http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 68  

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

       Vs.

RESPONDENT: MORAN MAR MARTHOMA & ANR.

DATE OF JUDGMENT20/06/1995

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

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

ACT:

HEADNOTE:

JUDGMENT:                            J U D G E M E N T R.M. Sahai.J.      When Lord  Jesus Christ was asked by a youngman who was possessed of  property what was the road to heaven, the Holy Bible records  it in  Chapter 19  of the New Testament - the Gospel According to St. Mathew thus.           "16. And, behold, one came and said      unto him,  Good Master, what  good thing      shall I  do, that  I  may  have  eternal      life?              17. And  he said  unto him,  Why      callest   thou   me good? there  is none      good but  one, that is, God: but if thou      wilt   enter   into   life,   keep   the      commandments.              18.  He  saith unto  him, Which?      Jesus said,   Thou  shalt do  no murder,      Thou shalt   not  commit  adultery, Thou      shalt not  steal, Thou  shalt  not  bear      false witness,               19. Honour  thy father  and thy      mother:  and,   Thou  shalt   love   thy      neighbour as thyself.             20. The young man saith unto him,      All these  things have  I kept  from  my      youth up: what lack I yet?             21. Jesus  said unto him, if thou      wilt be perfect, go and  sell that  thou      hast, and  give to  the poor,  and  thou      shalt have  treasure in heaven: and come      and follow me.            22. But  when the  young man heard      that saying, he went away sorrowful: for      he had great possessions".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 68  

Turning ’away  sorrowful’, is  the long  and short  of  this litigation between  two rival  groups of  Jacobite Christian Community of  Malabar which  has been going on for more than hundred  years   apparently  for   religious  and  spiritual supremacy over  the Church  but  really  for  administrative control and  temporal powers  over vast  assets  which  have accumulated out  of 3000  star pagodas  created in  Trust in 1808 for  charitable purposes  by one  Moran Mar Marthoma VI popularly called  ‘Dionysius the  Great’. This  is the third round between  the parties  in this  court, the  two earlier being in  1954 and  1959. While  deciding the appeal in 1959 this Court  had observed  that the dispute had been going on for a  considerable length  of time which has brought in its train protracted  litigation involving  ruinous  costs.  The effect of  the decision  was  that  for  sometime  both  the parties resolved their differences by mutual adjustment, but ‘those who  hoped -  fondly, as events have proved, that the decision  of  the  Supreme  Court  in  Moran  Mar  Basselios Catholicos v.  Thukalan Paulo  Avira &  others (1958  K.L.T. 721) =  AIR 1959  SC  31  and  the  reported  reconciliation following upon  that decision  would give the quietus to the litigation, prolific,  prolonged and ruinous, arising out of the faction  in the Malankara Jacobite Syrian Church between what is  known as  the Patriarch’s Party on the one hand and what is known as the Catholicos’ Party on the other, counted without the  resourcefulness of  those entrenched  in and of those covetous  of positions  of power,  and we dare say, of profit, and  of those who, for one reason or another, have a vested interest  in the  continuance of the dispute,’ [Raman Nayar, J.  in Appearl  Suit No.  269 of  1960 decided on 3rd April 1964].      How the  much negotiated  peace and quiet arrived at by written adjustments  worked out by issuing letters from both the groups  was shaken  even before expiry of 15 years since the judgement was delivered by this Court in September, 1958 and what  leld to  filing of  numerous suits  eight of which were consolidated  by the  Additional. District.  Judge  but were heard and decided by a learned Single Judge of the High Court, as  they were transferred under orders of this Court, and were  ultimately decided  in appeal and cross objections by the  Division Bench  giving rise  to  these  appeals  and various  legal  issues  including  whether  the  suit  under Section 9  of the  Code of Civil Procedure was maintainable, effect of  Places of  Worship (Special Provisions) Act, 1991 and whether  the decision  in  earlier  suit  filed  by  the appelants  operated   as  res   judicata  can   be,  better, appreciated if  the history how the Malankara Church came to be established,  what is  its nature  and how the two groups Patriarch of  Antioch  and  Catholicos  came  to  be  formed leading  to  internecine  struggle  and  litigation  may  be noticed in brief. The adversorial duel between the two rival groups has  assumed so  much of  publicity that it has found place even  in the  Encyclopedia  of  Religion.  It  may  be prefaced  with   brief  observations   about  the  Christian religion and the Church.      Religion is founded on faith and belief. Faith emanates from  conscience  and  belief  is  result  of  teaching  and learning.  Christianity  is  ‘a  religion  that  traces  its origins to  Jesus of  Nazareth, whom  it affirms  to be  the chosen one (Christ) of God’ [Encyclopedia Britannica, Volume 5, Page  693]. ‘It  is embodied  both in  its principles and precepts in  the Scriptures  of the  Old and New Testaments, which all denominations of Christians believe to be a Divine revelation, and  the  only  rule  of  faith  and  obedience’ [Faiths of the World by James Gardner, Volume 1, P. 516]. It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 68  

is ‘a  historical religion.  It locates within the events of human history  both the  redemption  it  promises,  and  the revelation to  which it  lays claim’  [The  Encyclopedia  of Religion, Volume  3, p. 348]. ‘In its origin Christianity is Eastern rather  than Western.  Jesus was  a Palestinian Jew, and during  the early,  formative centuries  of the church’s life the Greek and Syriac East was both numerically stronger and  intellectually  more  creative  than  the  Latin  West. Christianity came  to India many centuries before it reached Europe as  it is  believed  that  St.  Thomas,  one  of  the original apostles  of Jesus Christ, visited India in 56 A.D. and found  the first  Christian  settlement  in  the  South’ [Religion in India by Dr. Karan Singh]. In A.D. 37 Apostolic See at  Antioch was  established by  St. Peter  to whom  the stewardship of Church was entrusted by Lord Jesus Christ. It took root  in Kerala  within 20  years of  the epoch  making events  in  Jerusalem,  the  crucifixion,  resurrection  and ascension of  the Lord  Jesus Christ. St. Thomas, one of the 12 apostles  of Jesus Christ visited India in A.D. 51/52 and established 7  Churches in  the Malayalam  speaking parts of South India.  They  are  known  as  Malankara  Jacobite  (or orthodox)  Syrian   Church,  "Malankara"   means  "Malayalam speaking" ‘The  two Syrian  Orthodox Churches  in Syria  and India, along  with the  Egyptian  (Coptic),  Ethiopian,  and Armenian Churches,  belong  to  the  group  of  Ancient,  or Oriental Orthodox,  Churches, wrongly  called "monophysite". Their Christology  is essentially  the same  as that  of the Eastern   Orthodox    related   to   the   patriarchate   of Constantinople. They  affirm the perfect humanity as well as the perfect divinity of Christ, inseparably and unconfusedly united in  the divine-human  nature of the person of Christ’ [Encyclopedia of Religion, Volume 14, page 227].      Jacobite Church  is, ‘a  name which  the Syrian  Church assumes to itself. When the Syrian Churches are interrogated as to  the reason of this name they usually allege that they are the  descendants of Jacob’ [Faiths of the World by James Gardner, Volume  II). ‘Known to the West as Jacobites (after Jacob Baradeus,  c. 500-578,  the reorganiser  of  the  West Syrians and  Egyptians in  the sixth  century),  the  Syrian Orthodox Church  is found  mainly in Syria, Lebanon, Jordan, Turkey, India,  the United  States, the  Federal Republic of Germany, and  Sweden. In 1985 the total number of Jacobites, including 1.8  million Indians,  was about 2 million, in two separate jurisdictions  -- one with Patriarch Ignatius Zakka as head in Damascus, Syria and the other with Catholicos Mar Thoma  Mathews  I  as  head,  in  Kottayam,  Kerala,  India’ [Encyclopedia of  Religion, Volume  14  p.  227].  The  word ‘church’ refers  both to  the Christian  religious community and  to   the   building   used   for   Christian   worship’ [Encyclopedia Britannica,  Volume 5 page 739). The Christian religion is  one, but,  ‘Christians differ  greatly in their beliefs  about  the  nature  of  the  church’  [Encyclopedia Britannica, Volume  5,  page  739]  which  was,  ‘originally applied in  the classical  period to an official assembly of citizens....   In the  Septuagint  translation  of  the  Old Testament (3rd-2nd centuries B.C.) the term ecclesia is used for the  general assembly  of the  Jewish people  especially when gathered  for a  religious purpose  such as hearing the Law (Deut.  ix, 10, xviii, 16; etc.) In the New Testament it is used of the whole body of believing Christians throughout the world  (e.g., Matt.xvi,  18),  of  the  believers  in  a particular  area   (e.g.  Acts   v,  11)  and  also  of  the congregation meeting  in a  particular house  - the  "house- church")’ [Encyclopedia Britannica, Volume 5 page 739]. ‘The four marks or characteristics by which the church is said to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 68  

be distinguished  are recited  in the creed - holy, catholic and apostolic’.      Coming to  the history of Jacobite Syrian Church it is, both, fascinating  and eventful.  The long period stretching from A.D.  51-52 can  be conveniently  divided in three one, the  religious  and  the  formative  period  which  saw  the foundation of  the church and the vicissitudes through which it passed. The second can be said to be the golden period, a period of  affluence and prosperity, in which the church not only acquired assets and became financially rich but is also marked for  administrative efficiency  imparted by different metropolitans who  were consecrated  from time  to time. But wealth breeds  dissension, disharmony  and  discontent.  And that is  the unfortunate  story of the last period beginning from 1879.  More than  100 years  have rolled  by since then when the  storm of  strife for supremacy over the Church was taken to  courts but the dust has not settled down till now. The first two periods have been described by the Royal Court of Appeal  as, ‘Grand Periods, the first commencing from the foundation of  the church  and ending  with the overthrow of the Portuguese  power in  India sometime  in 1663,  and  the second  period   commencing  from  that  year  or  1665  and extending to  the period when the famous Mulunthuruthy Synod was held  in 1876  which was  remarkable for  more than  one reason,  including   the  one  which  led  to  struggle  for spiritual supremacy and administrative control over temporal matters of  the Church  through the  courts. The events till 1876 have  been discussed in great detail in the judgment of the Royal  Court of Appeal. The period thereafter commencing from the  last quarter of 19th century and beginning of 20th century is remarkable for creation of Catholicate of East in this country  and framing  of Constitution  by the Malankara Association. All  this is  discussed in  Moran Mar Basselios (supra).      Religious spirit  was dominant  in  the  first  period. Every move  was religion  oriented. The keen desire to delve more  and  more  in  spiritual  than  temporal  matters  was exhibited from  time to  time. Three  important events  took place during this long period. Although each was distance in time from  the other but everyone was significant in its own way in  shaping the  future of  the Church.  The  first,  of course, was  establishing of  the Church  by St.  Thomas who exercised great  influence and  ordained two  men as  Arch - Deacons, one from each of the two respectable families, that is, Sankarapuri  and Pakalomattiom. In A.D. 200 the devotees had  written   to  Demetrius   the  Bishop   of  Alexandria, requesting him  to send  a teacher,  to instruct them in the doctrines relating  to the  beliefs in Christ. The second in the sequence was significant not for the Syrian Church only, but for  the entire  Christian community.  It was  an  epoch making event.  The first eccuminical council was held in 325 A.D. at  Nicea. Priests  and  prelates  from  all  parts  of Christendom were invited. Representatives of all dioceses in the Christian  world attended the Synod. Christians of India were represented  by their  bishop or  metropolitan known as Johannes, metropolitan  of Persia  and  India.  The  council among other  matters was  concerned with matters relating to the revival  and establishment  of Christianity, revision of the scriptures  and framing a Code of faith and rituals. But the most important decision, of far reaching consequence was that the  ecclesiastical jurisdiction of the Christandom was settled under  four ecclesiastical heads and four Patriarchs were  appointed  over  four  sees  -  Rome,  Constantinople, Alexandria and Antioch. India was placed under the Patriarch of Antioch.  The other  decision taken  was that  the  great

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 68  

metropolitan of the East was proclaimed as the Catholicos of the East.  It was laid down that the Catholicos appointed at Tigris (Baghdad)  shall manage  the affairs  of the  Eastern churches subject to that Patriarch of Antioch was common and could  exercise  all  the  functions  of  Patriarchs.  These decisions  were  enforced  and  the  Patriarch  of  Antiouch started taking  action upon it. Till about A.D. 1599 Bishops (who were  called ‘episcopas’ or Metropolitans) were deputed to Malabar  from time to time by the Catholicate of the East in Persia  and by  the Patriarchs  of other Eastern Churches for  discharging  spiritual  functions  like  ordination  of priests in  the Malankara  Church. But  all other  functions were carried  on by the Indian born ecclesiastical dignitary known as the ’Arch-Deacon’ who was not possessed of the full spiritual grace of a Bishop.      The next  or the  third  important  event  during  this period was  the famous  Koonan Cross  Oath  at  Muttancherry sometime in  1664. It  was final  break away  from the Roman Catholic influence  which was  being forcibly imposed on the followers of Syrian Church. Between 1599 to 1654 A.D. due to influence of  the Portuguese  political power  in  the  East Coast of  India, the  Malankara Church    was  compelled  to accept Roman  Catholic supremacy  i.e., the supremacy of the Pope  of   Rome.  The   tough  resistance  from  the  Syrian Christians resulted  in adopting  repressive measures by the Portuguese. The  climax was reached in 1599 in the so-called Synod of Diamper. Books of the Syrians Christians were burnt and destroyed.  All traces  of Apostolic succession in their church  were   obliterated.  The   Portuguese  arrested  Mar Ignatius the  Patriarch, at Mylapore, brought him in fetters to Cochin  on way  to Rome  and ultimately  he  mysteriously disappeared believed  to have  been killed either by drowing or  burning.   This  enraged   the  Syrians.   They  met  at Mattancherry, took  the famous  oath  at  Koonan  Cross  and resolved that  they shall  never again unite themselves with the Portuguese  who had  without any  scruple or fear of God murdered their  holy Patriarch. This was in 1664. This event marks an epoch in the history of the Syrian church. It split the followers  in two Punthenkoor and Palayakoor. The former became Jacobite  Syrians following the creed of Patriarch of Antioch and  the latter  Roman Syrians  following the  Roman creed of  the Pope  of Rome.  The  Puthenkoor  people  after meeting at  Mattancherry came  to  Alengad  Church  and,  in obedience to  the Station  of Mar Ignatius consecrated Arch- Deacon Thoma with the title of Mar Thoma Metran.      With this  commenced the  second period.  It, too, like the first  was marked  by few  important events, which again have played  vital role in the destiny of the Syrian Church. The first  was the  ordination in 1654 of Mar Thoma Mitra as Marthoma I.  Its significance  lay as  he  was  ordained  as Metropolitan  of  Malankara  by  the  Patriarch  of  Antioch through his  delegate. From  1665  onwards,  therefore,  the ordination of  the Malankara  Metropolitan was carried on by the delegate  of Patriarch  of Antioch. The second important event took  place in  A.D. 1808  when a trust for charitable purposes was  created by the then Malankara Metropolitan Mar Thoma VI  (Dionysius the  Great) by  investing in perpetuity 3000 Star Pagodas (equivalent to Rs.10,500/-) in the British Treasury on  interest @ 8% per annum. During this period the Church Mission  Society, a  missionary society of Protestant with   headquarters in  London,  had  come  to  Malabar  and collaborated with  the  Malankara  Church  and  had  jointly acquired  some   properties.  Disputes  arose  between  this Society and  the  Malankara  Church  with  regard  to  those properties and  also to  the beneficial interest arising out

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 68  

of the  charitable deposit  of 3000  Star Pagodas which were referred to arbitration and were settled by what is known as the ‘Cochin  Award of  1840’, which  was the third important event of  this period.  This Award  divided  the  properties between the two bodies allotting among other items 3000 star Pagodas to  the Malankara Church. The properties so allotted to the  Malankara  Church  were  as  per  the  Award  to  be administered  by   the  trustees  i.e.,  (1)  the  Malankara Metropolitan, (2)  a priest-trustee  and (3)  a lay-trustee. The effect  of the Cochin Award was that the dispute between the Mission  Society and  the Syrian  Church came to an end. But it  appears between  1808 and  1840 vast assets had been acquired with  the trust created by Dionysius VI. These were controlled and  administered by  the person who was the head of the Church. Therefore, even though one Cheppat Dionysius, a locally  ordained Metropolitan  was in  office, one Mathew Athanasius went to Syria in 1840 and got himself ordained as Metropolitan by  the Patriarch of Antioch. Thus the seeds of strife were sown.      If  1654  is  significant  for  commencement  of  local ordination by the delegate of Patriarch of Antioch then 1840 marked the  beginning of emergence of struggle for supremacy over the  Church between  locally ordained  Metropolitan and the one ordained by the Patriarch of Antioch. Disputes arose between M.  Athanasius and  C. Dionysius.  To settle  it the Patriarch of  Antioch sent  one Mar  Yayakim Koorilos as his delegate. But  Koorilose adopted a novel way of settling the dispute by excommunicating Mathew and appointing himself  as the Malankara  Metropolitan. Cheppat  Dionysius withdrew  in favour of  Mar Koorilos,  but Mathew Athanasius persisted in his claim.  When these  disputes came  to the  knowledge  of Travancore Government  it appointed in 1848 a Tribunal known as  the  ‘Quilon  Committee’  to  settle  the  dispute.  The Committee held  in favour  of M. Athanasius and he took over charge  as   the  Malankara  Metropolitan.  It  appears  the Committee preferred Patriarch ordained Metropolitan over the local ordained  as spiritual spirit was flowing, still, from Antioch. Even  though the Quilon Committee decided in favour of Athanasius  and he  took over  charge of the property but the local  people were not satisfied, therefore, they appear to have  persuaded one  Joseph Dionysius  to go to Syria and get himself  ordained as  Malankara  Metropolitan.  In  1865 Joseph Dionysius  was ordained  as the  popular feeling  was that M.  Athanasius   was leaning  towards protestainism. M. Athanasius however  refused  to  lay  down  the  office.  He continued as metropolitan and towards the end of his life he ordained his  nephew or brother one Thomas Athanasius who on death of his  brother assumed the office.      This bitter strife between the two forced the Patriarch to come to Malabar, as the conduct of Athanasius amounted to denial of  his authority,  and call  a meeting of accredited representatives of  all the  Churches  at  Mulunthuruthy  in 1876. It  is popularly  known as ‘Mulanthuruthy Synod’. This is the  most important event not only of this period, but in the entire history of Syrian Church. Many resolutions taking important decisions  were adopted.  At the  Synod the Syrian Christian  Association   popularly  called   the  ‘Malankara Association’  was  formed  to  manage  the  affairs  of  the Churches and  the community.  It constituted  the  Malankara Metropolitan  as   the  ex-officio   President   and   three representatives from each Church. A Managing Committee of 24 was  to   be  Standing   Working  Committee   of  the   said Association. The  Synod affirmed  the orthodox faith. Joseph Dionysius who had earlier been ordained by the Patriarch was accepted as  the Malankara  Metropolitan. Whether it was re-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 68  

assertion of supremacy of Patriarch or not cannot be said as the  election  of  Joseph  Dionysius  was  preceded  by  two factors, one,  that he  had  been  persuaded  by  the  local people,  earlier,   and  he  got  himself  ordained  by  the Patriarch and second that Thomas Athanasius was a nominee of his brother  and he  had not been elected by the people. But it, undoubtedly,  shows that  the spiritual  domination  was still predominant. However, Thomas Athanasius challenged the ordination by Patriarch and claimed equal status. This could not have  been agreed to by anyone as the spiritual faith in the Patriarch prevented the people in Malabar to acknowledge a person  as Metropolitan who was not ordained either by the Patriarch  or  his  nominee.  However,  Thomas    Athanasius refused to  hand over  the property and Joseph Dionysius was left with no option except to approach the court.      Thus commenced  the third  period.  If  the  first  two periods were  great for  the growth  and development  of the Church then  the third  described as the, ‘turbulent period’ is unique  not for  any development  of  religion,  but  for providing stability  to the Church by creating a Catholicate of the  East for  India, Burma  and Ceylon  at Malankara and adopting  a  Constitution  for  the  administration  of  the Church. The  period unfortunately witnessed division amongst followers of  the  Church  who  came  to  be  known  as  the ‘Patriarch’ and  the ‘Catholico’,  mainly because  there was disturbance in  Antioch itself  and  two  of  the  Patriarch claimed to  exercise the  prerogative of  being Patriarch of Antioch at the same time. Within a span of fifty years, five suits were  filed, the  first known  as, ‘Seminary Suit’, in 1879, the second as ‘Arthat case’ in 1899, the third in 1913 which became  famous as ‘Vattipanam case’ the fourth in 1938 known as  ‘Samudayam Suit’ and fifth and last in 1974 giving rise to  these appeals.  The first  was filed by a Patriarch ordained and  duly  elected  Metropolitan  at  Mulanthuruthy Synod   for   recovery   of   property   against   nominated Metropolitan, whereas  the second  was filed for enforcement of the  order passed in earlier suit as some of the parishes were denying  the authority  of the Metropolitan to exercise spiritual and  temporal control  over them. The third was an interpleader suit  by Secretary  of State  for India  due to formation of  two groups  laying rival  claims  against  the assets. All  the three  suits  were  decided  in  favour  of Catholico group. Therefore, the fourth suit was filed by the Patriarch group  against Catholicos  claiming that  they had become heretics  and had separated from the Church. This too was decided  in favour  of Catholicos. But the fifth and the last suits  were filed  by the  Catholicos for reasons which shall be  explained later.  In the Encyclopedia of Religion, Vol. 14,  P. 226,  the history from creation of Patriarch of Antioch till  1970 is  traced thus,  The church  in  Antioch became practically the mother church of Christendom......The leadership  of  the  Syrian  church  was  decimated  by  the Diocletian  persecution  that  broke  out  around  304.  The persecution  also   led  to   the  development   of   Syrian monasticism  through   the  Christians  who  fled  into  the wilderness. The  spirit of  Syrian Christianity  was  shaped more  by   worship,  martyrdom,   and  monasticism  than  by theology......In the  twelfth century  the Syrian church was at the  peak of  its glory,  with 20  metropolitan sees, 103 bishops,  and   millions   of   believers   in   Syria   and Mesopotamia......The turbulent  thirteenth century,  wracked by invasions  of Latin Crusaders from the West as well as of Mamluk Turks  and Mongols from the East, produced such great leaders  as  Gregory  Bar  Hebraeus  (1226-1286),  a  Jewish convert   to   Syrian   Christianity,   a   chronicler   and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 68  

philosopher, and  primate of the East.....The nineteenth and twentieth centuries have been turbulent times for the Syrian Orthodox in  the Middle  East.....The Syrian church in India numbers 1.8  million and  is divided into two jurisdictions. The smaller  of the  two jurisdictional  groups  (with  five hundred thousand members and a dozen bishops) decided in the 1970s to revolt against the Indian catholicos and his synod, forming a  wing of  the church  directly administered by the Syrian Patriarch  in Damascus and with its own maphrian see. The  larger   group,  numbering  about  1.3  million  is  an autocephalous church  in India  under Moran Mar Baselius Mar Thoma Mathews  I, Catholicos  of the  East. This group has a flourishing theological seminary and a number of ashrams and monasteries, as  well as hospitals, orphanages, schools, and other institutions.  Its members  have established a diocese in North  America with  about  thirty  congregations  and  a bishop residing  in Buffalo,  New York.  The Encyclopedia of Religion, Volume 14 p. 228].      The  ‘Seminary  Suit’  was  filed  in  1879  by  Joseph Dionysius against  Mar Thomas Athanasius for recovery of the property over  which he  had obtained  possession in lieu of the Quilon  Committee report.  It was  contested  by  Thomas Athanasius who  denied the  supremacy of  the Patriarch.  He claimed that  Patriarch could not claim as a matter of right to have  any control  over the  Jacobite  Syrian  Church  in Malabar either  in temporal or spiritual matters although as a high  dignitary in the churches in the country where their saviour was  born and crucified the Malabar Syrian Christian community did  venerate the Patriarch. The final judgment in the suit  was given  on 20th July 1889 by the Royal Court of Final Appeal  (Travancore). The  decision went  in favour of Joseph Dionysius  who  was  held  entitled  to  recover  the properties of  Malankara Church  as  he  was  the  Malankara Metropolitan  accepted   by  the   community.  The  judgment explained the  extent of  the  spiritual  supremacy  of  the Patriarch over  the  Malankara  Church.  It  was  held  that Patriarch right consisted in ordaining either directly or by duly authorised  delegates metropolitans  from time to time, to manage the spiritual matters of the local church, sending Morone (holy  oil) to  be used in the churches for baptismal and other  purposes and  in  general  supervision  over  the spiritual government  of the  Malankara Church.  But he  was held to  have no  authority over  temporal matters.  It  was held:             "the Patriarch’s  supremacy  over      the   Church  in Malabar  has   extended      only    to   spiritual   matters.    The      Patriarch or   his Delegates  when  they      sojourned   in   this country,  attended      only to    spiritual  affairs    of  the      Church leaving  the   management of  the      temporal   affairs    to    the    local      Metropolitan and   the  trustees.    The      former never  interfered  with  temporal      affairs; and   where  in  two  or  three      instances they  (the   Delegates)  tried      to  have     some   control    over,  or      interference   with,      the   temporal      affairs,  the     Metropolitan  and  the      community resisted them successfully.                      On  a   review  of   the      whole  History  and evidence, we  arrive      at the  conclusion that the Patriarch of      Antioch   has    been   recognized    by      the   Syrian   Christian  community  all

