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

78. The Malankara Metropolitan shall be the President of the Managing Committee as provided in section 80. Section 83 deals with the expenditure from the funds of the Maiankara Diocese which is extracted · hereunder: · "83. If any expenditure from the monies funds of the Malankara Diocese is to be made the majority of the Malankara Episcopal Synod and the majority of the Managing Committee members other than the Prelates shall agree." Property acquisition is dealt with in section 85. It is extracted hereunder: - "85. If any property is to be purchased for the Community or if any property of the Community is to be alienated or any liability F · created over the same, it shall be so decided by the majority of the Managing Committee and the Malankara Episcopal Synod and the deed therefore shall b'e exectite<i by the Malankara Metropolitan and the Associate.Trustees ifthe property belongs to the Joint Trust properties and by the Malankara Metropolitan alone if.it betOngs to the Malankara Metropolitan Trust." G · 152. There shall be community trustees for theVattipanam (Trust Fund) and the Kottayam Syrian Seminary with the Malankara Metropolitan as per section 9 I. It is extracte4 hereunder: H

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

A "91. With the Malankara Metropolitan there shall be two persons, a priest and a layman who shall be the Trustees for the Vattipanam(Trust Fund) and the Kottayam Syrian Seminary and the income which have accrued or shall be accruing therefrom." Section 92 provides the Malankara Metropolitan shall be the trustee B for the rest of the community properties. It is extracted hereunder: "92. The Malankara Metropolitan shall be the Trustee for the rest of the Community properties if they are not subject to other special provisions." For Malankara archdiocese there shall be Malankara Metropolitan C who shall have jurisdiction regarding temporal, ecclesiastical and spiritual administration of the Malankara church. The provision of section 94 which is significant is reproduced above. Section 95 provides that in case there is no Diocesan Metropolitan in any Diocese; such Diocese shall be under the direction administration D of the Malankara Metropolitan. The Association shall elect Malankara Metropolitan to that office. The Catholicos may also hold the office of the Malankara Metropolitan as provided in section 98 which is extracted above.

153. Part 5 of the Constitution deals with the Catholicos. Sections E 99 and I00 afore-extracted deal with them. The Catholicos has the powers of the consecration of Prelates, presiding over the Episcopal Synod, conducting administration as representative of the Synod and consecrating the Holy Moron.

154. "Patriarch" is dealt with in Part 6 of the Constitution in section. F IOI which provides that the Malankara Church shall recognize the Patriarch, canonically consecrated with the cooperation ofthe Catholicos.

155. Episcopal Synod for Malankara Church shall be there as per · section 102 contained in Part 7. All Prelates in Malankara Orthodox Syrian Church shall be the members of the Synod. Catholicos shall be G the President as per section l 04. The Catholicos shall convene the Synod and preside over it as provided in section I05. In case there is no Catholicos, Senior Metropolitan shall convene the Synod and preside over the same. As per section I07 the Episcopal Synod shall have the authority to decide matters concerning faith, order and discipline. Same H is extracted hereunder:

K. S.,VARGI:IESE & ORS. v; ST; PETER'S & PAUL'S SY.:RIAN 183 ORTH. & ORS;-[ARUN MISHRA, J.]

"107 .. The Episcopal Synod shall have the authority to decide A IIlatters concerniqg faith, order and discipline. When the Synod shall meet for this purpose the-Synod may select such persons as the Synod may deem needed for consultation.''... No one shall have the right to alter the faith of the Church. Section I 08 is extracted hereunder: . B "108. No. one shall have the. rightto alter the faith of the Church. · , But:in case there may arise ·any dispute· as to what is faith, the . Episcopal synod above said.may decide the matter and the final decision abol1t this shall vest with the Ecumenical Synod."

156. Ordination is dealt with in Part 8 of the 1934 Constitution; c Deacons and priests should have passed the degree examination for ordination as provided in sections 110 and 111. With respect to high priests, as provided in section 112, Catholicos shall consecrate with the. cooperation of the Episcopal Synod, the required number of Bishops and Metropolitans for the Malankara Church. Sections 110, 11 l and U 2 are extracted hereunder: , .. · D "I ! 0. A candidate for ordination should have atleast passed the Degree Examination. · · I l I. Those desiring to be ordained shall on the recommendation of the Parish Assembly or on their own apply to the Diocesan Metropolitan and he after due inquiry if he feels no objection shall send them to the Malankara Metropolitan and he according to the convenience shall send them to the Theological Seminary of the community and if needed theological sti1dy the Principal of the Seminary certifies that they are fit for ordination; theDiocesim Metropolitan orthe Malankara M.etropolitan will ai their discretion ordain theni: ,But. ~ft~(thre~ yimrs of theological· ~t~di~s 'ifa certificate is is stied by the· Principal the ordination of Korooya -· (Reader)may be administered. B, High Priests (Prelates)

112. The Catholicos shall consecrate with the co-operation of the Episcopal Synod the required numberofBishops and Metropolitans G for the Malankara Church. On. the occasion of consecration of a Bishop or a Metropolitan such Bishop or Metropolitan shall submit a statement regarding faith and submission (Salmoosa)' to the Catholicos, the President of the Synod. The Catholicos shall give a certificate of consecration (Sthathicon) to the Prelilte so consecrated." H

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

A 157. If any one shall be consecrated as Catholicos, the Association shall elect him to that office. The Synod shall consecrate the person as Catholicos and there shall be invitation to Patriarch when the Catholicos is to be consecrated and ifthe Patriarch arrives, he shall consecrate the Catholicos with the cooperation of the Synod. Section 114 is extracted B hereunder : "114. If any one shall be consecrated as Catholicos he shall be elected to that office by the Association. If such election is approved by the Episcopal Synod, the Synod shall consecrate the person as Catholicos. If there be a Patriarch recognized by the Malankara Church the Patriarch shall be invited when the c Catholicos shall be consecrated and if the Patriarch arrives he shall as the President of the Synod consecrate the Catholicos with the co-operation of the Synod." If it is necessary to consecrate a Catholicos then invitation is to be sent to Patriarch. In case he attends, he shall, as the President of the D Synod, consecrate the Catholicos with the cooperation of the Synod otherwise Synod shall consecrate the Catholicos.

