MOST REV. P.M.A. METROPOLITAN AND ORS. v. MORAN MAR MARTHOMA AND ANR.

The Judgments of the Court were delivered by

R.M. SARAI, J. When Lord Jesus Christ was asked by a youngman E who was possessed of property what was the road to heaven, the Holy Bible records it in Chapter 19 of the New Testament - the Gospel According to St. Mathew thus,

"16. And, behold, one came and said unto him, Good Master, what good thing shall I do, that I may have eternal life? F

17Copy pinpoint17. And he said unto him, Why callest thou me good? there is none good but one, that is, God: but if thou wilt enter into life, keep the commandments.

18Copy pinpoint18. He saith unto him, Which? Jesus said, Thou shalt do no murder, G Thou shalt not commit adultery, Thou shalt not steel, Thou shalt not bear false witness,

19Copy pinpoint19. Honour the father and thy mother: and, Thou shalt love thy neighbour as thyself.

20Copy pinpoint20. The young man saith unto him. All these things have I kept

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from my youth up: what lack I yet? A

21Copy pinpoint21. Jesus. said unto him, if thou wilt be perfect, go and sell that thou hast, and give to the poor, and thou shalt have treasure in heaven; and come and follow me.

22Copy pinpoint22. But when the young man heard that saying, he went away sorrowful: for he had great possessions".

Turning 'away sorrowful', is the long and short of this litigation between two rival groups of Jacobite Christian Community of Malabar which has been going on for more than hundred years apparently for religious and spiritual supremacy over the Church but really for administrative control and temporal powers over vast assets which have accumulated out of 3000 star pagodas created in Trust in 1808 for charitable purposes by one Moran Mar Marthoma VI popularly called 'Dionysius the Great'. This is the third round between the parties in this Court, the two earlier being in 1954 and

1959. While deciding the appeal in 1959 this Court had observed that the dispute had been going on for a considerable length of time which has brought in its train protracted litigation involving ruinous costs. The effect of the decision was that for sometime both the parties resolved their differences by mutual adjustmen~ but 'those who hoped - fondly, as events have proved, that the decision of the Supreme Court in Moran Mar Bas- E selios Catholicos v. Thukalan Paulo Avira & Others, (1958) KLT 721 = AIR (1959) SC 31 and the reported reconciliation following upon that decision would give the quietus to the litigation, prolific, prolonged and ruinous, arising out of the faction in the Malankara Jacobite Syrian Church between what is known as the Patriarch's Party on the one hand and what is known as the Catholicos' Party on the other, counted without the resourcefulness of those entrenched in and of those covetous of positions of power, and we dare say, of profit, and of those who, for one reason or another, have a vested interest in the continuance of the dispute.' [Raman Nayar, J. in Appeal Suit No. 269 of 1960 decided on 3rd April 1964]

I How the much negotiated peace and quiet arrived at by written adjustments worked out by issuing letters from both the groups was shaken even before expiry of 15 years since the judgment was delivered by this Court in September, 1958 and what led to filing of numerous suits eight of which were consolidated by the Additional District Judge but were heard and decided by a learned Single judge of the High Court, as they were H

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A transferred under orders of this Court, and were ultimately decided in appeal and cross objections by the Division Bench giving rise to these appeals and various legal issues including whether the suit under Section 9 of the Code of Civil Procedure was maintainable, effect of Places of Worship (Special Provisions) Act, 1991 and whether the decision in earlier B suit filed by the appellants operated as res judicata can be, better, ap- preciated if the history how the Malankara Church came to be established, what is its nature and how the two groups Patriarch of Antioch and Catholicos came to be formed leading to internecine struggle and litigation may be noticed in brief. The adversarial duel between the two rival groups has assumed so much of publicity that it has found place even in the C Encyclopedia of Religion. It may be prefaced with brief observations about the Christian religion and the Church.

Religion is founded on faith and belief. Faith emanates from con- science and belief is result of teaching and learning. Christianity is 'a D religion that traces its origins to Jesus of Nazareth, whom it affirms to be the chosen one (Christ) of God' Encyclopedia Blitannica, Volume 5, Page

693. 'It is embodied both in its principles and precepts in the Scriptures of the Old and New Testaments, which all denominations of Christians believe to be a Divine revelation, and the only rule of faith and obedience' [Faiths of the World by James Gardner, Volume 1, p 516]. It is 'a historical religion. E It locates within the events of human history both the redemption it promises, and the revelation to which it lays claim' /The Encyclopedia of Religion, Volume 3, p. 348]. 'In its origin Christianity is Eastern rather than Western. Jesus was a Palestinian Jew, and during the early, formative centuries of the church's life the Greek and Syriac East was both numeri- F cally stronger and intellectually more creative than the Latin West. Chris- tianity came to India many centuries before it reached Europe as it is believed that St. Thomas, one of the original apostles of Jesus Christ, visited India in 56 A.O. and found the first Christian settlement in the South' [Religion in India by Dr. Karan Singh]. Jn A.O. 37 Apostolic See at Antioch was established by St. Peter to whom the stewardship of Church G was entrusted by Lord Jesus Christ. It took root in Kerala within 20 years of the epoch making events in Jerusalem, the crucifixion, resurrection and ' ascension of the Lord Jesus Christ. St. Thomas, one of the 12 apostles of Jesus Christ visited [ndia in A.O. 51/52 and established 7 Churches in the Malayalam speaking parts of South India. They are known as Malankara H Jacobite (or orthodox) Syrian Church, "Malankara" means "Malayalam

