was withdrawn      and that  such withdrawal  in itself has      no  effect   on  the   exercise   by   a      Patriarch    of     purely     spiritual      functions".   (Judgment   of   Chatfield      C.J.).     Another    learned      Judge      Parameshwaran Pillai.J.,  held   in  the      same suit:    "The  fact  that  temporal

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    govt. withdrew   his (Abdul  Messiah’s )      recognition  cannot affect the spiritual      standing and  position of Abdul Messiah.      It is  also pointed  out in  Para 42  of      the  judgment under appeal that  no plea      has been  raised in  any of the pleading      alleging  the   invalidity  of,  or  the      grounds of  invalidity of, Abdul Messiah      continuing  to   perform  his  spiritual      functions  as   the     Patriarch.   The      judgment under appeal also refers to the      canonical   position when  ther are  two      Patriarchs.  We agree with their views." incumbent was  also vested in the Metropolitans of Malankara Church and it is in exercise of this power that on the death of the first Catholicos installed by Patriarch Abdul Messiah in 1913,  the second Catholicos Basselios Geevarghese I (Mar Geevarghese Philixinos)  was installed  in the  year 1924 by the Malankara  Synod without  reference  to  the  Patriarch. Again in  1929, Basselios  Geevarghese II was elected as the third Catholicos  by the  Association and  was installed  as such. In the M.D. Seminary meeting held on December 26, 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  Court of  Appeal  aforementioned.  Without removing the Catholicos in accordance with the canon law and the principles  of natural  justice, the Patriarch could not have purported to exercise unilaterally the powers delegated by him to the Catholicos under A.14. (c) It  is significant  to notice  that the  Catholicos-cum- Malankara  Metropolitan,   Basselios  Geevarghese   II,  was accepted and  recognised as  the Catholicos by the Patriarch Yakub under  his Kalpana  Ex.A.19 dated  December  9,  1958. Basselios Geevarghese  II was  elected as  Catholicos by the local Metropolitans  and installed  as  such  by  the  local melpattakars without  reference to  the Patriarch  and which Catholicos was  all through  fighting against  the Patriarch group in  the Samudayam suit. It is no less significant that Patriarch Yakub,  who issued  the Kalpana  A.19, was, before his installation  as the  Patriarch,  the  delegate  of  the Patriarch in  India and  was prosecuting  the Samudayam suit for a number of years. If so, it is reasonable to infer that when he accepted and recognised the Catholicos as such under Ex.A.19, he  did so  with the  full knowledge  that  he  was thereby recognising  the  Catholicos  as  revived  by  Abdul Messiah in  1912 under A.14 and as described and affirmed in the 1934  Constitution. Moreover, the Kalpanas A.19 and A.20

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were not  issued in  an abrupt fashion - they could not have been -  but were preceded by a good amount of discussion and negotiations between  members of  both the groups. Under his Kalpana Ex.A.20 dated December 16, 1958, from the Catholicos to the  Patriarch, the  Catholicos  accepted  the  Patriarch subject  to   the  Constitution   passed  by  the  Malankara Association and as then in force. The Metropolitans ordained by Patriarch  duly accepted  the authority of Catholicos and participated in  several proceedings.  There was reallotment of dioceses  among the Metropolitans of both the groups. The members of  the erstwhile  Patriarch group  swore loyalty to the 1934  Constitution. (These  events  have  been  detailed hereinabove). After  all these  developments,  and  after  a lapse of  four months  after A.20,  the Patriarch  raised an objection to  the use  of certain  expressions  employed  in Ex.A.20, viz.,  the Catholicos  claiming to be seated on the Throne of  St. Thomas and also to the qualification added by the Catholicos  to his  acceptance to  the Patriarch,  viz., "subject to the constitution......". But even this objection which  is  reflected  in  the  correspondence  which  passed between them  during the  years 1959  to 1962  (referred  to supra) must be deemed to have been given up and abandoned by the Patriarch by his acts and declarations in the year 1964. As stated  supra, the  Patriarch came to India pursuant to a canonical  invitation   from   the   Malankara   Synod   and consecrated and  duly  installed  the  new  Catholicos  (Mar Ougen), who  was elected  by the  Malankara  Association  in accordance with the 1934 Constitution. Before he did so, the Patriarch took  care to  see that the respective territorial jurisdictions of  the Patriarchate  and the  Catholicate are duly defined  and demarcated.  The  Middle  East  which  was supposed to  be  hitherto  under  the  jurisdiction  of  the Catholicos was  excluded from his jurisdiction confining his authority to India and East alone.      