K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN ORTH. & ORS.

(Civil Appeal No. 3674 of2015)

Constitution of India: Arts.25 and 26 - Malankara church - Management of affairs of Malankara church - Perpetual fight between Patriarch faction c and Catho/icos faction - Historical background discussed in *Most Rev. P.M.A. Metropolitan case popularly known as *1995 judgment - Whether the 1995 Judgment is binding oil the appellants - Jn the 1995 judgment, the Supreme Court referring to the Year 1654 events, observed that the authority of the Patriarch extended only to spiritual D affairs but not to the temporal affairs of the Malankara Church - The Court also observed that the Patriarch in the year 1972 could not have exercised the power of appointment of getting ordaining the priests and deacons through his delegate - The Court clearly held that even if it is held that by Kalpana 's A-13 and A-14, the Patriarch is not denuded of the powers delegated by him to the E Catholicos, he could not have unilateral(v exercised those po-Wiers which were delegated and he could have exercised those powers thereafter in' consultation with the Catholicos and the Malankara Sabha (Association) and of course in accordance with the 1934 Constitution - The Court also found that it was not open to the Patriarch or his followers to contend that revival of Catholicate F was not in accordance with the religious tenets and faith of the Syrian Jacobite Christian Church; that the Constitution of 1934 was not duly and validly passed and that the revival of Catholicate reduced the power of Patriarch to a vanishing point - The power and authority of the Catholicos as per Kalpanas A-13 and A-14 G were affirmed, re-enforced and enlarged in the 1934 Constitution - The said findings and the declaration in the decree that was passed in the 1995 judgment, in a representative suit, is binding - As per the mandate of the Or.I r.8(6), CP(~ the finding that was recorded in the earlier suit that was decided in 1958 as well as in 1995 is H

·' 2 SUPREME COURT REPORTS [2017] 9 S.C.R . . !

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 3 ORTR& ORS.

1934 Constitution - Power ofthe Patriarch of Antioch or his delegate - Malankara Metropolitan enjoys all the temporal, ecclesiastical and spiritual administration powers - Thus .,the power . of the Patriarch of Antioch has reached a vanishing point and he cannot exercise those powers which are lying with various authorities under the Constitution as per the historical background noted in the 1995 judgment since time immemorial - Obviously, the Patriarch of Antioch cannot manage the day to day affairs in India sitting abroad - It is not contemplated nor he is supposed to do so in view of his Kalpana s - The powers of appointment of Vicar and priests etc. to the local Malankara church, have rightly been given to the concerned authorities in the 1934 Constitution on the basis of prevalent practices - A religious denomination or organization enjoys a complete autonomy in the matter of deciding as to rites and ceremonies essential according to their tenets of religion they hold and no outside authority has any jurisdiction to interfere with their decisions in such matters - At the same time, secular matters can be controlled by the secular authorities in accordance with the law laid down by the competent legislature - Spiritual power is also with various authorities like Catholicos, Malankara Metropolitan etc. - Thus it is too far fetched an argument that the Patriarch of Antioch or his delegate should appoi1it a Vicar or Priest - The spiritual power of Patriarch has been set up by the appellants clearly in order to violate the mandate of the 1995'judgment of this Court which is binding on the Patriarch, Catho/icos and all concerned. Art.25 - Spiritual power - The spiritual power cannot be the . monopoly of any particular individual howsoever high he may be - Appointment of Vicar and Priests is a secular matter and there can F · be legislation also in this regard by sovereigns· and can be dealt with by secular authorities also - There is rlo question of blessings of Jesus Christ not flowing to a person who confesses before a Vicar not appointed by the Patriarcll - The spiritual competence of Vicar depends on his own attainments - The dispute appears to be for fulfillment of desire to manage Church for the reasons which G are not related to spiri1,,;a/ism. 1934 Constitution - It is a Dioc~san Metropolitan as per s.40 of the Constitution who has the power to appoint Vicar, priests etc. and there is other hierarchy provided - Even Catholicos, Malankara H

4 SUPREME COURT REPORTS [2017] 9 S.C.R.

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 5 ORTH. & ORS.

6 SUPREME COURT REPORTS [2017) 9 S.C.R.

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 7 ORTH. & ORS.

8 SUPREME COURT REPORTS [2017] 9 S.C.R.

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 9 ORTH. & ORS.

10 SUPREME COURT REPORTS [2017] 9 S.C.R.

A the Church to be episcopal and with respect to the applicability of the 1934 Constitution the judgment is final, conclusive and binding in these cases. The decree is wholly in tune with the judgment and the issues which were effectively decided by this Court and what was left open is absolutely in no conflict with the B findings recorded in the judgment and in the decree. The decree is in accordance with the aforesaid dictum of this Court. (Para 65)(101-H; 102-A-D] *Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma (1995) Supp. 4 SCC 286 : (1995) 1 Suppl. SCR 542; Bhikhi Lal v. Triheni AIR 1965 SC 1935 - c relied on. 1.2 In the 1995 judgment, this Court referring to the Year 1654 events, observed that the authority of the Patriarch extended only to spiritual affairs but not to the temporal affairs of the Malankara Church. There was the revival of Catholicate in D 1912 by Patriarch Abdul Messiah, and that brought a qualitative change in the situation. A-14, the Kalpana was issued which fact was not disputed by the Patriarch group, and A-13 which was preceded by A-14 empowered the Catholicos to ordain Metropolitans and other officials of the Church in accordance · E with the canons of the Church and also to consecrate holy Moron. The powers of consecrating holy Moron that vested in Patriarch, came to be vested in the Catholicos by the Patriarch himself. The third Catholicos was elected as the Malankara Metropolitan and thus the powers of both i.e. the spiritual and temporal powers were concentrated in one person. This Court also observed that the Patriarch in the year 1972 could not have exercised the power of appointment of getting ordaining the priests and deacons through his delegate as observed in Para No.134 of the 1995 judgment. This Court clearly held that even if it is held that by Kalpana's A-13 and A-14 the Patriarch is not denuded of the powers delegated by him to the Catholicos, he could not have unilaterally exercised those powers which were delegated and he could have exercised those powers thereafter in consultation with the Catholicos and the Malankara Sabha (Association) and of course in accordance with the 1934 Constitution. This Court also held that it was necessary for the reason (i) to avoid creating H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 11 ORTH. & ORS.

· parallel authorities leading to conflict and confusion and (ii) the A ·. acceptance by the local people. This Court also held that when . the Patriarch had recognized the Catholicos, he did so with the full knowledge. It was also held that Kalpana's A-19 and A-20 were not issued in an abrupt fashion. Under Kalpana Ex. A-20 the Catholicos accepted the Patriarch subjeet to the Constitution 8 passed by the Malankara Association. The members.of the Patriarch group sw~re loyalty to the 1934 Constitution. The Patriarch abandoned whatever objection he had by his acts and declarations in the year 1964 when he came to India on invitation from the Malankara Synod and consecrated and duly installed the new Catholicos who was elected by the Malankara Association · C in ac.cordance with the 1934 Constitution. Before that, the Patriarch also took care to define the territorial jurisdictions of the Patriarchate and the Catholicate. The Middle East that was supposed to be under the jurisdiction of. the Catholicos was excluded from his jurisdiction confining his authority to Imlia and 0 East alone. This defining of the territorial jurisdiction also recognized the power of the Catholicos both in spiritual as well as temporal matters. This Court had also found that it was not open to the Patriarch. or his followers to contend that revival of Catholicate was not in accordance with the religious tenets and faith of the Syrian Jacobite Christian Church; that the Constitution E . of 1934 was not duly and validly passed. This Court also found that the revival of Catholicate reduced the power of Patriarch to a vanishing point. The power and authority of the Catholicos as per Kalpanas A-13 and A-14 were affirmed, re-enforced and enlarged in the 1934 Constitution. This Court has clearly held F that the Patriarch could not have unilaterally appointed priests etc. through his delegate. It is one thing to say that the Patriarch could· do these things in cooperation with the Catholicos but the ordaining of the priests and Metropolitans by him and his delegate without reference to and over the protestations of the Catholicos, was certainly not the right thing to do since it purported to create G a parallel administrative mechanism for the church in spiritual/ temporal matters. The said findings and the declaration in the said decree that was passed in the 1995 judgment, in a representative suit, is binding. .[Paras 66-70][103-A-H; 104-A- · F) H

12 SUPREME COURT REPORTS [2017] 9 S.C.R.

A R. Venugopala Naidu & Ors. v. Venkatarayulu Naidu Charities & Ors. (1989) Suppl. 2 SCC 356 : (1989) 1 Suppl. SCR 760 - relied on. 1.3 Order l Rule 8 is an exception to the general rule that all persons interested in the suit are to be made parties thereto. B The object for which the provision is enacted is to provide an exception to the ordinary procedure in a case where common rights of community or members of such association or large section are involved. It will be practically difficult to institute the suit under the ordinary procedure by impleading every person in which every individual has to maintain account by a separate suit c and to avoid numerous suits being filed for a decision on the common question. Order 1 Rule 8 had been enacted so as to simplify the procedure. The rule entitles one party to represent many and the action is maintainable without joinder of other parties. Order I Rule 8 pre-supposes that there are numerous o persons having the same interest. One or more such persons with permission of the court may sue or be sued or may defend such suit on behalf of the persons so interested. In such a case notice has to be given as per Order I Rule 8(2) by way of public . advertisement and then any person on whose behalf or whose benefit the suit is instituted or defended has a right to apply to the court to be .made a party to such a suit. It is provided in Order I Rule 8(6) that the decree in a suit under this rule shall be binding on all the persons on whose behalf or for whose benefit the suit is instituted or defended, as the case may be. As per the mandate of the Order 1 Rule 8(6), the finding that was recorded in the earlier suit that was decided in 1958 as well as in 1995 is binding insofar as the questions decided in a representative character. This Court has decided the issue in 1995 suit to the extent that the parties were having the common interest as contemplated in Order I Rule 8 and left open issues with respect to temporal matters in the absence of Parish Churches. G Moreover, in the suit culminating into 1995 judgment the relief was not sought inter parties, it was not in persmiam. The reliefs that were sought were common to Malankara Church. Thus the provisions of section 35 cannot come to the rescue of the appellants so as to prevent the bar of res judicata. The H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 13 ORTH. & ORS.

Parishioners were parties in the previous suit decided in 1958 A and 1995 and earlier thereto. The question cannot be reopened again and again by them on the ground that they were not parties individually, otherwise the representative suit and issues as well as the right of suing in representative capacity, would lose entire significance. [Paras 71-72)[105-E-H; 106-A-C, E, G] B Kumaravelu v. Ramaswami AIR 1933 PC 183; Deoki Nandan v. Muralidhar (1956) SCR 756; Veruareddi Ramaraghava Reddy v. Konduru Seshu Reddy (1966] Suppl. SCR 270; Bishwanath v. Slzri Thakur Radhabal/abhji (1967) 2 SCR 618 - relied on. c 1.4 It was submitted that in case the declaration in the 1995 judgment that the 1934 Constitution is binding on the Parish Churches even in their absence as parties, it would amount to the violation of the principle of natural justice. The submission cannot be made successfully as it ignores and overlooks the mandate of Explanation 6 to section 11 and provision .of Order 1 o· Rule 8(6) CPC. The previous suit was a representative suit and the present appellants/churches are .deemed to be parties in the representative suit as they could have applied for defending their rights or to sue as the case may be in the previous suits which had been decided by this Court. Thus there is no question of E violation of the principle of natural justice in the case in band. (Paras 74-75)[107-H; 108-A-C] National Textile Workers v. PR. Ramkrishnan (1983) 1 SCC 228 : (1983] 1 SCR 922; Institute of Chartered Accounta/lfs v. L.K. Ratna (1986) 4 SCC 537 : (1986] F 3 SCR 1048 - referred to. John v. Rees (1969) 2 AER 274 - referred to. 1.5. It is not open to the Parishioners to contend that they can have their independent Constitution and not bound by the 1934 Constitution. The 1995 judgment cannot be misconstrued G so as to confer the aforesaid right upon the Parishioners. The judgment is clear, unequivocal and unambiguous with respect to binding nature of the 1934 Constitution. It would not be open to any faction or group to adopt any particular system of management of Churches and to have a parallel system of managing authorities H

14 SUPREME COURT REPORTS [2017] 9 S.C.R.

A under the guise of spiritual supremacy. The mismanagement of Church and chaos cannot be permitted to be created for temporal gains or otherwise. There is a system of management, and the spiritual aspect which has been claimed under the guise of spiritual supremacy in the instant case, is an effort to illegally take over B the management of the Churches by rival factions in derogation of delegation of powers. The power with respect to· Orthodox Syrian Church of the East is the Primate ie. Catholicos. Though the Primate of the Orthodox Syrian Church is the Patriarch of Antioch. Certain spiritual powers have also been vested in Malankara Metropolitan, as per section 94 of the l 934 C Constitution. The prime jurisdiction regarding the temporal, ecclesiastical and spiritual administration of the Malanka ra Church is vested with the Malankara Metropolitan subject to provisions of the Constitution and under the guise of spiritual supremacy an effort is being made to obtain the appointments of Vicars and Priests as parallel authorities so as to manage the churches and 0 to render religious services under the guise of Patriarch. On the other hand, there are already Vicars and other authorities appointed as per the 1934 Constitution. Thus under the garb of spiritual supremacy which had reached a vanishing point due to the establishment of Catholicos and Kalpana, and the 1934 E Constitution which has been accepted and is binding, a parallel system of governance of churches would not be in the interest of the church and would destroy it.(Para 76)(108-G-H; 109-C-HJ Sita/ Das v. Sant Ram Das AIR 1954 SC 606; Shrinivas Krishnarao Kango v. Narayan Devji Kango (1955) 1 F SCR 1; Tirumala Tirupati Devasthanams v. K.M. Krishnaiah (1998) 3 SCC 331 : (1998) 2 SCR 9 - referred to.