P.M.A. METROPOLITAN v~M.M. MAR1HOMA (R.M. SAHA!. J.I 559

speaking" 'The two Syrian Orthodox Churches in Syria and India, along A with the Egyptian (Coptic), Ethiopian, and Armenian Churches, belong to , the group of Ancient, or Oriental Orthodox, Churches, wrongly called "monophysite". Their Christology is essentially the same as that of the Eastern Orthodox related to the patriarchate of Constantinople. They affirm the perfect humanity as well as the perfect divinity of Christ, B inseparably and unconfusedly united in the divine-human nature of the person of Christ' [Encyclopedia of Religion, Volume 14, page 227].

Jacobite Church is, 'a name which the Syrian Church assumes to itself. When the Syrian Churches are interrogated as to the reason of this name they usually allege that they are the descendants of Jacob' [Faiths of C the World by James Gardner, Volume II). 'Known to the West as Jacobites (after Jacob Baradeus, c. 500-578, the reorganiser of the West Syrians and Egyptians in the sixty century), the Syrian Orthodox Church is found mainly in Syria, Lebanon, Jordan, Turkey, India, the United States, the Federal Republic of Germany, and Sweden. In 1985 the total number of Jacobites, D including 1.8 million Indians, was abut 2 million, in two separate jurisdic- tion-one with Patriarch Ignatius Zakka as head in Damascns, Syria and the other with Catholicos Mar Thoma Mathews I as head, in Kottayarn, Kerala, India' [Encyclopedia of Religion. Volume 14 p.227]. The word 'church' refers both to the Christian religious community and to the build- ing used for Christian worship' [Encyclopedia B1itan11ica, Volume 5 page E 739]. The Christian religion is one, but, 'Christians differ greatly in their beliefs about the nature of the church' [Encyclopedia Britannica, Volume 5, page 739] which was, 'originally applied in the classical period to an official assembly of citizens .... In the Septuagint translation of the Old Testament (3rd-2nd centuries B.C.) the term ecclesia is used for the F general assembly of the Jewish people especially when gathered for a religious purpose such as hearing the Law (Deut. ix, 10, xviii, 16; etc.) In the New Testament it is used of the whole body of believing Christians throughout the world (e.g., Matt. xvi, 18), of the believers in a particular area (e.g. Acts v, 11) and also of the congregation meeting in a particular house-the "house-church")' [Encyclopedia B1itan11ica, Volume 5 page 739]. G 'The four marks or characteristics by which the church is said to be distinguished are recited in the creed - holy, catholic and apostolic'.

Coming to the history of Jacobite Syrian Church it is, both, fascinat- mg and eventful. The long period stretching from A.O. 51-52 can be H

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A conveniently divided in three one, the religious and the formative period which saw the foundation of the church and the•vicissitudes through which it passed. The second can be said to be the golden period, a period of affluence and prosperity, in which the church not only acquired assets and became financially rich but is also marked for administrative efficiency B imparted by different metropolitans who were consecrated from time to time. But wealth breeds dissension, disharmony and discontent. And that is the unfortunate story of the last period beginning form 1879. More than 100 years have rolled by since then when the storm of strife for supremacy over the Church was taken to courts but the dust has not settled down till now. The first two periods have been described by the Royal Court of C Appeal as, 'Grand Periods', the first commencing from the foundation of the church and ending with the overthrow of the Portuguese power in India sometime in 1663, and the second period commencing from that year or 1665 and extending to the period when the famous Mulunthuruthy Synod was held in 1876 which was remarkable for more than one reason, including D the one which led to struggle for spiritual supremacy and administrative control over temporal matters of the Church through the courts. The events till 1876 have been discussed in great detail in the judgment of the Royal Court of Appeal. The period thereafter commencing from the last quarter of 19th century and beginning of 20th century is remarkable for creation of Catholicate of East in this country and framing of Constitution by the E Malankara Association. All this is discussed in Moran Mar Basselios (supra).

Religious spirit was dominant in the first period. Every move was religion oriented. The keen desire to delve more and more in spiritual than F temporal matters was exhibited from time to time. Three important events took place during this long period. Although each was distance in time from the other but everyone was significant in its own way in shaping the future of the Church. The first, of course, was establishing of the Church by St. Thomas who exercised great influence and ordained two men as Arch-Deacons, one from each of the two respectable families, that is, G Sankarapuri and Pakalomattiom. In A.O. 200 the devotees had written to Demetrius the Bishop of Alexandria, requesting him to send a teacher, to instruct them in the doctrines elating to the beliefs in Christ. The second in the sequence was significant not for the Syrian Church only, but for the entire Christian community. It was an epoch making event. The first - H eccuminical council was held in 325 A.O. at Nicea. Priests and prelates