Now what  do the  above facts signify? Do they not show that Patriarch  had, by  1964, recognised  and accepted  the revival  of   the  Catholicate   A.13,  A.14  and  the  1934 Constitution? Do  they not  show that the Patriarch had also given up  his objections  to the use of the words "seated on the  throne   of  St.Thomas   in  the   East"  and   to  the "qualification" added  by Catholicos in A.20? We think, they do. Once  this is  so, it is no longer open to the Patriarch or his  followers to contend that the revival of Catholicate was not in accordance with the religious tenets and faith of the Syrian  Jacobite Christian Church, that the Constitution of 1934  was not  duly and  validly passed or that the power and authority  of the  Patriarch as  obtaining prior to 1912 remains and  continues unaffected  and undiminished. In this connection, it  is relevant  to remind ourselves that it was the contention  of the  Patriarch group  in Vattipanam  suit that the Catholicos group had, by espousing the cause of and the  revival  of  Catholicate,  reduced  the  power  of  the Patriarch to  a vanishing  point  and  have  thereby  become aliens  to  the  faith.  The  power  and  authority  of  the Catholicos under A.13 and A.14 was affirmed, re-enforced and enlarged in  the 1934  Constitution (as amended in 1951) and yet under  Ex.A.19 the  Patriarch accepted with pleasure Mar Basselios Geevarghese  as the  Catholicos. At the same time, it is equally significant to note that the 1934 Constitution does not  repudiate the  Patriarch. On  the contrary, it re- affirms that he is the primate of the Orthodox Syrian Church of which  the Malankara Church is said to be a part - though it is  true, all  the  effective  powers  exercised  by  the Patriarch prior  to 1912 were vested in the Catholicos under Ex.A.13 and Ex.A.14.

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    In this  view of  the matter,  the submissions  of  the Patriarch group  that the  1934  Constitution  was  not  put forward by the Catholicos group as one of the bases of their claim in  Samudayam suit  or that  no finding  as  such  was recorded by  this Court  in  the  said  suit  regarding  the validity of  the Constitution  are of little consequence. We are not relying upon the rule of estoppel in this behalf but are only  pointing out  that having conceded, recognized and affirmed all  the above  things, the  Patriarch group cannot make a  legitimate grievance  of  these  very  things.  They cannot be  heard to say so. Nor have they made any effort to explain the  said acts  and conduct  of the Patriarch and of the persons  owing allegiance to him. They must be deemed to have given  up and  abandoned all  their objections  to  the aforesaid events and documents.      THE VALIDITY OF THE EXCOMMUNICATION OF THE CATHOLICOS:      In the  Vattipanam suit,  the High  Court found that of the  two  versions  of  Hudaya  Canon  put  forward  by  the Patriarch  group  and  Catholicos  group,  the  version  put forward by  the Patriarch  group (Ex.18 in that suit) is the correct one.  The very  same version  was put forward by the Patriarch group as the true version in the Seminary suit. Of course, at  that time, both the groups concerned herein were comprised in  Patriarch group  and were fighting against the renegade group  of Mar Athanasius. It is really pointless to go into  the question  whether the  judgement in  Vattipanam suit operates as res judicata. Even if it is assumed that it does not,  yet its  value as a precedent - a finding arrived at by  the High  Court after  a full  enquiry  -  cannot  be denied. According  to the  first judgment of the High Court, the  Patriarch   has  the   power   to   excommunicate   the Metropolitans. It  does not  say anything about the power of the  Patriarch   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 letter dated January 30, 1974 makes  it clear  that charges related to the use of the word "Holiness"  along with  his name by the Catholicos, his assertion of being "seated on the Throne of St.Thomas in the East" and  his assertion  of "cordial relationship" with the Patriarch  instead   of  admitting  his  subordinate  -  all objections which  were raised  by Patriarch during the years 1959 to  1961 but  given up  and abandoned  in May, 1964, as explained supra.  It is also alleged that the Catholicos did not accept  the delegate  sent by Patriarch to Malankara and has also changed the oath administered to the members of the Church wherein he substituted himself for the Patriarch. The proceedings of  the Malankara Association were also cited as one of  the charges.  Having revived the Catholicos with the