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 68  

    through as   the Ecclesiastical  Head of      their   Church   in      Malabar;   that      consecration   by   him   or   by    his      Delegates duly    authorised  in    that      behalf  was and has been felt absolutely      necessary to  entitle a  man  to  become      a Metropolitan of  the  Church  in  this      country  in  matters spiritual that  the      man  so consecrated  should be  a native      Syrian Christian  of Malabar  acceptable      to      the      community:   that   the      Patriarch’s  power     in      spiritual      affairs   of    the  Church  has    been      supreme:   and that   the  Patriarch  or      his  foreign   Delegates  have   had  no      interference    with     the    internal      administration   of   the  temporalities      of   the   Church   in Travancore which,      in  this     respect   has     been   an      independent Church."                                          [Emphasis supplied]      The  concluion  and  finding  of  the  court  that  the Patriarch had  no temporal  and administrative  control over the churches was not accepted either by the Patriarch or the Parishes.  Some  of  the  Parishes,  therefore,  denied  the authority of  Dionysius which led to filling of suit in 1899 by t  he Metropolitan  against Parishes  which,  as  stated, became famous  as ’Arthat Case. The suit was decreed in 1905 and  the   judgement  of  Rajah  (Cochin)  Court  of  Appeal reiterated that  the Patriarch  of Antioch was the spiritual head of  Malankara See  which included  the church for which suit had been filed and the churches and the properties were bound by  a  trust  in  favour  of  those  who  worship  God according to  faith, doctrine,  disciple of  Jacobite Syrian Church in  the communion  of His  Holiness the  Patriarch of Antioch. The  Court held  that the  churches and  properties were,  therefore,   subject  to   spiritual,  temporal   and ecclesiastical jurisdiction  of the  Dionysius the Malankara Metropolitan’.      The effect  of the two judgements of the Royal Court of Final Appeal  and  Rajah  of  Cochin  on  one  hand  was  to recognise  Dionysius   as  the   validly  elected  Malankara Metropolitan, which  of course  was in keeping with what the Patriarch  had   decided  when   the  meeting  was  held  at Mulunthuruthy and  with this  there was no grievance, and on the other  that Patriarch  had no  temporal power  over  the Church which  was not  acceptable  to  him.  He,  therefore, decided to  come down  to Malabar to influence the course of events  and   get  an   assurance  from  different  churches accepting his  superiority  in  temporal  matters  as  well. However, in  1905 dispute  started between  two persons one, Abdul Messiah  and other  Abdulla-II over  the right  to  be Patriarch. Both  of them  were appointed  by Firman  of  the Suitan of  Turkey.But the  one issued  in  fovour  of  Abdul Messiah had  been withdrawn.  In 1909 Joseph Dionysius died. In his  place one  M.G. Dionysius  was elected  who had  got himself ordained  by the  Patriarch Abdulla-II in 1907. When Abdulla-II came  to Malabar  with the object of claiming his temporal authority over the Malankara Jacobite Syrian Church and he  convened a  meeting at  the old Seminary of Kottayam and demanded  acknowledgement of  his temporal authority the majority declined  to do  so. He,  therefore, approached the Parish  Churches   individually  and  succeeded  in  getting submission deeds  (Udampadis) from  some including  one  Mar Paulose Athanasius.  In token  of it,  he ordained  him as a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 68  

Metropolitan. This led to dispute between M.G. Dionysius and M.P. Athanasius  the one  ordained earlier  at Syria and the other  ordained  in  Malabar  over  the  administrative  and temporal control  of the  churches. In  1911 Abdulla-II  the Patriarch  ordained   one  Mar  Coorilos  as  the  Malankara Metropolitan so  as to make him automatically the ex-officio President of  the  Malankara  Association  and  one  of  the trustees of  the  trust  property.  The  two  of  the  other trustees also  acknowledged the new nominee as the Malankara Metropolitan but  Mar Gheevarghese Dionysius did not give up and in  retaliation convened  a  meeting  of  the  Malankara Association which  declared his  excommunication invalid and removed from  trusteeship the two trustees who had gone over to the  side of the Patriarch. The Committee further decided to suspend  payment of  Ressissa to the Patriarch so long it was not  ascertained as  to who  was  the  Patriarch,  Abdul Messiah or  Abdulla-II. Abdulla-II  left Malabar  in October 1911 and in 1912 issued a Kalpana branding Abdul Messiah and M.G. Dionysius  as "wolves"  from whom  the faithful  should entirely keep aloof.      Little did  anyone, then,  visualise that the very next year which  was to  synchronise with visit of Abdul Messiah, yet another Patriarch who had been disentitled by the Sultan of Turkey,  would so  significantly change  the  history  of Malankara Church.  Whether he  was justified  and more  than that entitled  to declare  the ex-communication of Dionysius invalid and  whether he  could on  his own  issue a  Kalpana creating a Catholicate of East is now a matter of history as its validity is beyond challenge since both the actions have been upheld  judicially and  have achieved finality in Moran Mar  Basselios  (supra).  Abdul  Messiah  issued  a  Kalpana beseeching everyone,  that it was their duty, to respect Mar Gheevarghese, and  love him properly and suitably because he was their head, shepherd and spiritual father. It was stated that who  respects him  (respects us),  he who receives him, receives us.  Those who  do not  accept his  right words and those who stand against his opinions which are in accordance with the  canon of the Church, defy him and quarrel with him will become  guilty. Keep  aloof from  quarrel and breach of law. Grace  and blessings  from the Lord will come and abide on them  who obey.  Another Kalpana was issued bestowing his blessings second  time and  expressing  deep  grief  at  the dissension shown  by Effendi.  It further  said we,  by  the grace of  God, in  response  to  your  request,  ordained  a Maphrian, that is, Catholicos by name; Poulose Basselios and three  new   Metropolitans  the   first  being  Gheevarghese Gregorius,  the  second,  Joachim  Evanios  and  the  third, Gheevarghese Philexinos.........  We commend  you  into  the hands of  Jesus Christ,  our Lord, the Great Shepherd of the flock.  May   He  keep  you!  We  rest  confident  that  the Catholicos and  Metropolitans - your shepherds - will fulfil all your  wants. The Catholicos, aided by the Metropolitans, will ordain  melpattakkars, in accordance with the Canons of Our  Holy  Fathers  and  consecrate  Holy  Morone.  In  your Metropolitans  is  vested  the  sanction  and  authority  to install a  catholicos, when  a catholicos  dies. No  one can resist you  in exercise  of this  right and,  do  all  thngs properly, and  in conformity with Precedents with the advice of the  committee, presided  over by Dionysius, Metropolitan of Malankara.                                          [Emphasis supplied]      The declaration  of Abdul Messiah that ex-communication of Dionysius  was invalid  led to  serious  dispute  between rival groups  claiming their  authority  over  the  temporal affairs of  the Church. Two rival groups were formed one led

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 68  

by Mar Gheevarghese Dionysius and the other by Mar Coorilos. Consequently, the  Secretary of  State for  India filed  the interpleader  suit   in  1913,  in  the  District  Court  of Trivandrum, impleading  both the  sets of rival claimants as defendants and  seeking a  declaration from  the court as to which of  the two  rival sets  of trustees  were entitled to draw the  interest on  the amount  standing in the credit of the Malankara  Jacobite Syrian  Christian community  in  the British treasury.  The suit  was decided  in favour  of M.G. Dionysius. The  decree was  reversed by  a Full Banch of the Travancore High Court in 1923. The judgement was reviewed at the instance  of M.G.  Dionysius and the net result was that M.G.  Dionysius  and  his  two  co-trustees  became  finally entitled to withdraw the money deoosited in the Court as the lawful trustees of the Church properties.      On 16th  August 1928  the  Managing  Committee  of  the Malankara  Association   was  authorised   to  draw   up   a constitution of  the Church. There was sharp reaction to it. The delegate  of Patriarch  issued an  order to the Catholic Metropolitan  to  execute  Udampad  within  two  days.  When nothing came  out of  it, 18  persons belonging to patriarch group filed  suit against Mar Philexinos. a person who later joined the  Patriarch after 1958 and was largely responsible for the disturbance of peace in 1965. The suit was dismissed in default  and the order remained unchanged as the revision in the  High Court  was dismissed  for non-prosecution.  The Catholico in  the meantime  went ahead and in a meeting held on 26th   December,  1934  at  Kottayam  adopted  the  draft Constitution   unanimously   and   elected   the   Malankara Metropolitan.  The   Constitution  while   recognising  that Malankara Church  was a  division  of  orthodox  church  and primacy of Patriarch of Antioch provided that the primacy of the East was in Catholicos. Detailed provisions dealing with powers of Metropolitan, Bishop, Parishes, etc. were made.      Probably as  a counter to 1934 meeting of Catholico the Patriarch group held meeting in August, 1935, elected one M. Paulose Althanasius as Malankara Metropolitan and armed with this they  filed Suit  No.111 of  1139, that  is 10th March, 1938 in  the District  Court of  Kottayam claiming  that the Catholico  had   become  heretics  and  separated  from  the Orthodox Syrian  Church. The  suit was dismissed in January, 1943. In  1946, appeal was allowed and the suit was decreed. The defendants  again applied for review which was dismissed against which they preferred appeal under Article 136 of the Constitution and  in Moran  Mar Basselios  Catholicos & Anr. vs. Most  Rev. Mar Poulose Athanasius & Ors. AIR 1954 SC 526 the appeal  was allowed. The judgement of the High Court was set aside  and the  High Court  was directed  to  admit  the review petition  and re-heer  the same. In December 1956 the judges heard  the appeal,  delivered the unanimous judgement allowing the  appeal and  decreeing the  suit.  Against  the decree the  Catholico group  preferred an  appeal which  was decided in  1959 by  this Court. Some of the Catholicos also filed a  writ petition  under Article 32 of the Constitution which was  also decided  along with  the appeal.  The  Court after elaborate  discussion and  noticing the earlier course of litigation  held that  the claim  of the other group that the Catholicos had become heretics on aliens or had gone out of the  Church by  establishing a  new church because of the specific acts and conduct was not correct.      The Constitution framed in 1934 and the Kalpanas issued by Abdul  Messiah were considered by this Court in 1959. The claim of  the Patriarch, that the supremacy of the Patriarch had been  taken  away  by  the  mere  adoption  of  the  new Constitution was  not permitted  to be  raised as it was not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 68  

raised in  the pleadings.  The Court  further did not permit them to  raise the  question  about  the  privilege  of  the Patriarch, alone,  to ordain metropolitans and to consecrate Morone. It was also held that Ressissa which was a voluntary and not  a compulsory  contribution  made  by  the  parishes collected by  the committee of the Malankara Association and sent to  Patriarch was not forbidden and its non-payment did not amount  to neresy  on the  party of  the Catholicos. The declaration sought  by the Patriarch that they were trustees of the property and the Catholicos were neither trustees nor in possession of the trust property, based on their election at a  meeting held  on August 22, 1935 was not accepted. The Court held  that the  meeting was,  admittedly, held without any notice  to the  members of  the Catholico  party as they were erroneously  regarded as having gone out of the Church. The Court  did not  find any  merit in the Kalpana which was Ex.Z in  the  suit  commanding  the  faithful  not  to  have anything to  do with  the heretics.  The court held that the Catholicos and  their partisans had not become, ’ipso facto’ heretics in the eye of the Civil Court or aliens and had not gone out  of the Church. The court held that the election of the plaintiffs was not valid and their suit, in so far as it was in the nature of a suit for ejectment was llable to fail for want  of their title as trustees. The Court further held that since  the  interpleader  suit  was  converted  into  a representative suit  on behalf  of Jacobite Syrian Christian population of  Malabar, therefore, the decision in that suit was binding on all members of the Malankara Syrian Christian Community. Thereafter,  it proceeded  to examine  as to what were the material issues which were decided in that case and which operated  as res  judicata. The four issues which were framed in  that suit  and which were considered by the court for purposes  of deciding  the question on res judicata read as under:        14.  Do  all or  any of  the following      acts of   the  1st defendant (catholico)      and   his   partisans   amount  to  open      defiance  of   the  authority   of   the      Patriarch? Are  they against  the tenets      of the  Jacobite Syrian  Church  and  do      they amount  to heresy   and render them      ipso facto  heretics and  aliens to  the      faith?      (i)    Claim that the 1st defendant is a      Catholicos?        (ii)    Claim that he is the Malankara      Metropolitan?        (iii)   Claim that  the 1st  defendant      has authority  to consecrate  Morone and      the fact that he is so consecrating?        (iv) Collection of Ressissa by the 1st      defendant?        15.(a)  Have the 1st defendant and his      partisans    voluntarily given  up their      allegiance to   and  seceded   from  the      Ancient Jacobite Syrian Church?        (b)  Have   they established   a   new      Church   styled   the Malankara Orthodox      Syrian Church?      (c) Have  they framed a constitution for      the new  church conferring authority  in      the Catholicos  to consecrate  Morone to      ordain  the   higher   orders   of   the      ecclesiastical   hierarchy,   to   issue      Staticons  allocating  Dioceses  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 68  

    Metropolitans and, to collect Ressissa?        (d)  Do   these functions   and rights      appertain solely  to the  Patrirch   and      does   the assertion   and claim  of the      1st defendant  to  exercise these rights      amount to a rejection of the Patriarch?            (e)  Have    they  instituted  the      Catholicate  for   the  first   time  in      Malankara?  Do     the  above  acts,  if      proved, amount to heresy?31      16. (a) Have the defendants ceased to be      members of  the Ancient  Jacobite Syrian      Church ?      (b) Have  they forfeited  their right to      be trustees  or to hold any other office      in the Church ?        (c) Have they forfeited their right to      be beneficiaries  in   respect   of  the      trust   properties   belonging   to  the      Malankara Jacobite Syrian community ?        19. (a)  Have the plaintiffs and their      partisans  formed  themselves  into    a      separate   Church   in   opposition   to      Mar Geevarghese  Dionvsius    and    the      Malankara  Jacobite  Syrian Church ?        (b)  Have   they separated  themselves      from the  main body of the beneficiaries      of the trust from 1085 ? The Court  held that  the same  objection was  raised by the Patriarch in  the suit  filed in  paragraphs 19  to 26  and, therefore, the  finding recorded  on  the  aforesaid  issues having been  raised and decided in the interpleader suit and having been  decided by  the Travancore High Court on review in favour  of M.G.  Dionysius and his co-trustees (Catholico group) it operated as res judicata. It was on this reasoning that the Court held :        "that the  contentions put  forward in      paragraphs 19 to 26 of the plaint in the      present suit on which issues Nos.14, 15,      16   and  19   have  been   raised  were      directly  and substantially in  issue in      the interpleader  suit (O.S.94  of 1088)      and  had been  decided by the Travancore      High Court  on review in  favour of  Mar      Geevarghese     Dionysius  and  his  two      cotrustees (defendants   1  to 3  )  and      against defendants  4 to  6 .   In short      the  question  whether  Mar  Geevarghese      Dionysius  and   his    two  co-trustees      (defendants 1   to   3)    had    become      heretics or   aliens  or   had gone  out      of   the   Church   and, therefore, were      not qualified   for acting  trustees was      in issue  in   the  interpleader    suit      (O.S.No.94     of  1088)   and  it   was      absolutely  necessary   to  decide  such      issue.  That   judgment   decided   that      neither (a)  the repudiation  of Abdulla      II,  nor   (b)  acceptance     of  Abdul      Messiah who   had  ceased   to   be    a      Patriarch, nor  (c)  acceptance  of  the      Catholicate with  powers as hereinbefore      mentioned, nor   (d)  the  reduction  of      the power  of    the  Patriarch    to  a      vanishing    point,     ’ipso     facto’

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 68  

    constituted a   heresy  or  amounted  to      voluntary separation  by setting  up   a      new  Church and  that being the position      those contentions  cannot be re-agitated      in the present suit". Thereafter the  Court after  discussing the  matter in great detail held as under :        "The  case   with which the plaintiffs      have come  to court in the  present suit      is   that   the  defendants  had  become      heretics or   aliens  or  had  gone  out      of   the  Church  by establishing a  new      church  because of the specific acts and      conduct imputed   to  the  defendants in      the present  suit and  that the  charges      founded  on   those  specific  acts  and      conduct are  concluded   by the    final      judgment  (Ex.256) of  the High Court of      Travancore in    the  interpleader  suit      (O.S.No.94 of  1088) which   operates as      ’res judicata’.  The charge  founded  on      the  fact of  non-payment  of  Ressissa,      if     it     is     not  concluded   as      constructive ’res   judicata’  by    the      previous judgment  must, on  merits, and      for reasons  already  stated,  be  found      against the plaintiff-respondent. We are      definitely  of   the  opinion  that  the      charges now  sought to be relied upon as      a fresh  cause of action are not covered      by the pleadings or the issues  on which      the parties  went to trial, that some of      them are  pure after-thoughts and should      not now  be permitted  to be  raised and      that at   any  rate   most of them could      and should  have been put forward in the      earlier suit  (O.S. No.94  of 1088)  and      that   not having been done the same are      barred  by     ’res     judicata’     or      principles   analogous    thereto.    We      accordingly hold,  in agreement with the      trial court,  that it is no  longer open      to  the   plaintiff-respondent  to   re-      agitate   the   question      that   the      defendant-appellant  had   ’ipso  facto’      become heretic   or  alien  or had  gone      out of the church and has in consecuence      lost his  status  as  a  member  of  the      Church or his office as a trustee."                                         [Emphesis supplied] The  Court   also  examined  whether  the  election  of  the Catholico group in the meeting held on December 26, 1934 was in accordance with rules or not and it answered the question in  their  favour.  The  Court,  therefore,  set  aside  the judgment of  the Kerala  High Court  and dismissed  the suit filed by the Patriarch group.      The one good effect of judgment delivered by this Court in 1959  after nearly  50 years  of litigation was that good sense appears  to have  dawned on both the groups and on 9th December 1958  Patriarch Yakub-III issued a letter marked as Ex.A-19 one relevant portions of which are extracted below :        "It is  not secret  that the  disputes      and   dissensions that  arose    in  the      Malankara church prevailing for a period      of 50   years  have    in  several  ways

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 68  

    weakened and  deteriorated it.  Although      right  from    the  beginning    several      persons who love the  church and  devout      of   God desired peace and unity putting      an   end  to    the  dissention,    they      departed in  sorrow without  seeing  the      fulfilment of their desire. We also were      longing for   peace  in   the  Malankara      church and  the unity  of the organs  of      the one  body of  the  church.  We  have      expressed this  desire   of  ours   very      clearly       in      the      apostolic      proclamation we   issued  to   you  soon      after our ascension on the Throne.  This      desire   of ours   gained strength  with      all vigour  day   by day  without in any      way slakened  and the  lord God has been      pleased to  end the  dissention  through      us. Glory  be to   Him.  To  bring forth      peace in  the Malankara church we hereby      accept   with pleasure    Mar  Baselious      Gheevarghese as  Catholicose.  Therefore      we   send    our   hearty      greetings      intensified by   the  fervour  of  deace      in   this  month  of rejoycing. We  also      beseech,  let the lord shower on you His      abundant   blessings.    Let  the   lord      make   you   a    people  beautified  by      virtuous acts   towards  the   right and      delight  you   with  the   comfort   and      plenteousness  flowing   from  the  care      pleased to   his Holy  will to  the envy      of others. Let it be with the  grace and      mercy of   Him, His  father and His Holy      spirit.                Our father   which art  in the      heaven etc.  etc. On  the 9th   December      1958,   the 2nd   year of  our assension      as patriarch.           From the Aramana at Holms."                                         [Emphasis supplied] The other  letter was issued on 16th December 1958 marked as Ex.A-20 by the Catholico group to the following effect :      "Glory to God united in the Trinity, the      self existing,  perfect in   essence and      without beginning  or end. From the meek      Baselious     Catholicose  named      as      Gheevarghese If  seated on the Throne of      The East of Apostle St. Thomas.           Seal            Let  divine  grace  and  Apostolic      Benediction be always in abundance  with      all     the       Melpattakkars    (High      Priests). Priests,   Deacons   and   all      the       faithful        under      our      jurisdicition.            We have  always been  in grief  on      account    of  the  failure    of    the      efforts     made     by     late     Mar      Gheevarghese Dionisius  and  us to bring      forth  peace   in  our  church  and  end      quarrels  and     discord  which    were      existing in our church for long. We  are      now   very much delighted and do glorify      God in  that there   is  an end  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 68  

    discord  showing   the  willingness   to      unite.               We, for  the sake  of peace  in      the   church,   are pleased  to   accept      Moran  Mar   Ignatius   Yakub   III   as      patriarch of   Antioch  subject  to  the      constitution   passed  by  the Malankara      Syrian Christian  Association and now in      force.              We have  also pleasure to accept      the Metropolitans  under him (patriarch)      in Malankara  subject to  the provisions      of the said constitution.                Let  the  abundant  grace  and      blessings   of  God Almighty be with you      always.           Let it  be through  the prayers  of      St.   Mary   the mother  of    God,  Mar      Thoma Sleeba,  the Patron saint of India      and all the saints. Amen.           Our father that art in the heavens etc. etc." After the  exchange of  these letters,  Ex.A-19 and  Ex.A-20 dispute started between the Patriarch and the Catholico over the use  of the word ’Holiness’, ’Throne of St. Thomas’, and ’Church of  the East’  and ’Catholicos  of the East’ etc. as the expressions  according to the Patriarch could be used by the supreme  head, that  is, Patriarch of Antioch and not by Catholico to  which the  reply was that this was not new and it was  provided for  in the Constitution of 1934. It is not necessary to  extract the various points of differnce raised in the letters issued by the two. In a letter sent in August 1960 marked as Ex.A-26 after reiterating the stand which was taken in earlier letters it concluded with these words :        "To  conclude,  I wish  to state  that      the   prestige and  influence  of    the      throne  of   Antioch  here  depend  very      largely upon  the  wise co-operation  of      Your Holiness. The Malankara Church with      its catholicate   and  synod  of bishops      and the  association  has  certainly  to      adhere  to   the   provisions   of   the      constitution and  has to  abide  by  the      Supreme Court  decision. But  that  does      not   mean any  kind  of  disrespect  or      hostility towards  Antioch.   There  are      enough  provisions  in  the constitution      to keep  our connection  Meeningful  and      alive". The relations  thereafter appear  to have  become cordial so much so that in 1961 Ex.A-30 was written by Petriarch Yakub- III in which it was mentioned,        "I am  placing your  Beatitude’s photo      properly in  our  place  so    that  all      people who   are  in and  out should see      itand understand   the  intimate   unity      and   real   re-conciliation   and   the      essential   relationship   between   the      Apostolic Throne  and  our    church  in      Malankara .............   we  are  eager      tosee perfect   peace  in  our church in      Malankara.  We   hope   that   all   the      disputes will  be over  and  the  church      go   ahead powerfully  in   the path  of      light,   prosperity and  progress during      your Beatitude’s old age itself.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 68  

              Please convey   our  Apostolic      Blessings to  all our spiritual children      both priests and faithfuls who are under      your authority." But from  letter dated  18th January  1962 sent  by Baselius Geevarghese II,  Catholicos of  the East,  it  appears  some local dispute  had surfaced  again.   Allegations were  made against one  Mar Philixenos  and the  same person about whom reference  has  been  made  earlier  and  who  in  fact  was responsible for  dissension once  again and  it was  stated, they profess  outwardly to  be pro-Antioch,  but really they are anti Patriarchal as well as anti- Catholicate. Now since at this time I am in my declining age I think it appropriate to invite  your Holiness  be pleased  to visit  us  at  your earliest convenience  and bless  us by your presence as well as prayers’.  It appears  Mar Baselius  Geevarghese died  in January 1964  and the  members of  the Holy  Episcopal Synod installed one  Ougen Mar  Themotheus,  Metropolitan  as  his successor as  his election  by the  Malankara Association on 17th May  1962 was  approved by the Holy Synod on 21st March 1963. The letter was sent requesting the patriarch Yakub-III for the  installation ceremony.  He did  come  in  1964  and installed Mar  Ougen I.  Then there  are letters  and  other memoranda   Ex.A-36 and  A-37 submitted  to  the  Catholicos regarding prevailing  discontentment amongst  some sections. The exchange  of these letters and their contents indicate a simmering discontent  which surfaced  in June, 1970 when the Patriarch once  again dug  up the  closed issue  of  use  of expression ’Holiness’  and, ’Throne  of St.  Thomas’ by  the Catholico. The  initial anxiety  of reconciliation and peace got  set   back  with  vengeance  as  the  Catholico  openly challenged the authority of Patriarch. Events moved swiftly, thereafter, when  the Patriarch ordained Metropolitan who in his turn  ordained Bishops  started interfering resulting in filing of  suits by  Catholico  against  Patriarch  ordained Bishop, obtaining  of  injunction  sharply  reacted  by  the Patriarch   by    issuing   show-cause    notice,   starting disciplinary proceedings,  summoning the  Synod at  Damascus and  ex-communicating   the  Catholico.  The  breakaway  was complete. There  was vertical  split. The  two  groups  once again were  up in  arms. Two hundred suits were filed. Eight of which  covering entire issues were consolidated and tried together.      This completes the factual narration and the background in which  the suits  out of  which these appeals have arisen came to  be filed.  Although both the parties have furnished in great  detail the  events  which  took  place  after  the judgment was  delivered in  1959, but it appears unnecessary to mention  each of them, except to observe that a mere look on these dated indicates that initially there was an anxiety for peace and reconciliation by both groups which was shaken by pinpricks  here and there and was finally thrown to winds between 1970-75.  Religious cover  was again  put forward to gain control  over temporal  affairs resulting in setting in motion the  same old  tortuous process of litigation. In the first part  beginning from  December, 1958  a meeting of the Malankara Association  was held  in  which  almost  all  the Churches participated,  irrespective  of  the  faction.  The meeting was  attended even by the elected priest-trustee and the lay  trustee and  the delegate  of the  Patriarch  as  a special  invitee.  In  January,  1959  the  Patriarch  Group submitted a memorandum to the Catholicos seeking among other things reconstitution  of  the  Managing  Committee  of  the Malankara Association  which was  considered in a Synod held on 21st  February, 1959  and pursuant  to the decision taken