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from all parts of Christendom were invited. Representatives of all dioceses in the Christian world attended the Synod. Christians of India were repre- sented by their bishop or metropolitan known as Johannes, metropolitan of Persia and India. The council among other matters was concerned with matters relating to the revival and establi>hment of Christianity, revision of the scriptures and framing a Code of faith and rituals. But the most important decision, of far reaching consequence was that the ecclesiastical jurisdiction of the Christandom was settled under four ecclesiastical heads and four Patriarchs were appointed over four sees - Rome, Constantinople, Alexandria and Antioch. India was placed under the Patriarch of Antioch. The other decision taken was that the great metropolitan of the East was proclaimed as the Catholicos of the East. It was laid down that the C Catholics appointed at Tigris (Baghdad) shall manage the affairs of the Eastern churches subject to that Patriarch of Antioch was common and could exercise all the functions of Patriarchs. These decisions were en- forced and the Patriarch of Antiouch started taking action upon it. Till about A.O. 1599 Bishops (who were called 'episcopas' or Metropolitans) D were deputed to Malabar from time to time by the Catholicate of the East in Persia and by the Patriarchs of other Eastern Churches for discharging spiritual functions like ordination of priests in the Malankara Church. But all other functions were carried on by the Indian born ecclesiastical dig- nitary known as the 'Arch-Deacon' who was not possessed of the full spiritual grace of a Bishop. E

The next or the third important event during this period was the famous Koonan Cross Oath at Muttancherry sometime in 1664. It was final break away from the Roman Catholic influence which was being forcibly imposed on the followers of Syrian Church. Between 1599 to 1654 A.O. F due to influence of the Portuguese political power in the East Coast of India, the Malankara Church was compelled to accept Roman Catholic supremacy i.e., the supremacy of the Pope of Rome. The tough resistance from the Syrian Christians resulted in adopting repressive measures by the Portuguese. The climax was reached in 1599 in the so-called Synod of G Diamper. Books of the Syrians Christians were burnt and destroyed. All traces of Apostolic succession in their church were obliterated. The Por- · tuguese arrested Mar Ignatius the Patriarch, at Mylapore, brought him in fetters to Cochin on way to Rome and ultimately he mysteriously disap- peared believed to have been killed either by drowning or burning. This enraged the Syrians. They met at Muttancherry, took the famous oath at H

562 SUPREME COURT REPORTS [1995] SUPP. lS.C.R.

A Koonan Cross and resolved that they shall never again unite themselves with the Portuguese who had without any scruple or fear of God murdered their holy Patriarch. This was in 1664. This event marks an epoch in the history of the Syrian church. It split the followers in two Punthenkoor and Palayakoor. The former became Jacobite Syrians following the creed of B Patriarch of Antioch and the latter Roman Syrians following the Roman creed of the Pope of Rome. The Puthenkoor people after meeting at Muttancherry came to Alengad Church and, in obedience to the Staticon of Mar Ignatius consecrated Arch-Deacon Thoma with the title of Mar Thoma Metran.

C With this commenced the second period. It, too, like the first was marked by few important events, which again have played vital role in the destiny of the Syrian Church. The first was the ordination in 1654 of Mar Thoma Mitra as Marthoma I. Its significance lay as he was ordained as Metropolitan of Malankarn by the Patriarch of Antioch through his delegate. From 1665 onwards, therefore, the ordination of the Malankara Metropolitan was carried on by the delegate of Patriarch of Antioch. The second important event took place in A.O. 1808 when a trust for charitable purposes was created by the then Malankara Metropolitan Mar Thoma VI (Dionysius the Great) by investing in perpetuity 3000 Star Pagodas · (equivalent to Rs. 10,500) in the British Treasury on interest @8% per annum. During this period the Church Mission Society, a missionary society of Protestant with headquarters in London, had come to Malabar and collaborated with the Malankara Church and had jointly acquired some properties. disputes arose between this Society and the Malankara Church with regard to those properties and also to the beneficial interest p arising out of the charitable deposit of 3000 Star Pagodas which were referred to arbitration and were settled by what is known as .the 'Cochin Award of 1840', which was the third important event of this period. This Award divided the properties between the two bodies allotting among other items 3000 Star Pagodas to the Malankara Church. The properties so allotted to the Malankara Church were as per the Award to be ad- G ministered by the trustees i.e., (1) the Malankara Metropolitan, (2) a priest- trustee and (3) a lay-trustee. The effect of the Cochin Award was that the dispute between the Mission Society and the Syrian Church came to an end. But it appears bet)Veen 1808 and 1840 vast assets had been acquired with the trust created by Dionysius VI. These were controlled and ad- H ministered by the person who was the head of the Church. Therefore, even

P.M.A. METROPOLITAN"· M.M. MARTH OMA [R.M. SARAI. J.J 563

though one Cheppat Dionysius, a locally ordained Metropolitan was in office, one Mathew Athanasius went to Syria in 1840 and got himself ordained as Metropolitan by the Patriarch of Antioch. Thus the seeds of strife were sown.