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powers  under   Ex.A.13  and  14  and  having  accepted  (by necessary implication)  the Constitution  of 1934  under his Kalpana Ex.A.19  and having installed the Catholicos in 1964 notwithstanding his objections raised in his letters written during the  years 1959  to 1962,  it was  not  open  to  the Patriarch to  seek to  excommunicate the Catholicos on those very grounds.  Ex.A.13 speaks of Throne of St.Thomas.Ex.A.13 and Ex.A.14  specifically vest the Catholicos with the power to consecrate  Metropolitans  and  other  officials  of  the Church  and   to  consecrate   Morone.  A.14   empowers  the Metropolitans  to  elect  their  own  Catholicos.  In  these circumstances, it  is difficult  to understand how could the use of  the expression  "Holiness" or the assertion of being seated at  the Throne  of St.Thomas in the East or the claim that the  Malankara Church  is an autocephalus Church can be treated as  heresy when  the very  Constitution by which the Catholicos and  his group  were swearing  affirmed in  clear terms  that  the  Patriarch  is  the  supreme  head  of  the Malankara Church.  As a  matter of fact, some of the charges in the  letter dated  January 30, 1974 can also be termed as vague. For example, Charge No.9 reads thus:        "The  books   taught in    the  Sunday      Schools there  contain  uncanonical  and      wrong   teachings       and   fallacious      historical facts especially  with a view      to inject  wrong ideas  into the  tender      minds   regarding the   fundamentals and      history of the Church." The letter  does  not  set  out  or  refer  to  the  alleged uncanonical or  wrong teachings  and  fallacious  historical facts taught  in the books in the Sunday Schools. Similarly, Charge No.8 says that in the ordinations administered by the Catholicos, the  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 prostestations 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 O.S.4/79. 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 charges, at any rate the main charges, on which the excommunication is based were not available  as  grounds  of  excommunication  and  could  not constiute valid  grounds therefor.  Accordingly, it  is held that the  excommunication of  Catholicos is  not  valid  and legal.      PLAINTIFFS CLAIM  THAT MALANKARA CHURCH IS EPISCOPAL IN CHARACTER AND NOT A UNION OR FEDERATION OF AUTONOMOUS UNITS:      Though in  Para  (1)  of  the  Plaint  in  O.S.4/79  an assertion  is  made  that  "the  Malankara  Orthodox  Syrian Church.....is an  autocephalous  division  of  the  Orthodox Syrian Church  which traces  its origin  to Jesus Christ and his apostles",  the relief  asked for in the plaint is for a declaration "that  the  Malankara  Church  is  Episcopal  in

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character and  is not  a union  or federation  of autonomous church units.....".*  The expression "Episocopal" appears to have   been    used   in    contrast   to   the   expression "congregational". In  the absence of any material brought to our notice with respect to the meaning of these expressions, we may  refer to  Para 66 of the judgment under appeal where the meaning  of these  expressions has  been  explained.  It reads thus:        "Episcopalism  is   defined in the New      English   Dictionary    of    Historical      Principles  -    By  Sir    John  Murray      Vol.III as  ’Theory of    Church  Polity      which places  the supreme  authority  in      the  hands   of  episcopal  or  pasteral      orders’. The same ----------------------      -------------------------------------- * It   is  therefore unnecessary  for  us  to      record  a   finding  on  the    question      whether    the   Malankara   Church   is      an autocephalous  church   as claimed by      the plaintiffs. If it is found necessary      to do  so, we may indicate that we agree      with the  finding  of the Division Bench      recored in Para 99 of the judgment under      appeal.   For   this   reason,   it   is      equally unnecessary  to    consider  the      effect  and     relevance     of     the      resolutions passed   by  the   Malankara      Synod     in  its     meeting   held  on      February, 1975   and   May   22,    1975      affirming     the  autocephalous     and      independent   nature  of  the  Malankara      Church. It is significant to notice that      even after  the 1967 amendments  to  the      1934   Constitution,  clause  (1)  still      declares that   "(T)he Malankara  Church      is a  division of  the  Orthodox  Syrian      Church. The   Primate  of  the  Orthodox      Syrian Church  is   the  Patriarch    of      Antioch".   It is  not  brought  to  our      notice     that  this  clause  has  been      amended later  so as  to  repudiate  the      affirmations contained in it.            dictionary    defines  the    word      congregationalism   as  ’A  system    of      ecclesiastical       polity        which      regards    all  legislative disciplinary      and judicial  functions as vested in the      individual       church   or       local      congregation  of   believers’.  Chambers      Dictionary            Vol.4      defines      congregationalism as  ’the doctrine held      by churches  which put  emphasis on  the      autonomy    of     the        individual      congregations’.  Congregationalism   has      for its sign-manual  the words  of Jesus      ’Where  two   or  three   are   gathered      together   in my   name, there  am I  in      the midst of them’.                                       (Emphasis in original)      The Division Bench also referred to the judgment of the Kerala High  Court in  John V.  Rev.Thomas   Williams  (1953 K.L.T.605) on  the meaning  and content  of  the  expression "congregationalism".      The       judgment       describes "congregationalism" as  one of the non-conformist Protestant