158. Complaints and decisions are dealt with in Part 9 with which we are not much concerned. 'Income' is dealt with in Part 10 of the Constitution. Sections 122 and 123 are relevant and they are extracted E hereunder: ' "122. Out of the annual gross income of a church including income from its properties, l 0% on the first Rs 5001-; and 5% for the remaining Rs 5001- to Rs 1500/- and 2 \12% for the amount above Rs 1500/-shall be sent every year to the Malankara Metropolitan. F If the percentage as stated above of any church is less than Rs 101-, not less than Rs l 0/-shall be sent from that Church to the Malankara Metropolitan under this item.

123. The Malankara Metropolitan shall allot the income derived as above at the rate of 4 out of ten to the Diocesan Bishop, 2to G the Diocesan Fund, 1to the Malankara Metropolitan and 3 to the Malankara Diocesan Fund."

159. Monastries are dealt with in Part 11 in sections 124 and 125. The provisions are extracted hereunder:

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 185 ORTH. & ORS. [ARUN MISHRA, J.]

"124. Monasteries or similar institutions shall be established only with the approval of the Episcopal Synod and all such institutions shall_ be subject to the authority of the Episcopal Synod.

125. If any or all members of any of the above institutions leave this Church for another, all r~hts of such in the institutions or over other assets shall thereupon lapse and the institutions and their assets shall remain for ever in the ownership of this Church."

160. Rule Committee is dealt with in Part 12 in sections 126 and

127. Section 128 provides that the Parish Assembly, the Parish Managing Committee, the Diocesan Assembly, the Diocesan Council or the Association Managing Committee shall have no authority fo pass any c resolution concerning faith, order or discipline. Section 128 is extracted hereunder: · "128. The Parish Assembly, the Parish Managing Committee, the Diocesan Assembly, the Diocesan Council the Malankara Association or the Association Managing Committee shall have o • no authority to pass any resolution concerning faith, order or discipline."

161. The Parish Assembly can pass byelaws that are not .;.. inconsistent with the:.: principles contained iti the Constitution. The Diocesan Assembly or the Diocesan Council can also suggest and submit E to the Managing Committee through the Rule Committee for consideration as provided in section 129 that is extracted hereunder: "129. Byelaws which are not inconsistent with the principles ·contained in this Constitution may be passed from time to time by the Parish Assembly, the Diocesan Assembly or the Diocesan F Council and submitted to the Managing Committee through the Rule Committee and brought in to force with the approval of the Ma~aging Committee."

162. All agreements, offices and practices which are not consistent· with tlie provisions of the Constitution are made -ineffective and have G been annulled as provided in Section 132 contained in Part 13 'Miscellaneous', and the same is reproduced hereunder: "132. All agreements, offices and practices which are not consistellt with the provisions ofthis Constitution are hereby made ineffective · and are annulled." H

-- 186 SUPREME COURT REPORTS [2017] 9 S.C.R.

A 163. Various provisions of the Constitution make it clear thatthere 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 the detailed system of management, appointment of Vicar and the Kaisthani, Parish Assembly, B as also the power to spend certa.in 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 fo~ the Diocese can be with the written consent of the Malankara Metropolitan. It is apparent from the aforesaid provisions that there is a hierarchy of control that is provided with respect to the Church properties ,. C 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 the MalankaraMetropolitan. Catholicos can also hold the office ofMalankara Metropolitan. The Episcopal Synod h~ the power to consecrate Cathlicos'. Whatever autonomy is there, is provided in the D Constit4tionJor the Churches for necessary expenditure as provided in section 22, otherwise it is Episcopal nature of the Church and once the property vests in MalankaraChurch, 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 E under the provisions of sections 126, 127 and 129. Faction of Parish cannot decide against Constitution. Byelaws must conform to Constitution. The income has to be dis~ributed as per sections 120 to 123.

164. The submission raised that by majority, decision can be taken to opt out of the 1934 Constitution by the Parish Assembly and to form a F new church under anew name, as has been done in 2002. In our opinion 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 G cannot be usurped even by majority In Church under the guise of formation ofnewChurch. In this regard Shri K.Venugopal, learned senior counsel has urged that the existing majority at a given time in any Parish Church cannot be permitted to take away the assets of the church at the expense of those who adhere to the original Trust.

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 187 ORTH. & ORS. [ARUN MISHRA, J.)

165. The majority vi.ew in the 1995 judgment refused .to give A declaration with respect.to property in the absence of Parish churches. However it was.observed that the. 1934 Constitution shall govern and regulate the affairs of the Parish. Churches insofar as the Constitution provides for the sarne. In the abserice of any further prayer rriade, suffice it to hold that the 1934 Cbnstitutiqn shall gqvem the affairs of the Parish 8 Churches in respectrif teinporal matters also insofar as it so provides and discussed by\ls.''tii~ ¥11liqk~~a Churcli is F;pisccipal t0 the extent it . is ~o declared in ifl~ 1934 Cort~fituti~n as h~id in the I995judgment. The 1934 Constitution governs· the :affairsof Parish Malankara Chi.uches and shall prevail. · · ·· c. . 166. Irrour opinion, otherwise also, property cannot be taken away by the majority or otherwise and it will remain in Trust as it has been for the time immemorial for the sake ofberieficiaries. ·It is for the benefit of beneficiaries. No o:ne can become owners by majority decision or permitted to usurp. Church itself. I~ has to remain in perpetual succession a for the purpose it has been created Malankara Church. Learned counsel D has relied upon a decision in Craigdallie v; Aikma 3 ER 56 l thus:

"With respect to the doctrine ofthe English Jaw on this subject, if property was given in trust for A,B,C, etc. forming a congregation for religiqus worship; if the instrument provided for the case of a E schism, then the court would act upon it; but if there was no such provision in the instrument, and the c~ngregation happened to divide, he did not find that the law of England would execute the trust of a religious society, at the expense of a forfeiture of their property by the. cestuique trusts, for adhering to the opi~ions and principles in which the congregation had originally united. He found no case which authorized him to say that the court would a endorse such trust, not for those who adhered to the original principles of the society, but merely with a reference to the majority; and much less, ifthose who changed their opinions, instead of being a majority, did not form one in ten of those who had G originally contributed; which was the principle here. He had met with no case that would enable him to say, that the adherents to the original opinions should, under such circumstances, for that adherence forfeit their rights."