If 1654 is significant for commencement of local ordination by the delegate of Patriarch of Antioch ihen 1840 marked the beginning of emergence of struggle for supremacy over the Church betwe.en localJy ordained Metropolitan and the one ordained by the Patriarch of Antioch. Disputes arose between M. Athanasius and C. Dionysius. To settle it the Patriarch of Antioch sent one Mar Yayakim Koorilos as his delegate. But Koorilose adopted a novel way of settling the dispute by excommunicating . C Mathew and appointing himself as the Malankara Metropolitan. Cheppat Dionysius withdrew in favour of Mar Koorilos, but Mathew Athanasius persisted in his claim. When these disputes came to the knowledge of the ·. Travancore Government it appointed in 1848 a Tribunal known as the '\'Q_uilon Committee' to settle the dispute. The committee held in favour of D . M. Athanasius and he took over charge as the Malankara Metropolitan. It appears the Committee preferred Patriarch ordained Metropolitan over the local ordained as spiritual spirit was flowing, still, form Antioch. Even though the Quilon Committee decided in favour of Athanasius and he took over charge of the property but the local people were not satisfied, there- fore, they appear to have persuaded one Joseph Dionysius to go to Syria E and get himself ordained as Malankara Metropolitan. In 1865 Joseph Dionysius was ordained as the popular feeling was that M. Athanasius was leaning towards protestainism. M. Athanasius however refused to lay down the office. He continued as metropolitan and towards the end of his life he ordained his nephew or brother one Thomas Athanasius who on death of p his brother assumed the office.

This bitter strife between the two forced the Patriarch to come to Malabar, as the conduct of Athanasius amounted to denial of his authority, and call a meeting of accredited representatives of alJ the Churches at G Mulunthuruthy in 1876. It is popularly known as 'Mulunthuruthy Synod'. This is the most important event not only of this period, but in the entire history of Syrian Church. Many resolutions taking important decisions were adopted. At the Synod the Syrian Christian Association popularly called the 'Malankara Association' was formed to manage the affairs of the Churches and the community. It constituted the Malankara metropolitan H

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A as the ex-officio President and three representatives from each Church. A Managing Committee of 24 was to be Standing Working Committee of the said Association. The Synod affirmed the orthodox faith. Joseph Dionysius who had earlier been ordained by the Patriarch was accepted as the Malankara Metropolitan. Whether it was re-assertion of supremacy of B Patriarch or not cannot be said as the election of Joseph Dionysius was preceded by two factors, one, that he had been persuaded by the local people, earlier, and he got himself ordained by the Patriarch and second that Thomas Athanasius was a nominee of his brother and he had not been elected by the people. But it, undoubtedly, shows that the spiritual domina- tion was still predominant. However, Thomas Athanasius challenged the ordination by Patriarch and claimed equal status. This could not have been agreed to by anyone as the spiritual faith in the Patriarch prevented the people in Malabar to acknowledge a person as Metropolitan who was not ordained either by the Patriarch or his nominee. However, Thomas Athanasius refused to hand over the property and Joseph Dionysius was left with no option except to approach the court.

Thus commenced the third period. If the first two periods were great for the growth and development of the Church then the third described as the, 'turbulent period' is unique not for any development of religion, but for providing stability to the Church by creating a Catholicate of the East E for India, Burma and Ceylon at Malaukara and adopting a Constitution for the administration of the Church. The period unfortunately witnessed division amongst followers of the Church who came to be known as the 'Patriarch' and the 'Catholico', mainly because there was disturbance in Antioch itself and two of the Patriarch claimed to exercise the (!rerogative F of being Patriarch of Antioch at the same time. Within a span of fifty years, five suits were filed, the first knows as, 'Seminary Suit', in 1879, the second as 'Arthat case' in 1899, the third in 1913 which became famous as 'Vattipanam case', the fourth in 1938 known as 'Samudayam Suit' and fifth and last in 1974 giving rise to these appeals. The first was filed by a Patriarch ordained and duly elected Metropolitan at Mulunthuruthy Synod G for recovery of property against nominated Metropolitan, whereas the second was filed for enforcement of the order passed in earlier suit as some of the parishes were denying the authority of the Metropolitan to exercise spiritual and temporal control over them. The third was an interpleader suit by Secretary of State for India due to formation of two groups laying H rival claims against the assets. All the three suits were decided in favqur