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denominations. Relying upon the Encyclopaedia of 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  Teatures  of  congregationalism  are stated to  be the autonomy or independence of the individual Churches or  organisations, though  in matters  in which the individual charges are interested as a whole and in order to enable   the    churches   to   effectively   fulfil   their responsibilities,    they    may    enter    into    unions. Congregationalism is stated to be the opposite of Episcopacy which means  Government of  the Church by the Bishops on the theory of  apostolic succession. In other words, the Bishops are supposed  to be  the successors  of the  apostles of the Christ. The  congregationalism believe  that every Christian has the  right to  perform all  functions pertaining  to the priestly  office   and  permits   the  laymen  to  celebrate sacraments whereas  in Episcopal  Churches only the ordained priests can celebrate sacraments.      On a  consideration of  the  relevant  material  placed before it,  the Division  Bench  has  held  that  while  the Orthodox Syrian  Church including  the Malankara  Church  is Episcopal in  spiritual matters,  in temporal  matters it is not Episcopal.  It referred,  in our opinion rightly, to the judgment of the Royal Court of Final Appeal of Travancore in Seminary Suit where it is observed: "parties agree that head of Syrian  Church in this country or its Metropolitan should be a  properly ordained  Bishop and  that regarding temporal affairs acceptance  of Malankara Metropolitan as such by the community is  necessary". It  was further  held in  the said judgment that  "while the  ecclesiastical supremacy  of  the Patriarch  has  all  along  been  recognised,  authority  of Patriarch never  extended to  Government of temporalities of the Church".  The Division  Bench at the same time clarified that it  does not mean to hold that the Metropolitan has the jurisdiction over  the  day-to-day  management  of  temporal affairs of  Parish Churches.  The Division  Bench  has  also referred to  the Mulanthuruthy  Synod resolutions  which say that the  Parish Churches  have a  degree of  autonomy  with certain  supervisory   powers  alone  being  vested  in  the Managing Committee  of the  Association of Catholicos or the Malankara Metropolitan,  as the  case may  be. The  Division Bench has  held that  "Malankara Church  though it  has some episocopal charaterstics  is not  a purely episcopal church. But we  are not  able to  agree that  the individual  Parish Churches  are   independent  churches   or   churches   with independent status.....The  Parish Churches  are constituent parts of the Malankara Church and enjoy a degree of autonomy and the  administration of  the day-to-day  affairs vests in the Parish  Assembly and  committee elected  by  the  Parish Assembly subject to supervisory powers of the Metropolitan - and the  provisions of  the constitution  of  the  Malankara Sabha do  not affect  this position".**  We are, however, of

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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 concerned diocese, 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 --------------------------------------------- *** The   words underlined by us in the above      quote  introduce   certain  amount    of      ambiguity in  the finding  recorded. May      be this  is the  result  of  granting  a      declaration without hearing the affected      parties. episcopal in  nature, if that declaration means that 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  tyring to intermeddle in  the affairs  of individual  churches and are attempting to  make use  of the  properties of the church to further their  illegal and  unlawful  objects.  No  list  of Parish properties is enclosed nor are the particulars of the alleged intermeddling  mentioned in the plaint. In the state of such  a pleading,  the only  observation that can be made herein is  that  the  1934  Constitution  shall  govern  and regulate the  affairs of the Parish Churches too, insofar as the  said  Constitution  provides  for  the  same.  