2. IN RE: ABANDONMENT OF PLEAS/OBJECTIONS AS TO THE REVIVAL OF THE CATHOLICATE, THE G VALIDITY OF THE 1934 CONSTITUTION. 2.1 When the Church is a Parish Church and since time immemorial it is a Parish Church and is a part of Malankara Church, it has to perpetually remain as such. Under the garb of pursuing their faith of the Patriarch being superior, they cannot. H create a parallel system of appointing a Vicar for performing

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 15 ORTH. & ORS.

spiritual/religious ceremonies conforming to that faith, as an appointment of Vicar is not a spiritual matter. It is a secular matter. (Para 78](110-G] Sha Mulchand & Co. Ltd. v. Jawahar Mills (1954] SCR 351; S.H. Rangappa v. State of Karnataka & Ors. (2002) 1 SCC 538 : [2001] 3 Suppl. SCR 545 - referred to. 2.2 A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere laches or by saying that he has abandoned his right, unless there is something more, namely inducement of another party by his words or conduct c to believe the truth of that statement and so as to make him act upon it to his detriment. Then such a person would be bound by estoppel.- It is not abandonment or waiver, which prevents him from asserting that the legal forms were not duly observed. In the instant case, the discussion which has been made in the 1995 judgment is too elaborate and is based primarily on various D historical facts and background which clearly indicate that the Patriarch at no point of time had exercised temporal control and it was considered necessary to establish the office of the Catholicos so as to manage the Malankara Church which is a division of the Orthodox Syrian Church. The Malankara Church E was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the East and the Primate of the Church is the Catholicos. It is apparent from Kalpana '.s, establishment of · the office of Catholicos and other historical fa'cts discussed in the judgments referred to in the 1995 judgment that once having created the office, it is not the plea of waiver or abandonment but F the Kalpana issued by the Patriarch is binding upon him also. Thus it is a positive act and once having done so, the Patriarch is _. bound by it and cannot wriggle out of it and make the entire Parish Church system topsy-turvy. The Parishioners can have faith in the spiritual supremacy of the Patriarch but not in all the matters. G They have to give equal importance in the matter of management of the 1934 Constitution and cannot be permitted to commit regular breach and device ways to circumvent the judgment of .this Court by one way or the other and under the garb of spiritual . __ r ' _.,.

fight wrest the temporal control of the Churches. That the spiritual H

16 SUPREME COURT REPORTS [2017] 9 S.C.R.

A power of the Patriarch has reached to a vanishing point, has to be given the full meaning and it cannot mean that the powers can be exercised under the umbrella of spirituality to interfere in the administration of the Church and creating a parallel system of appointing Vicars and Priests etc. which will paralyze the functioning of the Churches for which they have been formed 8 and it would be against the very spirit of creation of trust from time immemorial which inheres the concept that once a Trust always a Trust. Once any Parishioner wants to change the 1934 Constitution, it is open to them to amend it as per the procedure. It is right that it therefore is not a Bible or holy book of Quran or C other holy books which cannot be amended. The 1934 Constitution has been amended in the form of bye-laws or regulations applicable for governance of Parish churches a number of times, and it can still be amended to take care of the legitimate grievances, if any, but there appears to be none for which the fight has been going on unabated in the instant cases. 0 [Para 79][112-G-H; 113-A-D, F-H; 114-B-C)

3. IN RE: PARISHIONERSHAVEARIGHTTO FOLLOW THEIR OWN FAITH UNDER ARTICLE 25 AND APPOINTMENT OF VICAR, PRIEST AND DEACONS ETC. AND MANAGE AFFAIRS UNDER ARTICLE 26 OF THE E CONSTITUTION OF INDIA: 3.1 It is apparent that the Syrian Orthodox Church of Malankara accept and acknowledge the theory of apostate's succession. The Church of Rome is Episcopalian in its constitution, and acknowledges the Pope as Universal Bishop, F to whom all the various orders of clergy, cardinals, primates, and patriarchs, archbishops 11pfl bishops are subordinate. The Armenian Church is similar in government. [Para 90)(121-C-D) Ram Manohar Lohia v. State of Bihar [1966] 1 SCR 709; S.P. Mittal v. Union of India, AIR 1983 SC 1: G f1983] 1 SCR 729 - referred to. Halsbury's Laws of England, s•h Edn., vol. 34; "The Encyclopedia of Religion", edited by Mircea Eliade, vol. 3, "Church Polity"; 'The Encyclopedia of Religion' by

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 17 ORTH. & ORS.

Macmillan Publishing Co., New York, Vol. 3; Black Law A Dictionary - referred to. 3.2 A spiritual person is one who seeks to value and connect himself to higher power or simply his higher self. The word 'spiritual' has been defined to mean as of or relating to ecclesiastical rather than secular matters. Spiritualism is alien to temporalism. One whose desire is for temporal gains, cannot be said to be on the spiritual path. Same are aliens to each other. One who is really spiritual is far away from the temporal desires. Mere spiritual knowledge (gyan) is not enough. Religion is a manifestation. of the flesh. But spirituality as defined by the God C as manifestation of his nature. True spirituality is something which is found deep within oneself. It can also be said that spirituality is a form of religion but a private and personal form of religion. Spirituality is more personal and private while religion tends to incorporate public rituals and organised doctrines. A twilight zone. Reiigion and spirituality are two distinct terms associated with D · faith. Spirituality is more abstract than religion. Religion usually promote a creed and define code of ethics. Spirituality exists in the nebulous realm of the undefinable. Spirituality is a supernatural form of transformation.[Paras 100-102][132-E-G; 133-A-C] Bhuri Nath & Ors. v. State of J&K & Ors. (1997) 2 E SCC 745 : (1997) 1 SCR 138 - relied on. Pannalal Bansilal Patil & Ors. Etc. v. State of Andhra Pradesh & ;tnr. AIR 1996 SC 1023 : (1996) 1 SCR 603; Commissioner of Police & Ors. v. Acharya Jagadishwarananda Avadhuta & Am: (2004) 12 SCC p 770 : (2004) 2 SCR 1019; Sardar Syedna Taher Saiffudin Saheb v. State of Bombay (1962) SCR Suppl. 496; N. Adithayan v. Travancore Devaswom Board & Ors. (2002) 8 SCC 106 : (2002) 3 Suppl. SCR 76; A.S. Narayana Deekshitulu v. State of A.P. & Ors. (1996) 9 SCC 548 : (1996) 3 SCR 543; Adi Saiva G Sivachariyargal Na/a Sangam & Ors. v. Government of Tamil Nadu & Anr. (2016) 2 SCC 725 : [20151 11 SCR 1110 - referred to.

18 SUPREME COURT REPORTS (2017] 9 S.C.R.

A Black Law Dictionary; "Encyclopaedia of Religion and Ethics" by James Hastings - referred to. 3.3 The Patriarch of Antioch has not exercised the power earlier with respect to the appointment of priests etc. Be that as it may. He has re-established the Throne of Catholicos in 1912 B under a Kalpana in which he has dedicated the power to the 1934 Constitution which has been accepted by the issuance of Kalpana and by establishing Catholicos-111 in 1964 by consecrating Malankara Metropolitan. It is apparent that the 1934 Constitution has to hold the field and it is not the spiritual right within the spiritual domain even if the Patriarch of Antioch is supreme to appoint Vicars/priests. The provisions in 1934 Constitution are binding. Section 1 thereof provides that the Primate of the Orthodox Syrian Church is the Patriarch of Antioch. However section 2 takes care that the Malankara Church which is a division of the Orthodox Syrian Church, was founded by St. Thomas the D Apostle and is included in the Orthodox Syrian Church of the East, and the "Primate" of the Orthodox Syrian Church of the East is fhe "Catholicos". The appointment of Vicar is dealt with in section 38 of the Constitution. There shall be a Vicar for every Parish Church; other Priests, if any, shall be assistants of the Vicar. The Vicar shall be the joint steward with the Kaisthani of the assets of the Parish. The Diocesan Metropolitan has the authority to appoint, remove or transfer the Vicar and other priests. It is apparent from section 40 that the Diocesan Metropolitan has the authority to appoint, remove or transfer the Vicar and other priests. Section 43 as amended in 2011 contains the provision that the Baptism Register, the Marriage Register, the Burial Register, the Parish Assembly Register and Confession Register shall be maintained by the Vicar and kept in his custody and the Diocesan Metropolitan when on a visit to the church, these shall be got signed by him. The Vicar shall also keep the files of Kalpana's. [Paras 115-118)[151-C-F, H; 152-A, D-E) G 3.4 The prime jurisdiction with respect to the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested in the Malankara Metropolitan and other authorities. It is intended for proper administration of the church and does not run against the concept of the spiritual authority of the H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 19 ORTH. & ORS.

Patriarch of Antioch but at the same time, Malankara A Metropolitan enjoys all the temporal, ecclesiastical and spiritual administration powers. Thus the power of the Patriarch of Antioch has reac.hed a vanishing point and he cannot exercise those powers which are lying with various authorities under the Constitution as per the historical background noted in the 1995 judgment since B time immemorial. It passes comprehension how the Patriarch of Antioch can manage the day to day affairs in India sitting abroad. It is not contemplated nor he is supposed to do so in view of his Kalpana's. The historical facts also indicate otherwise that he had not been managing the churches and it is better that the churches are left for the purpose of day to day administration. C The powers of appointment of Vicar and priests etc. to the local Malankara church, have rightly been given to the concerned authorities in the 1934 Constitutio~ on the basis of prevalent practices. A religious denomination or organization enjoys a complete autonomy in the matter of deciding as to rites and D ceremonies essential according to their tenets of religion they hold and no outside authority has any jurisdiction to interfere with their decisions iii· such matters: At the same time, secular matters can be controlled by the secular authorities in accordance with the law laid down by the competent legislature. Spiritual power is also with various authorities like Catholicos, Malankara E Metropolitan etc. Thus it is too far fetched an argument that the Patriarch of Antioch or his delegate should appoint a Vicar or Priest. There is no violation of any right of Articles 25 or 26 of the Constitution of India. Neither any of the provisions relating to appointment of the Vicar can be saioto be in violation of any of F ·the rights under Articles 25 and 26 of the Constitution of India. The 1934 Constitution cannot be said to be in violation of Articles 25 and 26 of the Constitution of India. It was suggested that the faith involved in the present case refers to apostolic succession from Jesus Christ, viz., the blessings and grace of Christ descends through an apostle i.e. St. Peter or St. Thomas as the case may 'G be, and from the said apostle to the Pope/Patriarch who appoints a Vicar. The argument ignores and overlooks other offices that are in-between like Catholicos, Malankara Metrop91itan, and .\ Diocesarl Metropolitan etc. It is not necessary. for the Pope and the Patriarch to appoint Vicar because management of a Church H

20 SUPREME COURT REPORTS [2017] 9 S.C.R.

A is not a religious ritual. [Paras 121-122](154-H; 155-A-H; 156- A) Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282 : [1954] SCR 1005 - relied on. B 3.5 The spiritual powers vest in other functionaries also and obviously spiritual power cannot be the monopoly of any particular individual howsoever high he may be. Others are in hierarchy viz. Diocesan Metropolitan has power to appoint Vicar, Priests etc. as per Section 40. In the matter of ordination of c Deacons and Priests by Diocesan Metropolitan or Malankara Matropolitan, a candidate for ordination should have a degree qualification. Power to appoint high Priests (Prelates) is by Catholicos in co-operation with Synod. Bishop and Metropolitan can be consecrated by the Catholicos in conjunction with Synod, Bishop or Metropolitan has to be elected by the Association after approval by Synod to be consecrated by Catholicos. Person for ordination has to study theology, and on being found fit can be ordained. It is not that only blessing of a spiritual person makes him qualified to perform duties of such posts. Appointment of Vicar and Priests is a secular matter and there can be legislation also in this regard by sovereigns and can be dealt with by secular authorities also. There is no question of blessings of Jesus Christ not flowing to a person who confesses before a Vicar not appointed by the Patriarch. The spiritual competence of Vicar depends on his own attainments. The dispute appears to be for fulfillment of desire to manage Church for the reasons which are not related to spiritualism. [Para 123)(156-B-E)

American Express Bank Ltd. v. Calcutta Steel Co. (1993) 2 SCC 199 : [1992] 3 Suppl. SCR 833 - held inapplicable. G Halsbury's Laws of England, vol. 14, para 562-referred to. 3.6 The contention that the Parishioners own the property of the Parish Church and the Cemetery and they cannot be deprived of that right by reason of the office holders of the Parish H Churches by not subscribing to the 1934 Constitution is not at

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 21 ORTH. & ORS.

all plausible. The properties would always remain to be Malankara A Church properties. Only Office holders have to subscribe to the 1934 Constitution as held by this Court. The Parishioners can take no church property away, neither Catholicos faction by majority and the submission is based on the misconception as to the nature of rights in such property. It has to remain in Malankara B Church. Neither the Church nor the cemetery can be confiscated by anybody. It has to remain with Parishioners as per the customary rights and nobody can be deprived of right one enjoys being a Parishioner in the church or to be buried honourably in the cemetery, in case he continues to have faith in Malankara Church. It passes comprehension as to how irreconcilable C differences in faith have been sought to be created in flimsy manner to and divide Church into the Patriarch and Catholicos factions whereas they are part of the Malankara Church, whereas the dominant faith is the common, Malankara church is one, and Orthodox Syrian Church is the same. Only intention differs. D Hence, law and order situation has arisen which cannot be scenario for spiritual attainments with embodiment of tolerance and equality of all human beings and living creatures. The depth in sight beyond the sensual eye sight is required for spiritual gains. For the reasons best known to the parties, fight is going on regarding the management which is wholly uncalled for. If E church has to survive, obviously this must stop and let the blessings of the Christ fall upon the believers, actual followers of his teaching. This is the only way peace will come to the Church. For the unrest and ugly situation no reason, good, bad or otherwise exist which can be legally recognized. [Paras 126-127)(159-C-H; F 160-A] 3.7 There is no force in the submission that if services and ceremonies conducted by only those Vicars and priests who are appointed in accordance with the 1934 Constitution, would be violative of the basic object of the Parish Church. Diocesan Metropolitan appoints Vicar unde1· the 1934 Constitution. It does G not impinge upon the object of the Parish churches. The Catholicos or the Patriarch, as the case may be, are not supposed to deal with such matters which are reserved for Diocesan Metropolitan. This is the position prevailing since long. Vicars H

22 SUPREME COURT REPORTS [2017] 9 S.C.R.

A or Priests can also be appointed by secular authorities of sovereign. The appointment made by Diocesan Metropolitan cannot be said to be suffering from any illegality or affecting the spiritual rights of the Parishioners. Deacons and Priest for ordination are required to undergo successfully, theological studies and principle has to certify as to their fitness. For B ordination as Korooyo (Reader) successfully clearing of 3 years study is required. How Patriarch from abroad can exercise such powers is beyond comprehension and that would amount to unnecessary interference which is not supported by any Kalpana or historical document. The 1934 Constitution provides appointment of Vicar by Diocese in the area of its operation. In tire absence of anything having been provided in Udampady, the 1934 Constitution would hold the field. [Paras 128-129][160-B- F] 3.8 Faith is tried to be unnecessarily divided vis a vis the office of Catholicos and the Patriarch. Faith of church is in the Jesus Christ. An effort is being made to take over the management and other powers by such an action just to gain control of temporal matters under the garb of spirituality. Even if Vicar performs the functions, which are religious, there would not be infrlngement of the rights under Article 25 and 26 of E Constitution of India in case the Diocesan Metropolitan appoints Vicar as provided in the Constitution and it is clear the Patriarch of Antioch has not reserved this power to himself. The 1995 judgment settled such disputes, between the parties. The Diocesan Metropolitan as per the Constitution of 1934 appoints vicar. The submission that Vicar of a Catholicos group cannot be thrust on a worshipper of Patriarch faith against his will, is totally unsound and is simply a ploy to take over the control of the management of the Church by putting faith in a Vicar who is running a parallel governance at the cost of Church by creating factionalism within the Churches. It is settled proposition of law that when a mode is prescribed for doing a thing, it can be clone only in that manner and not otherwise. This Court in 1995 Judgment made it clear that the Patriarch has no such authority, he could not exercise any such spiritual power unilaterally as done in 1972 which became the cause of unrest in Church. The H appointment"ofVicar, Priest by the Patriarch or through delegate

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 23 ORTH. & ORS.

unilaterally was held to be not permissible in the decision of 1995 A even if he has such powers. He has no such power to interfere in the management of the church and now that question is agitated again and under the same guise of supremacy such an uncalled for attempt has to be thwarted and not to be countenanced for a moment. There is no violation of constitutional provisions or B authority of Patriarch. Thus there is no question of violation of Parishnors rights. [Para 130][160-G-H; 161"A-E) Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 : f 1985) 2 Suppl. SCR 51; Basheshar Nath . v. I. T. Commissioner AIR 1959 SC 149: [1959) Suppl. SCR 528; Nar Singh ·Paul v. Union of India 2000 (3) c sec 588 : [2000) 2 SCR 752; L & T McNeil Ltd. v. Govt. of T. N. (2001) 3 SCC 170 : [2001) 1 SCR 701; State of Gujarat & Am: v. .Justice R A. Mehta (Retired) & Ors. (2013) 3 SCC 1 : [2013) 1 SCR 1; Samsher Singh v. State of Punjab & Anr. (1974) 2 SCC 831: D [1975) 1 SCR 814 - referred to.