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A 167. In Attorney General v. Pearson (1817) 3 Mer 353, Lord Eldon LC again held that "where a congregation become dissentient among themselves, the nature of the original institution must alone be looked to, as the guide for the decision of the Court- and that to refer to any other criterion - as to the sense of the exiting majority- would be to B make a new institution, which is altogether beyond the reach, and . inconsistent with the duties and character, of this court."

168. In General Assembly of the Free Church of Scotland v Overtoun ( l 904)AC 515, Earl ofHalsbury, LC, held that after discussing the judgments cited above, that "the principles f9r decision thus c propounded have been recognized and acted upon ever since, and it would :;eem that it may be laid down that no question of the majority of persons can affect the question, but the original purposes of the trust must be the guide." ·

InShergillv. Khaira (2014) 3 All ER 243 (Supreme Cot~ of the D United Kingdom), the above judgments were all cited with approval and relied upon by the Court.

169. From the aforesaid it is apparent that the Parish Assembly by majority cannot take away the property and divert it to a separate E and different church that is not a Malankara Church administered as per the 1934 Constitution, though it is open to amend the Constitution of

1934. As the basic documents of creation of church have not been placed on record, usage and custom for determining the competing claims of rival factions becomes relevant. In Pearson (supra), it was held thus:

F "But there is another view in which the case should be considered -and it is this-that, where an institution exists for the purpose of religious worship, and it cannot be discovered from the deed declaring the trust what form or species of religious worship was intended, the court can find no other means of deciding the question, than through the medium of an inquiry into what has been the G usage of the congregation in respect to it; and, if the usage turns out upon inquiry to be such as can be supported, I take it to be the duty of the Court to administer the trust in such a manner as best to establish the usage, considering it as a matter of implied contract between the members of that congregation." H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 189 ORTH. & ORS. [ARUN MISHRA, J.]

170. Hill in the book "Law-0fTrusts and Trustees" has discussed the concept of law. It is not open to members of private or public trusts to appropriate trust property for themselves. Hill had been quoted in the 1995 jud~ment thus: "However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the association for the time being. The members for the time being cannot under the association rules appropriate trust property/or themselves for there would then be no property held 011 trust as intended by the testator for those persons who some years later happened to be the members of the association for the time being." (emphasis supplied).

171. Thus, we have no hesitation to hold that the 2002 Constitution cannot hold the field to govern the appellant churches and the 1934 · tonstitutiun is binding. Finding recorded by the High Court that the Kolencherry Church was not administered by the 19 J3 Udampady and was administered in accordance with the 1934 Constitution, in our opinion, is correct at foast after the Consitution was adopted. General body meeting of 8.3 .1959 has 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 E . 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 Constitution. Thus the main plank of submissions is also barred by the principle ofres judicata.

172. Shri Shyam Divan learned senior counsel raised the submission on the basis of 1913 Udampady saying that Church was governed as per Udampady from I 9 i3 to 1959. He urged that once the Parish Assembly decided in 1959 to go by the 1934 Constitution, it could also take a decision to go by the Udampady of 1913. It was further submitted that the 1913 Udampady operates as the Constitution of individual Parish Church. 1913 Udampady is a registered document and has to prevail over unregistered Constitution. H

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

A We propose to e.xtract both Udampadies of 1890 and 1913 hereunder. The Udampady of 1890 is extracted below : "Translation of the regd. Udampady of 1890 AD of St. George Jacobite Syrian Church, Mannathoor. Face ~alue - Rs.5 B lnthe year I 890AD, onthedayof 4th Karkidakom of 1065 M.E., before Your Grace Paulose Mar lvanios, our Metropolitan of Kandanadu church and others (Kandanad Diocese) in Malankara, we Nazranis (ChFistians) and farmers who are the members of Mannathoor Church situated in Miumathoor kara, Koothattukulam c Pravarthy, Muvattupuzha Mandapathuvathukkal-

1. Chacko Kora aged 65, Kuzhalanattu, Mannathoor 2.· Ulahannan Skaria aged 32, Padinjarekkara, Mannathoor 3: Varky Mani aged 37, Peringattuparambilp:uthenpurayil , D Mannathoor, '

4. Iype lype aged 36, Kalarikkal, Mannathoor,

5. Mani Varky aged 49, Madathikudiyil, Mannathoor,

6. Cheria Pothen aged SO, Pallithazhathuputhenpurayil, Mannathoor

E 7. Mani Adai aged 47, Puthenpurayil Mannathoor

8. Itti lype lype aged 38, Vadakkemandolil, Mannathoor

9. Chummar Thomman aged 37, Neltithanathu Puthenpura, Mannathoor,

F 10. Cheria Chacko aged 51, Chemmankuzha, Mannathoor I I. Pothen Paily aged 30, Iliyammel Naduvilayikkal, Mannathoor

12. Paily Varky aged 39, Naranattu, Mannathoor I 3.Ulahannan Chacko aged 54, Kozhayikkal Karikkattu, Mannathoor G

14. Uthup Vaqrky aged 24, Kattayil, Mannathoor

15. Ulahannan Paily aged 59, Perimbara, Mannathoor and 16: Varky Chacko aged 28, Pul_inthanathu, Iliyapram kara, Koothattukulam pravarthy together submitting this udambady as below. H

. K. S. VARGHESE & ORS. v. ST..PETER'S & PAUL'S SYRIAN 191 ORTH. & ORS. [ARUN MISHRA, J.]