In  this connection, the  learned counsel  for appellants has brought to  our   notice  the   following  facts:  Inasmuch  as  the plaintiffs asked  for a declaration that Malankara Church is an Episcopal  Church and  appended a  list of  more than one thousand Churches  to their  plaint, several Parish Churches came forward  with applications  under order I Rule 10(2) of the Civil Procedure Code to implead themselves as defendants to the  suit. All  the applications  were dismissed  by  the Trial  Judge   against  which  a  batch  of  Civil  Revision Petitions was  filed before  the  Kerala  High  Court  being C.R.P.Nos. 1029/75  and  batch.  It  was  contended  by  the revision petitioners (Parish Churches who were seeking to be impleaded in  the suit)  that if the first relief prayed for in O.S.142/74  (O.S.4/79) is  granted, it  will  affect  the autonomy and individuality of the individual Parish Churches and, therefore,  they should  be impleaded  as defendants to the suit.  This argument  was repelled  by Khalid,J.  (as he then was) in the following words:        "I do not think that this apprehension      is well  founded. Even  under   Order  I      Rule 10   a  party  does  not  have  any      inherent  right     to   get     himself      impleaded;   that lies in the discretion      of the Court on being satisfied that the      petition is  well   founded on   merits.      The     counsel   for   the   contesting      respondents (plaintiffs)   would contend      that all   that  the plaintiffs want  is      for a declaration of the supervisory and      spiritual control over the Church."                                         (Emphasis supplied) Accordingly, the  revision petitions  were dismissed. If the

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plaintiffs  mean   merely  spiritual   control   by   saying episcopal, probably  there may  be no  difficulty in holding that  Catholicos   and  the   Malankara  Metropolitan   have spiritual control  over the Parish Churches, but if it means control over  temporal affairs  of, or  title to  or control over the  properties of,  the Parish Churches beyond what is provided for  in the  Constitution, a  declaration  to  that effect can  be  obtained  only  after  hearing  and  in  the presence of  the concerned  Parish Churches. It also appears that each  of these Parish Churches/Associations has its own constitution, whereunder the general body of the Parishes is declared to  be the final authority in temporal matters. All this is  mentioned only  to 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,   i.e.,  with  respect  to  the  common properties of the Malankara Church as such.      The result  of the  above discussion  may be summarised 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 against the version put forward  by the  Patriarch group. It is suggested by the learned counsel  for the respondent that this finding of the District Judge  must be deemed to have been restored by this Court in  A.I.R.1959 S.C.31. It is really unnecessary for us to go  into this question since it has lost all significance in view  of the subsequent developments and their effect, as accepted by us. (2)  The  Catholicate  was  revived  and  re-established  by Patriarch Abdul  Messiah in  the year  1912. The  powers and functions of the Catholicos are set out in Ex.A.14. Moreover by virtue  of their  acts  and  conduct  subsequent  to  the judgment of this Court (in A.I.R.1959 S.C.31),the defendants in the  present suit  (i.e., the  members of  the  Patriarch group) cannot now dispute the validity of the revival of the Catholicate or of Ex.A.14. (3) It  may be  that by  conferring upon  the Catholicos the powers of  ordaining Metropolitans,  consecrating Morone and to exercise  other spiritual  powers over  Malankara Church, the Patriarch may not have denuded himself completely of the said powers  which he enjoyed until then. But in view of the fact that  he had himself created another centre of power in India with  the aforesaid  powers, it would be reasonable to hold that  thereafter the  Patriarch cannot  exercise  those powers  unilaterally,   i.e.,  without   reference  to   the Catholicos.  He   can  exercise   those   powers   only   in consultation with the Catholicos. Moreover, the person to be appointed as  Metropolitan or  Malankara Metropolitan has to be accepted  by the  people as  has  been  affirmed  in  the

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judgment in  Seminary suit.  The Patriarch’s power to ordain the Metropolitans  now is  subject to  the  Constitution  of 1934. (4) It  may be  that by virtue of the revival of Catholicate and by  issuing the  Kalpana Ex.A.14 - and also by accepting the 1934  Constitution (as  to be mentioned presently) - the power of  the Patriarch may have been reduced to a vanishing point, but  all the  same he remains the supreme head of the Syrian Church  of which  the Malankara Church is a division. He is  spiritually superior to the Catholicos though he does not, and  indeed never  did, enjoy  any temporal powers over the Malankara Church or its properties. (5) The 1934 Constitution was approved at a validly convened meeting of  Malankara  Association,  which  Association  was created by  the Patriarch  himself under  the Resolutions of Mulanthuruthy 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 A.I.R. 1959 S.C.31. (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  A.I.R.1959  S.C.31.  