P.M.A. METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!. J.J 565

of Catholico group. Therefore, the fourth suit was filed by the Patriarch A group against Catholicos claiming that they had become heretics and had separated from the Church. This too was decided in favour of Catholicos. But the fifth and the la't suits were filed by the Catholicos for reasons which shall be explained later. In the Encyclopedia of Religion, Vol. 14, p. 226, the history from creation of Patriarch of Antioch till 1970 is traced thus, 'The church in Antioch became practically the mother church of Christendom.... The leadership of the Syrian church was decimated by the Diocletian persecution that broke out around 304. The persecution also led to the development of Syrian monasticism through the Christians who fled into the wilderness. The spirit of Syrian Christianity was shaped more by worship, martyrdom, and monasticism then by theology ... .In the twelfth century the Syrian church was at the peak of its. glory, with 20 metropolitan sees, 103 bishops, and millions of believers in Syria and Mesopotamia ... The turbulent thirteenth century, wracked by invasions of Latin Crusaders from the West as well as of Mamluk Turks and Mongols from the East, produced such great leaders as Gregory Bar Hebraeus (1226-1286), a D Jewish convert to Syrian Christianity, a chronicler and philosopher, and primate of the East... ..The nineteenth and twentieth centuries have been turbulent times for the Syrian Orthodox in the Middle East.... The Syrian church in India numbers 1.8 million and is divided into two jurisdictions. The smaller of the two jurisdictional groups (with five hundred thousand members and a dozen bishops) decided in the 1970s to revolt against the E Indian catholicos and his synod, forming a wing of the church directly administered by the Syrian Patriarch in Damascus and with its own maphrian see. The larger group, numbering about 1.3 million is an autocephalous church in India under Moran Mar Basselius Mar Thoma Mathews I, Catholicos of the East. This group has a flourishing theological F seminary and a number of ashrams and mona&teries, as well as hospitals, orphanages, schools, and other institutions. Its members have established a diocese in North America with about thirty congregations and a bishop residing in Buffalo, New York' [The Encyclopedia of Religion, Volume 14 p.228]. G The 'Seminary Suit' was filed in 1879 by Joseph Dionysius against Mar Thomas Athanasius for recove~y of the property over which he had obtained possession in lieu of the Quilon Committee report. It was con- tested by Thomas Athanasius who denied the supremacy of the Patriarch. He claimed that Patriarch could not claim as a matter of right to have any H

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A control over the Jacobite Syrian Church in Malabar either in temporal or spiritual matters although as a high dignitary in the churches in the country where their saviour was born and crucified the Malabar Syrian Christian community did venerate the Patriarch. The final judgment in the suit was given on 20th .July 1889 by the Royal Court of Final Appeal (Travancore). B The decision went in favour of Joseph Dionysius who was held entitled to recover the properties of Malankara Church as he was the Malankara Metropolitan accepted by the community. The judgment explained the extent of the spiritual supremacy of the Patriarch over the Malankara Church. It was held that Patriarch right consisted in ordaining either directly or by duly authorised delegates metropolitans from time to tome, C to manage the spiritual matters of the local church, sending Morone (holy oil) to be used in the churches for baptismal and other purposes and in general supervision over the spiritual govermnent of the Malankara Church. But he was held to have uo authority over temporal matters. It was held: D ''the Patriarch's suprema.:y over the Church in Malabar has ex- tended only to spiritual matters. The Patriarch or his Delegates when they sojourned in this country, attended only to spiritual affairs of the Church leaving the management of the temporal affairs to the local Metropolitan and the trustees. The former never E interfered with temporal affairs; and where in two or three instan- ces they (the Delegates) tried to have some control over, or interference with, the temporal affairs, the Metropolitan and the community resisted them successfully.

F On a review of the whole History and evidence, we arrive at the conclusion that the Patriarch of Antioch has been recognized by the Sy1ian Christian community all through as the Ecclesiastical Head of their Church in Malabar; that consecration by him or by his Delegates duly authorised in that behalf was and has been felt absolutely necessary to entitle a man to become a Metropolitan of the Church in this country in matters spiritual, that the man so consecrated should be a native Syrian Christian of Malabar accept- able to the community; that the Patriarch's power in spiritual affairs of the Church has been supreme; and that the Patriarch or his foreign Delegates have had no inteiference with the internal administration of the temporalities of the Church in Travancore which, in this respect

P.M.A. METROPOLITANv. M.M. MARTHOMA (R.M. SAHA!, J.] 567

has been an independent Church." A

[Emphasis supplied]

The conclusion and finding of the court that the Patriarch had no temporal and administrative control over the churches was not accepted either by the Patriarch or the Parishes. Some of the Parishes; therefore, denied the authority of Dionysius which led to filing of suit in 1899 by the Metropolitan against Parishes which, as stated, became famous as 'Arthat Case. The suit was decreed in 1905 and the judgment of Ra_jah (Cochin) Court of Appeal reiterated that the Patriarch of Antioch was the spiritual head of Malankara See which included the church for which suit had been filed and the churches and the properties were bound by a Trust in favour of those who worship God according to faith, doctrine, disciple of Jacobite Syrian Church in the communion of His Holiness the Patriarch of Antioch. The Court held that the churches and properties were, therefore, subject to spiritual, temporal and ecclesiastical jurisdiction of the 'Dionysius the D Malankara Metropolitan'.

The effect of the two judgments of the Royal Court of Final Appeal and Rajah of Cochin on one hand was to recognise Dionysius as the validly elected Malankara Metropolitan, which of course was in keeping with v•hat the Patriarch had decided when the meeting was held at Mulunthuruthy E and with this there was no grievance, and on the other that Patriarch had no temporal power over the Church which was not acceptable to him. He, therefore, decided to come aown to Malabar to influence the course of events and get an assurance from different churches accepting hi' supe- riority in temporal matters as well. However, in 1905 dispute started F between two persons one, Abdul Messiah and other Abdulla-II over the right to be Patriarch. Both of them were appointed by Firman of the Sultan of Turkey. But the one issued in favour of Abdul Messiah had been withdrawn. In 1909 Joseph Dionysius died. In his place one M.G. Dionysius was elected who had got himself ordained by the Patriarch Abdulla-II in G