In Mannathoor church, we the 16 members are the parish assembly . A . and trustees as consented by Your Grace. Amongst us the persons numbered as I, 3, 5, 7 Chacko Kora, Varky Mani, Mani Varky and Mani Adai bought the land from Fr. Adai 'Pallippattu Puthenpurayil by' paying I0,000 chakrams and got the deed · registered as No.903 of 1062 M.E. Out of this amount, Rs~IOO B paid by Chacko Kora, Rs.31 by Varky Mani and Rs.44 each by Mani Varky and Mani Adai have dedicated these amounts to the church and Rs.36 and I0 chakrams received from the remaining members. Balance amount of Rs.95 and 15 chakrams to (je paid to Chacko Kora from the church and the registered documents to be kept by the trustees as decided and agreed. Hence till the C administrative period of Your Grace as the Metropolitan of Kandanad Diocese, the decisions of this udampady shall be in force and to continue as below we wholeheartedly agree and reinforce this udampady. I. Within the Jacobite Syrian Church and under the Holy See D (hrone) of Antioch, we who belong to your Grace's Diocese and ,spiritual powers spall not defect/deviate or allow to defect/~vi- ate against the Supremacy of His Holiness the Patriarch who is · seated o the Petrine Throne of Antioch and the administrative orders from Your Grace as the Metropolitan of Kandanad Dio- cese. E

2.From 19'h ofChingam 1066 M.E. to Karkidakom 31'', the trust- ees are Chacko Kora and Ulahannan Skaria numbered above as 1 and 2. They shall keep the keys of trust and will be responsible for collecting all the recievables and offerings from members as decided (as per padiyola) and spend for day to day expenditure. F They shall keep records for all receipts and expenses. The state- ments to be read out in the parish assembly at the year end. They shall make two copies of the annua·I statements and get Your Grace's markings on one copy. This copy along with the keys, net balances .as. per the statement, assets and records plus the G funds arising during the period between 1067 Chingam 1st and Chingam 15th shall be read out in the parish assembly and then handed over to the new trustees on the day of Chingam 1S'h Perunnal (feast of ascension of St. Mary). Like the above every

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

A year two members will be elected as trustees and this will con- tinue.

3. All the movable assets of the church including silver, bronze and other metals all with a pr9per list, documents, registered deeds, records etc. shall be kept with the trustees which they will safe- B guard.and they shall meet all the requirements of the church in an order..

4. The trustees if not handing over the keys, records and assets as per the list to the newly elected trustees on time, the new trustees can complain to Your Grace and if required they shall c engage in legal case and shall settle if any.

5. Resheessa (offerings) to the Holy Throne of Anitoch and Your Grace shall be handed over to Your Grace and get acknowledged. We will follow the faith and clauses stated above and others and the Canon laws and the kalpanas from time to time. Any one D named above if found not following this Udampady or found dis- .qualified, they and anybody who become members of the church parish in future but found deviated from the faith they all shall be removed from the parish assembly and the rest shall continue to follow in the true faith and according to Your Grace's kalpanas. No one shall question or disagree with all the above decisions and E Your Grace's kalpanas but shall accept them. If any one found otherwise we will abide Your Grace's decision. Chacko Kora (Sign), Ulahannan Skaria (Sign), Varky Mani QSign), Iype Iype (sign), Mani Varky (sign), Cheria Pothen (sign), Mani Adai (sign), Itti Iype Iype (sign), Chummar Thomman (sign), F Cheria Chacko (sign), Pothen Paily (sign), Paily Varky (sign), Ulahannan Chacko (sign) Uthup Varkey (sign), Ulahannan Paily (sign), Varky Chacko (sign). Witness I. Mani Devassia, Moolamattathil Peringazha Kara (sign) Witness 2. Mathai Mathai, Palakkaran, Muvattpuzha Angadi (sign) G Witness 3. Neelakandan Ayyappan, Pattarumadathil (Sign)" Similarly, Udampady of 1913 is as under: "This deed of Udampady (Agreement) is executed on this the H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 193 ORTH. & ORS. [ARUN MISHRA. J.]

l 3'h day of Adimonth of 1088 M.E. corresponding to 1913 AD by A l Fr. Ouseph aged 60 S/o Chacko Christian Thenugal house, Pancode Kara, 2) Fr. Paulose aged 30 S/o Fr. Pathrose Christian Kunnathu Vadakkakkara puthen puray ii kinginimattom kara 3) Fr. Gheevarghese aged 28 S/o Fr. Ouseph Christian, Thenungal, pancode kara 4) Fr. Gheerasese aged 28 S/o Paulose Christian 8 Murimattathil Ompalayil Elamkulam kara 5) Fr. Pathrose aged 22 S/o Paily Christian Chennakkattu padinjate Kunnathu, Peringole kara all are Parish priests of Kolenchery church and priesthood, Elamkulam karara, Aykkaranadu village, do desom, Kunnathunadu taluk and 6) chacko aged 45 S/o Varkey Thenungal Alackal Puthenpurayil Pancodekara 7) Cheriya aged 68 S/o Varkey, C Pallikkakkudi, Elamkulam kara 8) Ittiavira aged 53 S/o Varkey Chiramattathil do kara do desom 9) Mathu aged 32 S/o Ittoopp Ayinadu Chirama Halip Puthenpurayil Kinginimattom kara I 0) Pathrose aged 36 S/o Thomman, Chennakkattu Kalangamari Puthenpurayil Kadayiruppu kara l l)Mathulla aged 32 S/o Mani D Eloor, Elamkulam kara 12) Paulo aged 42 S/o Mathulla Eloor Pannikkuzhiyil do kara 13) Paily aged 42 S/o Paily Olikkuzhi Thathyaril residing at Chemthottil Puthenpurayil, Vadayampadikara 14) Varkey aged 60 S/o Puravathu, Puthukkedy Puthenpurayil, P.ariyarom kara 15) Ithappiri aged 44 S/o Paily, Thuruthumariyl Puthenpurayil called as Kallanikkal, Kingini mattom kara 16) Poulo E aged 50 S/o Aypu, Murimattathil Ompala Elamkulam kara 17) Kuruvila aged ~4 S/o Varkey Cheladu residing at Paramurickan .. Puthenpurayil, Peringole kara 18) Chacko aged 39 S/o Fr. Ouseph thenungal Pallippurathu Puthenpurayil do kara 19) Paily aged 41 S/o Varkey, Thamarachalil Elamkulam kara all are residing F Aykkaranadu Desom 20) Paily aged 37 s/o Uthuppan, vailayil Puthen purayil, Ezhakkaranadu kara, Ramamangalam Desom, Moovattupuzha taluk 2 !) Ittan aged 36 S/o Fr. Pathrose, Kunnathu Vadakkekkara Puthenpurayil, Kinginimattom kara, Aykkaranadu desom, Kunnathunadu taluk all are farmers Christian and Trustees for the future administration of the do church 1) We are members G of Jacobite trust and are under the Throne ofAntioch" and hence we shall not do anything contrary to this 2) We shall be abide by the Bulls and orders ofhis Holinoss Moran Mor lgnatious Patriarch who is called as second Abdaloho who is our supreme head AND sitting in the throne of Antioch, and, of his Grace Mar Kuriakose H