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  Kalpana  Ex.A.20  (i.e.,  accepting  the Patriarch subject  to the  Constitution), the Patriarch must be  deemed   to  have  given  up  and  abandoned  all  those objections when  he came  to India,  pursuant to a canonical invitation  from  the  Malankara  Synod  and  installed  and consecrated the  new Catholicos  on May 22, 1964. It is also worth    noticing     that     a     day     before     such installation/consecration, the  Patriarch took  care to have the territorial jurisdiction of Catholicate duly defined and de-limited by  excluding certain  areas in  the Middle  East from the jurisdiction of the Catholicos. (8) So  far as  the declaration  of the the Malankara Church being Episcopal  in character is concerned, all we need hold is that  it is  episcopal to the extent it is so declared in the 1934  Constitution. The  said Constitution  also governs the affairs of the Parish Churches and shall prevail. (9) The  excommunication  of  Catholicos  by  the  Patriarch and/or by the Universal Synod is invalid for the reason that the grounds/charges  on which  the excommunication  has been effected are not permissible or relevant grounds. The denial of Patriarch’s spiritual authority by the Catholicos and his group and similarly the Patriarch’s refusal to recognise the Catholicos or  the 1934  Constitution in  the correspondence that passed  during the  years 1972 to 1975 are attributable to the personal differences and the mutual bickering between the two  dignitaries and  their respective  groups. On  that basis, it  can neither  be said  that the  Catholicos or his followes have  become apostates  or that  they have deviated from the tenets of the faith. Similarly, Patriarch cannot be

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said to have lost his spiritual supremacy over the Malankara Church (on  account of  his  accusations  and  declarations) which he  enjoyed prior  to the  commencement  of  the  said correspondence, i.e., according to the 1934 Constitution. (10) The  common properties (Samudam properties) held by the Malankara Church  are vested  in Malankara  Metropolitan and others  as  declared  in  the  judgment  of  this  Court  in A.I.R.1959 S.C.31.      In view  of the above findings, it is unnecessary to go into  the   other   questions   urged   before   us,   viz., maintainability of  the suit  (in view  of Section  9 of the Civil Procedure  Code), effect  of  the  Places  of  Worship (Special Provisions)  Act, 1991,  non-joinder of parties and so on.  Indeed, so  far as  the objection  on the  basis  of Section 9  of the  Civil Procedure Code is concerned, it was not urged  by the  defendants-appellents before the Division Bench and must be deemed to have been abandoned.      The situation  resulting from  the above summary of the findings is  that the situation obtaining on January 1, 1971 (i.e., the  day after  the election  of Mathew Athanasius at the meeting  of the  Malankara Association  held on December 31, 1970, in accordance with the 1934 Constitution) shall be deemed to  be the position even today in all respects. It is after January  1, 1971 that there was fresh spurt of quarrel between  two  groups  and  between  the  Patriarch  and  the Catholicos. Any  attempt to  bring peace, reconciliation and rapprochment between  the two groups must take the said date as the  starting point  - [This does not, however, mean that installation of Mathew Athanasius, elected as the Catholicos on December  31, 1970,  in October,  1975 is  to be ignored. Similarly,  the   election   and   installation   of   sixth Catholicos, Mathew  II  (third  respondent  in  the  present appeals) cannot also be ignored. They are accomplished facts and shall  remain unquestioned]. It is with reference to the said date  that the  directions to  be mentioned hereinafter are made  with the  hope that the said measures will succeed in bringing  about a  reconciliation between the two warring groups and  establish peace in Malankara Church which should be the  desire of  every well meaning member of that Church. Before, however,  we set  out the  bases  of  reconciliation between the  two groups, we may indicate the approach we are adopting in this case.      The  resolutions  passed  by  the  Mulanthuruthy  Synod establish  that  to  prevent  mismanagement  of  the  Church affairs and  to check the autocracy of the Metropolitans, it was thought  necessary that  there should be an organisation for  the   entire   community   called   "Syrian   Christian Association", of  which Patriarch  should be  the Patron and the ruling  Metropolitan its  President. For transacting the business of the Association, a Chief Committee consisting of eight  priests   and  sixteen   laymen   with   the   ruling Metropolitan as the President was formed. This Committee was "entrusted with  complete responsibility  and management  of every matter  connected with  religious and communal affairs of the  entire Syrian  Community". Neither  party before  us disputes the  validity of  these  resolutions.  