4. IN RE: REPUDIATION OF THE SPIRITUAL SUPREMACY OF THE PATRIARCH BY THE CATHOLICOS : Once offic.e of the Catholicos has been re-established, Patriarch could not exercise the powers which have been dealt with in the 1934 Constitution, and conferred on various authorities in hierarchy of church, that too unilaterally to create another centre of power and thereby the Patriarch cannot be permitted to create parallel system of administration by appointing Vicars, Priests and Deacon or another authority ofChurch. He is bound to act within the four corners of the 1934 constitution for the sake of peace in the church. In the temporal matters, Patriarch has no power and ttie spiritual power had also come to the vanishing point by his own acts as noticed by this Court in the 1995 and other judgments. Submission to the contrary on behalf of the appellants that he can exercise the powers after informing the Catholicos, cannot be accepted. The Malankara Metropolitan has to be of local area. Logically also for proper management of the affairs of Churches power cannot be exercised from abroad. Such a scenario is neither conceived nor feasible or permissible. The spiritual supremacy of one holy authority over the other, H

24 SUPREME COURT REPORTS (2017] 9 S.C.R.

A also cannot per se mean exclusion and subordination of the other religious authority. When there is delegation and delimitation of the territorial and other powers, concerned authorities however high they may be, spiritually or otherwise, have to follow the discipline and strictly act as per delimitation of zones and powers. It is absolutely necessary for survival of the Church and for proper 8 administration. (Para 140)(170-F-H; 171-A-C]

5. IN RE : THE 1934 CONSTITUTION IS JN THE NATURE OF A CONTRACT, ENFORCEABLE AT PRESENT: The High Court has rightly granted the declaration sought c for in the facts and circumstances of the case, projected in the case. The declaration given that the Parish Churches are governed by the 1934 Constitution is just and proper. In the instant the Patriarch faction is more to be blamed for disorder in the churches than the Catholicos faction. They ought to have followed 1995 judgment and other decisions. That they have not D done and have insisted upon their own system of management that is not permissible. [Paras 142, 143)(173-G; 174-A-B) Mohammadia Cooperative Building Society Ltd. v. Lakshmi Srinivasan Cooperative Building Society Ltd. (2008) 7 SCC 310 : [2008) 7 SCR 762 - referred to E

6. IN RE: UDAMPADY - ENFORCEABILITY, OF BINDING NATURE AND 2002 CONSTITUTION: 6.1 The 1934 Constitution is applicable to the Parish Churches under the Malankara Church. The submission that F the Udampady will prevail cannot be accepted in view of the provisions made in section 132 of the 1934 Constitution to the effect that all agreements which are not consistent with the provisions of this Constitution are made ineffective and annulled and also in view of the finding in the 1958 Samudayam matter that the Constitution had been validly adopted and is applicable. G The question cannot be rt'-agitated and reopened under the guise ofUdampady. Udampady cannot hold the field for administration of such Parish Churches. Udampady is not a document by which the Church came to be established. It is with respect to its management only. The registration of the Udampady cannot make it superior than the Constitution and the latter will prevail

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 25 ORTH. & ORS.

as found by this Court in earlier decisions. The finding is binding, conclusive and has to be respected. Even otherwise, Udampady cannot hold the field. No one can deny the right under Article 20 of the Universal Declaration of Human Rights. No one may be compelled to belong to an association. There is no compulsion with any of the Parishioners to be part of the Malankara Church or Parish Church. There can be an exercise of unfettered volition not to be a part of an Association but the question in the case is whether one can form another Association within the same Association and to run a parallel system of management of the same very church which is not permissible. Leaving a Church is not the right denied but the question is whether the existing C Malankara Church can be regulated otherwise than by the .1934 Constitution. If the effort of certain group of Patriarch otherwise is to form a new Constitution 2002 to appoint Vicars, Priests etc., giving a go by to the 1934 Constitution and to form a new Church under the guise of same Malankara Church, it is not permissible. D The Malankara Church its properties and other matters are to be governed by the 1934 Constitution and even majority of parishioners has no right to take away and usurp the church itself or to create new system of management contrary to 1934 Constitution. It was a trust created as Malankara church that is supreme, for once a trust always a trust. [Paras 144, 146](174-E- E F; 175-G-H; 176-A-C] - Bijoe Emmanuel & Ors. v. State of Kera/a & Ors. (1986) 3 SCC 615 : [1986) 3 SCR 518; Smt. Damyanti Naranga v. The Union of India & Ors. (1971) 1 SCC 678 : (1971] 3 SCR 840; O.K. Ghosh v. E.X Joseph F [1963] Suppl. 1 SCR 789; Suryapalsingh v. U.P. Government AIR 1951 All 674; Sitharamachary v. Sr. Dy. Inspector of Schools AIR 1958 AP 78 - referred to. Cheall v. APEX (1983) 1 All ER 1130 - referred to. G 6.2 Various provisions of the Constitution make it clear that there is a hierarchy of control and Parish Church properties cannot be dealt with otherwise, the provisions contained in section 23 as to the written consent of the Diocesan Metropolitan and H

26 SUPREME COURT REPORTS [2017] 9 S.C.R.

A the detailed system of management, appointment of Vicar and the Kaisthani, Parish Assembly, as also the power to spend certain amounts as provided in section 22 of the Constitution. The accounts are supervised and to be signed by the Diocesan Metropolitan. Similarly the acquisition of any immovable property for the Diocese can be with the written consent of the Malankara B Metropolitan. It is apparent from the aforesaid provisions that there is a hierarchy of control that is provided with respect to the Church properties also. The community trustees are also provided for the Vattipanam that is Trust Fund. Section 94 provides for the temporal, ecclesiastical and spiritual control of c the Malankara Metropolitan. Catholicos can also hold the office of Malankara Metropolitan. The Episcopal Synod has the power to consecrate Cathlicos. Whatever autonomy is there, is provided in the Constitution for the Churches for necessary expenditure as provided in section 22, otherwise it is Episcopal nature of the D Church and once the property vests in Malankara Church, it remains vested in it and cannot be taken away and in case there is any dispute with respect to-faith etc. as is raised in the present case, it has to be decided by the Episcopal Synod and in case any bye-law is to be changed, its remedy is available under the provisions of sections 126, 127 and 129. Faction of Parish cannot E decide against Constitution. Byelaws must conform to Constitution. The income has to be distributed as per sections 120 to 123. [Para 163)(186-A-E] 6.3 The submission raised that by majority, decision can be taken to opt out of the 1934 Constitution by the Parish F Assembly and to form a new church under a new name, as has been done in 2002. Constitution prohibits such a course. Even bye-laws that do not conform to Constitution cannot be framed and that has to be placed before Rule Committee under sections 126, 127 and 129. In existing system of. Malankara Church, a Parish Church that is a part of Malankara Church cannot be G usurped even by majority in Church under the guise of formation of new Church. The majority view in the 1995 judgment refused to give declaration with respect to property in the absence of Parish churches. However, it was observed that the 1934 Constitution shall govern and regulate the affairs of the Parish H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 27 ORTH. & ORS.

Churches insofar as the Constitution provides for the same. The A 1934 Constitution shall govern the affairs of the Parish Churches in respect of temporal matters also insofar as it so provides. The Malankara Church is Episcopal to the extent it is so declared in the 1934 Constitution as held in the 1995 judgment. The 1934 Constitution governs the affairs of Parish Malankara Churches B and shall prevail. No one can become owners by majority decision or permitted to usurp Church itself. It has to remain in perpetual succession for the purpose it has been created a Malankara Church. [Paras 164-166)(186-G-H; 187-A-D] Craigdallie v. Aikma 3 ER 561; Attorney General v. Pearson (1817) 3 Mer 353; General Assembly of the c Free Church of Scotland v Overtoun (1904) AC 515; Shergill v. Khaira (2014) 3 All ER 243 - referred to. 6.4 The Parish Assembly by majority cannot take away the property and divert it to a separate and different church that is not a Malankara Church administered as per the 1934 D Constitution, though it is open to amend the Constitution of 1934. As the basic documents of creation of church have not been placed on record, usage and custom for determining the competing claims of rival factions becomes relevant. Thus, the 2002 Constitution cannot hold the field to govern the appellant churches and the 1934 Constitution is binding. Finding recorded by the High Court that tbe Kolencherry Church was not administered by the 1913 Udampady and was administered in accordance with . the 1934 Constitution is correct at least after the Constitution was adopted. General body meeting of 8.3.1959 bas adopted the 1934 Constitution. Udampady cannot hold the field by virtue of section 132 of the Constitution and there is other oral evidence that had been assessed by the High Court including the " documentary evidence and the Udampady cannot be taken to govern. Moreover in view of the findings in the 1958. Samudayam suit and the 1995 judgment, the Constitution of 1934 is binding which has been held to be valid and Malankara Church has to be administered as per the provisions contained therein. Thus Udampady of 1913 cannot be set up or used as ploy to avoid the provisions of 1934 C!>nstitution. Thus the main plank of submissions is also barred by the principle of res judicata. [Paras H

28 SUPREME COURT REPORTS [2017} 9 S.C.R.

A 169, 171)(188-E; 189-D-F] Hill in the book "Law of Trusts and Trustees" - referred to. 6.5 The church was created way back in the 7th century. The Udampady of 1913 is not a document of creation of the Trust. The then in-charge person executed it just for the management B of the church in question. The 1934 Constitution after being adopted in 1959 by the Church is binding. The Udampady of 1913 has lost its efficacy and utility. The Udampady stands annulled by Section 132 of the Constitution. It cannot be revived. Thus it is not open to the church or parishioners by majority to wriggle out c of 1934 Constitution. In view of the findings recorded in the Samudayam suit also by the 1995 judgment, the question operates, as res judicata and the administration on the basis of Udampady cannot be claimed. The inconsistent provisions in the Udampady shall stand annulled as per section 132 of the 1934 Constitution. [Para 173)(196-C-E) D 6.6 There are inconsistencies between the 1934 Constitution and 1913 Udampady as such the latter cannot prevail. In terms of Section 132, any Udampady (agreement) which is inconsistent with the provisions of 1932 constitution stands annulled and is ineffective. In view of the inconsistencies, as E well as in light of the findings of the Supreme Court in 1959 judgment and the 1995 judgment regarding the validity and the binding character of the 1934 constitution, the 1913 Udampady would, in any event, no longer survive and Parish Church would be governed in accordance with the 1934 Constitution. [Paras p 174, 175)(196-F; 199-E]

7. IN RE: EFFECT OF NON REGISTRATION OF 1934 CONSTITUTION AND EFFECT OF REGISTERED UDAMPADY The Udampadies were for administration of the Church at the relevant time and lost their efficacy due to efflux of time and cannot hold the field in view of the system of administration provided in the 1934 Constitution. The 1934 Constitution was not required to be registered document as the Udampadies are not documents of creation of Trusts, the Udampadies were not required to be registered. Udampady cannot prevail over the 1934

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 29 ORTH. & ORS.

Constitution. The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future, any right, title or interest, whether vested or contingent, in the Malankara church properties. It provides a system of administration as such and not required to be registered, and moreover the question of effect of non-registration of the 1934 Constitution cannot be raised in view of the findings recorded in the 1959 and the 1995 judgments. The question could, and ought to have been raised but was not raised at the time of authoritative pronouncement made by this Court. Otherwise also, facts have not been pleaded nor any provision of the constitution pointed out that may attract the provisions of section 17(1)(b) of the Registration Act. Thus, C it is ,not open to question the validity of the 1934 Constitution on the ground that it cannot be looked into for want of its registration. Udampady itself is not a document of creation of Trust. It related to the management only. Thus, by its registration no legal superior right is acquired to prevail over the Constitution. No registered D document was required for administration of the Church. Document of creation of a Trust may require registration and not a document like the 1934 Constitution. [Paras 177, 178)(199-H; 200-A-G] Vinodkumar M Malavia v. Magan/al Mangaldas Gameti & Ors. (2013) 15 sec 394 : (2013) 14 SCR 396; E Chandrakant Shankarrao Machale v. Parubai Bhairu Mohite (2008) 6 sec 745 : [2008) 4 SCR 1003; S. Saktivel (Dead) by LRs. v. M Venugopal Pillai & Ors. (2000) 7 SCC 104 : [2000) 2 Suppl. SCR 361 - held inapplicable. F ITC Ltd. v. State of U.P. (2011) 7 sec 493 : [2011) 7 SCR 66 - distinguished. Kashinath Bhaskar Datar v. Bhaskar Vishweshwar (1952) SCR 491 - referred to. G

8. MAINTAINABILITY OF MANNATHUR CHURCH SUIT: The Mannathur Church matter suit was clearly representative in character and was contested in that manner. [Para 180)(205-D] H

30 SUPREME COURT REPORTS [2017) 9 S.C.R.

A 9. FRAMING OF SCHEME UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE There is no necessity of framing any scheme under section

92. (Para 182)(206-C) Mohd. hmile Ari.ff v. Ahmed Moo/la Dowood 43 IA 127 B (PC); Ram Dularey v. Ram Lal AIR 1946 PC 34 - referred to. IO.WHETHER IN THE FACTS, INTERIM ARRANGEMENT TO CONTINUE : c It was submitted that as reconciliation does not appear to be possible between both factions, as such the religious services in the St. Mary's Orthodox Church, Varikoli may be permitted to be conducted by two Vicars of each faith, Patriarch and Catholicos, in accordance with the faith of each denomination. The submission cannot be accepted as it would tantamount to patronizing parallel D system of administration and would not be a legally permissible mode hence prayer is rejected. (Para 183][206-E-F] Moran Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors., AIR 1959 SC 31; Most Rev. P.MA. Metropolitan & Ors. v. Moran Mar Marthoma Mathews E & Anr. (1996) 8 sec 470 : (1996) 3 SCR 857; Manakchand v. Manoharlal AIR 1994 PC 46; Razia Begum v. Sahebzadi Anwar Begum (1959] SCR 1111; Moran Mar Basselios Catholicos & Anr. v. Most. Rev. Mar Poulose Athanasius & Ors. AIR 1954 SC 526 F : [1955) SCR 520; Mathan Ma/pan v. Oolahannan Geevarghese 45 TLR 116; Chhatra Kumari Devi v. Mohan Bikram Shah & Ors. AIR 1931 PC 196 - referred to. Case Law Reference G (1995) 1 Suppl. SCR 542 relied on Para4 AIR 1959 -sc 31 referred to Para 18 [1996) 3 SCR 857 referred to Para34 H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 31 ORTH. & ORS.

AIR 1965 SC 1935 relied on Para 65 A AIR 1994 PC 46 referred to Para 52 [1959] SCR 1111 · referred to Para 52 (1956] SCR 756 relied on Para 52 [1966] Suppl. SCR 270 relied on Para 52 B [1967] 2 SCR 618 relied on Para 52 [1983] 1 SCR 922 referred to Para 52 [1986] 3 S<;:R 1048 referred to Para 52 AIR 1954 SC 606 referred to Para 52 c (1955] 1 SCR 1 referred to Para 52 (1998] 2 SCR 9 referred to Para 52 (1954] SCR 351 referred to Para 52 D [2001] 3 Suppl. SCR 545 referred to Para 52 (1966] 1 SCR 709 referred to Para 52 (1954] SCR 1005 relied on Para 122 · (1955) SCR 520 referred to Para 53 E 45 TLR 116 referred to Para 53 -- AIR 1931 PC 196 referred to Para 59 AIR 1965 SC 1935 referred to Para 65 - [1989) 1 Suppl. SCR 760 relied on Para 70 F AIR 1933 PC 183 relied on Para 71 [1954) SCR 351 referred to Para 78, (1985) 2 Suppl. SCR 51 . referred to Para 86 [1983) 1 SCR 729 referred to Para 99 G (1997) 1 SCR 138 referred to Para 106 . (1996) 3 SCR 543 referred to Para 106 (1996) 1 SCR 603 referred to Para 107 H

32 SUPREME COURT REPORTS [2017] 9 S.C.R.

A (2004) 2 SCR 1019 referred to Para 111 (1962) SCR Suppl. 496 referred to Para 112 (2002) 3 Suppl. SCR 76 referred to Para 113 (2015) 11 SCR 1110 referred to Para 114 B [1954) SCR 1005 referred to Para 122 (1992) 3 Suppl. SCR 833 held inapplicable Para 125 [1959] Suppl. SCR 528 referred to Para 130 c [2000) 2 SCR 752 referred to Para 130 (1975) 1 SCR 814 referred to Para 133 [2001) 1 SCR 701 referred to Para 133 (2013) 1 SCR 1 referred to Para 133 D (2008) 7 SCR 762 referred to Para 143 (1986) 3 SCR 518 referred to Para 145 (1971) 3 SCR 840 referred to Para 145 (1963) Suppl. 1 SCR 789 referred to Para 145 E AIR 1951 All 674 referred to Para 145 AIR 1958 AP 78 - referred to Para 145 (1952) SCR 491 referred to r · Para 178

F (2008) 4 SCR 1003 referred to Para 178 [2000) 2 Suppl. SCR 361 referred to Para 178 [2011] 7 SCR 66 referred to Para 178 (2013) 14 SCR 396 referred to Para 179 G AIR 1946 PC 34 referred to Para 181 . CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3674 of20!5.