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 68  

therein, dioceses  were re-allotted.  From the  year 1959 to 1964 number  of meetings  were held in which both the groups participated and  attempted to  function as  one unit.  From 1960 to  1962 there are various letters, for instance Exhts. A-28, A-29,  A-30, A-31  and  A-39  which  indicate  cordial relationship between  the Patriarch  and Catholico.  Even in 1964 when  Mar  Ougen  I  was  installed  by  the  Malankara Episcopal Synod,  the  Patriarch  himself  presided  in  the ceremony. In  a meeting  held in  December,  1965  Malankara Association  elected   five  candidates  for  ordination  as Bishops and  elected members to the Managing Committee which included members of the Patriarch group as well. In 1967 the Constitution was  amended in consequence of meeting in which both the groups deliberated.      From June  1970 started  the second  part which  was in contrast of  the earlier. In June 1970 the dispute about use of expression  ‘Holiness’ and ’The Throne of St. Thomas’ was again questioned  followed by  sending a  delegate  in  1972 which was objected to leading to ordination by the Patriarch of one of the appellants who was impleaded as defendant no.1 in Suit No.4/79. Thereafter as stated there was no end. When the Catholico  succeeded in  obtaining injunction from Civil Court in  1973 restraining  the appellant  from interfering, the Patriarch  issued chargesheet in June 1974 which was not only objected  but  asserted  to  be  without  jurisdiction. Various ordinations followed. Each was challenged in courts. And when  on 5th  January 1975  the Catholico in their Synod declared that  Malankara Association  was autocephalous then the Patriarch  in a Synod held at Damascus from 16th to 20th June 1975  decided that the only apostolic see of the Syrian Orthodox Church  in the world was the See of Antioch founded by St.  Peter, that  the Malankara Church was an indivisible part  of   the  Syrian  Orthodox  Church  dependent  on  the Patriarch in  all spiritual  matters, that acknowledgment of Patriarch’s and  position by  those ordained  was essential, and the  Catholicos having  repelled against  the  Patriarch stood disqualified  from their ecclesiastical grade and also guilty of violation of fundamental faith. It was followed by letter dated  23rd June 1975 asking the Catholicos if he was willing to  submit to  the decision of the alleged universal Synod. On  21st August 1975 the Patriarch by Kalpana Ex.B-72 excommunicated  Catholicos   and  on   7th  September   1975 installed  at  Damascus  Mar  Paulose  Philexinos  (who  had earlier been  deposed by  the Malankara  Episcopal synod for proved ecclesiastical  indiscipline) as  a Catholicos in the name of Baselius Paulose II.      Out of  these suits  eight covering all the issues were transferred to  the High  Court. The Single Judge even while accepting the  Constitution as  valid held  that it  was not binding on  the Churches  and Parishioners  unless there was express surrender.  The Court  held that they had no concern with  those  Churches  which  continued  with  Patriarch  of Antioch. The  learned Single  Judge held  that the Malankara Church was  Episcopal to  a limit  in spiritual  affairs. In matters of  temporalities, the Church was congregational. It was further  held that  the Parish Churches were independent autonomous units  as far as governance and administration of temporalities were  concerned. The  suits were dismissed. In appeal, the  Bench framed  as many  as 31 questions to cover the wide range of controversy raised before it, reversed the decision of  the learned  Single Judge and decreed the suit, except in  relation to Churches known as ’Simhasna Churches’ and   the   Churches   established   by   the   Evangelistic Association. Relevant findings on the questions framed by it are extracted  below. The  first three  questions related to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 68  

the validity of the Cannon. They read as under:-        "(1)  Whether  Ext. A90  or Ext.  B161      is   the   correct version  of    Hudaya      Canons   accepted   by   the   Malankara      Jacobite Syrian  Community as  valid and      binding?        (2)  Are   the  plaintiffs  barred  by      resjudicata   from contending  that  the      binding version of Hudaya canons is Ext.      A90 by   reason  of the  judgment in XLI      T.L.R. 1.  order in  the Review Petition      and the judgment in 45 T.L.R. 156?       (3) Are  the defendants  barred by  res      judicata   from  contending  that    the      binding version  of Hudaya Canons is not      Ext. B161  by reason  of the decision in      the Samudayam suit?" The answer  given by  it was  that the decision in 41 TLR 1, Exhibit 18  therein, and  (Ext. 3p in the Samudayam suit and Exht. B-161  in these  cases) is  the version  of the Hudaya Canons accepted  as binding  on the Malankara Church has not become concluded  and  does  not  operate  as  res  judicata between the  parties. The  Bench further held that there was no independent  evidence on  the basis  of which it could be held  that  either  of  the  versions  was  binding  on  the Malankara Orthodox  Syrian  Christian  Community  and  since finding in  the previous  litigations were  not res judicata neither version of the Canon was proved to be binding on the community. In  respect of  Question Nos.  4-6, which read as under.      "(4) Whether the Catholicate established      under  Ext.  A14  by  Patriarch    Abdul      Messiah  with powers  as provided for in      Ext. A14   is  valid   and   binding  on      the  entire  Malankara church?        (5) Whether  by such  establishment of      the Catholicate  the   Patriarch     was      deprived    of   his  powers  to  ordain      Metropolitans, consecrate/send    morons      or   to   exercise   any other spiritual      power over    the    Malankara    church      thereby  reducting   his  powers   to  a      vanishing point?       (6) Whether contentions in points 4 and      5 are  barred by  res judicata   against      parties in  Patriarch’s group  by reason      of the  decision of  the Travancore High      Court in Interpleader suit (45  TLR 116)      and by  reason of  the decision  of  the      Supreme Court  in  Samudayam  suit  (AIR      1959 SC 31)? it was held that the Catholicate established under Exht. A14 with powers as provided therein was valid and binding on the Malankara Church,  that by  such establishment Patriarch has not been  deprived of  his powers to ordain Metropolitans or consecrate  Morone  or  to  exercise  any  other  recognised spiritual power, though the power to ordain Metropolitans is subject to acceptance of the Malankara community represented by the  Association and  that by  the establishment  of  the Catholicate spiritual  power of  the Patriarch  has not been reduced to a vanishing point, though the Patriarch could not be regarded as having active spiritual supremacy.      The Question  Nos. 7  to 15 related to the Constitution of 1934 and status of Parish Churches. They were answered as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 68  

follows:-           "(a) 1934 Constitution is valid and      binding on  the  Malankara  Association,      Community, Dioceses  as well  as  parish      churches and parishioners.                (b) Parish  churches  are  not      congregational  or independent, but  are      constituent units  of Malankara  church;      they  have   fair  degree   of  autonomy      subject  to   the   supervisory   powers      vesting   in the  Managing Committee  of      the  Malankara  Association,  Catholicos      and the   Malankara Metropolitan  as the      case may  be. Administration of the day-      to-day  affairs   of  parish    churches      vests    in    parish    assembly    and      elected committees of the parishes.                (c) Malankara   church is  not      purely  episcopal   but  has  only  some      episcopal characteristics.                (d) Malankara Association is a      representative body  which has  right to      bind   the    Malankara   church,    the      community, parishes  and parishioners by      its deliberations and actions. The most  sensitive issue  which has  been subject  of great debate in this Court was posed as Question No.18,           "Has the  Malankara Church become an autocephalous church? and it  was answered against the respondent by recording the finding:-                "We, therefore,  hold that the      Malankara Church is not an autocephalous      church but  is a part or division of the      world Orthodox   Syrian  Church  and set      aside  the  finding  of  learned  single      judge that   the  Catholicos  group  has      now  established   an      autoceohalous      church.  We  hold  that  while Patriarch      of  Antioch is  the head  of  the  World      Orthodox Syrian  church   Catholicos  of      the  East   who  is   subject   to   the      Constitution     is    head    of    the      Malankara  Church  and  the relationship      between  Patriarchate and  the Malankara      Church is  governed by the provisions of      the Constitution." This was the finding recorded in Moran Mar Basselios (supra) as well.  It has  not been  challenged,  therefore,  it  has become final.      Some of  the  churches  claiming  to  be  socially  and culturally different,  for instance,  Knanaya Church  or the Kanandra Church  established in  pursuance of  Royal Charter issued  by   the  Queen   or  registered   under   societies Registration Act  or having their own bye-laws claimed to be independent and  autonomous. Their  claim was under Question Nos. 23,  24 and  25 and  the answer  given was  that except Simhasana Churches and Evangelistic Association Churches the others were  constituents of Malankara Sabha. The appellants are the  members of  Patriarch Group.  Separate appeals have been filed  by those churches which claim to be independent. The Catholic  Group is  aggrieved by the decision in respect of  Churches   of  Evangelistic  Association  and  Simhasana Churches.      Factual canvas  having been spread out the stage is now

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 68  

set for  grappling with intricate issues of jurisdiction and law which  have been canvassed neatly, by, both, the learned senior counsel,  Mr. K.  Parasaran for the appellant and Mr. F. Nariman  for the  respondents, without  expression of any emotion, admirable understanding and respect for each other, with utmost  congenial coolness  and exemplary precision and clarity. To  support their  respective claims,  the  learned counsel for  both the  parties advanced  extensive arguments covering  wide   range  of   various  aspects  ranging  from maintainability of  the  suit,  jurisdiction  of  the  civil courts to  entertain religious disputes, misjoinder and non- joinder of the parties, intricate questions of res judicata, religious nature  of the  Trust and  even religious matters, such as  whether the  Catholicate of the East is entitled to be addressed  as ’Holiness’  sitting on  the ’Throne  of St. Thomas’.  It  is  proposed  to  deal  with  the  preliminary objections both  to the  maintainability of  the suit  under Section  9   of  the  Civil  Procedure  Code  and  the  non- maintainability due  to enactment  of the  Places of Worship (Special Provisions)  Act,  1991  as  if  any  of  these  is accepted  then   no   further   controversy   would   arise. Thereafter, what  shall be  examined is whether the claim of the appellant  that they  had ex-communicated the respondent in accordance with Hudaya Canon governing the Church is well founded as  if even  this plea  is accepted,  then no  other issue shall  survive. If  the answer  is in  favour  of  the respondents, then  it shall  have to be decided, how far the dispute  between   parties  has   been  settled  by  earlier decisions and  what was  the scope of Samudayam Suit and the finality arising  out of  it. Ancillary to this would be the question whether  Catholicate of the East was established in Malankara in  the year  1912 and whether it has been validly established, if so, what is its binding effect.      To begin  with the  objection to the maintainability of the suit  under Section  9 of  the Civil  Procedure Code was probably not  raised in  1954 and 1959 and if raised was not pressed. But  that by  itself may  not  preclude  defendant- appellant from  raising it, even in this Court as the bar or lack of jurisdiction can be entertained, at any stage, since an order or decree passed without jurisdiction is non est in law. What  then  is  the  scope  of  the  Section?  Does  it comprehend suits  for declaration  that the  Syrian Churches are  episcopal?   Could   the   respondent-plaintiff   claim declaration   that    Malankara   Association   had   become autocephalous and  no priest  could refuse  to recognise the authority  of   the  Catholico?  Could  the  plaintiff  seek injunction, restra  in the priests or Deacon from performing any other  sacramental services  and prohibit the defendants from interfering with of the Malankara Church? How would the bar of  jurisdiction operate  if  only  part  of  relief  is cognisable? To  appreciate these  aspects it is necessary to set out  the Section  itself and  examine its scope and then advert to facts:             "9. Courts to try all civil suits      unless  barred.   The  Courts      shall      (subject     to  the  provisions  herein      contained)   have jurisdiction   to  try      all suits  of a  civil nature  excepting      suits   of which   their  cognizance  is      either expressly or impliedly barred.                      Explanation I-A  suit in      which the   right  to property or  to an      office is contested is a suit of a civil      nature, notwithstanding  that such right      may depend  entirely on the  decision of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 68  

    questions   as  to  religious  rites  or      ceremonies.                     Explanation  II-For   the      purposes   of   this  section,  it    is      immaterial   whether  or  not  any  fees      are attached to  the office  referred to      in   Explanation   I  or whether or  not      such   office  is    attached    to    a      particular place." One of the basic principles of law is that every right has a remedy. Ubi  jus ibi remediem is the well known maxim. Every civil suit  is cognisable  unless it is barred, ’there is an inherent right  in every  person to  bring a suit of a civil nature and  unless the suit is barred by statute one may, at one’s peril,  bring a  suit of one’s choice. It is no answer to a  suit, howsoever  frivolous the  claim,  that  the  law confers no such right to sue’ Smt. Ganga Bai vs. Vijay Kumar & Ors.,  AIR 1974  SC 1126.  The  expansive  nature  of  the Section is  demonstrated by use of phraseology both positive and negative.  The earlier  part opens  the door  widely and latter debars  entry to  only those  which are  expressly or impliedly barred.  The two  explanations, one  existing from inception and  latter added  in 1976  bring out  clearly the legislative intention  of extending operation of the Section to such  religious matters where right to property or office is involved  irrespective of  whether any fee is attached to the office  or not. The language used is simple but explicit and clear.  It is  structured on  the basic  principle of  a civilised  jurisprudence   that  absence  of  machinery  for enforcement of  right renders it nugatory. The heading which is normally key to the Section brings out unequivocally that all civil  suits are cognizable unless barred. What is meant by it  is explained  further by  widening the  ambit of  the Section by  use of the word ‘shall’ and the expression, ‘all suits of  a civil  nature’ unless  ‘expressly  of  impliedly barred’.      Each word  and expression  casts an  obligation on  the court to exercise jurisdiction for enforcement of right. The word ‘shall’  makes it  mandatory. No  court can  refuse  to entertain a  suit if  it is  of description mentioned in the Section. That is amplified by use of ‘expression, ‘all suits of civil  nature’. The  word ‘civil’ according to dictionary means, ‘relating  to the  citizen as  an  individual;  civil rights’. In  Black’s Legal  Dictionary  it  is  defined  as, ‘relating to  provide rights  and remedies  sought by  civil actions as  contrasted with criminal proceedings’. In law it is understood  as an  antonym of  criminal. Historically the two broad  classifications were civil and criminal. Revenue, tax and  company etc,  were added  to it later. But they too pertain to  the larger  family of  ‘civil’. There is thus no doubt about  the width  of the  word ‘civil’.  Its width has been stretched further by using the word ‘nature’ along with it. That  is even  those suits  are cognisable which are not only civil  but are  even of civil nature. In Article 133 of the Constitution  an appeal  lies to  this Court against any judgment, decree  or order  in a  ‘civil  proceeding’.  This expression came  up for construction in S.A.L. Narayan Row & Anr. etc.  etc. v. Ishwarlal Bhagwandas & Anr. etc. etc. AIR 1965 SC 1818. The Constitution Bench held ‘a proceedings for relief against  infringement of civil right of a person is a civil proceedings’.  In Arbind  Kumar Singh  v. Nand Kishore Prasad & Anr. AIR 1968 SC 1227 it was held ‘to extend to all proceedings  which   directly  affect   civil  rights’.  The dictionary  meaning   of  the  word  ‘proceedings’  is  ‘the institution of  a legal  action, ‘any  step taken in a legal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 68  

action.’ In Black’s Law Dictionary it is explained as, ‘In a general sense,  the form  and manner of conducting juridical business before  a court  or judicial  officer. Regular  and orderly progress  in form  of law,  including  all  possible steps in an action from its commencement to the execution of judgment. Term  also refers  to  administrative  proceedings before agencies,  tribunals, bureaus, or the like’. The word ‘nature’ has  been defined as, ‘the fundamental qualities of a person  or thing;  identity or  essential character; sort; kind; character’.  It is  thus wider  in content.  The  word ‘civil nature’is wider than the word ‘civil proceeding’. The Section would,  therefore, be  available in every case where the dispute has the characteristic of affecting one’s rights which are not only civil but of civil nature.      Are religious  rights, for instance right to worship in a religious  place, entry  in a  temple,  administration  of religious shrines  for instance a temple, mosque or a church are rights  of civil  nature?  Is  the  suit  filed  by  the respondent  bad   as   the   declaration,   injunction   and prohibition sought  are in  respect of matters which are not civil in  nature? The  answer is given by Explanation I. The Civil Procedure  Code was enacted during British period. The legislature enacting  the law  was aware  that there were no ecclesiastical courts either in ancient or Medieval India as in England.  ‘The term "ecclesiastical law" may be used both in a  general and in a technical sense. In its general sense it means  the law  relating to  any  matter  concerning  the Church of England administered and enforced in any court; in its  technical  sense  it  means  the  law  administered  by ecclesiastical  courts  and  persons’  [Halsbury’s  Laws  of England Vol.  14  para  137].  ‘The  ecclesiastical  law  of England is  as much the law of the land as any other part of the law’ [Halsbury’s Laws of England Vol.14 para 139]. There was no  such law  in our  country. The ecclesiastical courts are peculiar  to England.  The Parliament  was aware  of it. That is why it added Explanation I to Section 9 of the Civil Procedure Code. It obviates any ambiguity by making it clear that where  even right  to an  office is  contested then  it would be a suit of a civil nature even though that right may entirely  depend  on  the  decision  of  a  question  as  to religious rites  or ceremonies.  Explanation  II  widens  it further to even those offices to which no fees are attached. Therefore, it  was visualised from the inception that a suit in which  the right  to property  or  religious  office  was involved it would be a suit of civil nature. Reason for this is both  historical and legal. In England ecclesiastical law was accepted  as a  part of  the common  law binding on all. But, ‘the introduction of English Law into a colony does not carry with it English ecclesiastical law’. (Halsbury Laws of England Vol.  14 para 315). In ancient or medieval India the courts were established by King which heard all disputes. No religious institution  was so  strong and powerful as church in  England.   The  Indian   outlook  was   always  secular. Therefore,  no   parallel   can   be   drawn   between   the administration of  the churches  by ecclesiastical courts in England. Religion  in India has always been ritualistic. The Muslim rulers  were by and large tolerant and understanding. They made  India their  home. They invaded, ruled and became Indian. But  Britishers made  it a colony. However, that did not  interfere   with  religion.   Disputes  pertaining   to religious  office  including  performance  of  rituals  were always decided by the courts established by law. As far back as 1885  Justice Mehmood  in Queen Empress vs. Ramzan & Qrs. 1885 (7 ILR) Allahabad p. 461 repelled the argument that the courts were precluded from considering Muslim Ecclesiastical

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 68  

Law and observed at page 468 as under:-           "I am  unable to  accept this view,      because, if  it is  conceded   that  the      decision of   this  case   depends (as I      shall presently   endeavour  to  show it      does depend)  upon the interpretation of      the Muhammadan   Ecclesiastical  Law, it      is to  my   mind the    duty  of    this      Court,  and  of  all  Courts subordinate      to it,  to take  judicial notice of such      law". There are  numerous authorities where dispute about entry in the temple,  right to  worship, performing  certain  rituals have been  taken cognizance  of and decided by civil courts. In Narasimma  Chariar &  Ors. vs. Sri Kristna Tata Chariar 6 Mad. H.C.  Reports 449  it was claimed by the plaintiff that they  had  the  exclusive  rights  to  Adhyapaka  Mirass  of reciting certain  texts or  chants in a temple. In that suit it was held:                "The claim   is for a specific      pecuniary benefit  to  which  plaintiffs      declare themselves entitled on condition      of reciting certain hymns.                    There can  exist no  doubt      that   the right  to such benefits  is a      question which   the Courts are bound to      entertain, and  cannot cease  to be such      a question,  because claimed  on account      of some service connected with religion.                If, to  determine the right to      such  pecuniary  benefit,  it    becomes      necessary to  determine incidentally the      right to   perform  certain    religious      services, we  know of no principle which      would  exonerate      the   Court   from      considering and deciding the point". It was approved by the Privy Council in Krishname & Ors. vs. Krishnasamy &  Ors. 1879  ILR 2  Mad.  62  and  the  passage extracted above  was  approved  by  observing  that  it  was "perfectly correct". This was a decision when Explanation II was not  there. The dispute had two rounds of litigation. In the second round after remand the High Court observed.            "It is  certainly not  the duty of      the Civil  Court to  pronounce   on  the      truth   of   religious   tenets  nor  to      regulate religious   ceremony;  but,  in      protecting persons  in the enjoyment  of      a   certain   status   or  property,  it      may incidentally  become the duty of the      Civil Court  to determine  what are  the      accepted tenets  of the  followers of  a      creed and  what is   the usage they have      accepted   as    established   for   the      regulation of their rights interse." The Law  Commission in  its 27th  Report in  Civil Procedure Code,  December  1964  at  page  91  while  considering  the addition of Explanation II to Section 9 observed as under:                "It may   be  added,  that the      decision of  the Privy  Council to   the      effect  that   a  suit   for   pecuniary      benefits is  a civil   suit, even  if it      becomes necessary  to determine  a right      to   perform religious   services,  does      not imply   that other  suits   relating      to    religious   offices   cannot    be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 68  

    entertained." In Srinivasalu  Naidu v. Kavalmari Munnuswami Naidu AIR 1967 Madras 451 it was observed,              "The explanation  certainly does      not confine   the  limits of  the nature      of suits   contemplated   by   the  main      section. What  the Explanation states is      only that  though religious   rites  and      ceremonies may form the basis of a right      that is  claimed,  such  right  being  a      right  to property or  to office, a suit      to establish such right would be a  suit      of   a civil   nature. The Section takes      within its  broad sweep   all  questions      where     one    person    claims    any      privilege  in     himself  as    against      others.   There is  no doubt that such a      question  would   be  one   of  a  civil      nature." On the  plain phraseology  of the  Section, therefore, it is clear that  a suit  filed after  coming into  force  of  the Constitution for vindication of rights related to worship of status, office  or property  is maintainable  in civil court and it  would be  duty of  the court  to decide  even purely religious questions  if they  have a material bearing on the right alleged  in the  plaint regarding  worship, status  or office or  property. In  Nagar Chandra  Chatterjee & Anr. v. Kailash Chandra  Mondal &  Ors. AIR 1921 Calcutta 328 it was held:                     "Where  there    were  no      Ecclesiastical Courts, there was nothing      to prevent  civil  courts  from  holding      that Pujari  has been  removed from  his      office on valid grounds."      Sir Ashutosh Mookerjee quoted thus:                "There is   manifestly nothing      wrong in   principle that the  holder of      a spiritual  office should be subject to      discipline and    should  be  liable  to      deprivation  for   what  may  be  called      misconduct from  an ecclesiastical point      of view  or for  flagrant  and continued      neglect of  duty..... It  is plain  that      although     so  far     as  Hindus  are      concerned, there is now no State  Church      and   no   ecclesiastical  court,  there      is nothing  to   prevent civil    courts      from  determining   questions  such   as      those raised  in the  present litigation      and   from holding  that  the Pujari has      been   removed from  his office on valid      grounds." In U.W.  Baya vs.  U. Zaw  Ta. AIR  1914 Lower Burma 178 (1) where a  question arose  as to  which was the forum where an action for  violation of  religious rights could be brought, it was held,              "there   are,    therefore,   no      ecclessiastical authorities  in    Lower      Burma.   Section 9,   Civil P.C.  enacts      that the  courts shall  subject  to  the      provisions     herein  contained,   have      jurisdiction to   try  all   suits of  a      civil nature  excepting  suits of  which      the   cognizance is  either expressly or      impliedly barred.  This is  a suit  of a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 68  

    civil nature.  It is  a claim of certain      lands and manuscripts.                    The civil  courts, in  our      opinion,   clearly have  jurisdiction to      decide the suit and should do so". In Sri Sinha Ramanuja Jeer & Ors. v. Sri Ranga Ramanuja Jeer & Anr. (1962) 2  SCR 509 this Court observed:                "prima facie    suits  raising      questions   of   religious   rites   and      ceremonies only   are  not  maintainable      in a civil Court, for  they do  not deal      with legal  rights of  parties. But  the      explanation  to  the  section  accepting      the   said undoubted position  says that      a suit   in  which the right to property      or   to an   office  is  contested is  a      suit  of  civil  nature  notwithstanding      that such   right may depend entirely on      the   decision of   a  question   as  to      religious   rites    or  ceremonies.  It      implies two  things, namely,  (i) a suit      for an  office is   a  suit  of a  civil      nature;   and (ii)  it does not cease to      be one  even if  the said  right depends      entirely upon a decision  of a  question      as   to   the   religious    rites    or      ceremonies." In Ugamsingh  & Mishrimal  vs. Kesrimal & Ors., 1971 (2) SCR 836, it  was held  that right  to worship  is a  civil right which can  be subject  matter of  a civil  suit.  The  Court observed :                "It is  clear therefore that a      right to  worship is    a  civil  right,      interference with which raises a dispute      of a civil nature." That the  right to conduct worship is also a civil right has been recognised  by the  courts in  T.A. Aiyangar Swamigal & Ors. v.  L.S. Aiyangar  & Ors. 31 Madras Law Journal 758. In Devendra Narain Sarkar & Ors. v. Satya Charan Mukerji & Ors. AIR 1927  Calcutta 783  it was  held that a suit by a person claiming to  be entitled  to a  religious office  against an usurper, for  a declaration  of his right to the office is a suit of a civil nature. Similarly in S. Ramnuja Jeer (supra) this Court observed as under:           "From the  aforesaid passage  it is      clear that  so long as  the holder  of a      purely religious office is under a legal      obligation     to  discharge      duties      attached   to the  said office  for  the      non-observance   of which   he  may   be      visited with  penalties,  a civil  court      could grant  a  declaration  as  to  who      would be  or could be the holder of such      office."      It  was   vehemently  urged  that  declaration  of  the character of  a church,  viz., whether  it was autocephalous was  solely   dependent  upon  the  canonical  laws  and  it necessarily  involved   an  adjudication  of  what  was  the applicable canon,  what was  its interpretation and what are the religious  beliefs, practices,  customs and usage in the church which  pertained to  the ecclesiastical  jurisdiction and the  civil courts  could not  embark on such an enquiry. This is  the farthest  or the  highest stand  that could  be taken by the appellant. The answer is twofold, one section 9 of the  Civil Procedure  Code and  other Article  25 of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 68  