In  Seminary suit, it  was held by the Royal Court of Final Appeal on the basis of  the said  resolutions and  other  material  placed before it  that the  Metropolitan of  the  Syrian  Christian Church  in   Travancore  should   be  a  native  of  Malabar consecrated by Patriarch or his delegate and accepted by the people as  their Metropolitan.  Indeed, this aspect has been repeatedly stressed before us by the learned counsel for the Catholicos group.  We too  find this  to be a very desirable feature -  an instance  of infusion  of democratic spirit in

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religious affairs.  It may  be mentioned  that in the appeal preferred in  this Court  against  the  rejection  of  their review petition  in Samudayam  suit  (judgment  reported  in A.I.R.1954 S.C.  526), the stand of the Catholicos group was that the  said judgment  of the  Royal Court  represents the constitution  of   the  Malankara   Church.  The  subsequent judgments too  re-affirm the said position. It is thus clear that the Malankara Association was formed not only to manage the temporal  affairs of  the Church  but also its religious affairs  and  that  the  appointment  of  Metropolitans  was subject to  acceptance  by  the  people  of  Malankara.  The emphasis is  upon the  people of  Malankara and not upon the individual Churches/Parish  Churches. It  is true  that  the 1934 Constitution of the Malankara Association provides that the members  of the said Association shall be one priest and two laymen  elected by  each Parish Yogam (Assembly) (clause 68), yet  Clause 4  of the  very Constitution  declares that "all those  men and  women who accepted the Holy Baptism and who  believe   in  the   Godhead  of  the  Trinity,  in  the incarnation of the Son and the procession of the Holy Ghost, in  the  Holy  Church,  in  the  performance  of  the  seven sacraments, in the observance of the precepts, in the use of the Nicean  creed and who have undertaken the responsibility of performing  them are  members of  this Church".  It  thus appears  that   while  the   membership  of   the  Malankara Association is  limited to one priest and two laymen elected by each  Parish Assembly,  the membership  of the  Malankara Church as such consists of all men and women, who accept the tenets and  the faith mentioned in Clause (4) aforesaid. The learned counsel  for the  appellants contended  that with  a view to  retain control  over the Malankara Association, the Catholicos group  have created  a  large  number  of  Parish Churches though  among the individual members of the Church, the majority  swears allegiance to Patriarch. His contention is that  because in  the Malankara  Association each  Parish Church, whether  big or  small, is  entitled to  have  three delegates, the  Association is  not a true representation of the will  of the  members of the Church as such. He suggests that while  some Churches  have a  large body  of  believers running into several thousands, there are Churches having as little as  fifty members  and yet  each of  them  has  equal representative  in   the  Malankara   Association.  On  this account, the  learned counsel  says, the  proceedings of the Malankara Association  cannot be  said to  be reflecting the will of  the majority  of the Malankara Christians truly. It cannot  be   said  that   there  is  no  substance  in  this submission. If  the Malankara  Association is  to be  vested with the  control over the religious and communal affairs of the entire  Malankara Christian community, it must truly and genuinely reflect  the  will  of  the  said  community.  For ensuring it,  its composition  must be  so structured  as to represent the  entire spectrum  of the community. A powerful body having  control over  both spiritual  and communal in a reasonable and  fair manner.  Judged from this angle, clause (68) of  the 1934  Constitution cannot  be said to be a fair one. [After  1967 amendment,  the  corresponding  clause  is Clause (71) which reads, "a priest and two laymen elected by each Parish  Assembly  (and  the  members  of  the  existing Managing Committee?)  shall be members of the Association"]. It may,  therefore, be  necessary to  substitute Clause (68) (now  Clause   (71)  and   other  relevant  clauses  of  the Constitution to  achieve the aforesaid objective which would also affirm  the democratic  principle, which  appears to be one of  the basic  tenets of  this Church.  Accordingly,  we direct both  the parties  as  well  as  the  Rule  Committee