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

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN . 195 ORTH. & ORS. [ARUN MISHRA, J.]

do this trusteeship job every year .11s afore mentioned for four years and after 31" Karkkidak of 92, the first turn as afore mentioned shall repeat. Pattom, interest, rice, paddy etc. due to . the church shall be collected and accounted the same in the assets of the church the debts such asjenmi michavaroin, tax etc. shall be paid and obtain receipt for the same, the further dues to the church shall be collected and recovered either through clerks or · managers .so appointed for salary or through any person feels good among the trustees with the kalpana of metropolitan after discussing the matter in the meeting 6) sirlce the kottoor church sits in Elamkulam kara do Desom has been renovated with the funds of this church and the same has been functioning under this · C church and incoine and expenditure of the said church_also had been taken, by the church, the income from the said chilrch also shall be accounted in the accounts of this church and shall function as per the precedents. The spiritual functions shall be performed by the 5 priests together orl tum basis ends in this church and they 0 can receive their share also. ' There are 8 keys for the locker and the same is within the custody of Fr. Poulose Ktinnathu Vadakke Puthenpurayil and Fr. Ghevarghese Murimattthil Ompala among priests and Puravathu Varkey Puthukudy Puthenpurayil, Varkey Ittiavira Thainarachalil, Paily lthappiry, Thuruthumari Puthenpara Mani Mathulla. Elocr, E · Thoma Puthrose Chennakkatu Kalongamoriyil and Ittoop Mathu, . Chiramattathil Puthenpurayil among trustees. The income from Nadavaravu, hundiees etc. on 29'h Midhunam after deducting the 'expenses, the income of ~very year after deducting the expenses and silver crosses as per the list trusteeship shall be. kept in the f above safe custody, the silver crosses and other things can be used in the reasonable occasions and the same shall be put in locker after the use. If the contribution in the cqrrent year found to be insufficient to meet the expenses for special needs, the same can be taken from the locker, and separate list and accounts shall be maintained for the funds and things kept in the safe locker 8) G In case any unexpected obstruction comes to any of us for complying with' above said Udampady or declared to be disqualified or disobedient or acted against clause 2 of this deed, those persons shall do according to the Kalpana of the Metropolitan on the basis H

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

A of submissio.n made by the remaining parties. The General body have the power to remove the trustees or to substitute them, and to discuss and decide the special things arising with respect to the church. The said things shall be written in a diary and incase of any difference of opinion, the same shall be resolved by the kalpana of the metropolitan on the basis of majority decision. As agreed B above this Udampady is written and signed with our full consent. By do name of 1 to 21 witnesses 1 Varkey pally Akampillil (signature) 2. Varkey Varkey Chettikkuzhi scribe (signature) (Remaining portion are the names of 21 persons afore mentioned.)" c 173. In our opinion, none of submission of Shri Divan is legally tenable. 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 of the church in question. The 1934 Constitution after being adopted in 1959 by the Church D is bincHng. 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 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 ofUdampady cannot be claimed. The inconsistent provisions in the Udampady shall stand annulled as per section 132 of the 1934 Constitution.

174. There are inconsistencies between the 1934 Constitution and 1913 Udampady .as such the latter cannot prevail. In terms of Section 132, any Udan1pady (agreement) which is inconsistent with the provisions of 1932 constitution stands annulled and is ineffective. The following among others, are the important inconsistencies between the provisions of 1913 Udampady and the 1934 Constitution. 1934 Constitution 1913 Udampady

Section I. The Malankara (Clause 2) We are Members of G Church is a division of Orthodox Jaobitc trust and are under the Syrian Church. The Primate of Throne of Antioch and hence we the Orthodox Syrian Church is shall not do anything contrary to Patriarch of Antioch this

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 197 ORTH. & ORS. [ARUN MISHRA, J.]

Section2. The Milankara Church was fuundcd (Clause 2) We.shall abide the Bulls A by St. Thomas the Apostle md is included in and orderS of his Holiness Moran · ·Orthodox Syrian Church of the East and the Mor!gnatiOLL5 Patriarch who is called Primate of the 01thodox Syrian Church of the a~ the sccondAbdalohoo "ho is our Ea;t is Catholic-a; supreme head AND sitting in the throne of Antioch and of his Q-ace . , Mar Kt[iakoseKoorilos B Metropolitm aa;epted by the church as appointed and ordained as the Metropolitm ofKandanaduDiocess Association Committee Pre;ident and Malankara Metropolitan in . Aluva Syi10d by his Holiress. · C

Section 120. The Vicar of every Parish Church (Cl ruse 2) We shall pay Ressissa to shall collect "Rcssisa" a the rate of two annas hisHoliressPatriarchanddonatim evel)' year from every rmle member who has tothe metropolitan, we shall obey pass al the age of twenty one years, and shat I his succi:ssor in that place appointed send the sarre to Catholicos from the Thrme of Antioch. D

S. 94. The l'!ime jurisdiction regarding the The 5 priests among us shall do the temporal, ecclesiastical and spiritual spiritual duties in occonlance with administration ofthe Malankar Church is vested the respe~"tive order and can take in the Milankara Metropolitoo subject tio reasonable remuneration. provisio11~ of this cmstitution E 6.... The spiritual functions will be Section I I I. Those desiling to be ordainal shall perfunned by the five priests on the recommendation of the Parish Assembly together on tum basis in this Church or on their own apply to the Diocesan and they can receive their share also. · Metropolitan and he after due iiX]uiry if he frets no ubjection shall send them to the Malankara F Metropolitan and he accocding to the convenience shall send them to the Theological Semimry of the Comrmmity ood if needed theological study the Principle of the Seminary certifies .that they are fit for ottlination the Diocesan Metropolitan oc the Malankara G Metropolitan will at their disera ion ocdain them But after three years of theological ~tudies if a certificate is issued by the Principal the ordinatim of Korooya (Reader) rmy be administered H