Constitution. The  latter guarntees constitutionally freedom of conscience  and the right freely to profess, practice and propagate religion  to every  person.  Its  reach  has  been explained in  various  decisions.  In  His  Holiness  Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. vs. The State of Tamil  Nadu. AIR  1972 SC  1586 it  was  held  that  this Article  guarantees   freedom  to   practice   rituals   and ceremonies which  are integral  parts of  a religion  by the followers of a doctrine. In S.P. Mittal vs. Union of India & Ors. AIR  1983 SC  1, it  was held  that  freedom  or  right involving the  conscience  must  naturally  receive  a  wide interpretation. The  suit filed  was thus  maintainable. The injunction  and   prohibition  sought  from  interfering  in administration of Church are certainly matters which pertain to the  religious office.  Even  the  declaration  that  the Church is  episcopal is  covered in the expansive expression of religion  as explained in Mittal’s case (supra). The word ’episcopal, means’  of or  pertaining to  bishops, Having  a govt. vested  in bishop’.  A suit  for declaration of such a right would  be  maintainable  under  section  9.  Not  only because it  is claim  to an office but also because there is no other  forum where  such dispute  can be  resolved. If  a dispute arises  whether a  particular religious  shrine  has ceased to be so due to its anti-religion activities then the followers of  that religion  or belief  and faith  cannot be denied the right to approach the court. Explanation I is not restrictive of  the right or matters pertaining to religion. It only  removes the doubt to enable the courts to entertain suits where  dispute about religious office is incolved. The right to  religion having become fundamental right, it would include the  right to  seek declaration  that the Church was Episcopal. But  the court may refrain from adjudicating upon purely religious  matters as  it may be handicapped to enter into the  hazardous, hemisphere of religion. Maintainability of  the  suit  should  not  be  confused  with  exercise  of jurisdiction. Nor  is there any merit in the submission that Explanation I  could not  save  suits  where  the  right  to property or to an office was not contested or where the said right depended  on decisions  of questions  as to  religious faith, belief,  doctrine  or  creed.  The  emphasis  on  the expression ’is  contested’ used  in Explanation  I is not of any consequence.  It widens the ambit of the Explanation and include in  its fold  any right  which is  contested to be a right of  civil nature  even though such right may depend on decisions of  questions  relating  to  religious  rights  or ceremonies. But  from that  it cannot be inferred that where the right  to office  or property  is not contested it would cease to  be a suit cognisable under Section 9. The argument is not  available on facts but that shall be adverted later. Suffice  it   to  mention  that  in  Ugamsingh  (supra)  the plaintiff’s claim  was that  they were  entitled to  worship without interference of the idol of Adeshwarji in the temple named after  him at  Paroli according  to tenets observed by the Digambri  Sect of  the Jain  religion. It  was held that from the  pleadings and  the controversy between the parties it was  clear that  the issue was not one which was confined merely to  rites and  rituals but  one  which  effected  the rights of  worship. If  the  Digambaries  have  a  right  to worship at  the temple,  the attempt  of the Swetamberies to put Chakshus  or to place Dhawandand or Kalash in accordance with their things and to claim that the idol is a Swetamberi idol was  to preclude the Digambaeries from exercising their right to  worship at  the temple,  with respect  to which  a civil suit  is maintainable  under Section  9 of  the  Civil Procedure Code.  The scope  of the Section was thus expanded

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 68  

to include even right to worship.      ’Religion is the belief which binds spiritual nature of men to  super-natural being’.  It includes  worship, belief, faith, devotion etc. and extends to rituals. Religious right is the  right of a person believing in a particular faith to practice it,  preach it  and profess  it.  It  is  civil  in nature. The  dispute about  the religious  office is a civil dispute as it involves disputes relating to rights which may be religious  in nature  but are civil in consequence. Civil wrong is  explained by  Salmond as  a private  wrong. He has extracted Blackstone  who has  described private  wrongs as, ’infringement or  privation of  the private  or civil rights belonging to individuals, considered as individuals, and are thereupon   frequently    termed   civil    injuries’.   Any infringement with a right as a member of any religious order is violative  of civil  wrong. This is the letter and spirit of Explanation  I to  Section 9.  In American  Jurisprudence volume 66, paragraph 45, the law is explained thus.                ’The (the)  civil courts  have      steadily   asserted  their    want    of      jurisdiction   to   hear  and  determine      any controversy  relating   thereto.  On      the other  hand, the  civil courts  have      without   hesitation   exercised   their      jurisdiction    to    protect        the      temporalities   of  such    bodies,  for      whenever  rights   of     property   are      invaded,   the   law   must    interpose      equally in  those  instances  where  the      dispute is  as to church property and in      those where it is not’. In Long  vs.Bishop of  Capetown, 1863  (1) Moore PCC NS 411, where the Bishop held an ecclesiastical court for proceeding against  the   appellant  who   was  authorised  to  perform ecclesiastical duties  in a  Parish was  held as  coram  non judice as  he had  no authority  to hold  an  ecclesiastical court. The  court held  that where no Church was established by law  it was  in the same situation as any religious body, therefore, if  any tribunal  was constituted  by  such  body which was  not court then its decision would be binding only if it  was exercised  within the  scope of the authority. In Dame  Henriette  Brown  vs.  Les  Cure  Et  Marguilliers  De L’Oeuvre Et  Fabrique De  Notre Dame De Motreal, 1874-75 (6) PC 157,  the Privy  Council while  following the decision in Long (supra)  held that  where a Church was merely a private and  voluntary   religious  society   resting  only  upon  a consensual basis courts of justice were still bound when due complaint was  made that a member of the society was injured in any manner of a mixed spiritual and temporal character to inquire into the laws and rules of the tribunal or authority which inflicted the alleged injury and ascertain whether the act complained  of was  law and discipline of the Church and whether  the   sentence  was  justifiably  pronounced  by  a competent authority.  The decision  in Long (supra) has been followed in this country in Anadrav Bhikaji Phadke & Ors. v. Shankar Daji  Charya &  Ors. ILR  7 Bombay 323 where certain persons brought  a suit  that their  right of worship in the sanctuary for a temple was being infringed, it was held that the right  of exclusive  worship of  an idol  at  particular place set up by a caste was civil right.      The law  being such  it may  be seen  whether the  suit filed by the respondent is covered within the forecorners of Section 9.  Whether the  relief sought by the respondent was regarding the  status or  office  of  the  Metropolitan?  In Original Suit  No.4 of  1979  it  is  claimed  that  various

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 68  

persons said  to be  ordained as metropolitans have no right to act  as such  and priest  ordained in  turn by them would equally have  no right  to act  as  such,  all  these  being usurpers.  Further   the  office   of  metropolitan  in  the Malankara Church  has, with  it, attached  legal obligations for the  non-performance of which sanctions or penalties are provided is clear both from the canonical law as well as the Constitution. Apart  from this  four suits, namely, Original Suit Nos.2/79, 5/79, 6/79 and 8/79 concern themselves solely with  the  interference  in  the  administration  of  Church properties being  scheduled specifically  in the  respective plaints. Similarly  the claim founded on allegations against wrong persons  exercising the  functions by  those who  have been wrongly designated as metropolitans and are interfering with the right to worship in Churches appears to be squarely covered in  Section 9.  The prayers in Original Suit No.4/79 were ’A’  to ’H’.  Even if  the prayer  ’A’  which  seeks  a declaration that  Malankara Church is episcopal in character ignored the suit for reliefs ’E’,’F’, ’G’ and ’H’ which read as under  cannot be held to be touching only religious rites and therefore, are not cognisable by Civil Court:              "E.To declare  that  any  Priest      who     refuses     to   recognize   the      authority of    the    Catholicos    and      Malankara   Metropolitan,   the      2nd      plaintiff   and   other    Metropolitans      under him is not entitled to minister in      any of  the churches or its institutions      in Malankara.           F. To  prohibit defendants  1 to  3      by  an  order  or  permanent  injunction      from ordaining   Priests  or  deacons or      performing  any     other    sacraments,      services   etc.    for    the  Malankara      church or its institutions.             G.  To   prohibit  defendants   4      onwards    from performing any religious      services a  sacraments whatsoever  in or      about   any    of    the    church    of      Malankara   and    for    the  Malankara      church      or      its      constituent      churches   or institutions.           H. To  prohibit the defendants from      interfering  in   any  manner  with  the      administration of the Malankara church." The  appellant  placed  reliance  on  various  averments  in different  I.As,     written  arguments  and  affidavits  to demonstrate that  the nature of relief sought was beyond the pale of  Section 9.  In fact  this dispute was not seriously raised before  the courts  below. The  dispute is  going  on since long  and this  is as  stated the  third round in this Court. But  it appears  that in  earlier litigations  in the Royal Court  of Final  Appeal and  the Supreme Court no such objection was  taken that the suit was not maintainable. The submission that  the locus  standi  of  the  respondent  was suspect as  they having been ex-communicated by the Synod of the orthodox church with Patriarch as its head, did not have any substance  as in Sardar Syendna Taher Saifuddin Saheb v. The State  of Bombay  (1962) Supp.  2 SCR 496 a Constitution Bench of  this Court  held that the exercise of the power of ex-communication by  the religious  head on religious ground form part  of the  management of  its affairs  in matters of religion and  since Articles  25 and  26 of the Constitution protect not  merely religious, doctrine and beliefs but also acts done  in pursuance  of religion and themselves carrying

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 68  

the  rituals  and  observations,  ceremonies  and  right  of worship which  are integral part of religion it is difficult to agree  that there  was no  forum for  vindication of such right.      Even the  argument that the declaration that the Church was autocephalous  or Episcopal  is cognisable  only in  the ecclesiastical jurisdiction  and the  civil courts could not embark on  such an  enquiry  does  not  appear  to  be  well founded. A  civil court  may be precluded from deciding what rites are  necessary  to  impart  religious  character.  For instance, whether  kaivapu, that  is placing  of the hand by the spiritual  head for  ordination is  necessary or Morone, that is,  oil of  see must  be there may be a matter for the Synod. But  who has  a right to perform it or whether it has been performed as provided in the religious book and whether a  Church  has  become  autocephalous  due  to  adoption  of Constitution by  a Synod  are matters  which can  surely and certainly be  decided by  the courts.  The  learned  counsel submitted that  question whether  the Malankara  Church  was governed  in  its  administration  by  the  Constitution  of Malankara Church  with reference  to the Constitution passed in M.D. Seminary meeting in 1934, which dealt with religious and ecclesiastical  aspects of  the  Church,  could  not  be adjudicated upon  by the  civil courts. According to learned counsel the  Constitution expressly  adopted  the  Catholico version of  the canon  and  made  provisions  in  regard  to ordination of  priecs, bishops, Catholicos andthe discipline to which  they were  subjected, these  were mere  matters of religious rites  and ceremonies  and involved an adjudiction of the question of religious faith, creed and doctrine which would be  wholly outside  the scope of the civil courts. The learned counsel  submitted that  the single  most  important question on  which the fate of these appeals and suits would turn was  as to  which was  the correct version of the canon applicable to  Malankara Church  and this was a matter which entirely depended  on questions  relating to  the  religious faith, doctrine  and belief. It was also emphasised that the various decisions given by this Court, namely, Sardar Syedna Tahar Saifuddin  Saheb vs. The State of Bombay, 1962 Supp. 2 SCR 496;  Uqamsingh & Mishramal vs. Kesrimal & Qrs., 1971(2) SCR 836;  Thiruvenkata Ramanuja  Pedda Jiyyangarlu  Valu vs. Prathivathi Bhayankaram Venkatacharlu & Ors. AIR 1947 PC 53; M. Appadorai  Ayyangar &  Ors. vs.  P.B. Annanqarachariar  & Ors. AIR  1939 Mad.  102; Kattalai Michael Pillai & Ors. vs. J.M. Barthe  & Ors., AIR 1917 Mad. 431; E.C. Kent vs. E.E.L. Kent. AIR  1926 Madras 59 and Sri Sinna Ramanuja Jeer & Ors. vs. Sri  Ranga Ramanuja  Jeer & Anr., 1962 (2) SCR 509 would indicate that  Explanation 1  to Section  9 saved only those suits where  the right  to property  or  to  an  office  was contested. But  where no  contest was  raised the suit would not be  covered  within  the  forecorners  of  the  Section. Reference was  made to  paragraphs 301  to 304,  313 to 315, 318, 321,  332 to 339, 343 to 346, 352, 354, and 356 of Vol. 14 of Halsbury’s Laws of England and it was urged that these paragraphs would  show that  the position  of the  crown  in England in  respect of  Church was  entirely different.  The learned counsel  submitted that  passages  which  have  been relied to  deal with  the Anglican Church relate to colonies where the  supremacy of  the Crown in ecclesiastical affairs still exists. He urged that those passages have no relevance to a  sovereign secular  country  like  India.  The  learned counsel pointed  out that  the decisions in Long (supra) and Dame (supra) arose in  different colonies which accepted the supremacy of  the Crown  in ecclesiastical matters and apart from  the  regular  hierarchical  set  up  in  the  Anglican

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 68  

Churches or  the Churches  in the  colonies the civil courts also exercised  jurisdiction. These  decisions arising  from jurisdictions where  Church was  part of the State could not apply in a country like India where religious neutrality was mandated by the secular constitution. In the end the learned counsel promitted  that the  judiciary should keep its hands off in respect of such religious matters.      The submissions  do not  appear to  stand the  test  in light of  what has been stated earlier. The relevant passage from Halsbury’s  Laws of England have already been extracted to demonstrate  that the  ecclesiastical law of England does not apply  to colonies.  There is  no  statute  framed  even during British  regime which  had adopted  the statutory  or common law  to the Churches in India. The mere fact that the Churches in England are governed by ecclesiastical law could by no  stretch of  imagination furnish  foundation  for  the submission that the Churches in India would also be governed by ecclesiastical  law. The  jurisdiction of  courts depends either on  statute or  on common  law. The  jurisdiction  is always local  and in  absence of any statutory provision the cognizance of  such dispute  has to  be taken  either  by  a hierarchy  of   ecclesiastical  courts  established  in  the country where  the religious institutions are situated or by a statutory  law framed by the Parliament. Admittedly no law in respect of Christain Churches has been framed, therefore, there is  no statutory  law.  Consequently  any  dispute  in respect of religious office in respect of Christians is also cognisable by  the civil  court.  The  submission  that  the Christians stand  on a  different footing  than  Hindus  and Budhists, need not be discussed or elaborated. Suffice it to say that  religion of  Christians, Hindus,  Muslims,  Sikhs, Budhs, Jains  or Parsee  may be  different but  they are all citizens of  one country  which provides  one and  only  one forum that  is the  civil court  for adjudication  of  their rights, civil or of civil nature.      In  reading   Section  9   widely  and   construing  it expansively  the   jurisdiction  to  entertain  a  suit  for declaration   whether    the   Church   was   episcopal   or congregational and  whether the  appellants could  have been ordained by  the Patriarch  when  it  was  contrary  to  the earlier decision given by this Court that the ordination was required to  be approved  by Synod,  the court  is not being asked to  adjudicate on  faith but  whether the  exercise of right in  respect of  faith was  valid. The  Grace no  doubt comes from  Patriarch and  on that  there is  no dispute but whether the  Grace came  in accordance with the Canon or the Constitution is  certainly a  matter which would fall within Section 9  C.P.C. Status  and office  are no doubt different but what  was challenged  is not  the  status  or  faith  in Patriarch but  the exercise  of  right  by  Patriarch  which interfered with the Office of Cathelico held validly.  Apart from it,  as stated  earlier, after coming into force of the Constitution Article  25 guarantees  a fundamental  right to every  citizen   of  his   conscience,  faith   and  belief, irrespective of  cast, creed  and sex,  the infringement  of which is enforceable in a court of law and such court can be none else  except the  civil courts. It would be travesty of justice to  say that the fundamental right guaranteed by the constitution is  incapable of  enforcement as  there  is  no court which  can take cognisance of it. There is yet another aspect of the matters that Section 9 debars only those suits which are  expressly or  impliedly barred. No such statutory bar could  be pointed out. Therefore, the objection that the suit under  Section 9  C.P.C. was not maintainable cannot be accepted.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 68  

    The other  objection to the maintainability of the suit was based on the Places of Worship (Special Provisions) Act, 1991 (‘Act’  for short).  This Act  was enacted  to prohibit conversion of  any place  of worship  and to provide for the maintenance of  its religious character as it existed on the 15th day of August, 1947 and for matters connected therewith or incidental  thereto. Section  2(c) defines  ‘worship’  to mean ‘a  temple, mosque, gurudwara, church, monastery or any other place  of public  religious worship  of any  religious denomination  or  any  section  thereof,  by  whatever  name called’. Section 3 bars any person from converting any place of worship  or any  religious denomination  into a  place of worship  of  a  different  section  of  the  same  religious denomination or of a different religious denomination or any section thereof.  Section  4  declares  that  the  religious character of  a place  of worship  existing on  15th day  of August, 1947 shall continue to be same as it existed on that date. Therefore,  it was  urged that  the suit  having  been filed  for   declaration  that   the  Syrian  Churches  were apostolic  and  autocephalous,  it  amounted  to  seeking  a declaration as  to religious  character  of  the  places  of worship and  consequently it was barred and the court cannot assume jurisdiction  to grant  such declaration. The learned counsel urged  that each Parish Church is a place of worship within the  meaning of  Section 2(c)  of  the  Act  and  the religious  denomination  is  the  Jacobite  Syrian  Orthodox Church in  Malabar. According  to learned counsel, it having been held  in  successive  decisions  that  there  were  two sections  of  the  said  religious  denomination,  one,  the Patriarch Group  and the  other, Catholicos  and  these  two denominations existed on 15th day of August, 1947, factually and legally,  the  suit  filed  by  the  respondents  for  a declaration that  the Jacobite  Church was autocephalous was not maintainable  and liable  to be dismissed on this ground alone.  The   learned  counsel  submitted  that  the  Parish Churches believed  in uniterrupted  apostolic succession  of St. Peter through the Patriarch and that the spiritual grace emanates  through   such  Patriarchs   and,  therefore,  the declaration  sought  by  the  respondents  could  result  in destroying   the    basic   character   of   the   religious denomination.  It  is  not  necessary  to  deal  with  these submissions at  length as  sub-section (3) of Section 4 is a complete answer to it. It reads as under:-            "Nothing contained  in sub-section      (1)   and   sub-section (2)  shall apply      to,-           (a) any  place of  worship referred      to in the said sub-sections which  is an      ancient and  historical monument  or  an      archeological   site or  remains covered      by     the     Ancient   Monuments   and      Archeological  Sites  and  Remains  Act,      1958 (24  of 1958)  or any other law for      the time being in force;               (b) any  suit, appeal  or other      proceeding,     with  respect  to    any      matter   referred   to   in  sub-section      (2),   finally   decided,   settled   or      disposed of  by  a  court,  tribunal  or      other authority  before the commencement      of this Act;              (c) any  dispute with  regard to      any such    matter  settled    by    the      parties   amongst   themselves    before      such commencement;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 68  

           (d) any  conversion of  any  such      place  effected before such commencement      by acquiescence;             (e) any  conversion of  any  such      place       effected   before       such      commencement   which    is   not  liable      to     be  challenged  in    any  court,      tribunal or other authority being barred      by   limitation under   any law  for the      time being in force". The Syrian  Jacobite Church  is an  ancient  and  historical monument which  was established  sometime in  51-52  century A.D.  The   respondents  did  not  seek  a  declaration  for conversion of  the church or place of worship. The matter of the religious  denomination was  settled as far back as 1876 in the Mulunthuruthy Synod. Even the declaration sought that the Church is autocephalous is founded on the Kalpana issued in 1912  and the Constitution framed in 1934. No declaration is sought  for change  of the  place as  it existed in 1947. Further, whether  the declaration  sought for can be granted or  not  is  a  different  matter  than  claiming  that  the declaration if  granted would result in converting the place of worship  or the  religious denomination.  This objection, too, therefore, is not available on facts of this case.      Reverting to  merits the principal issue that calls for adjudication  is  about  the  scope  of  excommunication  in ecclesiastical matters and the extent to which the Court can examine it  and lastly  whether the  ex-communication of the Catholico  by   the  Synod   held  at   Damascus  under  the Presidentship of  the Patriarch  of Antioch was valid either canonically or  conventionally? The principal defence in the suit from  which these  appeals have  arisen, was  that  the Catholico-plaintiffs were  ex-communicated,  therefore,  the suits were liable to be dismissed. Two questions arise, one, the  jurisdiction   of  the   civil  court  to  examine  ex- communication and  second, whether  the ex-communication was in accordance  with law.  Taking up the first question as to whether the  civil courts  are competent  to decide  on  the validity  of  the  ex-communication,  the  answer,  in  this connection, has  been given  while deciding the objection of maintainability of  the suit  under Section  9 CPC.  Yet  it would not be inappropriate to mention how far the protection of  a  civil  court  extends  regarding  the  ecclesiastical matters. The  law has  been explained in paragraphs 315, 332 and 337  of Halsbury’s Laws of England, Vol. 14. A church is formed by  the voluntary association of individuals. And the churches in the commonwealth are voluntary body organised on a consensual  basis -  their rights apart from statutes will be protected  by the  courts and  their discipline  enforced exactly as  in the  case of  any other  voluntary body whose existence is  legally recognised.  Therefore, all  religious bodies are regarded by courts of law in the same position in respect of  the protection  of their rights and the sanction given to  their  respective  organisations.  It  is  further settled that discipline of a church cannot affect any person except by  express sanction  of the  civil power  or by  the voluntary submission  of  the  particular  person.  But  for purposes of  enforcing discipline  within a church religious body may  constitute a  tribunal to  determine  whether  its rules have  been violated  by any  other members  or not and what will be the consequence of that violation. In such case the tribunals  so constituted  are not  in any sense courts, they derive  no authority from the statutes and they have no power  of   their  own  to  enforce  their  sentence.  Their decisions are  given effect  to by the courts as decision of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 68  

the arbitrators  whose jurisdiction  rests entirely  on  the agreement of the parties. Consequently if any member of such body has  been injured  as to  his rights  in any  matter of mixed spiritual  and temporal  character the  courts of  law will, on due complaint being made, inquire into the laws and rules of  the tribunal  or authority which has inflicted the injury and  will ascertain  whether any  sentence pronounced was regularly  pronounced by  competent authority,  and will give such redress as justice demands. See Long (supra), Dame (supra)  and   Anadrav  (supra).  In  Hasanali  &  Ors.  vs. Mansoorali &  Ors., AIR  (35) 1948 PC 66, it was held that a court of  law cannot  recognise a purported ex-communication as valid  if principles of substantial justice have not been complied with.      Ex-communication in  religious order  and that tco of a spiritual head  entails serious  consequences both religious and  civil.’Ex-communication’  is  defined  in  Black’s  Law Dictionary as  ’a sentence  of censure  pronounced by one of the  spiritual   courts  for   offences  falling  under  the ecclesiastical cognizance.  It is described as two-fold: (1) The  lesser  excommunication,  which  is  an  ecclesiastical censure, excluding  the party  from the  sacraments; (2) the greater,  which   excludes  him  from  the  company  of  all Christians. Formerly,  too, an  excommunicated man was under various civil  disabilities. He could not serve upon juries, or be  a witness  in any  court; neither  could he  bring an action to recover lands or money due to him. These penalties were abolished  in England  by St.  53  Geo.  III,  c.  127. Excommunication is  still a  censure under  Canon  Law".  In Faiths of  the World by James Gardner, it is discussed under ’Anathema’  and   ’Censure’.  The   Anathema   was   usually administered to  offenders. ’It  is well known that a solemn Curse or  anathema "with bell, book, and candle" against all heretics, is annually pronounced by the pope at Rome, and by other ecclesiastics  in other  places  on  the  Thursday  of Passion week, the day before Good Friday, the anniversary of the   Saviour’s   crucifixion".   The   substance   of   the "Anathema"is in these words:       "Excommunicated and  accursed may  they      be,   and   given body and  soul to  the      devil.   Cursed be   they  in cities, in      towns, in   fields, in  ways, in  paths,      in   houses,   out   of houses, and  all      other   Places,  standing,    lying,  or      rising,  walking   running,      waking,      sleeping,    eating,    drinking,    and      whatsoever things  they do  besides.  We      separate them  from the  threshold,  and      from all prayers of the church."             ’Censures  (Ecclesiastical)"   is      ’the    various  punishments   inflicted      by   the    Christian     church    upon      delinquent members   of  her  communion,      in   virtue   of   that authority  which      has been   committed to  her by  Christ,      the  great King and Head of the church’.      One of  the effects  of such  action is that the person concerned is  deprived of  the risnt  of worship.  Under our Constitution it  is a fundamental right. Any intemenace with it or  its deprivation  can be challenged in a court of law. Even in  England  the  Courts  extend  protection  regarding ecclesiastical matters  if they affect the right as is clear from paragraph  337 of  Halsbury’s Laws  of England,  Fourth Edition, Volume 14.      In the  light of the law thus stated it may be examined