1907. When Abdulla-II came to Malabar with the object of claiming his temporal authority over the Malankara Jacobite Syrian Church and he convened a meeting at the old Seminary of Kottayam and demanded acknowledgment of his temporal authority the majority declined to dci so. He, therefore, approached the Parish Churches individually and succeeded in getting submission deeds (Udampadis) from some including one Mar H

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A Paulose Athanasius. In token of it, he ordained him as a Metropolitan. This led to dispute between M.G. Dionysius and M.P. Athanasius the one ordained earlier at Syria and the other ordained in Malabar over the administrative and temporal control of the churches. In 1911 Abdulla-II the Patriarch ordained one Mar Coorilos as the Malankara Metropolitan B so as to make him automatically the ex- officio President of the Malankara Association and one of the trustees of the trust property. The two of the other trustees also acknowledged the new nominee as the Malankara Metropolitan but Mar Gheevarghese Dionysius did not give us and in retaliation convened a meeting of the Malankara Association which declared his ex-communication invalid and removed from trusteeship the two trustees who had gone over to the side of the Patriarch. The Commit- tee further decided to suspend payment of Ressissa to the Patriarch so long it was not ascertained as to who was the Patriarch, Abdul Messiah or Abdulla-II. Abdulla-II left Malabar in October 1911 and in 1912 issued a Kalpana branding Abdul Messiah and M.G. Dionysius as "wolves" from whom the faithful should entirely keep aloof.

Little did anyone, then visualise that the very next year which was to synchronise with visit of Abdul Messiah, yet another Patriarch wjio had been disentitled by the Sultan of Turkey, would so significantly change the history of Malankara Church. Whether he was justified and more than that entitled to declare the ex- communication of Dionysius invalid and whether he could on his own issue a Kalpana creating a Catholicate of East is now a matter of history as its validity is beyond challenge since both the actions have been upheld judicially and have achieved finality in Moran Mar Basselios (supra). Abdul Messiah issued a Kalpana beseeching everyone, that it was their duty, 'to respect Mar Gheevarghese, and love him properly and suitably because he was their head, shepherd and spiritual father'. It was stated that 'who respects him (respects us), he who receives him, receives us. Those who do not accept his right words and those who stand against his opinions which are in accordance with the cannon of the Church, defy him and quarrel with him will become guilty. Keep aloof from quarrel and breach of law. Grace and blessing from the Lord will come and abide on them who obey'. Another Kalpana was issued bestowing his blessings second time and expressing deep grief at the dissension shown by Effendi. It further said 'we, by the grace of God, in response to your request, ordained a Maphrian, that is, Catholicos by name; Poulose Bas- H selios and three new Metropolitans the first being Gheevarghese

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Gregorius, the second, Joachim Evanios and the third, Gheevarghese A Philexinos ....... We commend you into the hands of Jesus Christ, our Lord, the Great Shepherd of the flock. May He keep you! We rest confident that the Catholicos and Metropolitans - your shepherds - will fulfill all your wants. T7ie Catlwlicos, aided by the Metropolitans, will ordain melpattakkars, in accordance with the Canons of Our Holy Fathers and consecrate Holy B Marone. In your Metropolitans is vested the sanction and authority to install a catholicos, when a catholicos dies. No one can resist you in exercise of this 1ight and, do all things properly, and in confom1ity with precedents with the advice of the committee, presided over by Dionysius, Metropolitan of Malankara'. · c (emphasis supplied)

The declaration of Abdul Messiah that ex-communication of Dionysius was invalid led to serious dispute between rival groups claiming their authority over the temporal affairs of the Church. Two rival groups D were formed one led by Mar Gheevarghese Dionysius and the other by Mar Coorilos. Consequently, the Secretary of State for India filed the interpleader suit in 1913, in the District Court of Trivandrum, impleading both the sets of rival claimants as defendants and seeking a declaration from the court as to which of the two rival sets of trustees were entitled to draw the interest on the amount standing in the credit of the Malankara E Jacobite Syrian Christian commnnity in the British treasury. The suit was decided in favour of M.G. Dionysins. The decree was reversed by a Full Bench of the Travancore High Court in 1923. The judgment was reviewed at the instance of M.G. Dionysius and the net result was that M.G. Dionysius and his two co-trustees became finally entitled to withdraw the F money deposited in the Court as. the lawful trustees of the Church proper- ties.

On 16th August 1928 the Managing Committee of the Malankara Association was authorised to draw up a constitution of the Church. There G was sharp reaction to it. The delegate of Patriarch issued an order to the Catholic Metropolitan to execute Udampad within tow days. When nothing came out of it, 18 persons belonging to Patriarch group filed suit against Mar Philexinos, a person who later joined the Patriarch after 1958 and was largely responsible for the disturbance of peace in 1965. The suit was dismissed in default and the order remained unchanged as the revision in H

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A the High Court was dismissed for non-prosecution. The Catholico in the meantime went ahead and in a meeting held on 26th December, .1934 at Kottayam adopted the draft Constitution unanimously and elected the Malankara Metropolitan. The Constitution while recognising that Malankara Church was a division or orthodox church and primacy of B Patriarch of Antioch provided that the primacy of the East was in Catholicos. Detailed provisions dealing with powers of Metropolitan, bishop, Parishes, Etc. were made.