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A 31. The duties of the Parish Managing TheTrusta:s shall perform their duties Committee shall include the preparation in acrordance to the Udampady of the yearly budget and the executed on 84 Chimgam 9th and presentation of it to the Parish execttted in the sub registry Office Assembly, the execution of the matters Aykkaranadu as document no. 3 Fr. authorized by the Parish Asssembly, the Gheevanghese Murimattathil Ompila B consideration and recommendation too Paly lthappiri Thuruthumati the Parish Assembly of matters Puthenpurayil Pu111vath Paily nel'essary of the parish and the Poothepurayil shall hold keys of the examination of the accounts presented tmsteeship for the turn coming from by the Kai sthani 8¢ Chingam 1·31' karkkdakom and shall take the income and keep the c 35. The duties ofKaisthani shall include same to pay the interest and dues of the recon:ling md maintaining correct assets, spent the amounts without any accounts cifthe Parish, receiving the failure, keep the properties of the income and making the expenditure of church under the lock and key if the Parish according to the direction of trusteeship, keep the day book for the the Parish Assembly and the Parish income md expenditure and complete Managing Committee; preparing the the accounts every month and year end yearly accounts of the Parish every six and submit the same in the meeting months and presenting the same to the every year before 3o"' of the Parish Managing Committee and kai\:kdakom. T\\o sets of acl'Ounts thereafter presenting the same to the shall be prepared along with the report Parrish Assembly. When the Diocesan and submit the same befure his grace Metropolitan comes to the Church on and to get the endorsement of the his Parish visit the account books of the Metropolitm in one copy, along with Parish shall be got signed by him the same shall obtain a Kalpana

36. The Vicar shall send or cause to be allowing it md submit the· accounts at propaties, documents, keys along with sent by the Secreta-y two wpies of the summarized stitement of accounts the list in the meeting md releif>ethe trusteeship and entrust the trusteeship pissed at tll: Parish Assembly to the Diocesan Metropolitan fur his approval. keys to the Vicar and trustees of the next tum. One vicar and two trusta:s

47. Election of the Diocesan Secretruy shall do this trustceshi p jon cv el)' year and the members of the Diocesan as aforementioned for four years and Council appointment ofauditor to after 31" karkkidak of92, the first turn examine the accounts of the income and as aforementioned shall repeat. expenditure of the Diocese consideration of the auditors report, adoption of the Annual Accounts and consideration and the decision of matters necessa-y for Diocesan are within the functions of the Diocesan

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 199 ORTH. & ORS. [ARUN MISHRA, J.]

51 . The duties of the Secretary include the recording and maintaining the correct accow1ts of the income and the expenditure of the Diocese. preparing he statement of a~-counts o the Diocesan Council at least tv.icc a year and thereafter presenting the said Statemc11t of Accowlls to the Diocesan Assembly and the recording and keeping the minutes of the Diocesan Assembly and Diocesan Council. •

52. The Secretary shall get printed the Statement of Accounts passed by he Diocesan Assembly and forward the copy of such accounts to every church within C Diocese and one copy to Malana-a Metropolitan

77. The duties of the Secretary include the recording and maintaining the correct accounts of the income and the expenditure from the asset of the Community and the revenue of the D Malankara Ard1 Diocese, preparing and presenting up to date Statement of Accounts at the meetings of the Association and the Managing Com1nittce.

E .175. In view ofthe above inconsistencies, as 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.

176. Shri Anam, learned counsel, was right in submitting that F educational institutions have to be run in accordance with the provisions of the Kerala Education Act. Educational institutions cannot be governed by the Udampady of 1913 as per sections 6 and 7 of the Ktirala Education Act, 1959. IN RE: EFFECT OF NON REGISTRATION OF 1934 G CONSTITUTION AND EFFECT OF REGISTERED UDAMPADY

177. The Udampadies were for administration of the Church at the relevanttime and lost their efficacy due to efflux of time and cannot hold the field in view of the system of administration provided in the H

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

A 1934 Constitution. The 1934 Constitution was not required to be registered document as the Udampadies are not documents of creation ofTrust/s, the Udampadies were not required to be registered. Udampady cannot prevail over the l 934 Constitution for various reasons discussed in the judgment.

B 178. Reliance was placed upon section 17( I)(b) of the Registration Act regarding effect of non-registration of the 1934 Constitution. In our · opinion, 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 c moreover the question ofeffect of non-registration ofthe 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, 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. Reliance was placed upon Kashinath Bhaskar Datar v. Bhaskar Vishweshwar l 952 SCR 491 in which it has been laid down that when a document restricting or expanding the interest in an immovable property requires compulsory registration, otherwise it cannot be admitted in evidence. Udampady itself is not a document of creatfon of Trust. It related to the management only. Thus, by its registration no legal superior right is acquired to prevail over the Constitution. Reliance was placed upon decision of this Court in F Chandrakant Shankarrao Machale v. Parubai Bhairu Mohite (2008) 6 sec 745 to contend that the terms of a registered document could be varied or altered only by another registered document. The court.was dealing with the mortgage deed dated 28.2.1983. When there is such a deed of mortgage, its terms could not have been varied or altered by an .unregistered document so as to change its·status from that of a mortgage G to that of a lease. The decision has no application as the Udampady pertained only to administration. No registered 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. Reliance was also placed upon S. Saktivel (Dead) by LRs. v. M H Venugopa/ Pillai & Ors, (2000) 7 SCC I04 and ITC Ltd. v. State of

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 201 • ORTH. & ORS. [ARUN MISHRA, J.]