. . K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 33 ORTH. & ORS.

From the Judgment and Order dated 04.10.2013 of the High Court A ofKerala at Ernakulam, in RFA No. 589 of2011 - WITH . C. A. Nos. 3681, 3682, 3683, 8790 and 8789 of2015. C. A. Nos. 5408, 5409, 5411 and 5410 of2017. B C. A. Sundaram, K. V. Vishw.anathan, ShyamDiwan, C. U. Singh, K. Parasaran, Mohan Parasaran, K. K. Venugopal, S. Sreekumar, Krishnan Venugopal, Sr. Advs., S. Udaya Kumar Sagar, Ms. Bina Madhavan, Ms. Swati Bhardwaj, Ms. Ramandeep Kaur (For Mis. Lawyer's Knit & Co.), E.M.S. Anam, P. J. Philip, P. K. Manohar, Radha C Shyam Jena, Ms. Maneesha Dhir, Abhishek Kumar, Ashwin Rakesh, Ritcsh Kumar, A. Raghunath, Vishnu Sharma, Ms. Anupama Sharma, Ms. Sonali Negi, Rohit Memman Alex, P. S. Sudheer, Rishi Maheshwari, Ms. Anne Mathew, Ms. Shruti Jose, V. K. Biju, Roy Isaak, Abhay Pratap Singh, N. Livingstone, N. P.R. Panickker, K. J. Kuriakose, P.V. Elias, S. Varghese, Ms. Yogmaya M. G., Rajhans Rajeev Pandey, R. lssac,Ashwin D Kumar D. S., Ms. Aditi Dani, V. E. Gayathri, Kuriakose Varghese, V. Shyamohan, Ms. Saumya Sharma, Ms. Tani ya Pandey, Surya Prakash, A. Phukan, Ankur Talwar, Mathew P. Paul, Sanjay Jain, Advs. for the appearing parties. The Judgment of the Comt was delivered by E ARUN MISHRA, J. I. The appeals relating to Kolcncherry Church have been filed against judgment and decree passed by the High Co mi of Kera la on 4.10.2013 in Regular First Appeal and against order passed in Review application arising out of Suit No.43 of2006 and Suit No.47 of2006 by the District Judge on 11.4.2014. The Patriarch faction filed suit No.43 of2006 to declare that the defendant No.I (D-1) Church, its assets, including the educational institutions are liable to be administered only in accordance with Udampady executed on 30.12.2013. Prayer was also made to settle a scheme for administration of the church and its assets, to appoint a Receiver, conduct elections after pr.eparing proper voters list irrcspecti ve of their factional affiliations and to entrust management to them. Permanent injunction be issued against 3'<l defondant restraining him from receiving the key of the church.

2. With respect to Varikoli Church the appeals have been prefe1TCd as against judgment and decree dated 21.8.2015 passed in Regular First H

34 SUPREME COURT REPORTS [20 t 7] 9 S.C.R.

A Appeal by the High Court of Kerala arising out ofO.S. No. 10 of2003. O.S. No.10 of 2003 had been filed by the Catholics group in which prayer had been made to declare that the church is governnf /;ly tfw 1934 Constitution as upheld by the Supreme Court and defendantNos?_ and 3 have no rightto claim the status of trustees of the church. Permanent prohibitory injunction to restraint defendant Nos2 and 3 from functioning B as trustees of the church had been prayed in addition to mandatory injunction directing defendant No. 4 to call for immediate pothuyogam ofD-1 church and to hold election ofnew Managing Committee including Trustees and Secretary in accordance with the 1934 Constitution. Counter claim was also raised by impleaded defendant Nos.13 to 15 to cause a c referendum to ascertain the allegiance of the Parishioners of the church; to declare that the church and its assets are to be governed in accordance with the faith and will professed by majority of the Parishioners of the church; to pass a final decree declaring that church and its assets be administered in accordance with the decision of majority of the Parishioners: and permanent injunction restraining the third defendant. D agents and religious dignitaries and those who are not accepting spiritual supremacy of Patriarch of Antioch and all the East.

3. With respect to Mannathur Church the appeals have been preferred against judgment and decree dated 20.5.2015 passed by the High Court of Kerala in R.F.A. No.320 of 2014 arising out of O.S. E No.41 of2003 filed by the Catholicos faction to declare that the church is administered by 1934 Constitution. Further declaration that defendant Nos.3 to 5 had no right or authority to act as its trustees, permanent prohibitory injunction against them for functioning as trustees, direction be issued to defendant No.2 to call general body for holding elections. F Injunction had also been prayed against changing name of the church.

4. It appears that there is perpetual fight for managing the affairs ofMalankara Church between the Patriarch faction and the Catholicos faction for control of spiritual and temporal management of affairs of the Parish Church. Malankara Church is division of the Orthodox Syrian G Church. Before coming to dispute it is necessary to consider historical matrix. The Malankara church was founded by St. Thomas, theApostl~ and is included in the Orthodox Syrian Church of the East. The prophet of the Syrian Church is the Patriarch of Antioch whereas the Primate of the Syrian Church of the East is the Cathol icos. The Malankara Church was earlier known as the Malankara Orthodox Syrian Church. Its H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 35 ORTH. & ORS. [ARUN MISHRA, J.] misnomer was the Jacobite church. The approved Canon of the Church A is the Hudaya Canon written by Bar Hebtaeus printed in Paris in the year 1 R98. In 52 A.D. St. Thomas came to Malabar to spread his on~s~age. Between 325 and 628 AD at the first General Meeting held at Nicea in 325 AD, four Parishioners were established at Rome, Constantinople, Alexandaria and Antioch, each headed by .a Patriarch. Within the jurisdiction of Patriarch of An~ioch, another office was B established viz., the great Metropolitan of the East also known as 'Catholicos'. The office ofCatholicate fell into disuse and was revived in 628 AD. The historical background is noted by this Court in its judgment in Most Rev. P.MA. Metropolitan v. Moran Mar Marthoma ( 1995) Supp. 4 SCC 286 (hereinafter referred to as "the 1995 judgment"). C

5. In l 6'h century Christianity gained a substantial foothold in the area now comprised in Kerala. The dominant faith was of the Syrian Orthodox Church. With the rise of the Portuguese politicalpower on the West Coast, the Portuguese (Roman Catholics) compelled local Christians to accept Roman Catholic faith. Christians of Malabar affirmed their loyalty to the Syrian Orthodox Christian Church headed by the Patriarch by taking an oath en masse at Mattancherry, known as the "Koonan Cross Oath". Since then the Patriarch of Antioch exercised ecclesiastical supremacy over what may be called the "Malankara Syrian Christian Church". With the rise of the British power in Southern India, they pressurised the Malarikara Syrian Christian E_ community to embrace Protestant faith, succeeding to some extent. In the year 04.04.1840 disputes arose between .the two groups (one embracing Protestant faith and the other adhering to Orthodox faith), which was settledby the "(:;ochin Award" rendered on 4.4.18.40. As per this award, the Church properties were divided between the Church F Mission Society (Protestants) and the Malankara Jacobite Syrian Church (Orthodox faith). The amount of3000 Star Pagodas deposited by Mar Thoma VI (Dionysius the Great) with the East India Company at 8 % interest came to be allotted to Malankara Jacobite Syrian Church. On • account of disputes between the members ofMalankara Jacobite Syrian ~lmrch, Partairch Peter III of Antioch came to Malabar in 1876. He G 1-'t/rted a fr!eeting of the accredited representatives of all Churches in . Malabar which is known as the "Mulanthuruthy Synod~'. At this Synod, Malankara Syrian Christian Association (viz. Malankara Association) was formed to manage the affairs of the church and the community. H ',. l

36 SUPREME COURT REPORTS (2017] 9 S.C.R.

A The Malankara Metropolitan was made its ex-officio President. Until 1876, the entire Malabar was comprised in one Diocese. Thereafter, it was divided into seven Dioceses, each Diocese headed by a Metropolitan. One of them was to be designated as Malankara Metropolitan who exercised spiritual and temporal powers over all the Dioceses. B SEMINARY SUIT:

6. "Seminary Suit" was filed on 4.7.1879 by Mar Joseph Dionysius claiming to be the properly consecrated Metropolitan of Malankara Jacobite Syrian Church and the President of Malankara Association c agafost Mar Thomas Ath"anasius. The main dispute between them was while the plaintiff claimed supremacy of the Patriarch, the defendants denied such supremacy. The suit was disposed of by Travancore Royal Court of Final Appeal in the year 1889. The Court found: (i) that the ecclesiastical supremacy of the Patriarch of Antioch over Malankara D Syrian Christian Church in Travancore had all along been recognized and acknowledged by Jacobite Syrian Christian community and their Metropolitans; (ii) the exercise of supreme power consisted in ordaining, either qirectly or through duly authorized delegates, Metropolitans from time to time to manage the spiritual matters ofthe local Church, in sending Morone to be used in the churches for baptismal and other purposes and in general exercising supervision over the spiritual government of the Church. (iii) the authority of Patriarch never extended to temporal affairs of the Church which in that behalf was an independent Church; (iv) the Metropolitan of the Syrian Christian Church in Travancore should be a native of Malabar consecrated by the Patriarch or by his duly authorized delegate and accepted by the people as their Metropolitan; ( v) the plaintiff .F was so consecrated by Patriarch and accepted by the majority of the people and therefore entitled to be recognized and declared as the Malankara Metropolitan and as the trustee of the Church properties. ARTHAT SUIT:

G 7. On 15.8.1905 there was Arthat suit. The Patriarch of Antioch did not relish the aforesaid judgment in seminary suit inasmuch as it declared that he had no control over the temporal affairs of Malankara church. Some local Christians supported him which led to the institution of a suit in 1877 in which judgment of Court of Appeal of Cochin was renqered affirming the findings of the Travancore Royal Court. It was H

,_1 'I il .Ii·1 K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 37 ORTH. & ORS. [ARUN MISHRA, J.] found that though the Patriarch of Antioch is the spiritual head of A Malankara Syrian Jacobite Christian Church, the churches and their properties are subject to the spiritual, temporal and ecclesiastical jurisdiction of the Malankara Metropolitan. In other words, the Patriarch's claim ofcontrol over the temporal affairs of the Malankara Church was negatived once again. The recognition given to Abdul Messiah· as the B Patriarch of Antioch was withdrawn by the Sultan of Turkey and he . recognized Abdulla II as the Patriarch of Antioch. It was noted by this. Court in 1995 judgment that whereas the effect of withdrawal of recognition, as per one view, was thatAbdul Messiah ceased to exer~ise' any and all the powers of Patriarch; the other view was that said withdrawal did not affect the spiritual authority of Abdul Messiah; This C Court noted that the dispute between Abdul Messiah and Abdulla-JI led

1. to the formation of two groups in the Malankara church.

8. As stated above, the Sultan of Turkey withdrew the recognition ,; i.,. given to Abdul Messiah as the Patriarch of Antioch and recognized Abdulla l1 as the Partiatch. Mar Geecarghese Dionysius was Qrdained D as Metropolitan by Patriarch Abdulla II at Jerusalem. Mar Geecarghese Dionysius became the Malankara Metropolitan on the death of Mar Joseph Dionysfos. Due to differences between Mar Geevarghese Dionysius and Abdullah II, the latter excommunicated the former on '.1 31.3.1911. Few months later, Abdulla II appointed Paulose Mar Kurilos li' as the Malankara Metropolitan. Mar Geevarghese Dionysius convened · E "ii,. a meeting of the Malankara Syrian Christian Jacobite Church which 1, declared his excommunication as invalid. h REVIVAL OF CATHOLICATE IN 1912: \i .I 9. In 1912 revival of Catholicate was effectuated by Abdul F Messiah by ~onsecrating one Mar Ivanios as the Catholicos. Two K\llpanas Ex. A-13 andA-14 were put forward as the Kalpana of Abdul Messiah reviving the Catholicate as referred in 1995 judgment. The Patriarch group disputed Ex. A-13. According to them Ex. A-14 was the only version while Catholicos group say that Ex. A~ 14 was preceded by A-13 dated 17.9.1912 by virtue of the order of the office of the Shepherd,· G entrusted to Simon Peter by Lord Jesus Messiah,'whereby they were prompted to perpetuate Catholicos or Mapriyana to ·serve all spiritual requirements that are necessary for the conduct ofthe order of the holy true Church in accordance with its faith. H

38 SUPREME COURT REPORTS (2017] 9 S.C.R.

A I 0. Discussion made by this Court in 1995 judgment with respe1-t to establishment ofCatholicos is as under: "106. Two documents are put forward as the Kalpana ofAbdul Messiah reviving the Catholicate, namely, Exs. A-13 and A-14. The Patriarch group (who are the appellants before us) dispute B Ex. A-13. They say that Ex. A-14 is the only version while Catholicos group (who are respondents before us) say that Ex. A-14 was preceded by Ex. A-13 and that without Ex. A-13 there could not have been Ex. A-14. We may notice the contents of both the documents. Ex. A-13 which is dated 17-9-1912, says inter alia, "by virtue of the order of the office of the Shepherd, c entrusted to Simon Peter by our Lord Jesus Messiah, we are prompted to perpetuate for you Catholicos or Mapriyana to serve all spiritual requirements that are necessary for the conduct of the order of the holy true Church in accordance with itsfaith .... With Geevarghese Mar Dionysius Metropolitan, D who is the head of the Metropolitans in Malankara and with other Metropolitans, Ascetics, Deacons and a large number of faithfuls, we have ordained in person our spiritually beloved Evanios in the name of Baselius as Mapriyana, i.e., as the Catholicos on the Throne of St. Thomas in the East, i.e., in India and other places at the St. Mary's Church, Niranam on Sunday, 2nd Kanni, 1912 E AD as per your request" (emphasis added). Ex. A-13 then sets out the authority and the jurisdiction ofCatholicos so revived in the following words: "The authority to serve all spiritual elements in public, which are necessary for protecting the tradition of the Holy Church F has been given to him (Evanios) by the Holy Ghost as was given to the Holy Apostles by our Lord Jesus Messiah. Authority means the authority to ordain Metropolitans, Episcopas and to consecrate Holy Morone and to serve all the other spiritual items and also to administer the Kandanadu Diocese as he was earlier .... You must respect and love him properly and suitably because he is your head, Shepherd and spiritual father. He who respects him, respects us. He who receives him, receives us. Those who do not accept his right words and those who stand against his opinions which are in accordance with the Canon of the Church, defy him and quarrel with him, will become gm'lty ...."

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 39 ORTH. & ORS. [ARUN MISHRA, J.]