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 68  

if the  ex-communication of  Catholico by  the Patriarch was valid as  if  the  power  of  ex-communication  was  validly exercised then  the suit filed by them was not maintainable. The specific case in this regard of the appellants was that, ’canonically’ and,  ’traditionally’ the Patriarch of Antioch is the  supreme head  of the  Holy Universal Syrian Orthodox Church and  the Catholicos,  is subordinate to the Patriarch of  Antioch’.  Therefore,  the  Catholico  was  validly  ex- communicated in  accordance with  the canon filed as Ex. 18, which is the foundation of the power and jurisdiction of the Patriarch. How  far  is  correct?  In  Moran  Mar  Basselios (supra) it  was held  that the  Catholicos had not committed any act  of heresy. Could they be held to have committed act of heresy  when, then  used the  world ’Holiness’ and on the ’Throne of  St. Thomas’. From the New Testament - The Gospel according to  St. Mathew.  Chapter 19  it appears  there was throne for each apostle:-            "Then answered Peter and said unto      him, Behold, we have foresaken  all, and      followed  thee;    what  shall  we  have      therefore?"            "And Jesus  said unto them, verily      I say  unto  you,  That  ye  which  have      followed me,  in the  regeneration  when      the son  of,   man shall   sit  in   the      throne of  his glory,  ye also shall sit      upon twelve  thrones, judging the twelve      tribes of Israel". St. Thomas  was, ’one  of the  original  apostles  of  Jesus Christ’ [Religions of India by Dr. Karan Singh, P. 15]. In a book written  by E.M.  Philip, one  of the authors on Syrian Church, the  effect of the judgment by Royal Court of Appeal is  described   thus,  ’of  course.  the  majority  judgment prevailed and Mar Dionysius was established on the throne of St. Thomas’. The expression ’Melapattakaran of the throne in Malayalam’ has  been used  by Royal  Court of  Cochin in its judgment thus,           "He  upheld   the   contention   of      Mar    Thomas Athanasius, and found that      the Syrian  Church  was  independent  of      the    Patriarch    of    Antioch.    Of      course,     the      majority   judgment      prevailed,   and Mar  Dionysius  V.  was      established  on   the  throne   of   St.      Thomas". In Exht.  A-4 (Notice  for M.D.  Seminary Meeting  of  1934) issued to  Vicars, Priests,  Kykars and Parishioners, it was mentioned:- In the  letter dated  8th June, 1959, Ex. A-24, the Catholic in his reply to the Patriarch wrote as under:-            "3. His Holiness: The propriety of      using the  title ’His  Holiness’   along      with my  name is  questioned. Now I must      bring to   your  notice  that fact  that      customarily   the  same  ephithets  have      been   attached  to  the  Patriarch  and      the  Catholicos  in    our  church    as      evinced   by our  Holy writs  and  other      books.  For   example,  in  the  diptych      (first  intercession   of  the   Church,      during the  Holy Qurbana, the people are      asked to  pray  for our Patriarchs Aboon      Mar Ignatius and Aboon Mar Baselios. The      very same  titles are  here seen applied      to the  Patriarch  and  the  Catholicos,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 68  

    alike, the  later himself being called a      Patriarch. The  inference  is  that  the      titles  proper   to  the   Patriarch  of      Antioch are proper also to be Catholicos      of the  East.  We  also  see  that  such      epithets  as   Moran,  Aboon,  etc.  are      applied  to    both  the    prelates  in      common. Further  this title  has been in      use here for long time.                4. The  Throne of  St. Thomas:      Your Holiness  says ’It  is  never heard      that St.  Thomas established a throne of      the Catholicos  or the  Mapriano, either      in India   or  in my  other  place’.   I      must,   without  presumption,  ask  your      Holiness,  whether   for  that   matter,      any   apostle  has established a  throne      anywhere.   Is it  not that such honours      have been   connected,  with    them  in      latter times.  There is also no  special      thronal   ascension for any dignitary of      our  church  except    the  installation      ceremony(......) done  at  the  time  of      the consecration   of  Bishops and other      prelates and  at their    acceptance  by      their respective  dioceses. Besides,  we      see   that this   term ’throne’ is added      to  the  Patriarchs,  Metropolitans  and      Bishops alike   in  the   Hudaya   Canon      and  other   books  (Canon   Chap.  VII,      Section   I)   and   the   ceremony   of      enthronment is done over for Bishops.                Your Holiness  knows that  the      very   eminent Syrian Historical  writer      Gregories  Bar   Heoraous  regards   St.      Thomas, the apostle, as the first bishop      of the  East. Let  me also   bring    to      your   notice   that    the    Malankara      Church Historian,  E.M.  Philip who  had      been     a  staunch   partisan  of   the      Patriarch,   refers to   the  throne  of      St. Thomas,  in  his  history  of    the      Malankara   Syrian Church   (2nd Edition      page 253). That  being the  case, can we      say  that  St.  Thomas,  one  among  the      twelve eminent  apostles, had  no throne      at all.                 Your Holiness  says ’Also  we      could   not find  such a   throne in the      document given  by Abdul  Messiah II’. I      am  indeed   happy  that  your  Holiness      respects and  depends upon  the  Kalpana      given by   Abdul Messiah II. But it must      caution your Holiness  that the  Kalpana      you   refer to   may   be   the  General      Kalpana that  he issued  just before  he      left  Malankara  (1913).  The    earlier      Kalpana   issued  by  him  from  Niranam      Church on   the  day  he  installed  Mar      Ivanios of Murimattom as Catholicos, had      to be   necessarily   referred   to.  To      make things  clear,   I shall   quote  a      sentence  from  it.  "According  as  you      requested we   have   consecrated    our      spiritual   and  beloved  Ivanious    as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 68  

    Mapriano under  the name Baselios of the      East, on  the throne  of the  Diocese of      St. Thomas  in India and other  places".      (1912). This is very definite and no one      could say  that a  throne like  this was      a now   find  or one  found without  the      knowledge of the throne of Antioch". This letter  explained the  justification  for  use  of  the expression, ’Throne  of St. Thomas’ and ’Holiness’. Whatever may be  its religious  significance but  in view of what has been stated  above coupled  with the conduct of the Patrirch in not  only  condoning  and  accepting  its  use  but  even presiding in  the installation  ceremony, it is difficult to treat it as an act of heresy deserving ex-communication.      Apart from  it, the  four charges  levied in  the show- cause notice were as under:-             (1) That  the Catholicos  claimed      to   be seated  on  the  Throne  of  St.      Thomas.            (ii) That  he declared that he was      equal in  status to   the      Patriarch      which   was  uncanonical  as  he  was  a      subordinate.            (iii)  That   he  did  not  accept      the   Patriarch delegate in  India (sent      in 1972)  and resorted  by all means "to      send him off".                (iv) That   at  the   time  of      ordination   of   three Metropolitans in      1966 by  the Catholicos,  the Catholicos      did not take an oath of subordination to      the Patriarch. None of  them individually or collectively could attract the punishment of  excommunication even if found to be true. The nature and  the power  to be  exercised for  excommunication have been  indicated earlier. They are not lightly exercised as they  deprive a  person of  his  right  of  worship.  The accusation that  the Catholico was  subordinate to Patriarch was not  an accurate  description. The  Patriarch of Antioch was  and   is   undoubtedly   the   highest   ecclesiastical functionary. But the second highest dignitary was and is the Catholicate of  the East. The concept of subordinate amongst such spiritual heads is out of place. They function in their own sphere  according to  religious canon. When Patriarch of Antioch was  established in  Synod of Nicea the Catholico of the East  was established  at Tigris. The two authorities in the hierarchy  existed  from  4th  century.  Therefore,  the creation  of  Catholico  in  1912  in  Malankara  conferring jurisdiction  over  India,  Ceylon  and  Burma  was  neither against scriptures  nor against faith. The exercise of power by the Catholico in pursuance of such creation and under the Constitution which  was framed  in 1934 could not entail ex- communication. The  action of  Patriarch in ex-communicating the Catholico deprived him of the religious right guaranteed to him  under the  Constitution, therefore,  it had to be in accordance with  law. Even  the meeting summoned at Damascus being in  violation of the Constitution of 1934 was invalid. Therefore, the  ex-communication of  Catholicos was  not  in accordance with law.      Was the  ex-communication canonical? If the religion is a bond  uniting man to God then canon is a rule or decree, a body of principles and standards the practice and observance of which identifies the man with the religion. ’The identity of the  religious community  described as  church consist in the identity  of its  doctrine, creeds, formularies, rituals

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 68  

etc.’ [Hidayatullah,  J. in Ninal Daniel v. Most Rev. Ubanon Marthoma, Metropolitan  of Mar  Thoma  Church,  and  others, Civil Appeal no.947 of 1964 decided on 7th January, 1965].      Canon is explained in Black’s Law Dictionary as under:                "A law,  rule or  ordinance in      general,   and    of   the   church   in      particular. An   ecclesiastical  law  or      statute.  A   rule  of     doctrine   or      discipline. A  criterion or  standard of      judgment.   A    body   of   principles,      standards, rules, or norms." Canon means      both  a   norm  and   attribute  of  the      scripture. The  erm   ’canon   law’   is      explained  in  The  Encyclopedia  of      Religion Vol. 3 as under:              "The term  canon is based on the      Greek word  Kanon. Originally signifying      a straight  rod or  bar, especially  one      used to   keep something  else straight,      canon came   to  mean something that  is      fixed,   a rule   or   norm.   The  term      has several   applications    in  church      usage:   the    canon   of scripture, or      that fixed  list  of  books    that  are      determined  to   belong      to   sacred      scripture; the   canon  of the Mass, the      fixed  portion    of  the    eucharistic      prayer;   the   process   of declaring a      deceased person   to be  among the fixed      list  of   saints   in      heaven,   or      canonization. From  the  third  century,      directives for  church living  and norms      for  church  structures  and  procedures      have been issued as canons.                 Canon law  refers to  the law      internal to  the church.  In   the early      centuries of   Christianity,  canon  was      used  for   internal  church  norms,  to      distinguish them from the imperial nomos      (leges in   Latin) or laws. Church norms      have also  been   known as    sacred  or      divine, to   distinguish them from civil      or  human    laws.  At  times  they  are      referred to  as the  "sacred  canons" or      the   "canonical   order".   The    term      ecclesiastical law   refers    to    the      civil   law  adopted  in various nations      to regulate   church  affairs. The  term      canon  law  is    used  in    the  Roman      Catholic,   Anglican,    and    Orthodox      communions.                       Canon law is drawn from      sources  in   scripture,  custom,    and      various  decisions   of  church   bodies      and individual  church authorities. Over      the centuries  these have  been gathered      in a  variety of  collections that serve      as the law books for various churches".      Canons are  thus the principal scriptural bases for the religious practices  observed in  a Church.  Syrian Orthodox Church is  very old.  But its  canon appears to have come in existence sometime  in 13th Century collected and written by Bar Hebrew  who was  the Catholico  of Tigris. In the appeal arising out of interpleader. suit this Court after examining the evidence in detail particularly of C. Philip, P.W.5, who

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 68  

was the  Professor of  the Sriram  College, Calcutta and was examined, as  expert on  canon law  held that  there was  no authorised edition  of these  canons even  though one of the resolutions at the Mulunthuruthy Synod ran thus :            "It will  be very  good if  a book      containing the  Canons  and    procedure      necessary   for   the  firmness  in  the      Orthodox faith   is  printed   in Syriac      or Malayalam   as   per  orders (of  the      Holy   father) and  a copy with his seal      given to  each   church and decided that      future conduct  shall not  be except  in      accordance with that." The absence  of any  canon in  such an  old Church  existing since 51-52  Century A.D. with such extensive and widespread following not  only in  this country  but even  others is  a tribute to the honest, firm and sincere belief in the Syrian Church. Even  without any  written Code  or rule their never was any  controversy over  faith, practice,  belief, rituals etc.  But what is surprising is that till the advent of late 19th  and  the  beginning  of  20th  Century  there  was  no authentic publication of it. Consequently when the battle in courts of  law started between the two groups there appeared two divergent versions differing on vital aspects. To add to this the courts have not been consistent in accepting one or the other  version.   More so  because of  the accusation of interpolation and tampering.  Even though the first occasion to examine the canons arose in the appellate judgment of the Royal Court,  the  scope  was  limited  as  to  whether  the Patriarch alone  had the  power to  consecrate  Morone.  The authority to  ex-communicate etc. in which the interpolation is alleged  was never  examined.  The  decision,  therefore, cannot be taken to be as putting its seal of approval on the authority of  the canon  produced on  behalf of Patriarch of Antioch.  And   when  the  power  and  jurisdiction  to  ex- communicate in  accordance with  canon law was raised in the interpleader suit (Vattipanam suit) both the sides came with different versions,  the one filed by Catholico was accepted by the  trial court whereas the High Court found the version placed by  the Patriarch  as authentic.  Both the  judgments abound  in   thorough  and  careful  analysis  of  difficult subject. The  discussion is  extensive and  learned. But all this labour  was lost  when the appeal in the High Court was dismissed in  consequence of the review judgment. It is true that the  Bench while  admitting  the  review  petition  had confined  its   scope   but   once   it   found   that   the excommunication was  invalid for  violation of principles of natural justice  and question  having been  raised that  the ordination  of   defendant  no.1   (that  is  catholico)  as Malankara Metropolitan  was invalid  he  was  the  Malankara trustee. Justice  Chatfield with  whom Justice Pillay agreed that,  ’he  (that  is  catholicos)  did  not  forfeit  these positions afterwards by any heresy or schism. The meeting of the Malankara  Association  which  removed  the  5th  &  6th defendants (that  is  Patriarch)  was  presided  over  bythe Malankara Metropolitan  and the reason given in the original judgment of  this court  for holding  that their removal was illegal cannot  therefore stand’.  On these  findings it was held :            "In the result therefore by reason      of the  decision on  the  contentions as      to natural   justice  and  apostacy  the      appeal must   fail  quite apart from the      decision  of   the  other  questions  in      dispute in  this suit.  It would  not be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 68  

    necessary  to   consider    these  other      questions even   if it were open to this      court   to do   so in view of the orders      already referred to."           The effect  in law  of this  order, on review, was that  the   finding  recorded  by  the  High  Court  on  the authenticity of  the canon etc. in its original order ceased to be  operative. But  the learned counsel for the appellant vehemently urged  that since  the Bench  which admitted  the review petition had restricted its scope and made it subject to the  findings recorded  on the  authenticity of the canon and the power of the Patriarch to ex-communicate without any intervention by  the Synod,  the findings  recorded on these aspects were  not destroyed  in  consequence  of  the  order passed on  the review  petition.  The  submission  does  not appear to  be correct  either legally  or factually.  When a reivew petition  is entertained  and notice  is issued  by a court it  is open to it to restrict the scope of hearing but once the  petition is  heard and the court is satisfied that the order  under review was erroneous at the fact of it then it is  not precluded from allowing the petition was admitted and the  Catholicos were  restricted from  re-opening  other points, an  application was  filed on their behalf which was rejected  but   while  rejecting   the  application  it  was observed, ‘if  it is found that any of these questions is so legally connected  with the  questions relating  to  natural justice that  the latter  questions cannot be properly dealt with without  considering such  excluded questions  then for this  purpose  and  for  this  purpose  alone  the  excluded questions may be considered’. This observation of Chatfield, J. was  concurred by  other judges also. And when the review petition was  heard on  merits the court was of the opinion, ‘these (These)  orders did  not prevent the defendants (that is Patriarch)  from relying  on  contentions  not  expressly found in their favour in the original judgment and they have in fact  relied on the contentions previously set up by them that the  defendants 1  to 3 have become aliens to the faith of Syrian  Jacobite Church  and for  this reason  alone  are capable of  acting as  trustees. The plaintiffs on the other hand have  failed to  show that  any of  the questions which have been  declared to be excluded from consideration at the re-hearing are  inseparably connected  with these  questions and thereupon  in disposing  of  this  appeal  the  excluded questions will  not be  referred to’.  It is thus clear that the Bench  heard the  appeal not  only on  the questions  on which the review was entertained but even on other questions as the  questions  of  natural  justice  and  apostacy  were closely connected  with and  could not be separated from the issues which  had earlier  been closed.  It was  after these observations that  Justice Chatfield  made the  observations which have been extracted earlier. To argue, therefore, that the finding  recorded in  the earlier  judgment by  the High Court that Ex. 18 filed by the Patriarch group and relied as authentic canon survived, does not appear to be correct.      Even assuming,  although there  appears no  doubt, that the finding  recorded by  the  High  Court  in  its  earlier judgment on the authenticity of the canon survived, there is yet another  reason to disregard it. If the ex-communication of Dionysius  was invalid  for violation  of  principles  of natural justice,  as was  found by  the Bench  reviewing the order, then  the findings  on earlier  issues were  rendered unnecessary and  it is fairly settled that the finding on an issue in  the earlier suit to operate as res judicate should not have  been only  directly and substantially in issue but it should  have been  necessary to  be decided  as well. For

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 68  

instance, when  a decision  is taken  in appeal  the rule is that it  is the  appellate decision  and not the decision of the Trial  Court that operates as res judicata. Consequently where a  suit is  decided both  on merits  and on  technical grounds  by   the  Trial  Court,  and  the  appellate  court maintains it on technical ground of limitation or suit being not properly  constituted  then  the  decision  rendered  on merits by  the Trial  Court  ceases  to  have  finality.  In Abdullah Ashgar  Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while  considering the  expression, ‘heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of  1896 held  that where  the suit  was dismissed by two courts on  merits but  the decree  was maintained  in second appeal because  the suit  was not  properly constituted then the finality on merits stood destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol.XXIV where parentage of defendant  was decided  in his  favour by the Trial Court but the  High Court  maintained the  order as  the suit  was defective the claim of the defendant in the latter suit that the finding  on  parentage  operated  as  res  judicata  was repelled and it was held, that the question of parentage had not been  heard and finally decided in the suit of 1885. The appeal in  that suit  had put  an end to any finality in the decision of  the first  Court, and had not led to a decision on the merits.      The rationale  of these  decisions is  founded  on  the principle that  if the suit was disposed of in appeal not on merits but  for want  of jurisdiction or for being barred by time or  for being defectively constituted then the finality of the findings recorded by the Trial Court on merits stands destroyed as  the suit  having been  found  to  be  bad  for technical reasons  it becomes  operative from  the date  the decision was  given by  the trial  court thus  rendering any adjudication on  merits impliedly  unnecessary. On  the same rationale, once the Royal Court of Appeal allowed the Review Petition and dismissed the appeal as the ex-communication of Dionysius was  contrary to principles of natural justice and he had  not become  heretic then the finding on authenticity of the  canon  etc.  rendered  in  the  original  order  was rendered unnecessary. Therefore, the finding recorded on the authenticity of  the canon  and power  of the Patriarch etc. recorded in  the earlier  order could  not  operate  as  res judicate in subsequent proceedings.      Last but  not the least reason to hold that the finding in the  Vattipanam Suit  recorded by  the High  Court in its original judgment  on canon  etc. could  not operate  as res judicata is  where a decree is one of dismissal in favour of the defendants, but there is an adverse finding against him, a plea  of res judicata cannot be founded upon that decision because the defendant having succeeded on the other plea had no occasion  to go  further in  appeal against  the  adverse finding recorded against him [see Midnapur Zamindari Company Ltd. vs.  Naresh  Narayan  Roy,  AIR  1922  PC  241  ].  Mr. Parasaran, the  learned senior  counsel for  the  appellant, urged that  this  is  not  an  absolute  rule  as  there  is mutuality in  res judicata  and even the succeeding party is bound by  the question  decided against  him.  Reliance  was placed on Mt. Munni Bibi & Anr. vs. Tirloki Nath & Ors., AIR 1931 PC  114, V.P.R.V.Chockelingam Chetty vs. Seethai Ache & Ors., AIR 1927 PC 286, Sham Nath Madan vs. Mohammad Abdullah & Ors.,  AIR 1967 J&K 85 and Arjun Singh & Ors. vs. Tara Das Ghosh &  Ors., AIR  1974 Patna  1.   The two  Privy  Council decisions do not appear to be of any assistance as the first one, Mt. Munni Bibi (supra) , is the leading decision on the principle of  res judicata  amongst co-defendants.  True the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 68  

Patriarch and Catholico were co-defendants and there was lis too but  in view  of the  finding  on  natural  justice  and apostacy  the   finding  on   other  issues   was   rendered unnecessary. The  rule of res judicata amongst co-defendants is also govened by those rules which apply to normal rule of res judicata. The decision in Chockalingam Chetty (supra) is an authority for the principle that where an appeal is filed without impleading a defendant through whom other defendants derived title  then the  decision in  his favour operates as res judicata between plaintiff and other defendants as well. Similarly, in  the decision of the Patna High Court in Arjun Singh (supra)  the primary  question  was  whether  a  party against whom a finding is recorded has got a right of appeal even though  the ultimate  decision was in his favour and it was held  that there  was no bar, but what was necessary was that the finding so recorded should operate as res judicata. On facts  it  was  found  that  the  Appellate  Court  while maintaining  the   order  of   dismissal  of   the  suit  on preliminary issue  recorded findings  on other  issues which were against  the  plaintiff,  yet  the  plaintiff  was  not entitled to  file an  appeal as the findings on merits which were adverse  to him  could not  operate as res judicata. In Sham Nath’s  case (supra)  the learned Single Judge rejected the plea  of res judicata raised on behalf of the plaintiff, but while  considering the  alternative  argument,  observed that an  adverse finding  recorded against  a defendant in a suit dismissed  could not operate as res judicata unless the adverse finding  formed a  fundamental part  of  the  decree itself. None of the decisions, therefore, are of any help to the appellant.  In any  case the findings on cannon or power of  Patriarch   which  were  the  findings  adverse  to  the Catholico could  not form  fundamental part  of  the  decree itself, therefore,  it could  not operate  as res  judicata. Truly speaking,  the findings  on the  authenticity  of  the canon and  the power  of  Patriarch  etc.  recorded  in  the earlier judgment  and the  finding on apostacy and breach of natural justice recorded in the review judgment could not go together. Otherwise  in Moran Mar Bessilios (supra) it would not have  been possible  for this Court to come to a finding that the  findings recorded  on Issue Nos. 14, 15, 16 and 19 in the  Vettipanam Suit  operated as  res  judicata  in  the Samudayam Suit.  The finding  recorded by the learned Single Judge  and  the  Division  Bench,    therefore,  that,  ‘the decision in  XLI T.L.R.  that Ext.18 there in (Ext.BP in the Samudayam case  and Ext.B161  in these cases) is the version of Hudaya canons accepted as binding on the Malankara Church has not  become  concluded  and  does  not  operate  as  res judicata between the parties, is well founded.      Could the  finding on  the authenticity of the canon be relied as  a precedent?  For that  it must fall either under Section 42 or Section 43 of the Indian Evidence Act. Section 42 which  makes  any  judgment  relating  to  public  nature admissible itself  provides  but  ‘such  judgments  are  not conclusive proof of that which they state’. Section 43 makes a judgment  admissible if existence of such a judgment is in issue. In  Kumar Gopika  Raman Roy vs. Atal Singh & Ors. AIR 1929 PC  99, it  was held that ‘the Indian Evidence Act does not make  finding of  fact arrived at on the evidence before the court  in one  case evidence  of that  fact  in  another case’. In  Benode Lal  vs.  Secretary  of  State,  AIR  1931 Calcutta 239  where the  law was  clearly explained,  it was observed, ‘when  an appeal  is taken  against a  decree, the decree of  the lower  gets  merged  in  the  decree  of  the Appellate Court  and so  the judgment  of the trial court is not final  adjudication on  the point  in issue  between the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 68  

parties in  the suit’.  The Court further observed that even assuming that,  ‘the existing  judgment may be relevant, but the truth of it, by which it is understood,     the decision of the  Judge and  the opinion  expressed  by  him,  is  not relevant’. Applying  these  principles  once  the  appellate judgment was  set aside,  the appeal  was dismissed  and the order of  the  trial  court  was  maintained,  the  findings recorded on canon etc. in the appeal could not be relied.      That is  why when  the suit  was filed in 1938, that is the Samudayam Suit, the parties joined issue, once again, on the authenticity of the canon and the Court framed the issue as to  which was  the correct  and genuine version. No issue about  res   judicata   was   raised   by   the   Patriarch. Coincidentally same  story was  repeated,  the  Trial  Court accepting the  version filed  by the Patriarch. But when the matter came  to this  Court in 1959 it while considering the objection of  Patriarch that  by inserting  Clause 5  in the Constitution the  Catholicos were guilty of heresy as it was contrary to  the authentic  version  produced  by  them  did observe that  for deciding  this aspect  it was necessary to decide the  issue  which  related  to  authenticity  of  the version. Since  this Court  had  not  recorded  any  finding itself on  the authenticity  of the  canon the dispute again arose, when  these suits  were filed, about the authenticity of the  canon and  the findings  and conclusions recorded in earlier suits  that is the Vattipanam Suit and the Samudayam Suit and  whether any  one of them operated as res judicata. It has  already been  explained why the findings recorded in Vattipanam Suit  could not  operate as res judicata. Nor the finding could be treated as binding precedent.      Can the same be said about the finding in the Samudayam Suit? It  is not  disputed that  the Trial  Court  not  only framed Issue  No.13 but  even recorded specific finding that the canon  produced by  the  Patriarch  group  was  not  the authentic version.  But  its  binding  effect  was  rendered nugatory both  according  to  the  Division  Bench  and  the learned counsel  for the  appellant because  when this Court restored only  the decree  of the  Trial Court  and not  the judgment then the findings recorded by the Trial Court could not be  taken to  be binding  or final. Two legal questions, therefore, arise  one, whether the authenticity of the canon was directly  and substantially  in  issue  and  second  the effect of  restoration of the decree of the Trial Court. The first was  answered by  this Court itself while adjudicating upon the  plea advanced  on behalf of the Patriarch group to support the judgment of the High Court. To appreciate it, it is appropriate to extract Issue No. 13 which reads as under:               "13. Which  is the  correct and      genuine version  of the  Hoodaya  Canons      compiled  by Mar Hebraeus? Whether it is      the book   marked as  Ext. A or the book      Marked as Ext. XVIII in O.S.91 of 1088." Issues  Nos.19   and  20   related  to  as  to  whether  the defendants, that is, the Catholicos formed themselves into a separate Church  and whether  the acts  mentioned under  the Issues constituted separation. This Court did not permit the appellants, that  is, Patriarchs to support the order of the High Court  on the  ground that insertion of Clause 5 in the Constitution of  1934 was  contrary to canons, as it was not raised in the pleadings. Nor did the Court find any merit in the submission  that Issues  Nos.13 and  16 which related to loss of  status as  members of the Church was wide enough to include it.  But it  held that  reference to pleadings would indicate why  Issue No. 13 was raised. It further found that to decide  Issue Nos.  16, 17, 19 and 20 it was, ‘absolutely