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

A instant matter that holds the field. Since we have held that there is no transfer of property or vesting or other transaction took place for attracting provision of section 17 of the Registration Act by virtue of the 1934 Constitution, it did not require registration. The property of church continues with Malankara Church as it was. It contained a system of management and there was a fight going on since long for management 8 of properties of Malankara Church. Malankara church is Episcopal in nature as held by this Court in the 1995 judgment and there are complete safeguards in the Constitution related to property. Reliance was placed on Paras 16, 20, 24 and 30 of Vinodkumar (supra) extracted hereunder: "16. The property of a society under Section 5 of the SR Act, if c not vested in trustees, then only shall vest for the time being with the governing body of such society. The properties of FDC 8 vested in a public trust, being No. E-643/Bhanich. It was also recognised by this Court in Church of North India v. Lavajihhai Ratanjibhai wherein it was observed thus: (SCC p. 783, para 60) D "60. We are not oblivious of the fact that the resolution adopted in the meeting held on 17-2- J970 allegedly fulfilled all the requirements for such resolution as provided in the Societies Registration Act but it is now beyond any controversy that the society having not owned any property, their transfer in favour of a new society was impermissible in law. In terms of Section 5 of the Societies Registration Act, all properties would vest in the trustees and only in case in the absence of vesting of such properties in the trustees would the same be deemed to have been vested for the time being in the governing body of such property. In this case, it is clear that the properties have vested in the trustees and not in the governing body of the society."

20. Therefore, we are of the opinion that the claim of the appellants that following unification ofFDCB with CN! after the purported resolution resulted in the dissolution of FDCB making CNI its legal successor and controller of its properties, does not hold good and cannot be accepted. The High Court has rightly observed that: " ... The trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bona fide of the society or any such institution managed by such trusts H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN .203 ORTH. & ORS. [ARUN MISHRA, J.] . . for charitable and religious purpose shall continue to exist in A perpetuity and it would not cease to exist by any such process of thinking oi: deliberation or the resolution, which does not have any force of law."

24. We. are of the opinion that the appellants' reliance on the abovementioned two jud~ments is misplace~. Ii:t C'!mmr., Hindu B Religious Endowment this Court while adjud1catmg upon the validity ofSections2l ,J0(2), 31, 55, 56 and 63 to 69 of the Madras Hindu Religious and Charitable Endowments Act, 1951 against Articles 19(1 )(f), 25 and 26 of the Constitution of India and examiriirig the distinction between taX and fee; held that the sections were ultra vires and Section 76( I) of the Madras Hindu Religious C and Charitable EndowmentsAct, 1951 was void. It was also held that a levy under this section does not attract Article 27 as it was forthe maintenance ofthe religious trust despite being a tax. While deciding on the above, this Court delved into many questions regarding the scope of religion and recognised the reservations to D the freedom of religion imder Article 25(2) and that the State is empowered to legislate on the secular activities ancillary to practice of religion and that the courts are empowered to decide whether the same is an integral part of religious practice or a secular part. · lnRatilalPanachand Gandhi,:the validity of Section 44 and levy under Section 58 of the BPTA was questioned against Articles 25 E and 26. As Pl:!r this Court, Section 44 was held to be unconstitutional. However, the levy under Section 58 was termed as a fee and was allowed. While deciding on the same, this Court once again reiterated on the power of the Government to legislate on regulating the secular aspects of religious practice as allowed underclause (2) ofArticle 25. In light of the same, the High Court while disregarding the unification procedure, has rightly observed that: '

" ... it will amount to accepting that such resolutions or deliberations are above the law and the law that any such resolution passed anywhere will have more binding force then (sic)the law created by the Sovereign Authority oflndia like the Bombay Public Trusts Act as well as the provisions of the Constitution under Articles 25 and 26 of the Constitution oflndia. In fact, Article 26 which provides for the freedom of the religious faith and Article 26 which provides H

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

A for the freedom of acquiring and administering the property or the Trust in accordance with law, meaning thereby, the provisions of the Bombay Public Trusts Act, which has been created, would have no application again in the guise of such resolution. Even the Transfer of Property Act will have no bearing and properties of various trusts or the churches would get automatically transferred B or vested without any requirement oflaw being fulfilled, without ·any document, without any registration, stamp, etc. therefore, it would be rather over simplification to accept the submission that it was merely a resolution for a merger or unification of various churches for better understanding and advancement of cause of c religion and faith and the Court should not examine this aspect even though there is a strong protest which has led to repeated round oflitigations before the courts up to the Hon'bleApex Court. The underlying object or the purpose even if it assumed that it is only for better administration, still it cannot have any predominance or the constitutional provision or the law ofland." D

30. After analysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the SRAct for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the change report(s), CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution ofthe society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions oflaw, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question H . '

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 205 ORTH. & ORS. [ARUN MISHRA, J.]

of estoppel also cannot stand in the way as the High Court has A correctly pointed out that the. freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving afresh look . · and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept 8 the recommendation of joint unification but does not refer to dissolution." The decision is whqlly inapplicable and does not espouse the cause of the appellants. MAINTAINABILITY OF MANNATHUR CHURCH SUIT : C

181. we are also not impressed by the submission that the court should direct framing of a scheme under section 92 CPC ilt view of the decision of the Privy Council in Mohd. !smile Arif! v. Ahmed Moolla Dawood 43 IA 127 (PC) in which it has been held that the court has the power to give direction and lay down rules that may facilitate the work of management and the appointment of trustees in the future. The primary duty of the Court is to consider the interest of the general body of the public for whose benefit the trust is created. Reliance has been placed by Shri S. Divan, learned senior counsel on Acharya Shri Shreepati Prasadji Barot Laxmidas 33 CWN 352 (PC) that the institutional trust must be respected by the sect and the body of worshippers for whose benefit it was set up to have the protection of the court against their property being subject to abuse, speculation and waste. Reliance was · also placed on Ram Dularey v. Ram Lal AIR 1946 PC 34 in which it has been laid down thus: H