107. Coming to Ex. A-14, which is dated 19~2-1913, the third paragraph starts by saying: "After bestowing on you our blessings a second time, we desire to make known to you our true affection that ever since your letters reached our weakness in midiat, we have been deeply grieved at the dissensions sown by Abdulla Effendi B among our spiritual children in all our churches in Malabar.?' A little later A-14 says: "Accordingly, we, by the Grace of God, in response to your request, ordained a Maphrian, that is, Catholicos by name Poulose Basselios and three new Metropolitans, the first being C Gheevarghese Gregorius, the second Joachim Evanios and the. third, Gheevarghese Philexinos. It appears to us that, unless we do instal a Catholicos, our Church, owing to various causes, is not likely to stand firm, in purity and holiness. And, now, we do realise that by the might of our Lord, it will endure unto D Eternity, in purity and holiness, and more than in times past, be confirmed in the loving bond of communion with the Throne of Antioch. The joy of our heart is herein realised. Our children, abide ye now in peace. As for ourselves, we leave you. Rest assured that though we leave you, we shall never be unmindful of you. We shall incessantly lift up our eyes unto heaven and offer our prayers and intercessions for the guileless lambs, redeemed by the previous blood of our Saviour Jesus Christ. Pray ye for us, and for our entire community. Abide ye in love, peace and concord. Pray ye for your enemies, and, for those that revile you without cause. Be not afraid of the uncanonical and unjustifiable interdicts and curses of the usurper. Heed not those who create dissensions. God will reward them for their action, be they good or bad. We commend you into the hands of Jesus Christ, our 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 Mororie. In your Metropolitans is vested the sanction and authority · · to instal a Catholicos, when a Catholicos died. No one can H

40 SUPREME COURT REPORTS [2017] 9 S.C.R.

A resist you in the exercise of this right and, do all things properly, and in conformity with precedents with the advice of the committee, presided over by Dionysius, Metropolitan of Malankara. We beseech your love, and counsel you in the name of our Lord Jesus that ye faint not in your true faith of Saint Peter, on which is built, the Holy Catholic and Apostolic Church. B What we enjoin your true love is that the unlawful conduct of a usurper, may not induce you to sever that communion which is the bond of love connecting you with the Apostolic Throne of Antioch." (emphasis added) c 108. The main difference between Ex. A-13 and Ex. A-14 is twofold: Firstly, A-13 speaks of "Catholicos on the Throne of St. Thomas in the East", which words are not to be found in A-14. Secondly,A-14 contains the following words: "in your Metropolitans is vested the sanction and authority to install a Catholicos, when a D Catholicos dies. No one can resist you in the exercise of this right and do all things properly, and in conformity with precedents with the advice of the committee, presided over by Dionysius, Metropolitan of Malankara", which are not found in Ex. A-13. More about these documents later." .E VATTIPANAM SUIT

11. Dispute arose as to the persons entitled to the interest on 3000 Star Pagodas aforementioned. It was converted to a representative suit. Patriarch and Catholicos factions were parties. Withdrawal of recognition of Abdul Messiah came in question. Excommunication of F first defendant by Abdulla Il was held to be invalid. District Judge upheld the claim ofCatholicos group, Defendant Nos. I to 3, for interest. Election for the post of Malankara Metropolitan was held to be void at law. It was also held that withdrawal of recognition by the Sultan of Turkey did not deprive Abdul Messiah from his functional powers of supervision.

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 41 ORTH. & ORS. [ARUN MISHRA, J.]

"(1) The excommunication ofMar-Geevarghese Dionysius (the first defendant) was invalid because of the breach of the rules of natural justice in that he was not apprised of the charges against him and had not beeri given a reasonable opportunity to deferid himself. In other words, he remains the Malankara Metropolitan; (ii) That Defendants l to 3 had not become heretics or aliens or had not set up a new Church by accepting the establisjiment of the Catholicate by Abdul Messiah with power to _the Catholicos for.the time being to ordain Metropolitans and to consecrate Morone and thereby reducing the power of the Patriarch over the Malankara Church to a vanishing point; c (iii) That the Defendants 4 to 6 had not been validly elected." IJ. This Court also took note of the fact that in Vattipanam suit, _ whereas the Patriarch contended that the members of the Catholicos group had become aliens to the faith by repudiating the supremacy of the Patriarch by recognizing the authority and the power of the Catholicos, D the Catholicate group contended that they have not repudiated the Patriarch and that by recognizing the Catholicos, they have in no ma_nner denied the ecclesiastical superiority of the Patriarch. There was the excommunication of the Malankara Metropolitan and not of the Catholicos. This Court also noted that it was Patriarch group which was saying that by espousing the cause of and the revival of Catholicos, E Defendants 1 to 3 had in effJ_Ct Ieduced the power of the Patriarch over the Malankara Church to a vanishing point-which in their view amounted to repudiation of the power and authority of the Patriarch whereas the Catholicos contended that they had no such intention to do so, The excommunication was held invalid on the ground ofviolation of principles F · of natural justice. In Vattipanam suit it was also found that the church to which defendartts 1 to 3 that is Catholicos, belong is a different church . which the endowment now In dispute was from that for ' - . . made.. Post Vattipanam Suit Events :

14. AfterVattipanam suit, both the sides tried to consolidate their G respective positions. On 16.8.1928 the Managing Committee of the Malankara Association was formed for drawing a constitution for the church and the association. Dispute also arose with respect to the person who is entitled to receive interest.On 21.8.1928 civil suit was filed·in the District Court of Kottayam belonging to Patriarch group against Mar H

42 SUPREME COURT REPORTS . [2017] 9 S.C.R.

A Geevarghese {)ionysius and two others including the then Catholicos Mar Geevarghese Philixinos. The suit was dismissed due to non- compliance with certain orders regarding payment of monies to Commissioner appointed in the suit. The restoration application was dismissed against the Catholicos which was filed in the High Com1. In 193 I, Patriarch Elias I at the instance of Lord Irwin, the then Viceroy of 8 India, visited Malabar in order to solve the dispute between two rival groups i.n the Malankara church but he died at Malabar before he could effect any settlement. In his place one Ephraim was elected as the Patriarch of Antioch in 1933, allegedly without notice to the Malabar community. Therefore, Mar Geevarghese Dionysius and his supporters did not recognize him as duly elected Patriarch.

15. In February, 1934 Mar Geevarghese Dionysius died and the trust properties passed into possession of his co-trustees. Thereafter draft constitution was prepared and published in the shape of a pamphlet. On 3.12.1934 notices were issued convening a meeting of all the churches to be held on 26.12.1934 M D Seminary at Kottayam inter alia, for electing the Malankara Metropolian and adopting the draft Constitution. Notices were also published in two leading Malayalam newspapers. Proceedings were drawn which was exhibited as Ex. 64 in Samudayam suit, at which the third Catholicos, Mar. Basselios Geevarghese-II was elected as Malankara Metropolitan. Importantly, E the draft Constitution was also adopted at the said meeting.

16. The Constitution was adopted by Malankara Association on 26.12.1934. It contained certain declaration in Part 1. Part 2 deals with the Parish church which consists of:

F A. The Parish Assembly; B. Parish Managing Committee; c. Kaisthani (lay-steward); D. Vicar. G Part 3 deals with Diocese with following sub-heads: A. Diocesan Assembly, B. Diocese Council, c. Diocesan Metropolitan. H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 43 . ORTH.. & ORS~ f ARUN MISHRA, J.] . . ·. .. .' .' . . . . . . . . Part 4 deals with Malankara Afch~Diocese with sub-heads: A A. Association;· B. Association Managing Committee; c. The Community Trustees; D. Malankara Metropolitan ... B

Part 5 deals with Catholicos .. . . . Part .6 with Patriarch. . . . . - . . Part 7 deals with Episcopal Synod.· c ' . ·'· - · .. '· (A) Deacons and Priests; (B) High priests (Prelates); Part 9 deals with Complaints and Decisions. · D Part l 0 : Income; Part 11 - Monasteries; Part 12- Rule Committee; and Part 13 - Miscellaneous. E Thereafter Constitution has been amended a number of times. SAMUDAYAM SUIT:

17. After framing of the Constitution, the Metropolitans of the Patriarchal party issued notices on S. 7.193 S summonirig meeting of the church representatives for 22.8.1935 to elect the Malankara Metropolitan. F The notice stated that none of the persons belonging to Catholicos party should be elected. In that meeting Mar Poulose Athanasius was elected as the Malankara Metropolitan. The meeting purported to remove the trustees elected at the meeting held on 2.6.12.1934 (i.e. Mani Poulose Kathanar and E.J. Joseph, belonging to Catholicos group) and appointed G two other persons in their place.

18. The patriarch group in the year 1938 filed Samudayam suit in the District Court, Kottayam for a declaration of their title as trustees of Samudayam properties (common properties of the Malankara Church) and for a further declaration that defendants to that suit belonging to H

44 SUPREME COURT REPORTS [2017] 9 S.C.R.

A Catholicos group, were not lawful trustees. Other incidental reliefs were also prayed for. The suit was dismissed by the trial court on 18.1.1943 against which plaintiff filed an appeal which was allowed on 8.8.1946 and the suit was decreed by majority of Judges by 2 : I. Matter w:> 0 carried to this Court. This Court directed the High Court to re-hear the B . appeal on all the points. Thereafter appeaJ was re-heard and was allowed vide judgment dated 13 .12 .1956 The suit was decreed. The defendants, Catholicos group, filed an appeal in this Court which was allowed on 12.9.1958 as per Moran Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors., AIR 1959 SC 31. It was found by this Court in Samudayam suit that the plaintiff's C election at a meeting held on 22.8.1935 in which original plaintiff is said to have been elected the Malankara Metropolitan and plaintiffs 2 and 3 as Kathanar, and lay trustees was invalid. Since the meeting was held without notice to the members of the Catholicos party, the defendants and their partisans had not become ipso facto heretics or aliens or had D not gone out of the Church; that the meeting 22.8.193 5 had not been held on due notice to all churches interested. It was held that consequently it was not a valid meeting, and that therefor_e, the election of the plaintiffs was not valid and suit must fail for want of their title as trustees. The suit was taken on behalf of all the members of the said community. The following issues were framed in the aforesaid case as noted by this E Court in the said judgment: "28. Not less than 37 issues were raised on the pleadings. Of them issues I and 3 raise the question of the validity of the respective titles of the three plaintiffs, that is to say, title of the first plaintiff as Malankara Metropolitan and of the second and third plaintiffs as the trustees of the church properties and the validity of the Karingasserai meeting in August 1935. Issues 6 to · 9 concern the validity of the M. D. Seminary meeting in December 1934 at which the first defendant is alleged to have been elected as Malankara Metropolitan, the second and third defendants having been previously elected trustees as the Kathanar and the lay trustees. Issues Nos. I0, 11, 13, 14, 15, 16, 17, 19 and 20 are as follows : - "10. Has the 1st defendant been duly and validly installed as Catholicos in 1104? Ifso by whom? And was it done with the co- H

. K. S. VARGHESE'& ORS. v. ST. PETER'S & PAUL'S SYRIAN 45 ORTH. & ORS. [ARUN MISHRA, J.] operation and consent of Mar Geevarghese Dionysius and the other Metropolitans ofMalankara? ·(a) Were his two immediate predecessors in that office also duly " Gu 'and validity installed in the same manner and did they function as such? (b) Has the institution bf the Catholicate for the East exercising jurisdiction over Malankara ever existed at any time before 1088? (c) Was the institution of the Catholicate for the East with jurisdiction in Malankara, purported to be brought into existence · in I 088 for the first time? Or had it only been in abeyance for some time? And was i,t only revived and re-established in 1088? c (d) Was such a re-establishment effected by Abdul Messiah with the co- operation of the late Malankara Metropolitan Mar Geevarghese Dionysius and the other Metropolitans ofMalankara and the Malankara Church? If so, is it valid and lawful? Was Abdul Messiah competent to do so? D (e) Did Mar Geevarghese Dionysius submit himself to the authority of the Catholicate from I 088 till his death? (f) Have the Malankara Jacobite Syrian Association the .Association Committee, and the Churches and people ·ofMalankara E also accepted the Catholicate and have submitted themselves to ·its authority from 1088? - (g) Are the plaintiffs estoppedfrom contending that the Catholicate was not validly re~estabiished in I088 or that its authority was not accepted or recognised by the Malanicira Jacobite Syrian Church? ' . F L (h) Whether after the revival of the Catholicate the powers of the Patriarch, if any, as regards ordination or appointment of the Malankara Metropolitan and the Metropolitans ofMalankara have become vested in the Catholicos? G) Cannot the offices of Catholicos and Malankara. Metropolitan G be combined in one and the same person? ,_

11. Is the Patriarch of Antioch. the ecclesiastical head of the . Malankara Jacobite Syrian Church or is he only the supreme spiritual head? · · H

46 SUPREME COURT REPORTS [2017] 9 S.C.R.

A (a) What is the nature, extent and scope of the Patriarch's ecclesiastical or spiritual authority, jurisdiction, or supremacy over the Malankara Jacobite Syrian Church? (b) Is the Patriarch acting by himself or through the Delegate duly authorised by him in that behalf, the only authority competent B to consecr.ate Metropolitans for Malankara? Or is the consecration a Synodical Act in which the Patriarch acts and can act only in conjunction with a Synod of two or more Metrans? (c) Whether "Kaivappu" or "the laying on of hands" which is a necessary and indispensable item in the consecration of a c Metropolitan should be by the Patriarch or his duly appointed Delegate alone or can it be done by the Catholicos also? (d) Is the Patriarch alone entitled to and competent to consecrate "Morone" for use in the Malankara Church? Or is the Catholicos also entitled to do it? D (e) Whether by virtue of long-standing custom accepted by the Malankara Church and rulings of Courts, the Holy Morone for use in the Malankara Churches has to be consecrated by the Patriarch? (t) Is the allocation of Dioceses or Edavagais in Malankara a E right vesting solely in the Patriarch and whether before exercising jurisdiction in any Diocese the Metropolitan ordained and appointed by the Patriarch (by issuing a Staticon) has only to be accepted by the People of the Diocese? Or is the allocation of Edavagais, so far as Malankara is concerned, not a right which the Patriarch or Catholicos or Malankara Metropolitan has or has ever had, but F a right which vests and has always vested in the Malankara Jacobite Syrian.Association? Whether~ Metropolitan, before he can exercise jurisdiction in any Diocese in Malankara, must have beeri either elected for the office before ordination by the Malankara Jacobite Syrian Association duly convened for the purpose or accepted by the same after ordination? (g) Is the Patriarch the sole and only authority competent to ordain and appoint the Malankara Metropolitan? Is the issue of a Staticon or order of appointment by the Patriarch either before selection or election by the meeting of the church representatives or after such election or selection essential? Or is such order unnecessary

K. S. VARGHESE & ORS. v. ST. PETER'S &PAUL'S SYRIAN 47 ORTH. & ORS. [ARUN MISHRA, J.] and the election, or acceptance by the Jacobite Syrian Association A sufficient? (h) What is Ressissa? Is it a contribution which the Patriarch and Patriarch alone is entitled to levy as a matter of right? Or is it only in the nature ofa voluntary gift which.may he made to or received by the Patriarch and Catholicos? B (i) Has the Patriarch no temporal authority or jurisdiction or control ·· whatever over the Malankara Jacobite Syrian Church? or whether, as the ecclesiastical head, he could exercise and has all along exercised temporal authority by awarding such spiritual punishment as he thinks fit in cases of mismanagement or misappropriation of c clmrch assets?

13. Which is the correct and genuine version of the Hoodaya Canons compiled by Mar Hebraeus? Whether it is the book marked as Ex. A or the book marked as Ex. XVIII in 0. S. 94 -; ..d.. of l 088? .

14. Do all or any of the following acts of the lst defendant and his D . 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 l st defendant is a Catholicos? E (ii) Claim that he is the Malankara Metropolitan? (iii) Claim that the !st defendant has authority to consecrate Morone and the fact that he is so consecrating? (iv) Collection ofRessissa by the !st defendant? F

15. (a) Have the !st 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 G · 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 Stations allociltipg Dioceses to the Metropolitans and, to coflect Ressissa?. H .· .

48 SUPREME COURT REPORTS [2017] 9 S.C.R.

A (d) Do these functions and rights appertain solely to' the Patriarch 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? 8 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 (c) Have they forfeited their right to be beneficiaries in respect of the trust properties belonging to the Malankara Jacobite Syrian community? ·17. Have defendants 2 and 3 by helping and actively co-operating with the I st defendant in the above acts and pretensions become heretics or aliens to the faith or gone out of the fold? .

19. (a) Have the plaintiffs and their partisans formed themselves into a separate Church in opposition to Mar Geevarghese Dionysius and the Malankara Jacobite Syrian Church? (b) Have they separated themselves from the main body of the beneficiaries of the trust from I085?