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 68  

necessary to  determine which is the correct book of canons, for the  plaintiff (that  is the  Patriarch  Group)  founded their charges  on Ex.B.P. - Ex. 18 in O.S. No.94 of 1088 and the defendants  took their  stand on  Ex.26 -  Ex.A in  O.S. No.94 of  1088. Issue  No.13 was  directed to determine that question’. The  issue whether  the Hudaya canon filed by the Patriarch Group as Ex.18 in the earlier suit and as Ex.BP in the  present   was  authentic  was  not  only  directly  and substantially in  issue  but  as  held  by  this  Court  was necessary to  be decided  for the  principal  and  the  main dispute which arose in that case. In the circumstances it is difficult to agree with the Division Bench, that, ‘this does not mean that findings were really relevant or necessary for the ultimate  decision in  the  litigation  by  the  Supreme Court. Issue  Nos. 14 to 17 and 19 and 20 were raised by the plaintiffs and  had to be decided’. The Trial Court no doubt observed that  it was  not necessary  to decide the issue in the broad  and general sense but it held that the discussion and conclusions  in the earlier suit that is Vattipanam Suit on the question of canon did not operate as res judicata. It did make  some observations  which furnished occasion to the appellants to urge that once the Court found that it was not necessary to  decide the  larger issue  it should  not  have discussed the  smaller one  only because additional evidence had been led and the counsel had argued the matter. But this submission cannot  be accepted as in view of the observation made by  this Court  that the  finding on  Issue  No.13  was necessary the  observations lose importance. And the finding if recorded by the Trial Court would have to be accepted and any observation  to the contrary ignored. The finding of the Trial Court  on Issue  No. 13  was that no Hudaya canon book approved as  authentic and genuine by the Patriarch was ever supplied to  the Malankara  Sabha and the manuscript were of questionable origin and it could not be shown that,            "either in  Malankara or  in Syria      or   Turkey  or other places  under  the      Patriarch   or   any   where   in    the      Jacobite  church     outside  Malankara,      there is  or has  been in  existence and      in   use   any  version  of  the  Hudaya      canon corresponding to  Ext. BP  or that      such a   version  has been  approved and      accepted by   the  Jacobite  church as a      correct version".                                          [Emphasis supplied] In appeal  (The Most. Rev. Mar Poulose Athanasius & Ors. vs. Moran Mar  Bassaelios Catholicos  & Ors.,  1957 KLT  63) the findings recorded  by the Trial Court were not set aside, on merits but  the canon  filed by  Patriarch was  accepted  as authentic since,  ‘in the  final judgment  after review  the question of natural justice alone was considered and decided and this  means that  the earlier finding on the question of canons, which  was a  matter directly  and substantially  in issue in  the suit,  was accepted  as correct  even for  the purpose of  the final  decision on  the question  of natural justice. Thus  by implication the finding on the question of the canons  forms an  integral part of the final decision in 45 T.L.R. 116 because, without maintaining that finding, the question of  natural justice  could not have arisen at all’. But that  judgment did  not and  could not  operate  as  res judicata for  reasons explained earlier. The judgment of the High Court  in The  Most. Rev. Mar Poulose Athanasius & Ors. vs. Moran Mar Bassaelios Catholicos & Ors., 1957 KLT 63. was reversed by  this Court.  It was held that Catholico had not become  heretic  or  separated  from  the  Church.  But  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 68  

recording this  finding the  decision on Issue No. 13 was as observed by  this Court  necessary. Therefore, the appellate judgment of this Court precluded the Patriarch from claiming that the  Hudaya Canon  filed by  them was  authentic as the earlier judgment  operated as  bar to this plea as once this Court recorded  the  finding  that  the  Catholico  had  not separated the  finding on  Issue No.  13 stood affirmed even though it was not referred since the finding on the Catholic having become  heretic or separated from the Church depended as observed by this court itself, on finding on Issue No.13. If the  finding of  the  trial  court  on  Issue  No.13  was necessary for  deciding whether  the  Catholico  had  become heretic and that finding was affirmed in the review judgment then the  finding of  the High Court in its earlier judgment on the  authenticity of  the canon  cannot stand.  It  could neither be res judicata nor a precedent.      The next  aspect is  the legal effect of restoration of decree of  the Trial  Court. Did it result in revival of the findings on authenticity of the canons as well. The Division Bench held  that, ‘once  an appeal  is disposed of it is the appellate  judgment  which  should  be  considered  for  the purpose of  deciding the question of res judicata. Appellate judgment supersedes  the judgment of the trial court, and it is no  longer open  to look  into the  judgment of the trial court except  to the  extent it might have been specifically confirmed by  the appellate court. See Benodial Chakravarthy V. Secretary  of State  for India (A.I.R. 1931 Cal. 239) and Venkiteswarulu v.  Venkitanarasimham and  others  (AIR  1957 A.P. 557)’.  The reasoning  that once  an appeal is taken to higher court  then it is the appellate decree which is final and  binding   cannot  be   faulted  with.   But  the  other observation that  the findings  of the Trial Court cannot be looked  into  except  to  the  extent  it  might  have  been specifically confirmed  is not  wholly correct.  None of the decisions referred  in the  order support  it. The  Calcutta decision has  already been  referred to. In Venkateswarlu v. Venkata Narasimham  & Ors.,  AIR 1957 Andh. Pradesh 557, the High Court  observed, ‘Now  the appellate  court rested  its conclusion not  on the ground that Ex.A-1 was unsupported by consideration but  on the  ground that  the transaction  was such as not to bind the joint family. Though the trial court found that  the consideration for the sale Ex.A-1 was wholly fictitious, the  appellate court did not give a finding upon that question but confirmed the decree of the trial court on the ground that the sale was for a consideration not binding on the joint family. But what the Division Bench ignored was that the  High Court  did not look into the earlier judgment as the order was upheld on a different ground, therefore, it could not be held that it was express or implied approval of the decision  of the  Trial Court.  In Narayanan  Chetty  v. Kannammai Achi  & Ors.  ILR Madras 1905 Vol. XXVIII which is more in point it was held:            "An appellate judgment operates by      way of  estoppel as regards all findings      of the  lower Court,  which  though  not      referred to   in  it,  are necessary  to      make   the   appellate  decree  possible      only on such findings." This Court  having held  that Issue  Nos. 14 to 20 could not have been decided without a decision on Issue No. 13 and set aside the order of the High Court and restored the decree of the Trial  Court the  finding recorded by the Trial Court on Issue No.  13 has  to be  read as part of appellate judgment rendered by this Court.      Even otherwise  there is  no power in canon produced by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 68  

the Patriarch  for excommunicating  a Catholico.  In fact it could not be. All this controversy was raised, with respect, without having  regard to  it that  the canon framed in 13th Century could  not  have  provided  for  excommunication  of Catholico  of  East  who  was  himself  visualised  as  high spiritual authority no doubt lower in hierarchy to Patriarch of Antioch  but otherwise not subordinate to him. In absence of any such express provision in the canon, the Patriarch of Antioch could  not exercise  this power  as even  if it  was there it did not mention Catholicos. Who could exercise this power is  not necessary  to be  gone into. Suffice it to say that  where   scriptures  are   silent  the   courts  cannot substitute their own opinion but when the excommunication of high spiritual authority is involved which, as seen earlier, has serious  repercussion not  only on the individual status of the  man but  also of  religious society,  then  such  an action by  a general  body of  ecclesiastics like a properly requisitioned Synod of all the groups may have that sanctity which may compel the courts to stay its hands. But the Synod summoned  at   Damascus  was   certainly  not  empowered  to excommunicate.      There is  one additional  feature  in  this  case  that Clause 5 of the Constitution framed in 1934 read as under:             5. "The  Canon accepted  by  this      church   is   the Hudaya  canon  of Bar-      Hebreaus   (This is  the Canon  that has      been printed in Paris in 1890)." This Constitution has been upheld by this Court in Moran Mar Basselious  (supra).   It  is  now  binding  on  the  Syrian Christians. Any action taken against the respondent contrary to it  could not have been upheld.  Religious persons in all religions have  been men  of great  learning and  character. Spiritual superiority emanates from purity of character. Any person elected or nominated to such high spiritual office as Catholicate  of   East  could   not  be   subjected  to  ex- communication. That  is why  the Canons  did not contain any provision.  The   entire  proceedings  of  ex-communication, therefore, were  unsustainable. If  the spiritual  heads  of such high  stature start ex-communicating each other, it may not be  conducive for  the religious order. That is why even though the  Sultan of  Turkey withdrew  the Firman issued in favour of  Abdul  Messiah,  the  court  in  absence  of  any material  to   show  that   such  withdrawal   resulted   in deprivation of his spiritual superiority refused to act upon it.  Apart  from  it,  once  a  Constitution  for  Malankara Association was  framed, accepted  and upheld  by the Court, the ex-communication,  if any,  could be in exercise of that power only.  The power to ex-communicate can be exercised by a spiritual  head either  when the  scriptures  specifically permit it  or it  is in  respect of  the  authorities  which function under  him and  are subordinate  to it. Normally in religious matters  such decisions  depend either on the text and if  there is no text on the Constitution of the trust or on convention  developed in course of time. From the history of  Orthodox   Syrian  Church,  it  appears  such  important decisions are  taken by  the Synod that is a general body of bishops, vicars,  clergies etc.  and, therefore,  before ex- communication can  be held  to  be  valid  two  things  were required to  be proved,  one, that such power existed either in the  spiritual head  or in the general body and the power was exercised  in respect of a person or holder of an office for  whom  it  could  be  exercised.  It  has  already  been indicated that  in consequence of Ex.A-14 the Kalpana issued by Abdul  Messiah the  entire power,  spiritual or temporal, which  was   exercised  by  the  Patriarch  of  Antioch  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 68  

conferred on  the Catholico  of the  East. The only relation which was  to be observed in future was the communion of the two. In fact if the history is traced from the Mulunthuruthy Synod held  in  1876  to  1912  then  it  is  apparent  that Catholicate of  the East  was not  treated as subordinate to the Patriarch  of Antioch.  He exercised  same spiritual and temporal powers  as Patriarch but with respectful communion. The ex-communication  thus  cannot  be  upheld  canonically, traditionally or  constitutionally. It  was violative of the norms  which   are  mandatorily   required  to  be  observed conventionally.           Having   dealt    with    ex-communication,    the controversy about  spiritual  and  temporal  powers  of  the Patriarch and  Catholicos, their  inter-relationship and the extent to which they have become final by earlier decisions, particularly Moran  Mar Basselios (supra) and operate as res judicata, may  be examined.  The pleadings  of  the  parties giving rise  to various  issues and  the questions framed by the Division Bench and answered by it have been extracted in extenso. The  crucial issue that had been argued was whether the direction  of this  Court in Moran Mar Basselios (supra) ’that the  judgment of  the Kerala  High Court is set aside, the decree  of the  trial court  dismissing the suit must be restored’, resulted  in restoring  the decree  and  not  the judgment, therefore, any finding recorded in that suit could not operate  as res judicata. In Satyadhyan Ghosal & Ors. v. Sm. Deorajin  Debi &  Anr.  (1960)  3  SCR  590  this  court insisted on  finality in  the strict  sense of  the term and observed as under :               "The very  fact that  in future      litigation it  will  not  be    open  to      either of      the parties  to challenge      the correctness  of   the decision    on      matter  finally   decided  in   a   past      litigation   makes it   important   that      in  the  earlier litigation the decision      must be final in the strict sense of the      term". This was  affirmed by  a Constitution  Bench in  The  Mysore State Electricity  Board vs.  Bangalore Woollen,  Cotton and Silk Mills  Ltd. &  Ors. 1963  supp. (2)  SCR 127 and it was observed :               "It is  well  settled  that  in      order  to  decide whether a  decision in      an earlier  litigation operates  as  res      judicata,   the    court  must  look  at      the   nature   of   the litigation, what      were the  issues raised therein and what      was actually decided  in it.......it  is      indeed   true that    what  becomes  res      judicata is   the   "matter"   which  is      actually decided  and   not the   reason      which leads  the  court  to  decide  the      ’matter’". These  observations   are   well   settled   and   reiterate established principle  laid down by the courts for the same, sound and general purpose for which the rule of res judicata has been  accepted, acted,  adhered and applied, dictated by wisdom of  giving finality  even at  the  cost  of  absolute justice. In  a recent  English decision  - Ampthill  Peerage Case, [1976]  2 All  England Law Reports p. 411, finality at cost of  fallibility has been graphically described at pages 423 and 424 thus :-                "Our forensic system, with its      machinery  of   cross-  examination   of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 68  

    witnesses  and   forced  disclosure   of      documents,  is  characterised    by    a      ruthless   investigation    of    truth.      Nevertheless, the   law  recognises that      the process  cannot go  on indefinitely.      There  is  a  fundamental  principle  of      English  law   (going  back   to  Coke’s      Commentary   on   Littleton)   generally      expressed by   a  Latin  maxim which can      be translated:  ’It is  in the  interest      of society that there should be some end      to  litigation’.   This      fundamental      principle  finds   expression  in   many      forms. Parliament  has passed  Acts (the      latest only  last year)  limiting    the      same within which actions at law must be      brought. Truth   may  be  thus shut out,      but society considers that truth  may be      bought at  too high  a price, that truth      bought  at     such   expense    is  the      negation  of    justice.      The  great      American   Judge, Story,   J. delivering      the judgment  of the  Supreme   Court of      the United  States in  Ball v.  Morrison      called the   first  of   there Acts   of      limitation a statute of repose :  and in      England Best   CJ   called  it  ’an  act      of  peace’(A’Court   v.     Cross).  The      courts of  equity, originally set up  to      make   good deficiencies  in the  common      law,  worked   out  for    themselves  a      parallel doctrine.   It   went   by  the      technical name   of  laches.   Courts of      equity would  only give  relief to those      who   pursued    their   remedies   with      promptitude. Then, people  who have long      enjoyed possession,  even if they cannot      demonstrate    a    legal   title,   can      rarely    be dispossessed. Scottish  law      goes even  further than  English : delay      in   vindicating a  claim will  not only      bar the  remedy but actually  extinguish      the   right.   But    the    fundamental      principle  that   it  is   in  society’s      interest that  there should  be some end      to    litigation     is    seen     most      characteristically  in  the  recognition      by our   law--by every system of law--of      the  finality  of  a  judgment.  If  the      judgment has  been obtained  by fraud or      collusion it   is  considered  a nullity      and  the   law   provides      machinery      whereby   its    nullity   can   be   so      established.     If  the   judgment  has      been   obtained    in  consequence    of      some   procedural    irregularity,    it      may sometimes  be set  aside.   But such      exceptional cases  conclude the  matter.      That, indeed,   is  one    of  society’s      purposes in  substituting the   law suit      for the  vendetta....And once  the final      appellate   court   has  pronounced  its      judgment,   the parties  and   those who      claim through them are concluded, and if      the   judgment is  as to  the status  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 68  

    a   person, it   is called a judgment in      rem and  everone must  accept it. A line      can thus  be drawn  closing the  account      between the  contestants.      Important      though   the   issues   may   be,    how      extensive  so     ever  the    evidence,      whatever the eagerness for further fray,      society  says;     ’We  have    provided      courts      in   which   your      rival      contentions   have   been   heard.    We      have provided  a  code of  law by  which      they   have been  adjudged. Since judges      and juries   are  fallible human beings,      we have provided appellate  courts which      do their  own fallible  best, to correct      error. But   in the  end you must accept      what  has   been  decided.    Enough  is      enough, And   the  law    echoes  :  res      judicata, the  matter is  adjudged’. The      judgment  creates  an  estopel  -  which      merely means  that what has been decided      must be  taken to  be established  as  a      fact, that  the decided  issue cannot be      reopened by   those who are bound by the      judgment, that  the   clamouring  voices      must be  stilled, that the bitter waters      of   civil   contention   (even   though      channeled     into  litigation  must  be      allowed to subside".                                          [emphasis supplied] Such is  the principle  of finality.  True that the question must have been adjudicated stricto senso as observed by this Court.  Conclusiveness  according  to  the  learned  counsel applied to  decree and  not the  judgment. For reasons given while discussing the authenticity of canons, it is difficult to agree that once decree of the trial court was resiwred it did not  result in  making the  findings an  effective which were basis  of the  decree, except  to  the  extent  it  was expressly or impliedly set abld by this Court.      Therefore, the  judgment of  this Court  in  Moran  Mar Basselios (supra)  would preclude the parties from agitating those issues  which  have  been  concluded.  Effect  of  the judgment delivered  by this  Court in  1958 on the rights of Catholicos was  twofold, one  their status  was defined  and two,  their  relationship  with  Patriarch  of  Antioch  was explained. What  stands out  clearly from the decision after decision rendered  right from  1899  to  1959  is  that  the Patriarch of  Antioch is  the spiritual  head of  the Syrian Orthodox Church.  It was  held so  clearly in  the appellate judgment of  the Royal Court of Appeal. It was reiterated in Court  of   Appeal  judgment   delivered  in  1905.  In  the Interpleader Suit  filed by the Secretary of State the claim of Catholicos was upheld. The findings recorded therein were held to  operate as  res judicata  in  Moran  Mar  Basselios (supra) which  arose out  of a  suit filed  by the Patriarch Group as  far back  as 1938. The claim of the Patriarch that the Catholicos  had become heretics and ceased to be members of the  Syrian Orthodox Church, was repelled. The Court held that the  reduction of  power of the Patriarch of Antioch to ’vanishing point’,  ipsofacto did  not constitute heresy nor it amounted  to voluntary  separation of  setting up  a  new Church. But  the most vital finding was that the creation of Catholicate of  the East  by Abdul  Messiah, the disentitled Patriarch of  Antioch,  by  Kalpana,  Exhibit  A-14  (latter order) issued  in  1912  was  not  invalid.  The  result  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 68  

creation  of  Catholicate  of  East  with  power  to  ordain metropolitan and  perform all those functions which could be performed by  Patriarch Antioch  was that even the spiritual power which  was held  to  be  vesting  in  him  in  earlier judgments stood  reduced to ’vanishing point’. What is meant by this expression shall be explained later. The verdict was accepted by  the Patriarch  himself when  he issued Kalpana- Exhibit A-19  after the  Supreme  Court  decision  to  bring peace.   The specific  objection on  behalf of the Patriarch that  "the   re-establishment  of  the  Institution  of  the Catholicos in  the East  in Malabar having jurisdiction over India, Burma and Ceylon" was "different from the Catholicate that  was  the  subject-matter  of  Interpleader  Suit"  was repelled by this Court in Moran Mar Basselics (supra) and it was observed at page 48 as under :-               "We do  not think  there is any      substance whatever  in this  contention.      A reference  to paragraphs  30 and 31 of      the written   statement clearly indicate      that  the  institution  of  Catholicate,      which is  relied upon by the defendants,      is  no   other  than   the   Catholicate      established  in   Malabar  in   1088  by      Patriarch Abdul Messiah". Relevant clauses  of 1934  Constitution declaring the status of Patriarch  and Catholicate  in the  Malankara Church  are extracted below :-               "1.The Malankara  Church  is  a      division     of    the  Orthodox  Syrian      Church and   the    Primate    of    the      Orthodox Syrian Church is the Patriarch.                2. The   Malankara  Church was      founded by St. Thomas the Apostle and is      included in  the Orthodox  Syrian Church      of the  East   and the   Primate of  the      Orthodox Syrian  Church of  the East  is      the Catholicos". The basis  for it  was the  Kalpana issued  in  1913  ,  the relevant portion of which is reproduced:              "We commend  you into  the hands      of Jesus  Christ, our  Lord,  the  Great      Shepherd of the flock. May He keep you !      We rest   confident that  the Catholicos      and Metropolitans -Your shepherds - will      fulfil    all     your    wants.     The      Catholicos,aided by   the Metropolitans,      will ordain  melpattakkars, inaccordance      with    the   Canons     of   Our   Holy      Fathers  and consecrate Holy  Morone. In      your   Metropolitans   is   vested   the      sanction and   authority  to  install  a      catholicos,   when   a catholicos  dies.      No one   can  resist you  in exercise of      this  right   and,     do  all    things      properly,     and  in   conformity  with      precedents with   the  advice    of  the      committee, presided  over by  dionysius,      Metropolitan of  Malankara.  We  beseech      our Lord  Jesus that   Ye  faint  not in      your true faith of Saint Peter, on which      is  built,     the   Holy  Catholic  and      Apostolic Church.  What we   enjoin your      true love  is that  the unlawful conduct      of a   usurper,  may  not induce  you to      sever that  communion which is  the bond

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 68  

    of  love   connecting   you   with   the      Apostolic Throne of Antioch". Relevant portion  of Exhibit  A-19 issued by Patriarch after the decision of the Court read as under :-           "To bring  forth peace  in the Malankara church we hereby accept  with pleasure  Mar Baselious  Gheevarghese as Catholicose". The combined  reading of  these  documents  along  with  the findings recorded  by this  Court  in  Moran  Mar  Basselios (supra), thus,  leaves no  doubt that  Catholicate  of  East whether  due   to   disuse   of   the   Catholicate   which, undisputedly, existed  at Tigris or because of creation of a new one  by the  Kalpana of 1912 or for any other reason did come into  existences. The  power  and  jurisdiction  to  be exercised by  such Catholicate is spelt out from the Kalpana A-12 and  A-13 and  the Constitution of 1934. In fact, going by the  history it  was nothing  new or  unusual as  it  has already been  narrated that  even in  the first  Eccuminical Councial  When   Patriarch  of   Antioch  was  created,  the Catholicate  of  the  East  was  also  created  and  he  was entrusted with  the power  and  prerogative  to  manage  the affairs of  Eastern Churches  subject to  that Patriarch  of Antioch was  common and  could exercise  all the  functions. Then from  1654 to 1800 the ordination of Bishops in Malabar used to  take place  by the delegates of the Patriarch. Even though after  1840, i.e.,  the Cochin  Award, the individual persons went  to Antioch  and got themselves  ordained which was accepted  as well, but due to its disuse and in any case after issuance  of  Kalpana  in  1912  and  framing  of  the Constitution the  controversy arose whether the supremacy in spiritual matters also was not reduced to ’vanishing point’. It was negatived by the Court as it was held that it was not so and  nor any  separate Church  came into  existence.  The documents which  have  been  referred  earlier  if  properly construed and the course of activity, thereafter, is studied in correct perspective,            then the Syrian Church in Malabar and  the Patriarch  of Antioch,  the two authorities with nearly  same spiritual  powers, one local and the other at  Syria  entered  into  relationship  of  happy  communion between the two. This communion meant that each was supreme, but if  both of  them were present then it was the Patriarch of Antioch  who was  higher in  the hierarchy.  In religious orders the two supreme authorities one highest and the other higher without  the latter being subordinate is not unknown. This  was  the  change  in  the  power  and  prerogative  of Patriarch as compared from 325 A.D. where he had the supreme power. But  this change  has been  recognised, accepted  and acted upon.   Further, now the relationship is governed by a Constitution which has been held to be valid.      This was  fairly observed.  Between 1912  to 1970  four Catholicos were  appointed, the  first B. Paulose I by Abdul Messiah in  1912, second  Basselius Gheevarghese  I in 1924, third in  1929 after the Vattipanam Suit, fourth Mar Ougen I in 1964.  What is  significant is that second and third were not installed  by or  with the consent of Patriarch. And the fourth was  installed after  the judgment  of this  Court in Moran Mar  Basselios (supra) by the Malankara Synod presided over by  the Patriarch  Yakub III. But what led to filing of suits by  members of  the Catholico  group and the Catholico himself and  successors-elect was  the wrongful consecration by the  Patriarch of  Paulose Athanasius  on  3.9.1973  (the first ordination  by the Patriarch after 15 years). Original Suit No.274 of 1973 filed in the District court was numbered as O.S.  No. 2/79  in the  High Court. The suit was filed as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 68  