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(mentioned in  clause (120)  of the  Constitution) to  place before this  Court within  three  months  from  today  draft amendments to  the Constitution. After perusing the same, we shall give  appropriate directions. Thereafter, elections to the Malankara  Association shall be held on the basis of the amended Constitution.  The Association  so elected  shall be the Association  for all  purposes within the meaning of and for the  purposes of  the 1934 Constitution (as amended from time to time).      We hope  that the  unity and integrity of the Malankara Church  will  be  maintained  and  continued  by  the  above arrangement which  is wholly  consistent with  and indeed in furtherance of  the objectives  underlying the Mulanthuruthy Synod   resolutins. Elections  to the  Malankara Association shall have  to be  held  periodically  so  as  to  keep  its representative character alive and effective.      THE POSITION  OF SIMHASANAM CHURCHES, KNANAYA CHURCHES, EVANGELICAL ASSOCIATION OF THE EAST AND ST.ANTHONY’S CHURCH, MANGALORE:      Before we  conclude, it  is necessary  to deal with the position of  the above  Churches. The  Division Bench of the High Court  has dealt  with them under Points 23, 24, 25 and 26  formulated   by  it.  So  far  as  Simhasanam  Churches, Evangelical Association of the East and St.Anthony’s Church, Mangalore are  concerned, the  Division Bench  has dismissed the suits, viz., O.S.5/79, O.S.6/79 and O.S.4/79, insofar as they  related  to  the  above  Churches  agreeing  with  the findings and  the decree of the learned Single Judge in that behalf. We  see no  grounds to  depart from  the  concurrent findings recorded  by  the  learned  Single  Judge  and  the Division Bench.  We affirm their judgment and decree in this behalf. So  far as Knanaya Samudayam is concerned, while the learned Single  Judge had dismissed O.S.4/79 with respect to this  defendant  (D.19)  subject  to  the  declaration  that Knanaya Sabha  is part  of Malankara  Church,  the  Division Bench Leading  members of the Knanaya Community were elected as members  of  the  Managing  Committee  of  the  Malankara Association.           The above  facts were placed against the following facts appearing in favour of the Knanaya Church, viz., (i) in the plaint, there was no specific prayer with respect to the  Knanaya Church.  Because Knanaya  Churches were also listed in  the list  of  Parish  Churches  appended  to  the plaint, the  Knanaya Samudayam applied for impleading itself as a  defendant to  the suit and was impleaded as D.19. Only in response  to the  averments made  in written statement of D.19, did  the plaintiffs  aver facts  on the basis of which they claimed  that Knanaya  Churches are  part of  Malankara Association and subject to the 1934 Constitution; (ii) the  material established  that  Knanaya  Churches  had adopted their  own Constitution  in 1912  (which was brought into force  in 1918),  that they  had indeed  constituted  a Committee known  as "Knanaya  Committee" even in 1882, which was later  designated  as  "Knanaya  Association"  and  that throughout these  Churches stood  by the  Patriarch and  its Metropolitans were always ordained by Patriarch alone. (iii) the  proceedings of  the  Malankara  episocopal  Synod meetings held  during the  period January 12,1959 to June 7, 1960,  which   indicate  certain   discussions  between  the Malankara  Church   and  Knanaya   Church  with  respect  to relationship between  them. A  Committee  was  appointed  to submit a report in that behalf to the Synod. (iv)  the  tradition  relating  to  the  origin  of  Knanaya Committee in  India and  their zealous concern throughout to maintain and  retain  their  separate  ethnic  identity  and

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beliefs.      After hearing  the learned  counsel for  the  appellant (D.19)  and  the  respondents  and  perusing  their  written submissions, we  are of  the opinion  that the decree of the Division  Bench   has  to   be  affirmed  but  with  certain modification. The  modification is called for for the reason 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  decree of  the Division Bench makes no difference to the  Patriarch. It  only says that Catholicos is declared to be  the spiritual superior of the Knanaya Community. Then it says  that in  temporal matters, the 1934 Constitution of Malankara Association  can be  implemented  subject  to  the Knanaya Constitution  only until  both the Constitutions are reconciled. In  all the facts and circumstances of the case, it would  be enough  to  declare  that  by  their  acts  and conduct, D.19  has accepted  that they  are an integral unit within the  Malankara Church  and that,  therefore, the 1934 Constitution of  the Malankara  Church shall govern them but subject to  their own  Knanaya Constitution  until such time the Knanaya Church Samudayam decides otherwise.      The  appeals   cross-objections  and  applications  are disposed of in the above terms.      List the  matters for further orders after three months along with  the  draft  amendments  (suggestions),  if  any, submitted by  the parties  pursuant to  the directions given hereinbefore.