20. (i) Do the following acts and claims of the plaintiffs constitute such separation? (a) (i) The claim that Patriarch alone can consecrate Morone? F (ii) That the Canon of the Church is Ex. XXIII in 0. S. 94? (iii) That the Catholicate is not established? (iv) Thatthe Patriarch by himself can ordain and excommunicate Metropolitans? (b) Have the plaintiffs been, claiming that the Patriarch has G temporal powers over the Church? (c) Have they been urging that Mar Geevarghese Dionysius was not the Malankara Metropolitan? (d) Have they made alterations in the liturgy of the church? H

· K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 49 . ORTH. & ORS. [ARUN MISHRA, J.]

' (e) Has the 1st plaintiff executed an Udampady to the Patriarch A conceding him temporal powers over the Jacobite Syrian Church and its properties? (t) Have the plaintiffs and their partisans by virtue of the above acts and claims become aliens to the church and disentitled to be trustees or beneficiaries of !he Church and its properties? B The pleadings, in which may be included the replication andthe issue papers and the actual issues raised in this case, quite clearly indicate that the principal contention of the plaintiffs in the present suit is that the defendants had become heretics or aliens to the Church or had vo.!uritarily gone out of the Church only by reason · c of certain conduct definitely particularised in paragraphs J9 to 26 of the plaint, namely, (i) the acceptance of Abd11I Messiah as a validly continuing Patriarch; (ii) the acceptance ofthe establishment of the Catholicate with power to the Catholicos for the time being , (a) to ordain Metropolitans. (b) to consecrate Morone (c) to issue Staticons, (d).to allot Edavagais and (e) to receive Ressissa. These D are the specific acts on which is founded the charge of heresy or going out of the Church by setting up a new Church. It has not been disputed that the po~er to issue Staticons and to allot Edavagais are not independent powers but are incidental to and flow from the power to ordain Metropolitans. The question is E whether these contentions are concluded by the final decision, (Ex, 256) pronounced on July 4, 1928 in the interpleader suit (0. S. No. 94 of I 088) which is reported in 45 Trav. L. R..116. (A-1 J. This leads us to scrutinise the matters which were iii issue in that suit. F

19. This Court has held in Samudayam Suit, thus: "35. It must, therefore, be 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 (0.S. 94 of l 088) and G had been decided by the Travancore High Court on review in favour of Mar Geevarghese Dionysius and his t\vo co-truste.es (defendants l to 3) and against defendants 4 to 6. In short the question whether Mar Geevarghese Dionysius and his two ·co-trustees (defendants Nos. 1 to.1) had become heretics or aliens H

50 SUPREME COURT REPORTS [2017] 9 S.C.R.

A or had gone out of the Church and, therefore, were not qualified for acting as trustees was in issue in the interpleader suit (O.S. No.94 of I088) 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 B powers as hereinbefore mentioned, nor (d) the reduction of the power of the Patriarch to a vanishing point, 'ipso facto' constituted a heresy or amounted to voluntary separation by setting up a new Church and that being the position those contentions cannot be re-agitated in the present suit." c 33. Learned counsel appearing for the respondents seek to get out of this position by contending that, apart from the grounds set up in the interpleader suit (0. S. No. 94of1088) the plaintiffs in the present suit also rely on a cause of action founded on new charges which disqualify the defendants in the present suit from D acting as trustees of the Church properties. Shri T. N. Subramania Aiyar appearing for the third respondent who has been elected Malankara Metropolitan by the Patriarchal party and made a party to the proceedings under the order of the court aforementioned formulates the new charges as follows : E (i) By adopting the new constitution (Ex. A. M.), which takes away the supremacy of the Patriarch, the defendants have set up a new church; (ii) By inserting Cl. (5) in the constitution (Ex. A. M.) the defendants have repudiated the canons which have been found to F be the true canon.s binding on the Church (Ex. BP - Ex. 18 in 0. S. No. 94 of 1088) and have thereby gone out of the Church; (iia) The privilege of the Patriarch alone to ordain Metropolitans and to consecrate Morone has been taken away as a consequence of the adoption of wrong canon (Ex. 26- Ex. A in 0, S. No. 94 of G I088) indicating that the defendants have set up a new church: (iib) The privilege of the perquisites of the Ressissa has been denied to the Patriarch by the new constitution in breach of the true canons; (iii) That there has been a complete transfer of the trust properties H from the beneficiaries, namely, Malankara Jacobite Syrian Church

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN SI ORTH. & ORS. [ARUN MISHRA, J.] to an entirely different institution, the Malankara Orthodox Syrian A Church; (iv) The re-establishment of the institution of the Catholicate of the East in Malabar havingjurisdiction over India, Burma, Ceylon and other countries in the East is different from the institution of Catholicate that was the subject-matter of the interpleader suit B (0. S. No. 94 of I 088). It is necessary now to discuss these contentions separately.

34. Re. (I) : In support of the first charge learned counsel has drawn our attention. to paragraphs 18, 22 and 26 of the plaint, paragraphs 29 and 38 of the written statement, paragraphs 18 C and 27 of the replication and to issues Nos. 6, 14, IS and 16. We do not think the pleadings and the issues are capable of being construed in the way learned counsel would have us do. The supremacy of the Patriarch has indeed been alleged to have been taken away, but that is not a general averment founded on Ex. A. 0 M. - indeed there is no. specific mention ofEx. A. M. in paragraph 26 of the plaint - but it is based on certain specific matters which appear to be incorporated as rules of the new constitution (Ex. A. M.). Therefore, what are pleaded as disqualifying the defendants from being trustees are those specific matters and not the general fact of adoption of the constitution. There is no. charge in the plaint that for the incorporation in the constitution (Ex. A. M.) of any matter other than those specifically pleaded in the plaint the defendants have incurred a disqualification. The plaintiffs came to court charging the defendants as heretics or as having gone out of the church for having adopted a constitution (Ex. A. M.) which contains the several specific matters pleaded in the plaint and repeated in the replication and made the subject-matter of specific issues. Those self-same matters were relied on as entailing disqualification in the earlier suit. The plaintiffs themselves contend that some of these matters are 'res judicata' against the defendants in this suit by reason of the conditions subject to which their application for review was admitted. On the pleadings l_lS they stand and on the issues as they have been framed, it is now impossible to permit the plaintiff-respondent to go outside the pleadings· and set up a new case that the supremacy of the Patriarch has been taken away by the mere fact of the adoption H

52 SUPREME COURT REPORTS [2017] 9 S.C.R.

A of the new constitution (Ex. A. M.) or by any particular clause there of other than those relating to matters specifically referred to in the pleadings. The issues cannot be permitted to be stretched to cover matters which are not, on a reasonable construction, within the pleadings on which they were fo;inded.

B 35. Re: (ii) and (ii a): Same remarks apply to these two grounds formulated above. There is no. averment anywhere in the pleadings that by accepting the Hudaya canon compiled by Bar Hebreus (Ex. 26 - Ex. A in O.S. No. 94 of I088) as the correct canon governing the church, the defendants have gone out of the Church. c Learned counsel draws our attention first to issue No. 13 and then to issue No. 16 and contends that the loss of status as members of the Church by acceptance of the wrong canon is within the scope of those two issues and that the parties to this suit went to trial with that understanding. We do not consider this argument to be well founded at all. A reference to the pleadings D will indicate how and why the Hoodaya canon came to be pleaded and discussed in this case. The plaintiffs impute certain acts and conduct to the defendants and contend that by reason thereof the defendants have become heretics or aliens or have gone out of the Church. These imputations form the subject-matter of issues E 14 and 15 and the conclusions to be drawn from the findings on those issues are the subject-matter of issues Nos.16 and 17. The defendants, on the other hand, impute certain acts and conduct to the plaintiffs as a result of which, they contend, the plaintiffs have separated from the Church arid constituted a new Church. Issues 19 and 20 are directed to this counter charge. In order to decide these charges and counter charges it is absolutely necessary to determine which is the correct book of canons, for the plaintiffs foundea their charges on Ex. B. P. - Ex. 18 in 0. S. No. 94 of I 088 and the defendants took their stand on Ex. 26 - Ex. A in 0. S. No. 94 of I088. Issue No. 13 was directed to determine that question. Issue No. 16 is concerned with the conclusions to be drawn from the findings on issues Nos. 14 and 15. The plaintiffs cannot be permitted to use issue No. 16 as a general issue not limited to the subject-matter of issues 14 and 15, for that will be stretching it far beyond its legitimate purpose.

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 53 ORTH. & ORS. [ARUN MISHRA, J.]

36. Re. (ii b): This ground raises the question of the Patriarch's A ri.ght to Ressissa. Ressissa is a voluntary and not a compulsory contribution made by the parishioners. Ex. F. 0., which records the proceedings of the Mulunthuruthu Synod held on June 27, 1876, refers to a resolution providing, 'inter alia', thatthe committee, that is to say, the Committee of the Malankara Association, will B be responsible to collect and send the Ressissa due to His Holiness the Patriarch. This may suggest that some Ressissa was due to the Patriarch. But in paragraph 218 of Ex. DY which is the judgment pronounced by the Travancore Royal Court of Final Appeal on July 12, 1889, it is stated that no. satisfactory evidence had been adduced before the court as to the payment ofRessissa C to the Patriarch by the committee in Malankara that the evidence on record was very meagre and inconclusive and that it was open to doubt whether it was payable to the Metropolitans in this country _or to_ the Patriarch in a foreign country. Ex. 86, which records the proceedings of the meeting of the Malankara Association held on 0 September 7, 1911, refers to a resolution forbidding maintaining any con·nection with Patriarch Abdulla ll and presumably in consequence of this resolution the payment of the Ressissa to the Patriarch was stopped. The interpleader suit (0. S. No. 94 of 1088) was filed in 1913; If non-payment of Ressissa could be made a ground of attack, it should have been taken in that suit and that not having been, done, it cannot i:iow be put forward according , . to the principles of constructive 'res judicata'. Besides, the provisions of Paragraph 11 S of the impugned constitution (Ex. A. M.) require every Vicar in every parish church to collect only two. chukrums from ev!!ry male member who has completed 21 years of age and to send it to the Catholicos. This does'not forbid the payment ofRessissa to the Patriarch, if any be due to hiJTI and if any parishioner is inclined to pay anything to the Patriarch who is declared in Cl. ( 1) of this very constitution to be the supreme head of the Orthodox Syrian Church. In any case, according to the canons relied upon by each of the parties, namely, Ex. B..P. - G Ex, 18 of 0. S. No. 94 of I088 produced by the plaintiffs or Ex. 26-Ex.Ain 0. S. No. 94of1088 insisted upon by the defendants, the non-payment ofRessissa does not entail heresy. Even if the question involved in ground (ii b) is not covered by the previous H

54 SUPREME COURT REPORTS [2017] 9 S.C.R.

A decision in the interpleader suit (0. S. No. 94 of l 088) the question has, on the foregoing grounds, to be decided against the plaintiff- respondent.

38. Re. (iv) : An attempt is made by learned counsel for the respondents to make out that what was referred to in the B interpleader suit (0. S. No. 94 of I 088) was Tue ordination of a Catholicos whereas in the present suit reference is made to the establishment of a Catholicate and further that in any case the Catholicate of the East referred to in the plaint in the present suit is an institution quite different from the Catholicate which was the subject-matter of discussion in the interpleader suit (0. S. No. c 94 of I088.). We do not think there is any substance whatever in this contention. A reference to paragraphs 30 and 3 I of the written statement clearly indicates that the institution ofCatholicate, which is relied upon by the defendants, is no. other than the Catholicate established in Malabar in I088 by Patriarch Abdul Messiah. This D position is accepted by the plaintiffs themselves in their grounds ofappeal Nos. 13, 15, 17, 18 and 27 to the High Comt ofTravancore from the decision of the District Judge ofKottayam in this case. Issues Nos. 14 and 15 as well as the judgment of the District Judge in this case also indicate that the subject-matter of this part of the controversy centred round the Catholicate which had been E established by Abdul Messiah in the year 1088. Before the argument advanced before us there never was a case that the impugned constitution (Ex. A. M.) had established a Catholicate of the East. The purported distinction sought to be drawn between the ordination of Catholicos and the establishment ofa Catholicate F and a Catholicate established by Abdul Messiah in l 088 and the Catholicate of the East created by the impugned constitution (Ex. A. M.) and which is sought to be founded upon as a new cause of action in the present suit, appears to us to be a purely fanciful afterthought and is totally untenable.

39. For reasons stated above we have come to the conclusion and we hold that 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

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN SS ORTH. & ORS. [ARUN MISHRA, J.]

(Ex. 2S6) of the High Court ofTravancore in the interpleader suit A (0. S. No. 94 of 1088) which operates as 'res judicata'. The charge founded on the fact of non-payment ofRessissa, 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 8 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 wentto trial, that some of them are pure afterthoughts 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 (0. S. No. 94 of 1088) and that not having been done the same C are barred by 'res judicata' or principles analogous thereto. We . accordingly hold, in agreement with the trial court, that it is no . long~r open to the plaintiff-respondent to re-agitate the question that the defendant appellant had 'ipso facto' become heretic or alien or had gone out of the church and has in consequence lost his status as a member of the Church or his office as a trustee." D This Court has approved the conclusion of the District Court that the suit was barred by res judicata and was founded on the same cause of action as that of 0.S. No.2 of 1104. Finding of the District Court has been affirmed by this Court. This Court found that M.D. Seminary meeting 26.12.1934 was properly held and the first defendant was validly E appointed as the Malankara Metropolitan and as such became the ex officio trustee of the church properties. The decree of the trial court · dismissing the suit was restored. It was found M.D. Seminary meeting . adopted the Constitution on 26.12.1934. EFFECT OF RECONCILIATION: F

20. During the pendency of the appeal in Samudayam Suit the . then Patriarch issued a Kalpana dated 30. l l. I9S7 to settle all pending disputes in the Malankara Church . .It was reciprocated by the Catholicos group. On 9.12.19S8, the Patriarch issued a Kalpana dated 9.12.19S8 referred to in I99S judgment thus : G

"121. On 9-12-l 9S8, the Patriarch issued a Kalpana dated 9-12- 19S8 (Ex. A-19) stating inter alia: "It is no secret that the disputes and dissensions that arose in the Malankara Church prevailing for a period of SO years have in H

56 SUPREME COURT REPORTS [2017] 9 S.C.R.

A several ways weakened an,d deteriorated it. Although right from the beginning several persons who loved the Church and devout of God desired peace arid unity putting an end to the dissension, they departed in sorrow without seeing the fulfilment of their desire. We also were longing for peace in the Malankara Church and the unity of the organs of the one body of the Church. We have B expressed this desire of ours very clearly in the apostolic proclamation (reference is to the proclamation dated 11-11-1957) we issued to you soon after our ascension on the Throne. This desire of ours gained strength with all vigour day by day without in any way slackened and the Lord God has been pleased to end c the dissension through us. Glory be to him. To bring forth the peace in the Malankara Church we hereby accept with pleasure Mar Baselious Gheevarghese as Catholicose. Therefore we send our hearty greetings ...." (emphasis added)" D

21. On 16.12.1958, the Catholics responded by issuing Kalpana describing himself to be seated on the Throne of the East of Apostle St. Thomas, and for the sake of peace, in the Church, accepted Moran Mar Ignatius Yakub lII as Patriarch of Antioch and also accepted the Metropolitans under Patriarch in Malankara subject to the provisions of E the Constitution of 1934. It appears that there was truce meeting of Bishops of both the groups. MalankaraAssociation meeting was held on 26.12.1958 and thereafter the group meeting was held. Synod meeting was held on 21.2.1959. It was decided to send the copies of the Constitution.to all the Parishioners with a direction to obey the same. F Three dioceses were allotted to Metropolitans belonging to Patriarch group. The Catholicos issued the Kalpana affirming the allotment of dioceses on 25.2.1959. The Patriarch wrote a letter dated 8.4.1959, referring to the judgment Moran Mar Basse/ios Catholicos (supra) and mentioning that he had been accepted in accordance with the terms of 1934 Constitution. However, such terms were not specified. The use G of the expression 'holiness' with the name ofCatholicos was objected to observing that this expression can be used only by the Patriarch and the assertion of sitting at the Throne of St. Thomas is not acceptable. Without his authority, Catholicos could not have assumed the administration of the said churches. H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 57 ORTH. & ORS. [ARUN MISHRA, J.]