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

A "Even if there were an inconsistency in that judgment, their Lordships would be very slow to disturb the safeguards which are provided in that scheme, iftheir Lordships found it necessary to reconsider the scheme; but in their view the scheme has been definitely approved by the Chief Court and they see no reason for interfering with the judgment. It has to be remembered that in B these cases the Court has a duty, once it finds that it is a trust for public purposes to consider what is best in the interests of the public. That is made abundantly clear by thejudge met of this Board, delivered by Mr. Ameer Ali, in Mahomed Ismail Arif! and others v. Ahmed Moo/laDawood and another [43 c IA 127: 43 Cal. 1085: 4 LW 269 (P.C.).]" (Emphasis supplied)

182. In our opinion there is no necessity of framing any scheme under section 92. There are adequate provisions and safeguards provided in section 92 for managing the Malankara Church and its properties. There is no dispute with the proposition laid down in the aforesaid decisions but we find no such necessity for framing such scheme under section 92 CPC in view of detailed wholesome provisions of 1934 Constitution. I. WHETHER IN THE FACTS. INTERIM ARRANGEMENT TO CONTINUE :

183. Lastly, it was submitted by Shri K. Parasaran, learned senior counsel, 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 system of administration and would not be a legally permissible mode hence prayer is rejected.

184. Resultantly, based on the aforesaid findings in the judgment, our main conclusions, inter alia, are as follows : (i) Malankara Church is Episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 Constitution fully governs the affairs of the Parish Churches and shall prevail. (ii) The decree in the 1995 judgment is completely in tune with the judgment. There is-no conflict between the judgment and the decree. (iii) The 1995 judgment arising out of the representative suit is H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 207 ORTH. & ORS. [ARUN MISHRA. J.]

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

A (ix) 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, Catholicos and all concerned. (x) As per the historical background and the practices which B have been noted, the Patriarch is not to exercise the power to appoint Vicar, Priests, Deacons, Prelates etc. Such powers are reserved to other authorities in the Church hierarchy. The Patriarch, thus, cannot be permitted to exercise the power in violation of the 1934 Constitution to create a parallel system of administration of Churches as done in 2002 and onwards. c (xi) This Court has held in 1995 that the unilateral exercise of such power by the Patriarch was illegal. The said decision has also been violated. It was only in the alternative this Court held in the 1995 judgment that even if he has such power, he could not have exercised the same unilaterally which we have explained in this judgment. D (xii) It is open to the Parishioners to believe in the spiritual supremacy of Patriarch or apostolic succession but it cannot be used to appoint Vicars, Priests, Deacons, Prelates etc. in contravention of tqe 1934 Constitution.

E (xiii) Malankara Church is Episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution. (xiv) Appointment ofVicar is a secular matter. !here is no violation F of any of the rights encompassed under Articles 25 and 26 of the Constitution of India, if the appointment of Vicar, Priests, Deacons, Prelates (High Priests) etc. is made as per the 1934 Constitution. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned. G (xv) Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc. Even otherwise once the 1934 Constitution has been adopted, the appointment ofVicar, Priests, Deacons, Prelates (high priests) etc. is to be as per the 1934 Constitution. It is not within the domain of the spiritual right of the Patriarch to appoint Vicar, Priests etc. H

K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN 209 ORTH. & ORS. [ARUN MISHRA, J.]

The spiritual power also vests in the other functionaries of Malankara A Church. (xvi) The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the B Church and does not militate against the basic. character of the church being Episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch ofAntioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the Parishioners who believe in the spiritual sµpremacy of the Patriarch. . C 0 (xvii) The Church and the Cemetry cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can .J>e deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties. (xviii) The faith of Church is unnecessarily sought to be divided vis-a-vis the office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised. , (xix) The authority of Patriarch .had never extended to the government of temporalities of the Churches. By questioning the action of the Patriarch and his undue interference in the administration of Churches in violation of the 1995 judgment, it cannot be said that the G Catholicos faction is guilty of repudiating the spiritual supremacy of the Patriarch. The Patriarch faction is to be blamed for the, situation Which has been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all

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

A concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar etc. in violation of the l 995 judgment of this Court. (xx) The l 934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once ·B there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal inte1ference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change c management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even frame bye-laws in violation of the provisions of the 1934 Constitution. (xxi) The Udampadies of 1890 and 1913 are with respect to administration of Churches and are not documents of the creation of the D Trust and are not of utiiity at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per section 132 thereof. The Udampady also cannot hold the field in view of · the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution. E . (xxii) 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 and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, F cannot supersede the 1934 Constitution only because these are claimed to be registered. · (xxiii) In otherwise Episcopal church. whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in section 22 etc. G (xx iv) The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognized and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution. (xxv) It was not necessary, after amendment of the plaint in H Mannathur Church matter, to adopt the procedure once again of

K s. VAR9HESE & ORS. v. st. PETER'S & PAUL'S SYRiAN . 2n ORTH. & OR.S. [ARUN MISHR.A, J.]

representative suit- under Order I lute 8 CPC. It remained A . 1l' representative suit and proper procedure ~as been followed. It was rtot ·. ileee5sary to obtain-fresh leave, · ·· ~ . - . - .. -. . (xxvi) The 1934 Constitiltion is. appropriate and <adequate. f0r · management o( the Parish Churches, as such there is no necessity of · framing a scheme under section 92 of the CPC. · · · ·.· . · B ·(xxvii) The plea that in face of the prCvailingdissensionbeiWeen ·. · the two fuctions and the remote possibility of reconciliation,·the religious'. · · services may be permitted to be conducted by two Vicai's of each faith ·. • cannot t?e accepted as that would amount to patronizing parallel systems··. ·. · · of administration. · .. . .. C (xxvii i) Both the factions, for the sake of d,le sacred religion they profess and to preempt further bickering and unpleasantness pn:cipitating avoidable ~stitutional degeneration, ought to resolve th~ir differenees if any, on a coinmo~ platform if necessary by amending the Constitution further in accordance with law, but by rio means, any attempt to ca:eate o parallel systems ofadministration ofthe liame ChlU'ch~ reslllting in law and order situations leading to even closure o(the Chllrehes can be . accepted. ·

185. In view of the aforesaid discussion, we find no gro0n(Uo • • . make interference. The appeals are hereby dismissed. Parties to beat E .their own costs.

· Devika Gujral · .. Appc:;ils dismiised.