Probably as a counter to 1934 meeting of Catholico the Patriarch group held meeting in August, 1935, elected one M. Paulose Althanasius C as Malankara Metropolitan and armed with this they filed Suit No. 111 of 1139, that is lOth March, 1938 in the District Court of Kottayam claiming that the Catholico had become heretics and separated from the Orthodox Syrian Church. The suit was dismissed in January, 1943. In 1946, appeal was allowed and the suit was decreed. The defendants again applied for review which was dismissed against which they preferred appeal under D Article 136 of the Constitution and in Moran Mar Basse/ios Catlwlicos & Anr. v. Most Rev. Mar Poulose Athana.<ius & On., AIR (1954) SC 526 the appeal was allowed. The judgment of the High Court was set aside and the High Court was directed to admit the review petition and re-hear the same. In December 1956 the judges heard the appeal, delivered the unanimous judgment allowing the appeal and decreeing the suit. Against the decree the Catholico group preferred an appeal which was decided in 1959 by this Court. Some of the Catholicos also filed a writ petition under Article 32 of the Constitution which was also decided along with the appeal. The Court after elaborate discussion and noticing the earlier course of litigation held that the claim of the other group that the Catholicos had become heretics or aliens or had gone out of the Church by establishing a new church because of the specific acts and conduct was not correct.

The Constitution framed in 1934 and the Kalpanas issued by Abdul Messiah were considered by this Court in 1959. The claim of the Patriarch, G that the supremacy of the Patriarch had been taken away by the mere adoption of the new Constitution was not permitted to be raised as it was not raised in the pleadings. The Court further did not permit them to raise the question about the privilege of the Patriarch, alone, to ordain metropolitans and to consecrate Morone. It was also held that Ressissa H which was a voluntary and not a compulsory contribution made by the

P.M.A. METROPOLITAN"· M.M. MARTI!OMA [R.M. SAHAL.l.J 571

parishes collected by the committee of the Malankara Association and sent A to Patriarch was not forbidden and its non-payment did not amount to heresy on the party of the Catholicos. The declaration sought by the Patriarch that they were trustees of the properly and the Catholicos were neither trustees nor in possession of the trust property, based on their election at a meeting held on August 22, 1935 was not accepted. The Court B held that the meeting was, admittedly, held without any notice to the members of the Catholico party as they were erroneously regarded as having gone out of the Church. The Court did not find any merit in the Kalpana which was Ex.Z in the suit commanding the faithful not to have anything to do with the heretics. The Court held that the Catholicos and their partisans had not become, 'ipso facto' heretics in the eye of the Civil C Court or aliens and had not gone out of the Church. The Court held that the election of the plaintiffs was not valid and their suit, in so far as it was in the nature of a suit for ejectment was liable to fail for want of their title as trustees. 17ie Court further held that since the intelpleader suit was conve1ted into ·a represemative suit on behalf of Jacobite Syrian Christian D population of Malaba1; therefore, the decision in that suit was binding on all ,., ' members of the Ma/ankara Syrian Christian Community. Thereafter, it proceeded to examine as to what were the material issues which were decided in that case and which operated as res judicata. The four issues which were framed in that suit and which were considered by the Court for purposes of deciding the question on res judicata read as under : E 11

14. Do all or any of the following acts of the 1st defendant (catholico) and his partisans amount to open defiance of the authority of the Patriarch? Are they against the tenants of the Jacobite Syrian Church and do they amount to heresy and render them ipso facto heretics and aliens to the faith? F

(i) Claim that the 1st defendant is a Catholicos?

(ii) Claim that he is the Malankara Metropolitan? G (iii) Claim that the 1st defendant has authority to consecrate Marone and the fact that he is so consecrating?

(iv) Collection of Ressissa by the 1st defendant?

15. (a) Have the 1st defendant and his partisans voluntarily given H

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A up their allegiance to and seceded from the Ancient Jacobite Syrian Church?

(b) Have they established a new Church styled the Malankara Orthodox Syrian Church?

B (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 allocating Dioceses to the Metropolitans and, to collect Ressissa? c (d) Do these functions and rights appertain solely to the Patriarch and does the assertion and claim of the 1st defen- dant to exercise these rights amount to a rejection of the Patriarch?

D (e) Have they instituted the Catholicate for the first time in Malankara? Do the above acts, if proved, amount to heresy?

16. (a) Have the defendants ceased to be members of the Ancient Jacobite Syrian Church'/

E (b) Have they forfeited their right to be trustees or to hold any other office in the Church?

(c) Have they forfeited their right to be beneficiaries in respect of the trust properties belonging to the Malankara Jacobite Syrian community? F

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 1085?