22. On 8.6.1959 the Catholicos replied to the Patriarch to the effect that the use of the expression 'holiness' was justified and the claim of the Throne of St. Thomas is used not only by Patriarchs but also by Metropolitans and Bishops alike and is also evident from the Hudaya Canon and other books; Kalpana Ex. A-13 and A-14 reviving the Catholicate referred to the "Tlirone" of St. Thomas in India,' and thus, the expression 'the Throne of St. Thomas' is not a new thing, and further the judgment of the Supreme Court had affirmed the 1934 Constitution. However the Patriarch again objected to Catholicos on 16. 7.1960. Correspondence went on between the Patriai'ch and Catholicos. On 22.5.1964 the Patriarch installed new Catholicos in India. A day before installation ofCatholicos, with respect to demarcation ofjurisdiction of Catholicos, Malankara Synod resolved, that the Patriarch shall agree to. continue the present system of sending priests to Arabian Gulf countries from Malankara for ministering to the spiritual needs of the Malayali Parishioners as Jong as Malayalis stayed there. It was also noted in D Most Rev. P.M.A. Metropolitan & Ors. v. Moran Mar Marthoma & Anr:, ( 1995) Supp. 4 SCC 286 referred to as the judgment of 1995 and the various documents Ex. A-48, A-49, A-52, A-178, A-179 andA-189 that the new Managing Committee was elected for tt\e Malankara Association composed of representatives of bOth the groups and duly elected members took oath, affirming the 1934 <;:onstitution. It appears E that up to 1972 things went on well and both the groups wholly subscribed to the 1934 Constitution without any reservations. 1995 JUDGMENT AND ITS BACKGROUND:

23. In the year 1972 dispute again arose due to nomination of a F delegate toMalankara Sabha by the Patriarch. The nomination implied the exercise of active spiritual supremacy by the Patriarch the Malankara · Church, and his intervention in the temporal affairs of which was not relished by the Catholicos and other members. Request was made on l. 6.2.1972 by Catholicos and nine Metropolitans including the members of the said Patriarch group not to send the delegate as it could disturb G the peace and spread dissensions among the Malankara Church. The Patriarch did not pay heed to it and wrote back thal he was not aware of such Sabha or of the Malankara Association, and his delegate arrived in Malankara and started ordaining priests and deacons which was objected to by the Catholicos by writing a letter on 7.8.1973. H

58 SUPREME COURT REPORTS [2017] 9 S.C.R.

A 24. The first defendant in C>S No.4 of 1979 (as would be referred to hereinafter) was ordained as Metropolitan of the Evangelistic Association of the East on 1.9.1973 by the Patriarch. In a series of letters written between Patriarch and Catholicos each accusing the other of several ecclesiastical violations, the Catholicos asserted that the B Catholicate of the, E11st is autocephalous, which consecrates its own Bishops and its own Morone; this autocephaly is a fact quite independent of the name of their Throne; the autonomy exercised by the Catholicate over Malankara has been well established that is why the Patriarch in May, 1964 desired to delimit the geographical jurisdiction of the hierarchy. In response thereto, Patriarch communicated several charges to the C Catholicos on 30.1.1974 and required him to show cause. On 9.3.1974 the Catholicos replied stating that the Patriarch had no jurisdiction to level charges against him or to ask for his explanation. On I0.1.1975 the Patriarch suspended the Catholicos from his office until further orders. On 22.5 .197 5 meeting ofMalankara Episcopal Synod was held reiterating the independent nature ofMalankara Church and disputing the authority of the Patriarch. On 16.6.1975 the Universal Synod met at Damascus to consider the charges against the Catholicos. Pursuant thereto, a bull of excommunication was issued by the Patriarch excommunicating the Catholicos from the Syrian Orthodox Church which led to filing of the suit which was decided vide judgment of 1995. O.S. No.2 of I979 was filed bytheCatholicos challenging the authority of the Patriarch to ordain Bishops and Metropolitans. 0.S. No.6of1979 was filed by the Catholicos against the Patriarch pertaining to the ordaining of priests in certain dioceses. 0.S. No.4 of 1979 was treated as the main suit. To reiterate, same matters were decided in 1995 judgment. Prayer was made in the main suit to declare the Malankara Church as episcopal in character. It F was also prayed that Malankara Church is not a union or federation of autonomous church units and is governed in its administration by the constitution of the Malankara Church. Further a declaration was also sought that defendant Nos. I to 3 were not legally consecrated Metropolitans ofthe Malankara Church and they had no right to ordain G the priests or deacons; secondly, defendant Nos.4 to 8 were not legally ordained priests or deacons of the Malankara Church. In the main suit following reliefs were asked for as noted in para 145 of the judgment of 1995 and the same is extracted hereunder: "145. It is relevant to notice the reliefs sought for in the suit. H They are:

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 59 ORTH. & ORS. [ARUN MISHRA, J.]

"A. To declare that the Malankara Church is episcopal in A character and is not ,a union or federation of autonomous church units and is governed in its administration by the constitution of the Malankara Church; ·- B. To declare that Defendants 1 to 3 are not competent to ordain priests and deacons for Malankara Church; B C. To declare that Defendants 1 to 3 are not legally consecrated Metropolitans of the Malankara Church and Defendants 4 to 8 are not legally ordained priests or deacons of the Malankara Church; (_ D. To declare that no Metropolitan, priest or deacon unless validly ordained and appointed under the provisions of the Constitution of the Malankara Church can officiate in any of the churches or its institutions in the Malankara Church;~ E. To declare that any priest who refuses to recognise the authority of the first plaintiff and other Metropolitans under him is not entitled to minister in any of the churches or its institutions in Malankara; F. To prohibit Defendants 1 to 3 by an order or permanent injunction from ordaining priests or deacons or performing any other sacraments, service, etc. for the Malankara Church or its institutions; ,. G. To prohibit Defendant 4 onwards from performing any religious service or sacraments whatsoever in or about any of the church of Malankara ahd 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."

25. Learned Single Judge of the High Court dismissed the suits. On appeal Division Bench of the Kerala High Court reversed the same and upheld the claim of the Catholicos group to a large extent. The main suit had been decreed, as prayed for, against defendant Nos.1 to l 7 without costs and dismissed against defendant No.18 (Evangeli~al Association of the East). With respect to Knanaya Samudayam the suit had been decreed but with certain qualifications. H

60 SUPREME COURT REPORTS [2017] 9 S.C.R.

A 26. In 1995 judgment this Court has given the findings in para 148 and the same are extracted hereunder : "148. The following facts, in our considered view, are of fundamental significance. Once they are kept in view, it would be unnecessary to go into many of the issues agitated before the B learned Single Judge and the Division Bench of the High Court. The fundamental facts which decide the fate of the main dispute are: (a) The Patriarch of Antioch was undoubtedly acknowledged and recognised by all the members of the Malankara Church as c the supreme head of their Church. In the year 1654, they took the oath known as the "Koonan Cross Oath" reaffirming their loyalty to the Syrian Orthodox Christian Church· headed by the Patriarch. It was the Patriarch who convened the Mulanthuruthy Synod at which the Malank11ra Syrian Christian Association was formed. However, the authority of the Patriarch extended only to spiritual D affairs - the Syrian Christians in Malankara believed in the efficacy of' Kaivappu' (laying of hands by Patriarch on the head) while consecrating the Metropolitan and considered it essential to a proper ordaining - but not to the temporal affairs of the Malankara Church as declared finally by the Travancore Royal E Court of Final Appeal in the year 1889 in the Seminary suit. The Royal Court declared that the authority of the Patriarch never extended to temporal affairs of the Church which in that behalf was an independent Church. The Royal Court further declared that the Metropolitan of the Church in Travancore should be a native of Malabar consecrated by the Patriarch or his duly F authorised delegate and accepted by the people as their Metropolitan, as decided by the Mulanthuruthy Syngd. This declaration was affirmed by the Cochin Court of Appeal in the Arthat suit in 1905. (b) The revival ofCatholicate in 1912 by Patriarch Abdul G Messiah made a qualitative change in the situation. Under Ex. A- 14, the Kalpana issued by the Patriarch Abdul Messiah, (which document was produced in several earlier suits and whose authenticity is not disputed by the Patriarch group before lis) and A-13 which precedes A-14, empower the Catholicos to ordain H Metropolitans and other officials of the Church in accordance

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 61 ORTH. & ORS. [ARUN MISHRA, J.] with the canons of the Church and also to consecrate holy Morone. A A-14 ·states expressly that the power to instal a Catholicos on the death of the incumbent is vested in the Metropolitans. It is in this manner that the powers of ordaining Metropolitans and melpattakars and consecrating holy Morone;which hitherto vested in Patriarch, came to be vested in the Catholicos by the Patriarch 8 . himself. Further, the power to instal a Catholicos on the death or disability of the incumbent was also vested in the Metropolitans · of Malankara Church and it is in exercise of this power that on · the death of the first C.atholicos installed by Patriarch Abdul . Messiah in 1913, the second Catholicos Basselios Geevarghese I .. (Mar Geevarghese Philexinos) was installed in the year 1924 by C · the Malankara Synod without reference to the Patriarch. Again in 1929, Basselios Oeevarghese II was elected as the third Catholicos by the~Association and was installed as such. In the M.D. Seminary meeting held on 26-12-1934 the third Catholicos was elected as the Malankara Metropolitan, thus combining both the posts in one person. In other words, the spiritual and temporal powers over the Malankara Ch~rch came to be concentrated in one person. It may be that by this act of revival o(. C.atholicate and the Kalpanas A-13 and A-14, the Patriar~h is not denuded of the powers delegated by him to the Catholicos - assuming that these powers were not already possessed by the Catholicos and that they ~ame to be conferred upon him only under A-13 and A- 14-yet, reasonably speaking, the Patriarch was, and is, expected to exercise those powers thereafter in consultation with the Catholicos and the Malankara Sabha (Assocjalion) --:: and, .of course, in accordance with the 1934 Constitution. This was necessary for the reason (i) to avoid creating parallel authorities F 1eading to conflict and confusion and (ii) the acceptance by the local people was a sine qua non for any Metropolitan or melpattakar in Malankara Church as provided in the Mularithuruthy Synod (convened and presided over by the then Patriarch himself) and given a judicial sanction by the judgment of the Travancore G Royal Court of Appeal aforementioned•' Without removing the Catholicos in accordance with the canon law and the principles of natural justice, the Patriarch could not have purported to exercise unilaterally the powers delegated by him to the Catholicos under A-14. H

62 SUPREME COURT REPORTS [2017] 9 S.C.R.

A (c) It is significant to notice that the Catholicos-cum-Malankara Metropolitan, Basselios Geevarghese II, was accepted and recognised as the Catholicos by the Patriarch Yakub under his Kalpana Ex. A-19 dated 9-12-1958. Basselios Geevarghese II was elected as Catholicos by the local Metropolitans and installed as such by the local melpattakars without reference to the Patriarch B and which Catholicos was all through fighting against the Patriarch group in the Samudayam suit. It is no less significant that Patriarch Yakub, who issued the KalpanaA-19, was, before his installation as the Patriarch, the delegate of the Patriarch in India and was prosecuting the Samudayam suit for a number of years. If so, it is c reasonable to infer that when he accepted and recognised the Catholicos as such under Ex. A-19, he did so with the full knowledge that he was thereby recognising the Catholicos as revived by Abdul Messiah in J912 under A-14 and as described and affirmed in the 1934 Constitution. Moreover, the Kalpanas A-19 and A-20 were not issued in an abrupt fashion -they could not have been - but D were preceded by a good amount of discussion and negotiations between members of both the groups. Under his Kalpana Ex. A- 20 dated 16-12-1958, from the Catholicos to the Patriarch, the Catholicos accepted the Patriarch subject to the Constitution passed by the Malankara Association and as then in force. The E Metropolitans ordained by Patriarch duly accepted the authority ofCatholicos and participated in several proceedings. There was reallotment of dioceses among the Metropolitans of both the groups. The members of the erstwhile Patriarch group swore loyalty to the 1934 Constitution. (These events have been detailed hereinabove). After all these developments, and after a lapse of four months after A-20, the Patriarch raised an objection to the use ofcertain expressions employed in Ex. A-20, viz., the Catholicos claiming to be seated on the Throne of St. Thomas and also to the qualification added by the Catholicos to his acceptance to the Patriarch, viz., "subject to the constitution ... ". But even this objection which is reflected in the correspondence which passed between them during the years J959 to 1962 (referred to supra) must be deemed to have been given up and abandoned by the Patriarch by his acts and declarations in the year 1964. As stated supra, the Patriarch came to India pursuant to a canonical invitation from the Malankara Synod and consecrated and duly installed the H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYR1AN 63 ORTH. & ORS. [ARUN MISHRA, J.] new Catholicos (Mar Ougen), who was elected by the Malankara A Association in accordance with the 1934 Constitution. Before he did so, the Patriarch took care to see thatthe respective territorial jurisdictions of the Patriarchate and the Catholicate are duly defined and demarcated. The Middle East which was supposed to be hitherto under the jurisdiction of the Catholicos was excluded from his jurisdiction confining his authority to India and East alone. B

27. This Court accepted the revival of the Catholicate on a threadbare scrutiny of the recorded facts and held that it was no longer . open to the Patriarch or his followers to contend that the revival of Catholicate was not in accordance with the religious tenets' and' faith of the Syrian Jacobite Christian Church, and tl}at the power of the Patriarch C was reduced to a vanishing point due to revival of Catholicate. It was ruled that the power and authority of the Catholicos was affirmed in Kalpana A-13 and A-14 issued by the Pariarch and.was re-enforced and enlarged in the 1934 Constitution. It was however noted that the Catholic'os did at the same time not i·epudiate the spiritual supremacy of the Patriarch. It reaffirmed that he is the primate of the Orthodox Syrian Church. This Court held thus: "149. Now what do the above facts signify? Do they not show that Patriarch had, by 1964, recognised and accepted the revival of the CatholicateA-13,A-14 and the 1934 Constitution? Do they not show that the Patriarch had also given up his objections to the use of the words "seated on the throne of St. Thomas in the East" and to the "qualification" addeu by Catholicos in A-20? We think, they do. Once this is so, it is no longer open to the Patriarch or his followers to contend that the revival of Catholicate was not in accordance with the religious tenets and faith of the. Syrian ~acobite F Christian Church, that the Constitution of l 934 was not duly and validly passed or that the power and authority of the Patriarch as obtaining prior to 1912 remains and continues unaffected and undiminished. In this connection, it is relevant to remind ourselves that it was the contention of the Patriarch group in Vattipanam . G suit that the Catholicos group had, by espousing the cause ofand the revival ofCatholicate, reduced the power of the Patriarch to a vanishing point and have thereby become aliens to the faith. :.\. The power and authority of the Catholicos under A- l 3 andA- l 4 was affirmed, re-enforced and enlargedjn the 1934 Constitution H

64 SUPREME COURT REPORTS [2017] 9 S.C.R.

A (as amended in 1951) and yet under Ex. A-19 the Patriarch accepted witp pleasure Mar Basselios Geevarghese as the Catholicos. At the same time, it is equally s_ignificant to note that the 1934 Constitution does not repudiate the Patriarch. On the contrary, it reaffirms that he is the primate of the Orthodox Syrian Church of which the Malankara Church is said to be a part - B though it is tme, all the effective powers exercised by the Patriarch prior to 1912 were vested in the Catholicos under Ex. A-13 and Ex. A-14."