Paulose Athanasius  had never  been elected by the Malankara Association and,  therefore, was not entitled to function as Metropolitan  in  the  Malankara  Church.  In  view  of  the findings recorded  by the  Travancore Royal  Court of  Final Appeal pronounced  on July  12, 1889  that a Metropolitan of the Jacobite  Syrian Church  could be  a native  of  Malabar consecrated by  the Patriarch  or the delegates and accepted by the  people to  be entitled  to be spiritual and temporal head of the local Church, which finding was endorsed by this Court in 1958, the suit was filed to prevent Athanasius from interfering with  administration of the Malankara Church and any  of  its  constituent  diocese  including  the  Kottayam Diocese, as  he was  neither qualified  nor entitled  to  be appointed.  Since   the  Patriarch  ordination  created  the apprehension  and   the  defendants  threatened  to  act  on strength of his ordination from the Patriarch of Antioch the Court granted  an injunction in October 1973 restraining him from interfering  in the  administration  of  the  Malankara Church. As  a sequel  to this injunction a show cause notice was issued  on 30th  January, 1974  by the Patriarch against the first plaintiff levelling various charges and describing the action  of the  plaintiff as uncanonical and a challenge to the  authority of  the Patriarch.  The matters thereafter grew worse  and when the Patriarch ordained two more bishops the  Catholico   Mar  Ougen  I  and  Catholico-elect  Mathew Athanasius filed  Suit No.  142/74 which  was re-numbered in the High  Court as  O.S.  No.  4/79  once  again  protesting against the  direct ordination  by the  Patriarch of bishops not accepted  by the  Malankara Association.  In this manner nearly 8 suits came to be filed by the Catholico Mar Ougen I along with  his successor-elect  Mathew Athanasius. The main defence  in  the  suits  apart  from  others  was  that  the plaintiff had  been ex-communicated. Both the learned Single Judge and  the Division  Bench did not find any merit in the claim that  after the  death of  first plaintiff  the  third plaintiff  who  was  successor-elect  was  not  entitled  to continue the  suit. It  was held that they were not apostate and aliens  to the  Jacobite faith  and the  decision of the Universal Episcopal  Synod and  the Syrian  Orthodox  Church held from  16.6.1975 was  not in accordance with the rule of the Church. The judgment thus in Moran Mar Bassilios (supra) and the  findings recorded  by the trial court to the extent it was  not  set  aside  by  this  Court,  operates  as  res judicata.      Two more  issues  remain,  one  the  nature  of  Parish Churches  whether   they  are   congregational,   episcopal, voluntary association or autonomous bodies, public charities or private  charities and  their relation with the Malankara Association;  second,  legal  status  of  the  Patriarch  of Antioch whether  he is  a  corporation  sole  as  argued  by Ms.Lily Thomas,  the learned counsel for the intervener, and if so, his rights, privileges and prerogative. Taking up the issues of  Parish Churches  and whether  they are autonomous units, the  constitution and  the status of the Parishes may be discussed first.      A Parish Church is a, ’district committed to the charge of  one   incumbent  having   the  cure  of  souls  in  it’. [Halsbury’s Laws  of England, Vol.14 para 534]. ’The ancient parishes appear  to have  been gradually  formed between the 7th and  12th or  13th Centuries.  Their boundaries  seem to have been  originally identical  with or determined by those of manors,  as a  manor very  serfdom extends over more than one of  these parishes,  although in  many cases  one parish contains two  or more  manors. Besides  being ecclesiastical units, ancient  parishes have been at different perious, and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 68  

in many  cases still  are, administrative  areas for various civil purposes,  although the  boundaries for  parishes  for civil  purposes  have  in  many  cases  been  altered  under statutory authority’.  [Halsbury’s Laws  of  England  Vol.14 para 535].  ’The word  ’Parish’ was  in use  as early as the third century,  but it  was at  that time  equivalent to the term Diocese (which see). In primitive time the diocese of a bishop was  neither more  nor less than what is now called a parish; and even when the jurisdiction of bishops had become extensive, the  diocese long  continued  to  be  called  the parish. Afterwards  the word  was limited  to  the  district attached to a single church over which a presbyter presided, who was  hence called  parochus.  ..............During  this formation of  the parochial system, the ........... measures were  adopted  to  retain  these  churches  in  a  state  of dependence on the mother or cathedral church. The diocesans, however, were  often obliged  to allow the parish churches a greater degree  of independence  than they were of their own accord willing  to concece  to them............for  sometime after the  first introduction  of the  parochial system, the revenues of  a diocese  continued to  be regarded as a whole the distribution  of which was subjected to the bishop; that is to  say, whatever  obalations or  the like  were made  in parish churches were paid into the treasury of the cathedral church as  the one  heart of the body and thence distriouted among the  cleray after  the claims  of the  parish had been satisfied [emphasis  supplied].  This  arrangement  remained generally in force until the end of 5th century, many parish Churches having  in the meantime greatly increased in wealth by means  of bequests and donations and having come into the receipt of considerable obalations. ..............But in the course of  the sixth  century the  revenues of the pareshial clarc came to be considered simply as cheir own, the bishops being obliged  to rele  cheir hold  of them  Faiths  of  the World, by thems Gardner p.617      Parish Church,  thus, is  an  ecclesiestical  authority operating in  a specific  area. But  they are of a religious order. Their  autonomy, their  financial       powers, their administrative control have been thus different in different ages depending  on the  terms of  creation of the trust, the purpose and  objective of its establishment, the personality of the  person occupying  it, the  financial strength  of it etc. The  Syrian Churches,  as the  history narrated earlier indicates, were established for religious worship and public charity and  every church,  small or  big, claimed  that its spiritual  head   was  the   Patriarch  of  Antioch.  DW-28- Gheevarghese Moran  Mar Basselios  II who  was  ordained  as Metropolitan by  Abdul Messiah  and  examined  in  O.S.  No. 111/1113 and  on whose  testimony reliance was placed by the appellant, stated  that the  Churches are  established after obtaining sanction of the Metropolitan and the Government.      When  the  Malankara  Association  was  formed  in  the Mulunthuruthy Synod  a resolution  was passed constituting 8 of the  priests assemshed  there and 16 of the laymen of the first  class  with  the  ruling  Metropolitan  as  President entrusted with the complete responsibility of management for every  matter   connected  with  the  common  religious  and communal affairs  of the  entire Syrian community. The other resolution passed was that the ’committee shall have liberty to collect  other amounts as well in addition to the amounts above  mentioned   to  cause  its  increase,  to  make  sub- committees and  to do  everything beneficial’. In respect of administration  of   property  it  was  resolved  that  ’for altering the  existing rules  relating to the administration of the  property belonging  to, the church and to the Syrian

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 68  

community, and  for enacting  new laws  for  the  same,  for examining  and   approving  the   accounts  of  the  various churches, for  confirming  the  epithopas  (stuarts  of  the Church) of the respective churches decided by the Yogam, for printing the  books useful  and necessary for the community, for repairing the churches which have fallen into disrepair, for building  new churches  and for  erecting  schools,  the above said  committee shall  have full  responsibility’. The Committee  was  further  entrusted  with  responsibility  to collect and  send the  "Ressissa" due  to His  Holiness  the Patriarch, to collect the ’kaimuthu’ and other income due to the metropolitans  from the  churches and in case it was not sufficient to  find other  ways for  the same  and also  for maintenance of  the Dayaras (Monasteries), to effect payment of salaries  to the  vicars according to the capacity of the parish and  pay the  salary of  the  Secretary  and  others. Thereafter when  the Constitution  of 1934  was made  a full chapter was  devoted to  the  Parish  church.  The  detailed procedure was  given about  the membership,  maintenance  of register, the  payment of subscription, the convening of the Parish Assembly  meeting, the duration at which the Assembly should meet  in a  year and the manner in which the fund was to be  spent. It  was also  provided that  the  Vicar  shall report to  the diocesan  Metropolitan about  the election of the Parish  Committee which  shall not have any authority to take any  decision in  matters relating  to  religion  which shall be  referred to  the Diocesan  Metropolitan. Right  of appeal was also provided to Metropolitan. Clause 37 provided that when  the Diocesan  Metropolitan came  to the Church on his Parish  visit he  shall sign  the register maintained in every Parish of moveable and immoveable properties. All this indicates that  the Parish  Churches were  under the control and supervision  of the  Metropolitan. This Constitution was amended in  1967 with  participation of  Patriarch group and apart from reiterating what was said in 1934 it was provided in Clasue  120 that  Vicar  of  every  Parish  Church  shall collect Ressissa’  at the  rate of  2 annas  every year from every male  member who  has passed  the age  of 21 years and shall send  the same  to  the  Catholico.  The  Constitution further contemplates entire hierarchy in which the Catholico and Metropolitan were placed at the highest. From the scheme unfolded by the Resolution passed in the Mulunthuruthy Synod read with  the Constitution  it appears  every Syrian Parish Church even though established independently has necessarily to   have  relation  with  the  Malankara  Association.  The relationship between  the two  that is, the Parishes and the Malankara   Association   has   been   subject   matter   of consideration in  every decision  which came  up before  the courts. Even in the suit out of which this appeal has arisen the  issues   framed  were   whether  Parish  Churches  were independent   and   autonomous   units   and   whether   the administration and conduct of their affairs and their assets were to  be  under  the  immediate  control,  direction  and supervision of  the Diocesan Metropolitan as provided for in the Constitution  and whether  vicars,  priests  and  office bearers in  Parish Churches had to be approved and appointed by him  or the  Metropolitan had  only spiritual supervision and no  temporal control.  Both these issues were decided by the learned  Single Judge  in favour of the Parish Churches. But the Division Bench after elaborate discussion of law and fact held,  ’Parish Churches’  were’ not  congregational  or independent’ and  the Constitution  is valid  and binding on the Malankara  Association, community  diocese  as  well  as Parish Churches and Parishes.      Whether the  finding is well founded or not and whether

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 68  

the Division  Bench was  justified in  further recording the finding that the Malankara Church was episcopal to a limited extent, only,  shall be adverted presently, but before doing so it  is necessary  to deal  with  one  submission  of  Mr. Parasaran on  this aspect  at the  outset,  which  was  more preliminary in  nature, as  to whether  the relief sought by the plaintiffs  that the  Malankara Church  was episcopal in character was not a Union or Federation of Autonomous Church Units  and   was  governed  in  its  administration  by  the Constitution of the Malankara Church could not be granted in absence of  impleadment of  each Parish  Church. Prima facie the submission  appeared attractive but a closer scrutiny of the pleading demonstrates that the nature of Parish Churches was very  much in  issue of which parties were aware and the suits were tried on the footing whether Parish Churches were autonomous or  not. In any event, it is worthwhile referring to the pleading.      In paragraph 11 onwards of the Plaint (in Original Suit No.142/74 re-numbered  as Original  Suit No.4/79 in the High Court) it was averred that the Malankara Church consisted of an aggregate  of about 15 lakhs of worshippers worshiping in more than  1000 Parish  Churches. A  list  of  churches  was appended to  the Plaint.  It was  claimed that  each  Church founded became  a constituent of the Malankara Church a well established  religious   community  administered  under  the authority of the Malankara Metropolitan. It was claimed that the  Parishioners  of  each  Church  were  entitled  to  the benefits from  the Church  and its properties. The Malankara Church  was   neither  a   Union  with   a   Federation   of Congregational Units  but a  Church with a unique solidarity derived from apostolic succession and authority of Malankara Metropolitan and  the doctrines  and creed  followed by  the Church. It  was alleged  that the  Constitution of  1934 was binding on every Church and the temporal, ecclesiastical and spiritual  powers   of  the  administration  vested  in  the Malankara  Metropolitan   who  invariably  is  a  native  of Malankara or  elected  by  a  group  by  the  community.  In paragraph 19  it was  averred that defendants were impleaded in their  individual  capacity  and  as  representatives  of Malankara Jacobite  Syrian Christian Association. Permission to sue  in representative  capacity under Order 1 Rule 8 was also sought.      In the  written statement filed by different defendants the entire claim of the Catholicos was denied. The averments went to  the extent  of denying  establishment or revival of Catholicate  in  Malabar.  The  basic  claim  was  that  the Catholicate of  East was deputy to the Patriarch of Antioch. It was  alleged that  Syrian Christian Association formed at the  Mulunthuruthy   Synod  was  given  the  power  to  take decisions on  common matters of the community but it was not vested with any power over the individual Parish Churches or their administration.  It was  alleged that no Parish Church has surrendered  their powers  of administration to the said Association. It  was claimed  that Parish Churches and their properties belonged  to the  respective Parishioners and the plaintiffs or  the hierarchy  in the Malankara Church had no manner of  right, title, possession or management over these Churches. It  was denied  that the Parish Churches and other Churches mentioned  in the  list were  constitutents of  the Malankara Church and that the Malankara Metropolitan had the authority  to   administer  all   those  Churches.   Written statements were  filed. The  defendants raised  all possible defence even contrary to earlier decision. Different written statements were  filed by different defendants including the two,  that   is,  Knanaya   Association   and   Evangelistic

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 68  

Association which  were impleaded  on  their  own  instance. These averments  would indicate  that the  parties were very much at  issue on  the question whether Parish Churches were constituents of  Malankara Church  or not.  That is why when applications were filed on behalf of the Parish Churches for being impleaded  as party  it was  rejected and  the dispute became final  after the  High Court  held that  it  was  not necessary to implead every Parish Church individually.      It is  too late, therefore, to urge that no declaration on the  status  of  Parish  Churches  be  granted.  No  such objection was  taken either  before the learned Single Judge or the  Division Bench. May be that the 1000 Parish Churches were not  impleaded. But  it was a representative suit. Then the suit was for a declaration that the Malankara Church was episcopal in  character and  not a  Union of  Federation  of Autonomous Churches.  It was  not necessary to impleed every Parish Church  as a  party. The  question whether  Malankara Church is episcopal or not had to be decided on the pleading of the  plaintiff. The defence raised by the defendants, who were ordained  by the  Patriarch of  Antioch, was  that they were the  metropolitans and,  therefore, entitled to protect the interest  of Parish  Churches. Moreover  the declaration sought is as a matter of law. No factual dispute arises. The suit was  filed for  enforcement of  this right. Once it was found by  this Court  in  1958  that  the  Constitution  was validly framed  the Catholicos  could  not  be  denied  this declaration. In paragraph 94 of the 1934 Constitution it was provided that,  ’the (The)  Prime jurisdiction regarding the temporal ecclesiastical  and spiritual administration of the Malankara Church  is vested  in the  Malankara  Metropolitan subject to  the provisions  of this constitution’. Whether a particular Parish  Church  is  a  member  of  the  Malankara Association is  not relevant. Therefore, the submission that the non-impleadment  of individual  Parishes  precluded  the court from  granting any  declaration about  the nature  and status of Parish Churches, does not appear to be correct.      ’Congregationalism’   is   defined   in   New   English Dictionary of  Historical Principles  (By Sir  John  Murray, Vol.III, Part I, page 245) as under:                "A system   of  ecclesiastical      polity which  regards all    legislative      disciplinary   and   judicial  functions      as vested  in  the individual  church or      local congregation  of believers." ’Congregationalism’ is  defined  in  Chambers  Encyclopedia, Vol.IV, page 12 as under:                "Congregationalism   is    the      doctrine    held     by churches   which      put   emphasis    on   the  autonomy  of      the      individual       congregations.      Congregationalism  has   for  its   sign      manual the words of Jesus:                  ’Where 2  or 3  are gathered      together in   my name, there am I in the      midst of them’."      In Black’s Law Dictionary ’Congregation’      isexplained thus:                "An  assembly   or  gathering;      specifically,   an assembly  or  society      of   persons who together constitute the      principal supporters   of  a  particular      Parish, or  habitually meet  at the same      church for religious exercises." The word  is explained  in the  Faiths of the World Vol.1 at page 589 thus:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 68  

          "This word,  like the  term Church      (which see)  is sometimes  used    in  a      more extended   and  at other times in a      more   restricted    sense.    In    its      widest   acceptation,   it includes  the      whole body  of the  Christian people. It      is thus employed by the Psalmist when he      says, "Let  the congregation  of  saints      praise   Him."   But   the   word   more      frequently implies  an   association  of      professing   Christians,  who  regularly      assemble for   divine  worship   in  one      place under   a  stated pastor. In order      to constitute  a  congregation  in  this      latter sense  of   the term,   among the      Jews at   least  ten  men  are required,      who   have passed the thirteenth year of      their age. In every  place in which this      number   of   Jews   can   be   statedly      assembled, they   procure  a  synagogue.      Among   Christians, on  the other  hand,      no   such precise  regulation is  found,      our  Lord   himself   having   declared,      "Wherever two  or three are met together      in   my name,  there am  I in  the midst      of   them." Guided  by  such intimations      of the  will of  Christ, Christian sects      of    all   kinds    are  in  the  habit      of  organising congregations though  the      number    composing  them  may  be  much      smaller than  that fixed  by the  Jewish      Rabbies."      ’Episcopal’  is   defined  in   Webster   Comprehensive Dictionary to  mean, ’of  or pertaining to bishops. Having a government vested  in bishops; characterised by episcopacy’, whereas ’Episcopacy’ is defined as under:-           "Government of a church by bishops". New English  Dictionary of Historical Principles by Sir John Murray, Volume III, explains it to mean:               "Theory of  Church Polity which      places  the  supreme  authority  in  the      hands of episcopal or pasteral orders". ’Episcopacy’ is  explained in  the Faiths  of the  World  by James Gardner, Volume I, at page 836 as under:-               "that form of church government      which recognises  a distinction of ranks      among the  ministers of religion, having      as its   fundamental  article    that  a      bishop is superior to a presbyter". ’Bishop’ in  the  same  book  is  defined  as      under:-                "one   who    in  episcopalian      churches   has    the  oversight of  the      clergy of a diocese or district". ’Metropolitan’ is  defined in  the same  book at page 445 as under:-             "the bishop who presides over the      other bishops  of a  province.   In  the      Latin church,   it is used as synonymous      with   an    archbishop.   In   England,      the    archbishops   of  Canterbury  and      York are    both  Matropolitans......The      title was  not    in  use    before  the      council  of     Nice   in    the  fourth      century......The   rise      of      the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 68  

    authority   of   Metropolitans seems  to      have taken  place without  any  distinct      interference on  the part of the church.      The council  of Nice  was the  first  to      give   an express   deliverance  on  the      subject, particular  with  reference  to      the Alexandrian  Church. The sixth canon      of that  Council   ran in   these terms:      ’Let  the    ancient  custom  which  has      prevailed  in     Egypt,   Libya,    and      Pentapolis,  that   the   bishop      of      Alexandria  should have  authority  over      all these  places,  be still maintained,      since this  is the custom also with  the      Roman  bishop.   In  like   manner,   at      Antioch, and  in the   other  provinces,      the churches    shall    retain    their      ancient prerogatives’."      These   definitions    of    ’congregationalism’    and ’episcopal’ have  been extracted  to give  an idea  how  the expressions are  understood  as  the  entire  submission  of autonomy of  the Churches  is based  on whether the Parishes are congregational  or episcopal.  The  basic  or  essential characteristic as  appears from  the above  definitions  and explanation of  ’congregationalism’ and  ’episcopal’ is that in the  former  the  authority  vests  in  the  congregation whereas in  the latter  it is controlled by the bishop as he is deemed  to be  successor of  the apostle. That the Syrian Orthodox Church  of Malankara  accept  and  acknowledge  the theory of  apostle succession  is beyond doubt. In Faiths of the World,  the word  ’Episcopalians’ is explained and it is stated that  it is  a name  given to  those  who  hold  that peculiar  form   of  Church   government  which   is  called ’Episcopacy’. The  Church of  Rome is  Episcopalian  in  its constitution, and acknowledges the Pope as Universal Bishop, to  whom  all  the  various  orders  of  clergy,  cardinals, primates,  and   patriarchs,  archbishops  and  bishops  are subordinate...The Armenian church is similar in govenment to the Greek  church, their Catholicos being equivalent in rank and authority  to the  Greek patriarch...  All  the  ancient Eastern churches,  including  the  Copts,  Abyssinians,  and others, are  Episcopalian. The church of England is strictly Episcopalian in its ecclesiastical constitution.’ The claim, therefore, that they are congregational cannot be accepted.      Even factually it was not open to the Patriarch to take up this  defence. The  Canon on which reliance was placed by them and  filed as  Ex. B-161  dealing with  properties  and income of  the Churches  provided, ’If the valuable souls of the beliain  can be entrusted to the (Episcops Bishop) it is quite apt  that he  bears authority over the property of the church. Everything  should be  administered by his order and be given to the Priests, Decons and those who are in needs’. The resolution  in the  Mulunthuruthy  Synod  also  accepted this. In  the Vattipanam Suit Justice Chatfield in paragraph 15 of  the judgment  has noticed, it may be stated that both sides admit  that the administration of the temporalities of the Syrian  Jacobite Church  in Malankara  is with the local Metropolitan and  the other  Metropolitans’. That  is why in the Arthat  case it  was held  that the  plaintiff churches, that is  the Parish  Churches  of  Arthat  were  subject  to spiritual, temporal  and ecclesistical  jurisdiction of  the Metropolitan of Malankara. Paragraph 95 of 1934 Constitution itself provides  that, ’there  will be an Episcopal Synod in Malankara’.      Whether a  public institution or a public Church unlike

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 68  

private religious places is autonomous or not depends on its trust deed,  the intention  of the members who found it, the purpose for which it was established. The establishment of a Church is  normally understood as an institution established for  public   charities.  Its  objective  is  religious  and spiritual. Whenever a charity is created it is either public or private.  The latter  is for individual, may be for fixed period or  for determinate  person. But public charities are of permanent  character, the  membership of  which keeps  on fluctuating. Lewin  on Trust  explained a ’charitable trust’ thus, ’a  public or charitable trust, on the other hand, has for its  object the  members of an uncertain and fluctuating body and  the trust  itself is of a permanent and indefinite character and  is not  confined within the limits prescribed to a  settlement upon  a private  trust. These trusts may be said to  have as their object some Purpose recognised by the law rather  than human  beneficiaries. Tudor on Charities at page 131  of 6th  Edn. has  stated thus, ‘when a charity has been founded  and trusts have been declared, the founder has no power  to revoke,  vary or  add to the trusts. This is so irrespective of  whether the trusts have been declared by an individual, or  by a  body of  subscribers or  by trustees’. That the  Parish Churches  were  established  for  promoting ideals of  Syrian Orthodox  or Jacobite  Church has been the consistent claim  of both  the Patriarch and the Catholicos. Its  nature  cannot  be  changed  by  the  persons  who  are entrusted to  manage it.  They were  episcopal in  character when they  were found, they continue to be so at present and shall remain so in future. The character of public charities from episcopal  to congregational  cannot be  changed as  it would be against basic purpose for which these Churches were established. In  Attorney General  v. Pearson & Ors. 1814-23 All England Law Reports p.60 at 63 it was observed as under:               "But if,  on the other hand, it      turns  out   that  the  institution  was      established for  the express  purpose of      such form  of   religious  worship,   or      the   teaching    of    such  particular      doctrines,   as    the    founder    has      thought     most  conformable  to    the      principles  of the Christian religion, I      do not   apprehend  that   it is  in the      power   of   individuals,   having   the      management of  that institution,  at any      time to  alter the  purpose for which it      was founded,  or to say to the remaining      members:     ‘We  have     changed   our      opinions, and you, who assemble  in this      place for   the  purpose of  hearing the      doctrines and   joining in  the  worship      prescribed   by   the founder, shall  no      longer   enjoy the  benefit he  intended      for you  unless   you confirm    to  the      alteration which  has taken place in our      opinions’." Therefore, once  these public  charities were  found whether before the  establishment of  catholicate or  after it their nature could  not change.  On the  material  on  record  the courts have  found them  to be so. Therefore, the submission that they are autonomous does not appear to be well founded. Autonomy for  what, religious  worship or  temporal matters. Former cannot  be pleaded  as once  a Church  was found  for religious worship  it continued  to be  so. The  autonomy in temporal matters  as claimed  appears to  be two-fold,  one, freedom  to  disassociate  from  Malankara  Association  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 68  

second to  control and  supervise its  internal affairs. The first cannot  arise. In  law it  is not  open to  members of public or  public trust  to appropriate  trust properly  for themselves. Under Hill on the Law of Trusts and Trustees has explained it  thus, ‘However,  the crucial difference surely is that  no absolutely entitled members exist if the gift is on trust  for future  and existing members, always being for the members  of the  association for  the  time  being.  The members for  the time  being cannot  under  the  association rules appropriate  trust property  for themselves  for there would then  be no  property held on trust as intended by the testator for  those persons who some years later happened to be the  members of the association for the time being’. None of the Parish Churches claim autonomy in the sense that they have changed  their faith  and belief.  Each of  them claims that their  spiritual head  is Patriarch of Antioch. That is they are  the believers  and followers  of Syrian Church. So are the  members of Malankara Association and Catholicate of East. Therefore,  the existence  or exercise of autonomy for Parishes has  no  meaning.  Similarly  the  independence  or autonomy in  temporal matters is not of any consequence. The Parishes are bound by the Constitution framed in 1934.      Mr. Parasaran  submitted that  the Malankara Church was from very  ancient times  episcopal to  a limited  extent in spiritual  and   ecclesiastical   matters   but   has   been congregational/autonomous in  temporal matters. It was urged that if  Jacobite Syrian  Orthodox Church  has been  or  was episcopal as  claimed by  the respondents then the Patriarch would have  had control  over  temporal  matters  also.  The learned  counsel   submitted  that  Malankara  Church  being essentially congregational  it was to be presumed that every Parish Church was an independent Church. The learned counsel criticised  the  Constitution  of  1934  as  the  deliberate departure from  the established  norms and  practice of  the Church and  the attempt  by it  to invest  it with episcopal character in temporal matters. The learned counsel submitted that the  custom which was prevalent in the Malankara Church throughout  has  been  that  the  Parish  Churches  and  its properties were  administered by  the congregation  that  is Parishioners and in that sense the Malankara Church has been congregational in temporal matters and this well established custom must  prevail even  over the provisions of the canon. It was  urged  that  this  was  already  recognised  in  the Samudayam suit  by the Trigal Judge and the admission of the Catholicos before  the District  Judge. The  learned counsel submitted that the status of the Parish Churches even before Malankara Synod was independent and if indeed the Church was episcopal in temporal matters there was no necessity for the creation of  an Association  in the  meeting of 1876 for the purpose of  raising funds  since the  Patriarch directly  or through the  Malankara Metropolitan  could have  raised  the necessary finance  from the Parish Churches and above all if the Parish  Churches  were  episcopal  then  where  was  the question of  entering into an Udampadi with every individual Parish Church. The learned counsel submitted that the entire claim of  the respondents  that the entire body of Churches, institutions and  common properties  formed one organic unit to  be  administered  by  the  provisions  of  the  impugned Constitution was  based on  a misrepresentation of the words ‘Church’ and ‘Sabha’ and is contrary to the history, customs and proceedings  and  the  Malankara  Church.  Reliance  was placed on  the evidence  of P.W.4 and P.W.8 and it was urged that if they were read along with Ex.A-19 and A-20 then they would indicate  that it  did not  result into  bringing into effect  any   voluntary  association.  The  learned  counsel