The Court held that the same objection was raised by the Patriarch in the suit filed in paragraphs 19 to 26 and, therefore, the finding recorded on the aforesaid issues having been raised and decided in the interpleader suit and having been decided by the Travancore High Court on review in favour

P.M.A METROPOLITAN v. M.M. MARTH OMA [RM. SAHA!, J.J 573

of M.G. Dionysius and his co-trustees (Catholico group) it operated as res A

- judicata. It was on this reasoning that the Court held:

"that the contentions put forward in paragraphs 19 to 26 of the plaint in the present suit on which issues Nos. 14, 15, 16 and 19 have been raised were directly and substantially in issue in the interpleader suit (O.S. 94 of 1088) and had been decided by the Travancore High Court on review in favour of Mar Geevarghese Dionysius and his two co-trustees (defendants 1 to 3) and against defendants 4 to 6. In short the question whether Mar Geevarghese Dionysius and his two co-trustees (defendants 1 to 3) had become heretics or aliens or had gone out of the Church and, therefore, were not qualified for acting trustees wa' in issue in the inter- pleader suit (O.S.No. 94 of 1088) and it was absolutely necessary .· to decide such issue. That judgment decided that neither (a) the repudiation of Abdulla-II, nor (b) acceptance of Abdul Messiah who had ceased to be a Patriarch, nor (c) acceptance of the D Catholicate with 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 conten- tions cannot be re-agitated in the present suit". E Thereafter the Court after discussing the matter in great details held as under:

"the case with which the plaintiffs have come to court in the present suit is that the defendants had become heretics or aliens or had gone out of the Church by establishing a new church because of the specific acts and conduct imputed to the defendants in the present suit and that the charges founded on those specific acts and conduct are concluded by the final judgment (Ex. 256) of the High Court of Travancore in the interpleader suit (0.S.No. 94 of 1088) which operates as 'res judicata'. The charge founded on the fact of non-payment of Ressissa, if it is not concluded as construc- tive 'res judicata' by the previous judgment must, on merits, and for reasons· already stated, be found against the plaintiff-respon- dent. We are definitely of the opinion that the charges now sought to be relied upon as a fresh cause of action are not covered by the H

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A pleadings or the issues on which the parties went to trial, that some of them are pure after-thoughts and should not now be permitted to be raised and that at any rate most of them could and should have been put forward in the earlier suit (O.S.No. 94 of 1088) and that not having been done the same are barred by 'res judicata' or - principles analogous thereto. We accordingly hold, in agreement B with the llial court, that it is no longer open to the plaintiff-respondmt 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 t1ustee." c [Emphasis supplied]

The Court also examined whether the election of the Catholico group in the meeting held on December 26, 1934 was in accordance with rules or .. not and it answered the question in their favour. The Court, therefore, set aside the judgment of the Kerala High Court and dismissed the suit filed by the Patriarch group.

The one good effect of judgment delivered by this Court in 1959 after nearly 50 years of litigation was that good sense appears to have dawned on both the groups and on 9th December 1958 Patriach Yakub-III issued a letter marked as Ex.A-19 the relevant portions of which are extracted below:

"It is not secret that the disputes and dissensions that arose in the Malankara church prevailing for a period of 50 years have in several ways weakened and deteriorated it. Although right from the beginning several persons who love the church and devout of God desired peace and unity putting an end to the dissention, they departed in sorrow without seeing the fulfillment of their desire. We also were longing for peace in the Malankara church and the unity of the organs of the one body of the church. We have expressed this desire of our very clearly in the apostolic proclama- tion we issued to you soon after our ascension on the Throne. This desire of ours gained strength with all vigour day by day without in any way slakened and the lord God has been pleased to end the dissention through us. Glory be to Him. To b1ing f01th peace in the H Ma/ankara church we hereby accept with pleasure Mar Baselious

P.M.A. METROPOLITAN v. M.M: MARTH OMA [R.M. SAHA!, J.] 575

Gheevarghese as Catholicose. Therefore we send our hearty greet- A ings intensified by the fervour of peace in this month of rejoycing. We also beseech, let the lord shower on you His abundant bless- ings. Let the lord make you a people beautified by virtuous acts towards the right and delight you with the comfort and plenteous- ness flowing from the care pleased to his Holy will to the envy of B others. Let it be with the grace and mercy of Him, His father and His Holy spirit.

Our father which art in the heaven etc. etc. On the 9th Decem- ber 1958, the 2nd year of our assension as patriarch.

From the Aramana at Holms." c [Emphasis supplied]

The other letter was issued on 16th December 1958 marked as Ex.A-20 by the Catholico group to the following effect : D "Glory to God united in the Trinity, the self existing, perfect in essence and without beginning or end. From the meek Baselious Catholicose named as Gheevarghese II seated OD· the Throne of The East of Abostle St. Thomas. E Seal

Let divine grace and Apostolic Benediction be always in abun- dance with all the Melpattakkars (High Priests). Priests, Deacons and all the faithful under our jurisdiction. F We have always been in grief on account of the failure of the efforts made by late Mar Gheevarghese Dionisius and us to bring forth peace in our church and end quarrels and discord which were existing in our church for long. We are how very much delighted and do glorify God in that there is an end to the discord showing G the willingness to unite.

We, for the sake of peace in the church, are pleased to accept Moran Mar Ignatius Yakub III as patriarch of Antioch subject to the constitution passed by the Malankara Syrian Christian Associa- tion and now in force. H

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