28. It was also held that the submission of the Patriarch group that the l 934 Constitution was not put forward by the Catholicos group c as the basis of their claim in the Samudayam suit or their objection as to validity of the Constitution was untenable as they cannot make a legitimate grievance to all these. This Court laid down thus: "150. In this view of the matter, the submissions of the Patriarch group that the 1934 Constitution was not put forward by the D Catholicos group as one of the bases of their claim in Samudayam suit or that no finding as such was recorded by this Court in the said suit regarding the validity of the Constitution are of little consequence. We are not relying upon the rule of estoppel in this behalf but are only pointing out that having conceded, recognised E and affirmed all the above things, the Patriarch group cannot make a legitimate grievance of these very things. They cannot be heard to say so. Nor have they made any effort to explain the said acts and conduct of the Patriarch and of the persons owing allegiance to him. They must be deemed to have given up and abandoned all their objections to the aforesaid events and documents." F

29. With respect to the validity of the excommunication of the Catholicos in the Vattipanam suit, it was held that it was not open to the Patriarch to seek excommunication of the Catholicos on the charges which were leveled; Kalpanas A-13 and A-14 specifically vested the Catholicos with the power to consecrate Metropolitans and other officials of the Church and to consecrate Morone; A-14 empowered the Metropolitans to elect their own Catholicos, and as such, the expression "holiness" or the assertion of being seated at the Throne of St. Thomas in the East or the claim that the Malankara Church was an autocephalus church could be treated as hearsy. This Court also disapproved the act of the Patriarch of sending a delegate over the protestations of all the

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 65 ORTH. & ORS. [ARUN MISHRA, J.]

Metropolitans ofMalankara including those belonging to Patriarch group as totally uncalled for vis-a-vis the action of the delegate in ordaining priests and the Patriarch himself ordaining the first. defendant in O.S. -No.4of1979, this Court said that all this certainly could not have been done unilaterally. It observed that it is one thing to say that the Patriarch could do these things in cooperation with the Catholicos but the ordaining of the priests and Metropolitans by him and his delegate without reference to - indeed over the protestations of the Catholicos - was certainly not the right thing to do since it purported to create a parallel administrative mechanism for the Church in spiritual and temporal matters. Therefore this Court opined that the charges were not available as grounds of excommunication and could not constitute valid grounds therefor. C Accordingly it was held that excommunication of Catholicos was not valid and legal. This Court has laid down thus: · "151. In the Vattipanam suit, the High Court found that of the two versions ofHudaya Canon put forward by the Patriarch group and Catholicos group, the version put forward by the Patriarch D group (Ex. 18 in that suit) is the correct one. The very same version was put forward by the Patriarch group as the true version in the Seminary suit. Of course, at that time, both the groups concerned herein were comprised in Patriarch group and were fighting against the renegade group oJ_Mar Athanasius. It is really pointless to go into the question whether the judgment in Vattipanam E suit operates as resjudicata. Even ifit is assumed that it does not, yet its value as a precedent - a finding arrived at by the High Court after a full enquiry - cannot be denied. According to the first judgment of the High Court, the Patriarch has the power to excommunicate the Metropolitans. It does not say an)'thing about the power of the Patriarch to excommunicate Catholicos and if so according to what procedure. We.have seen supra that while gra~ting the review of the said judgment, the High Court specified that three findings recorded by it in the judgment under review should not be reopened. The three findings inter alia included the finding relating to the authenticity of Ex. 18. According to the said version of the Hudaya Canon,_the Catholicos "shall act according · to the orders of (be subject to) the Patriarch of Antioch. He shall not defy (act against) his superiors." It repeatedly says that the -Catholicos is subject to the authority of Patriarch and that the Patriarch is the "head or superior" of the Catholicos. Though the H

66 SUPREME COURT REPORTS (20 l 7] 9 S.C.R.

A canon does not say so, we shall proceed on the assumption for the purpose of this case - without recording any finding to that effect - that the Patriarch has the power to excommunicate the Catholicos. Yet the question remains whether the grounds on which the excommunication of the Catholicos has been effected are valid and permissible grounds. A perusal of the charges B communicated to the Catholicos by the Patriarch in his letter dated 30-1-1974 makes it clear that charges related to the use of the word 'Holiness' along with his name by the Catholicos, his assertion of being "seated on the Throne of St. Thomas in the East" and his assertion of "cordial relationship" with the Patriarch instead of c admitting his subordinate - all objections which were raised by Patriarch during the years 1959 to 1961 but given up and abandoned in May 1964, as explained supra. It is also alleged that the · Cathol)cos .did not accept the delegate sent by Patriarch to Malankara and has also changed the oath administered to the members of the Church wherein he substituted himself for the . D Patriarch. The proceedings of the Malankara Association were also cited as one of the charges. Having revived the Catholicos with the powers under Exs. A-13 and 14 and having accepted (by necessary implication) the Constitution of 1934 under his Kalpana Ex. A-19 and having installed the Catholicos in 1964. E notwithstanding his objections raised in his letters written during the years 1959 to 1962, it was not open to the Patriarch to seek to excommunicate the Catholicos on those very grounds. Ex. A-13 speaks ofThrone of St. Thomas. Ex. A-13 and Ex. A-14 specifically vest the Catholicos with the power to consecrate Metropolitans and other officials of the Church and to consecrate Morone. A- F 14 empowers the Metropolitans to elect their own Catholicos. In these circumstances, it is difficult to understand how could the use of the expression 'Holiness' or the assertion of being seated at the Throne of St. Thomas in the East or the claim that the Malankara Church is an autocephalus church can be treated as G heresy when the very Constitution by which the Catholicos and his group were swearing affirmed in clear terms thatthe Patriarch is the supreme head of the Malankara Church. As a matter of fact, some of the charges in the letter dated 30-1-1974 can also be termed as vague. For example, Charge No. 9 reads thus:

K. S. VARGHESE & ORS. v. Si PETER'S' & PAUL'S SYRIA~ 67 ORTH. & ORS. [ARUN MISHRA, J.] .

"The books taught in the Sunday Schools there contain uncanonical and wrong teachings and fallacious historical facts especially with a view to inject wrong ideas into the tender. minds regarding the fundamentals and history of the Church." The letter does not set out or refer to the alleged uncanonical or wrong teachings and fallacious historical facts taught in the books in the Sunday Schools. Similarly, Charge No. 8 says that in the ordinations administered by the Catholicos, the heretical two~ nature theory propounded by Pope Leo is not repudiated. lt is not stated under what canonical law such an assertion is obligatory. So far as the non-acceptance of the delegate sent by Patriarch is concerned, it can hardly be considered to be a ground for . excommunication. After all that has happened between 1912 and 1964, the sending of a delegate over the protestations of all the Metropolitans ofMalankara including those belonging to Patriarch group was totally uncalled for. The delegate started ordaining priests here and the Patriarch himself ordained the first defendant in OS No. 4 of 1979. All this certainly could not have been done · unilaterally. It is one thing to say that the Patriarch could do these .· things in cooperation with the Catholicos but the ordaining of the priests and Metropolitans by him and his delegate without reference to - indeed over the protestations of the Catholicos - was certainly not the right thing to do since it purported to create a parallel administrative mechanism for the Church in spiritual/temporal matters. We are. therefore, of the opinion that the charges, at any rate the main charges, on which the· excommunication is based were not available as grounds of excommunication and could not constitute valid grounds therefor. · F Accordingly, it is held that the excommunication ofCatholicos is not valid and legal. Plaintiffs' claim that Malankara Church is episcopal in character. · and not a union or federation of autonomous units" ·

30. Ultimately this Court found that the Catholicate was revived G and re-established by Pariarch Abdul Messiah in the year 1912; the powers and functions of the Catholicos are set out in KalpanaEx.A-14;. the Patriarch cannot dispute the validity of revival of Catholicate or of Ex. A-14; Patriarch himself has created a centre of power in India i.e. Catii'olicate with the said powers, and it would be reasonable to hold that H

68 SUPREME COURT REPORTS [2017) 9 S.C.R.

A thereafter the Patriarch cannot exercise those powers unilaterally, i.e. without reference to the Catholicos and that he can exercise those powers only in consultation with the Catholicos. Moreover the person to be appointed as Metropolitan or Malankara Metropolitan has to be accepted by the people as held in Seminary Suit. This Court ruled that the Patriarch's B power to ordain the Metropolitans now is subject to the ConStitution of 1934, and by revival ofCatholicate and by issuing the Kalpana Ex. A-14 and also by accepting the 1934 Constitution, though the power of the Patriarch may have been reduced to a vanishing point, but all the same he remains the supreme head of the Syrian Church of which the Malankara Church is a division. The 1934 Constitution was approved at c a validly convened meeting ofMalankara Association, and the Patriarch cannot question its legality and validity in view of the acts and conduct of the Patriarch and the members of his group subsequent to the judgment of this Court in Moran Mar Basselios (supra). It was emphasized that the Pariarch had accepted the validity of the revival ofCatholicate vide Kalpana A-14 and the 1934 Constitution and abandoned and gave up all 0 or any objections they had in that behalf; several members of the group including some of the defenda!ltS also accepted the Constitution and took oath to abide by it, and therefore they cannot now turn around and question the same. This Court also found that territorial jurisdiction of Catholicate was duly defined in 1964 and was delimited by excluding certain areas in the Middle East from the jurisdiction of the Catholicos. It was held that Mala.nkara Church is Episcopal to the extent it is so declared in the 1934 Constitution. The said Constitution governs the affairs of the Parish Churches and shall prevail. It was observed that due to mutual bickering in the Patriarch and the Catholicos, it cannot be said that Catholicos or his followers have become apostates or that they have deviated from the tenets of the faith. Similarly Patriarch cannot be said to have lost his spiritual supremacy in accordance with the 1934 Constitution. The common Samudayam properties held by the Malankara Church are vested in Malankara Metropolitan as declared in the judgment of i995 of this Court in Moran Mar Basselios (supra). This Court a· summarized its conclusions thus : "155. The result of the above discussion may be summarized thus: (J) The Vattipanam judgment has held that the version of Hudaya Canon put forward by Patriarch group as Ex. 18 in the H suit is the correct version and not the version put forward by the

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 69 ORTH. & ORS. [ARUN MISHRA, J.]

Catholicos group. However, in Samudayam suit, the District Judge A , (trial court) accepted the version of Canon put forward by the Catholicos group as against the version put forward by Patriarch group. It is suggested by the learned counsel for the respondent that this finding of the District Judge must be deemed to have been restored by this Court in Moran Mar Basselios. It is really B unnecessary for us to go into this question since it has lost all significance in view, of the subsequent developments and their effect, as accepted by us. (2) The Catholicate was revived and re-established by Patriarch Abdul Messiah in the year 1912. The powers and functions of the Catholicos are set out in Ex. A-14. Moreover by · C virtue of their acts and conduct subsequent to the judgment of this Court (in Moran Mar Basselios), the defendants in the present suit (i.e., the members of the Patriarch group) cannot now dispute the validity of the revival of the Catholicate or of Ex. A-14. (3) It may be that by conferring upon the Catholicos the powers D of ordaining Metropolitans, consecrating Morone and to exercise other spiritual powers over Malankara Church, the Patriarch may not have denuded himself completely of the said powers which he enjoyed until then. But in view of the fact that he had himself created another centre of power in India· with the aforesaid- E powers, it would be reasonable to hold that thereafter the Patriarch cannot exercise those powers unilaterally, i.e., without reference to the Catholicos. He can exercise those powers only in consultation with the Catholicos. Moreover, the person to be appointed as Metropolitan or Malankara Metropolitan has to be accepted by the people as has been affirmed in the judgment in F Seminary suit. The Patriarch's power to ordain the Metropolitans now is subject to the Constitution of I934. (4) It may be that by virtue of the revival of Cathoiicate and by issuing the Kalpana Ex. A-14 ~and also by accepting the 1934 Constitution (as to be mentioned presently)-the power of G the Patriarch may have been reduced to a vanishing point, but all the same he remains the supreme head of the Syrian Church of which the Malankara Church is a division. He is spiritually superior to the Catholicos though he does not, and indeed never did, enjoy any temporal powers over the Malankara Church or its properties. H

70 SUPREME COURT REPORTS [2017] 9 S.C.R.

A (5) The 1934 Constitution was approved at a validly convened meeting ofMalankara Association, which Association was created by the Patriarch himself under the Resolutions ofMulanthuruthy Synod. The defendants in the present suits (Patriarch group) cannot question its legality and validity in view of the acts and conduct of the Patriarch and the rnembers of his group subsequent to the B judgment of this Court in Moran Mar Basseliosl. (6) Ex. A-19, Kalpana, was issued by Patriarch Yakub with the full knowledge of revival of Catholicate, Ex. A-I 4 and the 1934 Constitution and the various claims and contentions of both the parties put forward in Samudayam suit and the decision of c this Court in Moran Mar Basseliosl. It must, therefore, be held that the Patriarch has thereby accepted the validity of the revival ofCatholicate Ex. A-14 and the 1934 Constitution, and abandoned and gave up all or any objections they had in that behalf. Several members of his group including some of the defendants also D accepted the Constitution and took oath to abide by it. They cannot now turn round and question the same. (7) Though the Patriarch raised objections to the honorifics (e.g., use of 'Holiness' with the name of the Catholicos and his assertion that he was seated "on the Throne of St. Thomas in the E East") and to the qualification added by the Catholicos in his Kalpana Ex. A-20 (i.e. accepting the Patriarch subject to the Constitution), the Patriarch must be deemed to have given up and abandoned all those objections when he came to India, pursuant to a canonical invitation from the Malankara Synod and installed and consecrated the new Catholicos on 22-5-1964. lt is also worth F noticing that a day before such installation/consecration, the Patriarch took care to have the territorial jurisdiction ofCatholicate duly defined and qelimited by excluding certain areas in the Middle East from the jurisdiction of the Catholicos. (8) So far as the declaration of the Malankara Church being G Episcopal in character is concerned, all we need hold is that it is episcopal to the extent it is so declared in the 1934 Constitution. The said Constitution also governs the affairs of the Parish Churches and shall prevail. (9) The excommunication of Catholicos by the Patriarch and/ H or by the Universal Synod is invalid for the reason that the grounds/

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 71 ORTH. & ORS. [ARUN MISHRA; J.] charges on which the excommunication has been effected are not permissible. or relevant grounds. The denial of Patriarch's spiritual authority by the Catholicos and his group and similarly the Patriarch's refusal to recognise the Catholicos or the 1934 Constitution in the correspondence that passed during the years 1972 to 1975 are attributable to the personal differences and the mutual bickering between the two dignitaries and their respective groups. On that basis, it can neither be said that the Catholicos or his followers have become apostates or that they have deviated from the tenets of the faith. Similarly, Patriarch cannot be said to have lost his spiritual supremacy over the Malankara Church (on account of his accusations and declarations) which he enjoyed prior to the commencement of the said correspondence, i.e., according to the 1934 Constitution. (JO) The common properties (Samudayam properties) held by the Malankara Church are vested in Malankara Metropolitan and others as declared in the judgment of this Court in Moran Mar D Basselios."

31. This Court also issued certain directions for amendment of the Constitution and the Constitution was accordingly amended, as approved by this Court. It was also observed by this Court that election to Malankara Church shall have to be held so as to keep its character alive and effective. At the same time the majority opinion expressed in the 1995 judgment, that no declaration could be granted affecting the rights of Parish Churches in their absence nor could it be declared that the properties held by Malankara Parish Churches vests in the Catholicos or the Malankara Metropolitan or the Metropolitan of the diocese concerned, as the case may be. However this Court also observed that the 1934 Constitution shall govern and. regulate the affairs of Parish Churches too insofar as the said Constitution provides for the same.

32. This Court also observed that with respect to spiritual control, Church was episcopal and there was no difficulty in holding that Catholicos and the Malankara Metropolitan have spiritual control over the Parish Churches, but if it means conrol over temporal affairs of, or title to or control over the properties of the Parish Churches beyond what is provided for in the Constitution, a declaration to that effect can be obtained only after hearing and in the presence of Parish Churches concerned. H

72 SUPREME COURT REPORTS [2017) 9 S.C.R.

A AMENDMENT OF CONSTITUTION AS PER 1995