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 68  

submitted that  if the exchange of Kalpanas are sought to be treated as  legally binding  on individual  Parish  Churches amounting to  unification and acceptance of the Constitution on the  basis  that  the  Patriarch  will  bind  the  Parish Churches then necessarily Patriarch will have to be accepted as the  supreme ecclesiastical and temporal superior. It was urged that it was so because the Constitution framed in 1934 deals with  all the  three aspects and can be imposed on the Parish Churches  only on  the basis  that they  did not have autonomy in  respect  of  any  one  of  the  three  and  the Patriarch will  have the power to impose such a constitution on the  individual Parish  Churches without  obtaining their individual  consent.   According  to   learned  counsel   if Patriarch had  such a spiritual, ecclesiastical and temporal supremacy such  supremacy could  not only  be in  regard  to Parish Churches  in the Patriarch section but also in regard to the  Churches of the Catholico section. And otherwise the religious beliefs,  practice  etc.  would  be  different  in Parish Churches  in the two sections and there cannot be any unification.  It   was  urged  that  Ex.A-19  could  not  be construed as  a surrender  of the authority which existed in the Patriarch  in favour  of the Catholico as if the Kalpana is construed  as such  then it  would amount  to a change of faith so  far the  Parish Churches  in the Patriarch section were concerned  and on  the principle of religious trust the properties and  the Churches  could  not  go  to  Catholicos section. Minutes  of the meetings held by the Association in 1959, 1962,  1965 and  1970 including  the presence  of  the Patriarch in  the installation  ceremony  of  Mar  Ougen  as Catholico was  placed.  It  was  urged  that  if  these  are construed as  claimed  by  the  respondents  then  it  would inevitably result  in applying the law relating to religious trusts. But  that would  not  be  in  consonance  with  law. According to  learned counsel  on the principle of voluntary association even  if it  is assumed  that they decided to be under Catholico  there was  nothing to  prevent them  in law from opting  out of it. Attention was drawn to various suits filed during this period and the failure of the Catholico to impose their  constitution. In  respect of  presence of  the Patriarch at  the installation ceremony of the Catholico the learned counsel  urged that it only strengthened their claim that  Patriarch   was  the  supreme  head  as  a  person  as delegation of  power can  be made  only by  a person  who is superior than the person whom he ordains. In any case if the Patriarch was  authorised to delegate and participate in the installation ceremony  as the  head of  the Syrian  Orthodox Church then  there was  nothing in  law to  prevent him from withdrawing it.  The submission  was placed  on yet  another aspect that  the Catholicos  had never  claimed supremacy to the exclusion  of the  Patriarch. But  on the  other hand by their conduct  and action  they accepted  the spiritual  and ecclesiastical supremacy as was clear from various documents where the  Catholico requested  the consent of Patriarch for relaxing the  rigour  of  canonical  penances.  The  learned counsel submitted  that the  respondents were  claiming that the  Malankara   Association   had   become   autoceohalous. Therefore, applying the principle of religious trusts if the Parish Churches and properties which were originally founded for  the   benefit  of  the  parishioners  who  believed  in uninterrupted apostolic  succession from  St. Peter  through the Patriarch then the use of such Parish Churches and their properties by those who claimed to be Malankara Church would be contrary  to original  faith and  character of  the Sabha (Sabha means  the Church  as a whole) attached to the Parish which are  established for  worship according  to the faith,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 68  

custom and  practice of  the Sabha.  Attention was  drawn to Ex.B-269  and   Ex.A-120  and   it  was   claimed  that  the Constitution of these Parishes would indicate that they were part of  the Malankara  Church subject to superior authority of the  Diocesan Metropolitan of the Malankara Metropolitan. The learned counsel submitted that according to the Orthodox teachings the  Church or  Sabha is a body with Christ as its head and  together  they  form  an  integral  whole  and  by consecration a  Parish Church  becomes the  abode of God and becomes a  part of  the Sabha.  Reliance was  placed on  the evidence of P.W.8 and admissions of D.W.2. It was urged that Church being  a public  trust  of  a  religious  nature  the beneficiaries of  which at a time have no right to deal with it as is clear from what has been stated by Lewin on Trusts.      The  nature   of  public  charities  has  already  been explained. None of the submissions appear to have substance. A Church is either episcopal or congregational. It cannot be episcopal  in   spiritual  matters   and  congregational  in temporal  matters.   That  would   be  against   the   basic characteristic  of  such  a  Church.  It  would  be  against specific  provisions   in  the  Constitution.  The  temporal matters  or   administration  of  Churches  flows  from  its establishment for  religious purposes,  namely, ‘the cure of souls’. Where  a building  is consecrated  as a  Church, ‘it continues to  exist in  the eye  of law  as a church and the body corporate  which had  been endowed  in  respect  of  it remains in  possession of  the  endowment  even  though  the material building  is destroyed’.  Every  Parish  Church  of Malankara acknowledges  the  Patriarch  of  Antioch  as  the spiritual  head.   They  have   been  playing   ressissa  to Patriarch. The  ordination, consecration and every spiritual or temporal power has always been exercised by the Patriarch of Antioch  so long it was not decided on basis of the Synod held at  Mulanthuruthy  that  the  Patriarch  was  only  the spiritual  head  and  the  temporal  powers  vested  in  the Metropolitan. This  division of  power could not destroy the basic characteristic of episcopacy. The Church in England is also an  episcopal Church.  In Halsbury’s  Laws  of  England Vol.14  para   562  the   right  of  Parishioners  has  been described, ‘to  enter the church remain there for purpose of participating in  divine worship  to have a seat and to obey the reasonable  directions of  the church  to  ordain’.  The property vests  in the  endowment. That  is the  fundamental difference in congretational and episcopal. In the former it vests in  the Parishioner.  But in  the latter in endowment. Once it  is conceded  that the Syrian Churches are episcopal in character  then the  distinction  between  spiritual  and temporal is  of no  consequence. Therefore,  the property of the Church  vests in the endowment and not the Parishioners. The right  to manage  such property  vests in  the  trustees under the  bye-law subject  to the control by the Catholicos and Metropolitan  in accordance  with the  Constitution. The fact that every Church has its own bye law does not militate against its  nature of  being episcopal as Clause 122 of the Constitution of  1934 itself  provides that,  ‘byelaws which are not  inconsistent with  the principles contained in this constitution may  be passed  from time to time by the Parish Assembly, the  Diocesan Assembly or the Diocesan Council and may be  brought into  force with  the approval  of the  Rule Committee’. The  Parish Churches  are thus governed in their administration by  the Constitution of the Malankara Church. The nature  of relationship  between the  two bodies  can be gathered either from the circumstances or from the documents if they  are on  record. The Resolution of the Mulanthuruthy Synod, the  Constitution of  1934 and  its amendment in 1967

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 68  

unmistakenly demonstrate  a close link between the Malankara Association and  each Parish Church. A Church is established by followers of a religious faith. The mere establishment  is not  sufficient unless it assures the realisation of  the ultimate goal that is salvation and that could come  only when such a body has a link with the higher spiritual body which religiously is considered to be the one which could  help in permitting a man to achieve the end. It is not  the case  of the appellants that the Parish Churches are independent in the sense that they have no link with any higher spiritual  power. It is their specific case that they claim their  spiritual link  from the  Patriarch of Antioch. The ordination of the Metropolitan-consecrate of Bishop even according to  them has  to be from Antioch. When D.W. 28 was asked whether  after creation  of Catholicate  the Patriarch ceased  to   have  any   power,  he   stated  ’ordaining   a Metropolitan is  not a  power. It  is a  bond and duty’. The witness denied  that Patriarch  of Antioch was only the head of  the  Jacobite  Church  and  he  had  no  power  over  or concerning the  Malankara Church.  Therefore, they  are  not independent and  autonomous in  the sense  in which  it  was claimed by  the learned counsel. If it be so and if what has been stated  earlier that  the Patriarch  of Antioch himself created a  Catholico of  the  East  in  1912  with  all  the spiritual powers  then it is difficult to visualise that how the Parish  Churches can claim that they are independent and separate  from  the  Malankara  Association.  In  Moran  Mar Basselios (supra)  it has been decided that the Constitution was framed  after notices  were sent to every Parish Church. Therefore, whether  they attended or not is not material and in any  case  once  the  Constitution  was  framed  and  its validity has  been upheld  then under  the provisions of the Constitution the  Metropolitan appointed  by  the  Malankara Association has  control over the Parish Churches. It is not necessary to  refer to  various  observations  made  in  the earlier judgments  by the  courts which undoubtedly indicate that the  Malankara Association  which  was  a  creation  of Malankara Synod  and is the representative body that has the right to bind the holy community and all the Churches by its deliberations and actions. The Full Bench of the Royal Court of Cochin  in 1905 held that the Churches and its properties were  subject  to  spiritual,  temporal  and  ecclesiastical jurisdiction of  the Metropolitan  of Malankara. Even in the very  first  judgment  of  1889  it  was  held  that,  ‘once Metropolitan of  the Syrian  Jacobite Church was accepted by the people  it would, ‘entitle him to spiritual and temporal governance of  the local  churches’. In  the Samudayam  suit this Court  had observed  that the  whole of  the  Malankara Church was  represented by  the Malankara  Association.  The District Judge whose decree had been restored by this Court, and in  appeal this  Court had not said anything contrary to what was  observed by him, observed, ‘It cannot therefore be denied that  this Jacobite  ‘Syrian Association’ which was a creation  of   the  Mulunthurn   Synod  was   and   is   the representative body  that has  the right  to bind  the whole community and  all the  churches by  its  deliberations  and actions.’ The  claim, therefore, that the Patriarch Churches are autonomous and independent in temporal matters cannot be accepted. That would be contrary to the Mulunthuruthy Synod, the decision  in the  Royal Court of Appeal, the Arthat Case and the  Constitution of  1934.  A  power  which  vested  in Malankara Association  could not  be denuded  merely because the spiritual  power  of  the  Patriarch  descended  on  the Catholico, who could be Metropolitan as well, on the analogy that if  Patriarch did not have temporal power then it could

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 68  

not be  deemed to  vest in  Catholico. Temporal power always vested in  Metropolitan. It  could not  be divested  because even the  spiritual power  came to  be vested  in  him.  The extent of  power also  remains  the  same,  namely,  not  to interfere in  day to day administration of a member which is governed by its own bye-laws.      Apart from the Syrian Orthodox Church there are various other churches  such as  the Evangelistic  Association,  the Simhasana churches  the five  churches  established  between 1951 to  1956 and  Malankara Suriyani  Knanaya Samudayan who claimed that  though they  are followers  of Orthodox Syrian Christian tenets  and beliefs but they have been established separately either under the Societies Registration Act or by their own  rules and  their churches  were established  with explicit declaration  that they  were  under  the  spiritual supremacy of  Patriarch  of  Antioch  from  whom  the  grace emanates. It was claimed by them that the suits against them were  misconceived  and  in  any  case  some  of  them,  for instance, the  churches established  between 1951  and  1956 having come  into existence  after the  Constitution of 1934 was framed  by the  Malankara Association  they could not be held to  be under the spiritual or administrative control of the Catholicate  of the  East. Each  of  them  were  subject matter of  separate suit.  The issues were framed separately and the evidence was also led. Both the learned Single Judge and the  Division Bench  after consideration of the material on record  and examining the finding recorded in the earlier decisions rendered  by the  Travancore Cochin High Court and this Court  in Moran  Mar Basselios  (supra) had  held  that except churches  of the  Evangelistic  Association  and  the Simhasana churches  and St.  Anthony church  the others were under the  Catholico of  the East.  The findings recorded in the case of Knanya Samudayam is subject-matter of Appeal No. 4953 whereas  Appeal No.4954  to  4956  has  been  filed  by Kundara Church  and Appeal  No. 4989  has been filed by five churches established  during 1951-56.  The  Catholicos  have challenged the  findings of the Division Bench in respect of Evangelistic Association and Simhasana Churches which is the subject-matter of SLP No. 14783-86 of 1991.      The Malankara  Suriyani Knanya Samudayam referred to as ‘Knanaya Samudayam’ traces its origin from one Mar Thomas of Cona and  one Bishop  Joseph who  migrated  along  with  400 persons comprising  of 72  families from a place called Cona in 345  A.D. They  claim that  they are  different racially, culturally and  socially from  the Syrian Christians and the membership in  the community  is only by virtue of birth. It is claimed  that the  community all  along kept  its  status separate and  functioned under  the guidance and supervision of spiritual  leadership of  the Patriarch  of  Antioch.  It claimed  that   Patriarch  ordained   Mar  Sevoten   as  the Metropolitan in  1910 and  Mar Clemis  in 1951  who is still continuing. Attention  was also  drawn to  the  Constitution framed in  1912 and  amended in  1918, 1932,  1939, 1951 and 1959 wherein  the superemacy  of Patriarch  of  Antioch  was always offered.  Various other  provisions were  pointed out and it was urged that it was clear that it was an autonomous church. The  followers of Kundara Church claimed that it was established by followers of Mar Cyrial who had come to India as prelate,  of the  Patriarch of  Antioch who  resolved the differences between  Mar Athanasius  and M.  Dionysius,  but failed in  his attempt  due to  the Royal Proclamation which was in  operation. It is claimed that it was at the instance of the  Patriarch that  the Queen of England issued a second proclamation permitting  the followers  to establish  a  new church. Therefore,  their fore-fathers  were associated with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 68  

Kundara Old  Church now  called  ‘Valiapaly’.  According  to them, this  church  was  established  as  Athanasius  denied spiritual supremacy  of Antioch.  However, it  is not denied that once  ex-communication of Gheevarghese was cancelled in 1912 and  when I. Ibrahim Kathanan, the priest of the Church died his  son Fr.  J. Abrahim  was  ordained  as  priest  by Gheevarghese Dionysius,  the Metropolitan  of Malankara. The claim of  Kothamangalam Church  was  that  it  was  only  an Archdiocese  of   the  Syrian   Orthodox  Church  under  the Patriarch  of   Antioch  which   is  administered   by   its Parishioners  according   to  congregational  principles  of governance  and   its  administration   is  carried   on  in accordance with  its Constitution which provided for Edavaka Yogam,  a   managing  committee,  a  working  committee  and Thonnanda Kaikors.  In the appeal filed by the five churches established  during   1951-56  it   was  claimed  that  when Catholicos were  declared as  aliens to  the church  by  the Travancore High Court, they established the church under the Patriarch of  Antioch. They claimed that they have their own Constitution and mode of administration. They are registered under  the   Societies  Registration   Act   to   whom   the Constitution of  Sabha was  never made applicable. According to them,  they having  been established  exclusively by  the Patriarch Group,  there can presumably be no doubt as to the object of  its foundation  and its  basic faith.  In the SLP filed by the Catholicos against the Evangelistic Association referred  as  ‘Samajam’  and  ‘Simhasana  Churches’,  it  is claimed that  the object  of  the  Evangelistic  Association indicates  that  it  is  composed  of  the  members  of  the Malankara Church and it provided that any person holding the faith of  the Jacobite  Syrian Church  and acknowledging the authority  of   that  church   can  be   a  member  of  that Association. It  was claimed  that even  though  Samajam  is registered under  the Societies  Registration  Act,  but  it being established  in the  territorial jurisdiction  of  the Catholicos and having acknowledged the spiritual headship of the Patriarch of Antioch as a supreme patron of the Samajam, they too  should be  treated as  a  part  of  the  Malankara Church. It  was pointed out that in 1966 the Samajam amended Clauses  7   and  9   of  its   Regulations  and  Rules  and incorporated in  Clause 7  (a) and  (b), but their claim was rejected  by  the  Division  Bench  as  this  amendment  was subsequently  withdrawn.   In  respect   of  the   Simhasana Churches, it was claimed that they were established with the object of  seeking grace  from  Patriarch  of  Antioch  and, therefore, they too should be deemed to be part of Malankara Church.      Since the  basic controversy  is the  same and both the learned Single  Judge and  the Division  Bench have recorded the finding  for or  against the  catholicos in  respect  of different churches  after considering the material on record in  each  case  and  with  full  understanding  and  correct appreciation of law it is not necessary to deal with them in any detail  except to  hold that  they do  not call  for any interference. Suffice  it to  say that  the parishes are the churches which  cannot claim  to be  separate or  autonomous bodies only  because their  racial and  cultural origin  was different. Once they were established whether they came from outside or  they were  local persons  it did  not  make  any difference as after the establishment of the church with the permission  of  the  Government  and  the  Metropolitan  and acknowledging the spiritual headship of Patriarch of Antioch which follows  the apostolic succession, the nature of these churches was  episcopal and,  therefore, it  was not open to them to  claim that  they should  be treated  as  autonomous

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 68  

bodies merely  because they have their separate bye-laws. As stated earlier,  the framing  of the bye-laws in each church is necessary  for purposes of governance and administration. But once  a church is established then the property vests in the  endowment   and  it   becomes  a  public  charity,  the administration and  control of  which has  to be governed in accordance with  the objective  of the  endowment. Since the objective is  to follow  Syrian  Orthodox  Church  of  which Patriarch of  Antioch is  the head,  they cannot claim to be independent, especially  after the  Constitution of 1934 was framed.      What remains  to be dealt with is the argument advanced by Ms.  Lily Thomas, the learned counsel for intervener that the Patriarch  of Antioch being corporation sole his powers, spiritual or  temporal were not partible nor the integrality can be  split up.  Reliance was  placed on paragraph 1206 of Halsbury’s Laws  of England  Vol. 9  and General Assembly of Free Church  of Scotland  & others etc. V. Lord Overtoun and others etc.  1904 Appeal Cases 515. The characteristics of a corporation sole  which was,  ‘originally ecclesiastical for the most part’ is, ‘that its identity is continuous, that is that the  original  member  or  members  and  his  or  their successors are one’ [Halsbury’s Laws of England Vol. 9 paras 1207-1208].  But  does  it  help?  The  personality  of  the Patriarch is  not being  split. His integrality is not being destroyed. He  remains the spiritual head. The difference in degree of  exercise of  spirituality does  not  detract  his status from  being corporation  sole. The  mere fact that it has been  reduced to ‘vanishing point’ does not mean that he has ceased  to be  so. In  fact much  sensitivity  has  been generated  for   nothing.  The   Patriarch  of  Antioch  and Catholicate always  existed in  the  hierarchy  as  the  two dignitaries. ‘This  dignitary (Patriarch) usually resides in a monastery  near Mardin.  The second dignitary, the primate of Tagrit,  resides near  Mosul, and  is termed  Maphrida or fruit-bearer’ [Faiths  of  the  World  Vol.II  p.  195].  In General Assembly  of Free  Church (supra) what was held that nature of  public trust  cannot  be  changed.  Has  it  been changed by  the Catholicate?  The answer  has to  be in  the negative. Even  the first  clause of the Constitution framed in 1934 acknowledge the supremacy of the patriarch.      The conclusions thus reached are, 1 (a)    The civil courts have jurisdiction to entertain the suits for  violation of  fundamental rights guaranteed under Articles 25  and 26  of the Constitution of India and suits.      (b) The  expression ’civil nature’ used in Section 9 of the  Civil   Procedure  Code   is  wider   than  even  civil proceedings, and  thus extends  to  such  religious  matters which           have            civil           consequence.      (c)  Section   9  is  very  wide.  In  absence  of  any ecclesiastical courts  any religious dispute is congnizable, except in  very rare  cases where the declaration sought may be what  constitutes religious  rite.                     2. Places of  Worship (Special  Provisions) Act,  1991 does not debar those  cases where  declaration is sought for a period prior to the Act came into force or for enforcement of right which was recognised before coming into force of the Act. 3. The  following findings  in Moran  Mar Basselious (supra) have become final and operate as resjudicata:-      (a).  The  Catholicate  of  the  East  was  created  in Malankara in 1912.      (b). The  Constitution  framed  in  1934  by  Malankara Association is valid.      (c). The  Catholicos were  not heretics  nor  they  had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 68  

established separate  church.      (d). The  meeting held  by Patriarch  Group in 1935 was invalid. 4    (a). The  effect of  the two  judgments rendered by the Appellate  Court  of  the  Royal  Court  and  in  Moran  Mar Basselios (supra)  by this Court is that both Catholicos and Patriarch  Group  continue  to  be  members  of  the  Syrian Orthodox church.      (b) The  Patriarch of  Antioch has  no temporal  powers over the churches.      (c) Effect  of the creation of Catholicate at Malankara and 1934  Constitution is  that the  patriarch can  exercise spiritual powers subject to the Constitution.      (d) The  spiritual powers  of the  patriarch of Antioch can be  exercised by  the   Catholico in accordance with the Constitution. 5.   (a) The  Hudaya Canon  produced by the Patriarch is not the authentic version.      (b) There  is no  power in  the  Hudaya  Canon  to  ex- communicate Catholicos. 6. The  ex-communication of  the Catholicos by the Patriarch was invalid. 7. All  churches, except  those which  are  of  Evangelistic Association or  Simhasna or St. Mary are under spiritual and temporal control  of the Malankara Association in accordance with 1934 Constitution..      Legal issues  of jurisdiction,  maintainability of  the suits, ex-communication  of the  Catholico, authenticity  of the canon,  res judicata  of the  findings recorded  in  the Samudayam Suit,  relationship of  Malankara Association with Parish Churches  having been  resolved not  much  difficulty remains in  the manner  in which  these  appeals  should  be decided. But  before doing  so the  stage is  also ripe  for recording the  deep anguish                      on baffling tenacity, to  fight till finish, between two groups, rather, members of the same family of a community which is, a living tradition of  faith  and  culture’  which  teaches  honesty, simplicity and  above all  sacrifice. What is astonishing is that the  two groups have had several rounds of bouts in the courts, where  mass evidence  both oral  and documentary was led  not   on  ideological   clash,  religious   difference, theological  conflict   or   any   scriptural   dispute   or controversy  about   the  right   of  worship,  rituals  and ceremonies or belief and faith surfaced but on matters which appear to  be extraneous  to  establishment  of  the  Syrian church a  religious institution which has a glorious history and proud  record of service. Mr. Parasaran was justified in submitting that  Syrian churches  could not  be  thought  of without   Patriarch of  Antioch. But  where is  the  dispute about it.  Even the  Catholicos acknowledge  that he  is the highest spiritual head. Extent of his powers and prerogative and  not  the  existence  or  his  being  highest  spiritual authority was  disputed. Therefore,  in nutshell  the entire exercise was  much ado about nothing. If the Catholicos went to one  extreme and  claimed that  a declaration  be granted that the  Church had become autocephalous then the Patriarch went to  other  extreme  by  raising  all  possible  defence denying even  the most basic  and fundamental concepts which had  been   settled  either  by  judicial  decision  or  the Constitution and  Kalpanas issued  from time  to time.  Even when Patriarch  of Antioch was constituted in the meeting of Nicea held  in 325 A.D. the other higher spiritual authority was the  Catholico of  the East.  It was agreed even at that time  that  the  Catholico  could  perform  every  spiritual function but  the Patriarch  had  the  overall  superiority.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 68  

There is  no deviation from that, except to the extent it is provided in  the Constitution  with consent  of all  and  in accordance  with   the  convention   and  custom  which  has developed for  all these  long years. Therefore, in order to bring down  the curtain  and avoid any future digging of the grave activated  by personal  prejudices and  rivalry, it is necessary to  hold that  the Constitution of 1934 as amended from time  to time accepted and acted upon till the spurt of activities in  1970 shall  be taken  as final, governing the right and relationship of all the parties.      When hearing  of these  appeals commenced  it was  felt both at  the outset  and in  the midst  that if both parties agreed, the  dispute could  be referred to some high-powered committee of  religious authorities.  But probably the issue being less religious and more legalistic and technical, both the parties through their counsel reposed confidence in this Court and  entreated the  Bench to  bring  an  end  to  this litigation. Therefore,  now after dealing with various legal matters which  could not  have probably  been satisfactorily resolved it is appropriate to declare that, (1) Relationship  between the  two spiritual superiors, that is, the  patriarch of  Antioch and  Catholico of the East at Malankara is  neither of superior nor subordiante but of two independent   spiritual authorities  with Patriarch  at  the highest in the hierarchy (2) The  Catholicos and  the  Patriarch    are  declared  as followers of one creed,namely , Syrian  Orthodox Church. (3) The  Constitution framed by the Malankara Association as amended from time to time shall govern the Churches attached to the Malankara Association.      Before  concluding   it  may  be  observed  that  while highlighting the  relationship between Malankara Association and the  Parish Churches,  it was submitted by Mr. Parasaran that the  provisions in  the Constitution  permitting  every church to  send same  number of representatives irrespective of the  strength of  churches was not very fair. May be. But this  is   a  provision   governing  matters   not  only  of administration of  churches but  of faith  and religion. The Malankara Association is like the executive of the Malankara Church  to  exercise  control  over  religion  and  temporal matters. The  Courts’ function  is restricted  to ensure its proper implementation  and  not  to  determine  whether  the provisions in  the Constitution framed by the religious body was fair  or unfair.  Religion is not governed, necessarily, by logic.  In any  case, it  is not in the domain of secular courts to  substitute its  own opinion of fairness. Further, no foundation  was laid for it either in the pleading in the trial court  or in  the SLPs  filed in  this Court  nor  any argument appears  to have  been advanced  either before  the Single Judge  or the Division Bench. In fact, if the figures given in  the Encyclopedia of Religion is any guide then the numerical strength  of Catholicos  in 1970 was more than the Patriarch.  However   paragraphs  120   and   121   of   the Constitution of  1934 provide  for a  Rule Commitee which is empowered to  amend the  Constitution from time to time. The grievance, therefore  of fair  representation, if it has any substance, can be raised before the Committee.      In  a  separate  judgment  written  by  Brother  Jeevan Reddy,J., he  has agreed,  although for  different  reasons, that the  creation of catholicate in 1912 was valid and that the Constitution framed in 1934 was binding and it